Ontario Superior Court Justice Nancy Spies deemed section 33.1 of the Criminal Code of Canada “of no force and effect in Ontario” in a ruling last month. Section 33.1 states that self-induced intoxication cannot be used by a person accused of sexual assault as a defence in court.
This decision ignited a firestorm on social media and in Canadian criminal law circles. Spies’ ruling states, and sets a precedent in the same vein, that disallowing self-induced intoxication as a defence in a sexual assault case is unconstitutional and cannot be justified.
In 1994, an Ontario court ruling allowed for individuals who consciously became intoxicated to use intoxication as a defence in the case of alleged sexual assault. In reaction to this ruling, legislation was passed in 1995 that prevented the defence being used by persons that engaged in self-induced intoxication.
Spies’ ruling, however, is in direct violation of this legislation, and reintroduces the dangerous notion that getting drunk absolves the perpetrator of any legal accountability.
Labels on beer bottles and ciders will offer friendly reminders to “drink responsibly,” but drinking responsibly means more than understanding you are intoxicated and not getting behind the wheel of a car. Drinking responsibly is understanding how alcohol affects you and the people around you, and adjusting your behaviour accordingly. While lowered inhibitions is a natural side effect of drinking, it can have severe repercussions when mixing alcohol and sex. It is important that the legal community recognizes the accountability assumed when an individual voluntarily consumes alcohol and runs the risk of becoming drunk. The decision to drink or become intoxicated and the duty of care owed to individuals nearby are not mutually exclusive, despite the impaired mental state.
Removing the accountability from the defendant due to self-induced intoxication, in turn, places the burden of proof, or onus, on the plaintiff. This shift in onus demands an explanation of how the plaintiff’s behaviour would lead the defendant, in their impaired state, to have assumed consent. This type of defence and shift in onus, however, does not consider the nature of perpetrators of sexual violence. Perpetrators have no respect for the wishes of their partner, including whether or not they want to engage in sexual activity at all. Thus, the behaviour exhibited by the plaintiff is irrelevant to both the court proceeding and the accused, because there was no intent to respect their consent in the first place, whether it was a yes, a maybe, or a no.
Supporters of section 33.1 feel that the objective of the law is to protect women and children from individuals under the influence. Spies wrote that the objective of the intoxication law “is not sufficiently pressing and substantial to justify the great damage it does to fair trial interests.” This ruling sets a precedent that permits an individual to engage in voluntary alcohol consumption with the possibility of becoming intoxicated, participate in the most heinous violation of bodily integrity, and be absolved of accountability.
If an individual becomes voluntarily intoxicated to the degree in which they are unable to form reasonable judgment and detect consent, the individual is liable for the harm committed to another person while in this voluntarily state of incapacity. Spies may not believe the objective to be pressing and substantial, but I believe it is paramount.
I believe that the objective is even more pressing as Section 33.1 expands to protect individuals of all genders, identities, and ages without discrimination from interference with their bodily integrity. I have difficulty finding this objective anything less than pressing and substantial.
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