How drunk is too drunk?

In July 2015, Cameron McCaw had sexual intercourse with a woman when he was extremely intoxicated. Of his own volition, he had consumed a large amount of alcohol, marijuana and a “date rape” drug. Mr. McCaw’s trial begins in Toronto tomorrow, September 12^th, but it has already made headlines because, in an early August pre-trial, Superior Court Justice Nancy Spies ruled that he can raise the issue of his intoxication in his defence.

Reaction to this decision has been mixed, with some seeing it as a correct interpretation of the Charter and others concerned about its possible impact on the safety of women.

Mens what?

To understand this ruling, we need to start with a well-known 1994 sexual assault case: R. v Daviault. Mr. Daviault was charged with sexually assaulting a 65-year-old woman. He had consumed almost all of a 40-ounce bottle of liquor after drinking several bottles of beer earlier in the day when he grabbed the woman out of her wheelchair, threw her on the bed and sexually assaulted her.

His defence was that he was too drunk to have the requisite mens rea or knowledge that what he was doing was wrong. Canadian criminal law, quite rightly, requires that an accused know that what they are doing is wrong before they can be found guilty of it.

Most people would have been in a coma or dead had they consumed as much alcohol as Mr. Daviault had. When confronted with his actions, he claimed to have no memory of them, which was not surprising.

Mr. Daviault was acquitted by a Quebec trial court on the basis that he did not have the required mens rea because of his level of intoxication. That acquittal was overturned by the Quebec Court of Appeal. Ultimately, the Supreme Court of Canada restored the acquittal.

The law

As a result of this decision, then Minister of Justice Alan Rock reformed the Criminal Code to eliminate drunkenness as a defence in cases of assault. While this section of the Code applies to all assaults, it is primarily an issue in sexual assault cases.

Section 33.1 of the Criminal Code states: “It is not a defence . . . that the accused, by reason of self-induced intoxication, lacked the general intent or the voluntariness required to commit the offence. . . .”

Since this law came into effect more than 20 years ago, it has been challenged nine times. In five cases, judges found that the law violated the Charter of Rights and Freedoms and allowed the defence of intoxication to be used, but it was not successful in any of those cases.

Mixed reactions

In commenting on Justice Spies’ decision, Blair Crew, a criminal defence lawyer and a professor of law at the University of Ottawa, said the ruling will affect only a tiny number of cases. He also articulated the split reactions from lawyers and feminist advocates:

“I am a defence lawyer, [and I] kind of herald it as saying this basically gets the law right. It says that intention and voluntariness are hallowed principles of the justice system . . . . On the other hand, feminist lawyers and those that represent survivors of sexual assault – and I’m also one of them – say that this decision presents a green light to . . .  men going out and voluntarily getting intoxicated and then sexually assaulting . . . women . . . and being able to escape all criminal liability for it. So – very controversial.”

LEAF (Women’s Legal Education and Action Fund) has criticized the decision, saying that it will put women, especially women who are targeted because they, too, are intoxicated, at greater risk. Farrah Khan, Manager of Ryerson University’s Office of Sexual Violence Support and Education, noted that the decision sends “a clear message to people who cause harm that they can make excuses.”

There is no indication as to whether or not Justice Spies’ decision will be appealed. If so, regardless of the outcome of the appeal, the case is likely to wind up at the Supreme Court of Canada.

In the meantime, Mr. McCaw will have his day in court, and we must hope, even though he has been given permission to use his intoxication as a defence, that it will not be successful.

While mens rea is an important principle in Canadian law, surely people must be held accountable when they voluntarily intoxicate themselves to the point that they have no control over their actions. After all, no one forced Mr. McCaw to become so intoxicated that he did not know what he was doing.