Sexual Assaults verses Self-Induced Intoxication

The Effects of the Ontario Ruling

With worldwide media attention focused on the COVID-19 pandemic, as well as on social movements addressing historical and present-day injustices, provincial and federal governments have slowly begun introducing laws that scaled back hard-earned rights gained in the years before the pandemic.  Examples of this are the recently voted down Bill 207 — Conscience Rights (Health Care Providers) Protections Act, which would have had a detrimental effect on Alberta’s queer community, and Alberta’s Bill 1—The Critical Infrastructure Defence Act, which will block many types of protests along “essential infrastructure”.

Most recently, the Ontario Supreme Court of Appeal’s June 3, 2020 legislative ruling threw out a provision that barred using self-induced intoxication as a defence for sexual assault and other violent crimes, on the basis that this provision was unconstitutional and violated Charter rights.

This type of defence had been originally blocked in two Canadian cases, in which men killed or injured relatives after consuming narcotics or medications.  Both defendants attempted to use a “non-mental disorder automatism” defence, which was originally blocked by Section 33.1 of the Criminal Code.  This recent ruling considers this block a violation of Charter rights.

Previously, a 1994 Supreme Court ruling had originally allowed an individual to use extreme intoxication as a defense, however, public outcry led to a law that removed the defense in instances of violent crime.

Three days after this most recent ruling, the office of Ontario Attorney-General Doug Downey stated their intent to appeal.

In an interview with the Globe and Mail, Dean Embry, a Toronto criminal-defence lawyer stated that in his experience as defense lawyer, most of the cases involving sexual assault have involved alcohol.  However, he continued, “I’ve never come anywhere close to considering raising the defence because it is so extraordinary, and so hard to prove.”  Similarly, Cara Zwibel, a director with the Canadian Civil Liberties Association, stated, “I don’t see it as seriously undermining the rights of victims.”  She believes “[t]his is a rarely used provision; it’s not this widespread, systemic concern.”

In contrast, opponents feel that this ruling will further undermine rights of survivors, as well as deterring individuals from coming forward.

In an interview with The Voice Magazine, Deb Tomlinson, Chief Executive Officer of the Association of Alberta Sexual Assault Services, stated that sexual assault already has the lowest reporting rate of any crime; only about 5% of survivors are believed to come forward.  She believes that this has the “potential to further disincentivize survivors from coming forward” since survivors are already afraid to be blamed or held responsible for what has happened.  This ruling implies that the survivor should have known better instead of placing the “responsibility and accountability on the person who did the harm.” She stated that this law does not hold perpetrators accountable for their actions.

In an interview with the Globe and Mail, Constance Backhouse, a law professor at the University of Ottawa stated, “The linkages between alcohol and the abuse of women are notorious.” She continued, “What will the ruling mean for the vast number of women sexually assaulted by intoxicated men? The majority of us never report sexual assault now.”

Similarly, The Women’s Legal Education and Action Fund stated, “We are dismayed that women’s rights to equality and dignity are not given more adequate treatment”  This ruling “also risks sending a dangerous message that men can avoid accountability for their acts of violence against women and children through intoxication.”

This ruling comes at a time where survivors have felt increasingly empowered to start coming forward, beginning with the onset of the #MeToo movement.  The 2006 movement, originating from the work of Tarana Burke, came into worldwide prominence in October 2017, as the hashtag went viral along with allegations against Harvey Weinstein.  The movement was felt in Canada as well, as, increasingly, women came forward to share experiences of sexual assault and harassment.

However, with more survivors coming forward, structural issues have become apparent, such as the lack of widespread resources for survivors, as well as how existing sexual assault centres struggle with underfunding.  Waiting lists for support services, such as therapy, are steadily increasing.  In Toronto, the wait is approximately eleven months.  In March 2020, Ontario’s Ford government cut $1M in funding for the province’s 42 sexual assault centres.

The Ontario ruling also comes at a critical time.  Canada-wide, sexual and domestic violence rates have spiked as a result of added stress from COVID-19 and the reponse, such as unemployment and financial problems, and isolation from friends and family.  With the easing of restrictions, Ontario’s sexual assault centres are reporting double the amount of calls.  Additionally, during the first month of the pandemic, Alberta experienced a  57% rise in calls to sexual violence helpline, Alberta One Line.

Despite earlier optimism and empowerment, a great amount of work still needs to be done, as this recent ruling has solidified.  According to the Canadian Women’s Foundation, “80% of Canadians believe the next generation of women is just as or more likely to experience sexual assault.”

The 2014 General Social Survey on Canadians’ Safety reports, “there were 22 incidents of sexual assault for every 1,000 Canadians aged 15 and older” totalling “approximately 636,000 self-reported incidents of sexual assault.”  Those at highest risk are women, Indigenous women particularly, the LGBTQ+ community, those living in poverty, and those with neurodivergency.  Perpetrators were most often men under the age of 35.  Over half of victims knew their perpetrator.  As one of the most underreported crimes, of the sexual assaults perpetrated by those other than one’s spouse, only one in twenty was reported to the police.  In contrast, other crime rates measured in the survey were reported at a rate of one in three.  Sexual assault underreporting is often due to stigma, shame, guilt, and “the normalization of inappropriate or unwanted sexual behaviour, and the perception that sexual violence does not warrant reporting.” In addition, few of the survey participants felt confident in the police, the court process, and the criminal justice system.  Two thirds were not confident.

Despite this and recent setbacks, various organizations and individuals work tirelessly to support survivors and create change.  In Ontario, those who have experienced sexual violence are encouraged to call the Assaulted Women’s Helpline is available at 1-866-863-0511 or TTY 1-866-863-7868.

In Alberta, call or text Alberta’s One Line for Sexual Violence for support or referrals to sexual assault service providers, at 1-866-403-8000.  In addition, individuals can visit the Association of Alberta Sexual Assault Services (AASAS), which works to improve access to sexual assault services and increase public awareness.

Canada-wide in all provinces and territories, individuals are encouraged to contact Ending Violence Association of Canada.  Indigenous women can call Talk4Healing at 1-855-554-HEAL.