The defence of extreme intoxication in sexual-assault cases is back in Ontario, after a judge ruled that a federal law removing it violates the constitutional rights of the accused.
The ruling comes in a case in which a man voluntarily took a substance commonly known as a date-rape drug, then said he didn’t know what he was doing when he had sexual intercourse with a woman who was waking from a drunken sleep.
The decision by Ontario Superior Court Justice Nancy Spies this month means that a federal attempt to undo one of the most controversial Supreme Court rulings of the past quarter-century is no longer on the books in the province. The Supreme Court ruled in 1994 that drunkenness so extreme as to be akin to automatism is a defence to sexual assault. The decision by an Ontario judge does not apply directly to other provinces.
Justice Spies’s ruling, made before trial at the request of accused Cameron McCaw, gives him a possible defence on a charge that he sexually assaulted a woman in a Toronto apartment. He must now prove it is more likely than not that he was intoxicated to the point of automatism – a robotic state in which he was not aware of his actions. Proceedings continue Sept. 12.
Mr. McCaw acknowledged in a court document that he had sexual intercourse with the complainant, but said he had not “intended to do so.” He said he had consumed alcohol, marijuana and a date-rape drug. The complainant had been drinking heavily and passed out on a couch. She said she awoke with Mr. McCaw on top of her in the middle of the night.
Justice Spies wrote in her decision that the federal law relieves the prosecution of having to show that an accused voluntarily committed a sexual assault. It thus violates the right to be presumed innocent, and the right to fundamental justice, wrote Justice Spies.
It is not the first time an Ontario Superior Court judge has ruled that the law ending the self-induced intoxication defence is invalid; it happened in 1999 and again in 2010. But Crown prosecutor Patricia Garcia argued that judges of the same level are free to decide that they are not bound by the precedent. Justice Spies disagreed, saying the law’s unconstitutionality is no longer open for argument, and has not been since 1999. She also examined the law itself, in case she was wrong on that point, and said she shared the view that it is unconstitutional.
First published at http://yourlegalrights.on.ca/news/ontario-judge-restores-defence-extreme-drunkenness-sexual-assaults