‘Extremely drunk’ defence now back on the radar

There is no law in Canada against getting hammered.

But it’s certainly a criminal offence to, say, drive a vehicle while impaired by either alcohol or drugs, with penalties depending on harm caused.

The individual is responsible for what he or she puts in his or her body and the judgment — or lack of judgment — in getting behind the wheel.

Boozed up or drugged up or boozed-and-drugged-up via self-induced extreme intoxication — to the point of “voluntary automatism” — and committing sexual assault, well, that’s a potentially exculpating factor. Didn’t know what I was doing. So a woman’s body, violated and damaged, is of lesser value than a crunched car, or the maimed or killed victims inside another vehicle that has been struck.

Doubtless bigger brains than mine — sharp legal minds — will counter that I’ve got it all wrong in the judicial details, the charter rights rigmarole.

Sharp legal minds will poke you in the common sense.

Bottom line: individuals accused of sexual assault in Ontario are once again allowed to use excessive intoxication as a defence against criminal charges.

The legal proscription against it has, poof, been wiped from the books in this province.

A judge made that ruling a few weeks ago, kicking out the underpinnings of a federal law specifically crafted against the too-drunk defence, declaring it unconstitutional, a violation of the rights of the accused.

You have the right to get so plastered that the plastering part can be invoked as a legal buttress against conviction on sexual assault.

Ontario Superior Court Justice Nancy Spies, in a 30-page decision released Aug. 2, essentially undoes a 23-year-old piece of parliamentary legislation intended to bar the “selfinduced intoxication” defence in cases that involved “an element of an assault.”

That was the then-Liberal government’s attempt at limiting a ruling by the Supreme Court of Canada from a year previously. In R. v. Daviault, the Supremes looked at the case of a 72-year-old chronic alcoholic who’d sexually assaulted a 65-year-old woman, dragging her from a wheelchair to her bed.

Under precedent stretching back to 16th century law in England, courts had commonly taken the view that drunkenness was not available as a defence negating mens rea —a guilty mind.

The 1994 Supreme Court ruling changed that, upholding Daviault’s original trial acquittal; that he was too drunk to form the general intent to commit the crime, “while in a state of self-induced intoxication that renders the person unaware of, or incapable of consciously controlling their behaviour, voluntarily or involuntarily interferes or threatens to interfere with the bodily integrity of another person.”

The court ruled that Daviault was so hammered that he didn’t know what he was doing when he dragged that disabled woman into bed. Depriving him of the drunkenness defence would violate his charter rights.

The Supremes said sexual assault is not morally equivalent to being extremely drunk and “voluntary intoxication is not yet a crime.” Noting, however, that successful use of this defence would be rare, citing studies from Australia and New Zealand.

Justice Peter Cory, writing for the majority: “In summary, I am of the view that to deny that even a very minimal mental element is required for sexual assaults offends the Charter in a manner that is so drastic and so contrary to the principles of fundamental justice that it cannot be justified under (Section) 1 of the Charter.”

(Section 1 is also known as the reasonable limitations clause, allowing the government to legally limit an individual’s charter rights.)

As later summarized in a Law Review paper, “Daviault held that extreme intoxication akin to automatism or insanity must be recognized as a defence — the Charter compels it!”

Advocacy groups were strongly opposed, arguing that blunting the drunk defence was vital to protect women and children from violence inflicted under inebriation.

There was such a backlash to the Supreme Court’s ruling that justice minister Allan Rock introduced legislation — section 33.1 of the Criminal Code — limiting the drunken defence scope, in cases involving “an element of assault,” despite warnings from the defence bar that the new law would trigger charter challenges. As indeed it has, in at least nine cases (with varying results) that were scrutinized for reference by Justice Spies. Crucially, none of those cases have been taken to the Court of Appeal level, which might provide more clarity. So, about this specific case: Spies’ ruling came in support of Cameron McCaw, a Toronto man due to stand trial for sexual assault next month.

As Spies outlines the matter in her decision, McCaw wants to argue that he had so much alcohol on the night of the alleged incident, July 11, 2015, that he was unaware of his actions.

McCaw was at that time at an apartment with friends, including a former boyfriend of the alleged victim. The ex, the complainant — her name protected by a publication ban, so we’ll refer to her as A.B. — and another man attended a pool party from about 5 p.m. to 11 p.m., at which much alcohol was consumed. Returning to the apartment, meeting up with McCaw, more alcohol was drunk. They went outside to smoke. At that point, A.B. said she was feeling extremely intoxicated — had to be carried back inside and was “deposited” on the couch in the living room, Spies writes. She passed out, fully clothed.

Meanwhile, the three men went to a nearby bar and had more drinks. The third man went home. McCaw and the ex-boyfriend returned to the apartment.

McCaw will apparently also allege that, on that night, he smoked marijuana and took GBD, the date rape drug.

“The essence of (A.B.’s) evidence of what followed is that after she passed out on the couch … she awoke to find Mr. McCaw touching her sexually and kissing her and then engaging in sexual intercourse with her,” Spies writes. “Ms. (A.B) testified that she initially though that this person was her boyfriend and so she did not resist. She realized that this person was not her boyfriend when he said ‘I’m going to c--inside you. Ms. (A.B.) then saw that it was Mr. McCaw who was on top of her.”

After McCaw moved off her, A.B. ran to her ex-boyfriend and they both soon after left the apartment. Last they saw of McCaw he was sitting in an armchair, appeared to be sleeping, and was holding a pair of scissors.

A.B. reported the alleged sexual assault to police around 5 a.m. and McCaw was arrested shortly afterward, charged with sexual assault.

McCaw’s lawyer, Eric Neubauer, filed an application seeking affirmation that Section 33.1 was not in effect in Ontario on the grounds that it violated the Charter of Rights and Freedoms.

According to an affidavit McCaw filed with the court, he plans to testify he had sexual intercourse with A.B. but that he performed the sexual acts without having intended to do so, “so as to cast doubt on the voluntariness of his actions,” Spies writes.

In her decision finding the federal law’s prevention of the excessive intoxication argument as unconstitutional, Spies characterizes that law as relieving the prosecution of having to show than an accused voluntarily committed a sexual assault. That violates a defendant’s right to be presumed innocent and the right to fundamental justice. In fact, that law has been found invalid before, twice.

Spies further downplayed the argument that the law was essential to protect women and children from violence.

“Section 33.1’s objective … is not sufficiently pressing and substantial to justify the great damage it does to fair trial interests,” she writes.

It is “of no force and effect in Ontario”.

McCaw’s judge-alone trial is scheduled for Sept. 12.

Rosie DiManno is a columnist based in Toronto covering sports and current affairs. Follow her on Twitter: @rdimanno