I have heard a lot of talk about this recent Supreme Court decision and have wanted to say something for a while but figured everyone was too busy watching the Oscar worthy performances in the Jonny Depp trial to give a hoot about what I had to say. Of course, I appreciate that some people may not give a hoot for other reasons as well. Nonetheless, my friends are talking about this so now I am too.
Recently, our Supreme Court released three decisions on the same day, all dealing with the defence of intoxication. The Court struck down the provision in the Criminal Code that barred self-induced extreme intoxication as a defense to certain crimes, including sexual assault. Contrary to what certain public interest groups are saying on social media, this does not mean that you are now allowed to get drunk and rape-y. Drunkenness does not excuse unwanted sexual contact. What the Supreme Court does allow is another route for an accused individual to provide a full answer and defence to the charge(s) against them. It allows an accused to take full advantage of the defences provided for in the Criminal Code.
What needs to be understood is that there is a rather large difference between drunkenness and extreme self-induced intoxication. The former is what you get after a Friday night softball game. The latter requires expert evidence to show automatism, the lack of control of oneself to the point where the individual in question is essentially “zombified”. The bar is high. That is not a challenge to head to the LCBO and stock up to see if that level of intoxication with death or at least passing out can be achieved but rather a tidbit of information to ground the reader in the reality of the situation. The use of this defence will be rare and even more rare will be it’s success. Just because the defence is available does not mean it will be successful. The Supreme Court decided to allow the defence because no accused ought to be denied an avenue of defence however, the availability of the defence does not guarantee that the road won’t be closed when you get to the end.
Eliminating the ban on the use of extreme intoxication as a defence to sexual assault will not silence the abused. This will not derail the runaway train that is the #metoo movement. This will not amplify the Depp verdict and shift the balance of power. Fun fact, in recent times the Supreme Court has ruled against the accused in the last 34 sexual assault cases straight. To some it would appear that the balance has already shifted.
If you have been charged with a criminal offence of any kind, the team at CCD Law is ready to apply the facts of your case to all available defences and fight the fight that needs to be fought. At Cake Criminal Defence, we defend! Call us today.