Legislators must set things right

If victims of violence and sexual crimes think they aren’t treated fairly by the Canadian judicial system now, they ought to sit up and pay attention because things just got worse.

A recent ruling by the Supreme Court of Canada is chilling for victims.

In a unanimous decision delivered last week, the top court upheld the “extreme intoxication” defence and found a section of the Criminal Code — which banned this defence — to be unconstitutional.

What this means is that if someone voluntarily consumes enough drugs and alcohol to render themselves incapable of knowing what they are doing, they can be found not criminally responsible for their violent crimes. That person can be acquitted on charges such as aggravated assault, sexual assault, criminal harassment, and even homicide if they were intoxicated to the point of delirium during the commission of the crime.

That a person can make a sober choice to indulge in drug-taking and then be found not criminally responsible for their actions — that causes me to grit my teeth on behalf of the victims of violent crime.

This case opens up a chasm in law that must be addressed immediately with new legislation that will protect women and children who are most often the victims of these crimes.

It pits the rights of the accused against the rights of victims. As things stand right now, the rights of violent perpetrators appear to supersede those of victims. That imbalance needs to be rectified.

Federal Justice Minister David Lametti is under pressure to introduce a new law that will address this.

There were three cases in question in this decision. One involved a man who consumed alcohol and magic mushrooms and then broke into the home of a female victim and violently assaulted her with a broom handle, leaving permanent injuries.

He was declared by courts to be “in a psychotic state and had no willed control over his actions.”

Two other cases involved men who were high on drugs when they killed and injured family members. The extreme intoxication was used to acquit one man and order a new trial for the other one.

There was public outrage when the extreme intoxication defence was used in 1994 to acquit a man who sexually assaulted a 65-year-old woman after he consumed a large amount of alcohol. Parliament responded by passing a law to prevent this from happening. This provision — section 33.1 of the Criminal Code — has now been declared unconstitutional.

According to Justice Nicholas Kasirer, who wrote the decision, a person who becomes extremely intoxicated is not capable of forming the intent to harm at the time of the crime.

This is making my teeth hurt, but let us try to follow the logic of the law here.

The court’s decision was unanimous. All nine judges on the Supreme Court agreed that it is not constitutional to remove the defence of “extreme intoxication” in all cases.

They view this as a sledgehammer that would impinge on the rights of the accused.

The job of the courts is to interpret the law. They do not make policy. That is the job of the government.

Defence lawyers are quick to point out to us “toothgritting non-legal laypeople” that this defence is rare and requires a higher burden of proof, with forensic toxicology of the accused and medical witnesses who are required to testify to the state of mind induced by the drug-imbibing.

Questions have been raised about what constitutes extreme intoxication. And how do the courts draw the line between mere drunkenness, for example, and extreme intoxication?

And now that the law banning this defence has been struck down, who says more offenders won’t use extreme intoxication as a shield?

This is a mess that our elected representatives have to sort out — and sort out with all due haste to protect the vulnerable and restore their right to safety.