West Island CALACS (Sexual Assault and Assistance Centre) denounces the decision made by the Supreme Court of Canada regarding the use of extreme intoxication as a defence to harm.
On May 13, 2022, the Supreme Court of Canada issued an important decision that allows criminal defendants in assault/crime cases – including sexual assault – to use a defence known as extreme self-induced intoxication. Thus, defendants who voluntarily use intoxicants and interfere with the bodily integrity of another person can avoid conviction if they can prove that they were too intoxicated to control their actions.
However, this decision by Justice Nicholas Kasirer is contrary to section 33.1 of the Criminal Code. Extreme intoxication – officially known as non-insane automatism – cannot be used as a defence in criminal cases where the accused voluntarily ingested the intoxicant.
Why is it detrimental to victims of sexual assault?
From the outset, when we know that 1 out of 3 women is a victim of sexual violence during her life, there is reason to react. Violence against women is a systemic, constant and commonplace phenomenon within our society and the media for decades. There is already a reluctance to report violence against women by men for many reasons. Fears include: distrust, the perception that their safety and anonymity will not be assured, a previous negative experience with the justice system, fear of what people around them or actors in the justice system will say, the consequences of the sexual assault they are experiencing in relation to decision-making power, etc. In fact, by allowing the use of extreme intoxication as a defense, an obstacle is added to the reporting of individuals who are victims of violence committed against them.
These reasons include fear of a lack of evidence and distrust of the legal system, according to Statistics Canada data, which also revealed that a significant portion of male violence against women is alcohol-related. The extreme intoxication defence could therefore reinforce these reluctances, making victims of violence even more reluctant to come forward. Many argue that this defence would be rarely used and accepted so this should not be a concern. On the other hand, the lack of attention paid by courts and critics to the impacts of the extreme intoxication defence on victims of violence reflects a lack of concern for the Charter rights to equality and security of the person of every individual who has experienced sexual violence.
In addition, research by Canadian law professors Elizabeth Sheehy and Isabel Grant shows that when the defence of extreme intoxication was available prior to 1994, it was used in 30% of criminal cases, 71% of which involved male violence against women. It is important to note that Ontario has not applied section 33(1) since 2020. This means that extreme intoxication is not only not an uncommon defence, but is often accepted in cases of violence against women. Section 33(1) of the criminal code balances the focus on the psychology of those accused of crimes with concerns about the rights of women and children to equal protection of the law. Thus, when courts and critics reject this section, they ignore the impact of the law on extreme intoxication on women and send the message that a man’s psychological state is more important than a woman’s physical safety.
According to Statistics Canada, the most recent Canadian victimization survey (2014) showed that only a minority (1 in 20) of sexual assaults are reported to the police (Conroy & Cotter, 2017). As a result, data on police-reported sexual violence is not representative of actual cases experienced by survivors (Statistics Canada). Considering that 40% of sexual assault complaints are not pursued by the police. Considering that only 3 out of 1000 sexual assaults result in a conviction, we must denounce this decision by the Supreme Court of Canada.
Conclusion:
We ask that the government not implement this law which directly affects the safety of survivors of sexual assault, as mentioned above. We ask that the government respect the expertise of community groups working with survivors of violence and that they listen to us and believe us when we say that this law will cause more harm than knowing that it is already extremely difficult for survivors to go to court and win their cases. Why add another obstacle to an already difficult healing process? We believe that sustained and consistent government intervention in this area is essential to ending impunity and complicity in sexual violence. It is essential that the complaint mechanisms be adapted to the reality of sexual violence so that all victims can count on a judicial system that ensures their rights and safety. By putting this law in place, the opposite is being done. We strongly hope that our government will be sensitive to our plea and that instead of such a law, it will be able to put in place and invest in services that will help all survivors of sexual violence.
