So Is Being Drunk A Defence For Sexual Assault Now?

It’s a question a lot of Canadian women have been wondering about since a controversial court ruling earlier this month, particularly in light of headlines and hot takes and even petitions that paint the decision to overturn Section 33.1 of the Criminal Code as a hall pass for would-be sex offenders. The short answer is, no, getting drunk is *still* not a defence for sexual assault. The longer answer is: It’s complicated. And confusing, and frankly, requires three-quarters of first year law school to fully understand. But understanding this ruling is also really important. “What we’re seeing with the inaccurate understanding of this case is not just wrong, it’s potentially harmful,” says Megan Stephens, general counsel to the Women’s Legal Action and Education Fund who argued in favour of Section 33.1 at the recent hearing. 

Angela Chaisson is a Toronto-based feminist litigator and LGBTQ+ activist who regularly represents sexual assault survivors. She believes the recent ruling on section 33.1 was the right, constitutional one, but agrees with Stephens that oversimplification and mischaracterization of the court’s decision could be doing women a lot of harm and has the potential to embolden would-be sex offenders. With that in mind, we’re answering a few key questions, starting with the most important one…

Being tipsy wasted, or even blotto to the point that you don’t remember the last few hours of drunken debauchery is not a defence for rape or any other criminal activities for that matter. This was true before the court’s ruling earlier this month and remains true now. So what’s changed? In 1995, Canadian parliament added a new section (yes, that’s 33.1) to the Criminal Code, which took the defence of “extreme intoxication akin to automatism” off the table in cases of violent crimes causing bodily harm. On June 5, the Ontario Court of Appeal essentially put this defence back on the table for the rare instances where it is warranted. This doesn’t — repeat does not — mean is that having a few or a few too many, or even way too many beers is now a get out of jail free card. 

The court decided that Section 33.1 is in conflict with one of the fundamental principles of Canadian justice (and key plot points of the first Legally Blonde movie), which is that a crime requires both a guilty act (an actus rea) and a guilty mind (a mens rea). Being “intoxicated akin to automatism,” the OCA decided, negates the required mental component and therefore removing it as a possible defence is in conflict with the constitutional rights of an accused.

It does, but it’s not the only POV worth considering. Arguing on #Team33.1, the Crown made the case that in those instances where a person gets intoxicated to the point that they cannot control their conduct, the criminal fault (the mens rea) can be found in their decision to get that drunk. And also that while the Charter of Rights and Freedoms is there to protect the individual rights of an accused, it is also there to protect the rights of all Canadians, including women and girls. If you want to go full legal nerd *brushes off text book, adjusts powdered wig,* much of the debate around 33.1 focuses on Section 7 of the Charter, which says, “Everyone has the right to life, liberty, and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” The court focused its decision on the “right to liberty” part, but Stephens says they should have given equal consideration to the “security of person” rights in relation to women and children, along with their equality rights, laid out in Section 15. Recent StatsCan data that shows that 63% of women and children killed between 2007 and 2017 died at the hands of an intoxicated assailant. “When men aren’t held accountable for that risky behaviour, we know that it is women and children who bear the brunt of that risk,” says Stephens. Being intoxicated akin to automatism, “is not morally blameless behaviour.” 

The legal definition of automatism is “involuntary behaviour. The state of a person who, though capable of action is not conscious of what he* is doing.” (*He or she — cough cough, Canadian Criminal Code.) “We’re talking a total divorce of mind and body,” says Chaisson, “and it’s not just that a person has to be in that state. In order to use the defence successfully, they have to be able to prove it.” That means expert testimony from a toxicologist, witnesses testifying to a totally altered state of mind. Chaisson’s point is that the circumstances under which this defence can even be leveled are “so, so, so rare.” And in fact, the two cases that the OCA looked at to make its recent ruling weren’t even about alcohol. In R v. Chan, the accused took magic mushrooms and went on to stab his father to death, believing himself to be god and his dad to be the devil. In R v. Sullivan, the accused attempted suicide by overdosing on anti-smoking medication and instead assaulted his mother. 

Well that’s the tricky part. Automatism feels pretty straightforward in a case where a person kills their parent while in a drug-induced hallucinogenic mania. But there is the matter of a slippery slope. “Yes, the defence requires expert testimony and will be difficult to prove,” says Stephens, “but inevitably there will be the question of how can you be sure they were in an automotive state versus just a total drunk mess?” There is, she adds, historical precedent to suggest that the simple availability of the “intoxication akin to automatism” will embolden accused parties to advance it. “In the six-month period around the Daviault decision in 1994, the intoxication akin to automatism defence was raised 15 times, and nine times it was successful.”

He was a chronic alcoholic who sexually assaulted his wife’s friend after consuming a massive amount of alcohol (an amount that would kill or at least comatize most people, as a toxicologist testified at trial in 1994). Daviault got off, and there was a massive uproar, which is what led parliament to enact Section 33.1 in the first place. 

Chaisson and Stephens agree that the availability of the automatism defence isn’t likely to make a big difference since the instances in which it even applies are so rare. (There’s a reason it took 25 years for 33.1 to be appealed, Chaisson says.) What is significant is the effect the decision could have on women’s inclination to report. 

“We already know both anecdotally and from studies that women don’t feel that their needs are met by the justice system, and that going through the legal process is itself retraumatizing. For them to hear that there won’t be accountability could definitely lead to a disinclination to report,” says Stephens. On the flip side, she is concerned about the possible takeaway for potential offenders. Both problems, she says, are compounded by the spread of misinformation: “The court’s decision does not equate to a hall pass, but if that’s the message that men are getting, that’s a serious problem.” 

Chaisson is sympathetic: “I understand why the feminist community, of which I am a member, is so up in arms about this because the government’s stated purpose in enacting 33.1 was to protect women. That is the most laudable goal I can think of, and there are so many things our legal system can do a better job on in that respect. But it doesn't mean you can have laws that are unconstitutional.”