PAM HRICK, KAT OWENS AND FARRAH KHAN
Pam Hrick is the executive director and general counsel at the Women’s Legal Education and Action Fund (LEAF). Kat Owens is project director at LEAF. Farrah Khan is the manager of Consent Comes First, the Office of Sexual Violence Support and Education at Toronto Metropolitan University.
As advocates working for gender justice, we see the legal system fail survivors of sexual and gender-based violence time and time again.
Survivors who choose to report to the police can face disbelief, harmful myths and stereotypes, and a lack of accountability. In 2017, for example, only 34 per cent of reported sexual assaults in Canada led to charges. Far more survivors choose not to report, including many who understandably see legal institutions as a source of harm rather than justice.
Not all survivors have equal access to justice in this country. We know that marginalized women, girls, and trans and non-binary people – especially those with intersecting identities, such as Indigenous, Black, racialized, living with a disability, or low-income – face increased barriers to accessing support, being believed by institutions and navigating the legal system.
So when the Supreme Court of Canada ruled last week that accused persons can raise self-induced extreme intoxication as a defence to certain crimes, including sexual assault, we understand why many would be concerned. Before reading the decisions, we were, too.
Intoxication and violence often go hand in hand. Under section 33.1 of the Criminal Code, accused persons were not allowed to use the defence of “self-induced extreme intoxication” to avoid criminal responsibility for certain violent offences; the court held last week that section 33.1 violated the constitutional rights of accused persons, and struck the provision down.
Concerns with the ruling are not unfounded. We are especially concerned about students who have been sharing on social media about their fear that this ruling means that there can be no accountability if the assailant was drunk. Sexual assault in secondary and postsecondary schools is endemic in this country, and we do not want more barriers for survivors to report. This is why accurate information is so critical. And it is true that the court’s decisions mean that some people who commit violent acts will not be convicted of a crime.
However, we must be clear about what is true and what is false in the context of the court’s holding, or else we risk further harming survivors.
It is false that an individual who is simply drunk or high will be able to avoid criminal responsibility. They and their lawyers would need to prove “extreme intoxication” – a legal concept which requires scientific, expert evidence of what the Supreme Court described as “psychotic, delusional and involuntary conduct” caused by the consumption of a drug. In other words, a person would need to have had no control over their actions because of the drug they consumed.
It is false that alcohol consumption usually results in this state. All three cases that were heard by the Supreme Court in making this ruling involved drugs alone or drugs taken in combination with alcohol. One person had consumed magic mushrooms, the second had consumed a combination of alcohol and magic mushrooms, and the third had consumed an overdose of a prescription drug.
Current scientific evidence, which was recognized by the court, suggests that alcohol alone is unlikely to cause the level of extreme intoxication required to avoid criminal responsibility. If the scientific evidence changes, the response to this decision will also change. But right now, an individual who consumes alcohol is unlikely to be able to prove they met the legal requirements of extreme intoxication. Without that proof, they cannot rely on the defence.
When we are not clear on legal matters involving sexual violence, we mislead both survivors and our communities, causing unfounded fear. This increases the understandable distrust many already have of legal institutions. We can also mislead police, prosecutors, defence counsel and judges, contributing to a false narrative of responses to sexual and gender-based violence.
There will be cases where it is difficult to draw the line, and we need to ensure that training for police and people in the legal profession accurately reflects the meaning of this decision and its limited application, so they can responsibly address those cases as they arise.
Most crucially, whether or not self-induced extreme intoxication is available as a defence, our legal responses to sexual and gender-based violence still do not work for far too many people. We need real sustained action to prevent and address this violence, including governments funding alternative answers grounded in restorative or transformative justice to address sexual and gender-based violence separate from the legal system.
So often, the legal system fails survivors. With this ruling, we all need to make sure that we do not fail them, too.