No Steps Forward, Only Steps Back: An Opinion on Canada’s Supreme Court Decision on Extreme Intoxication as a Legal Defence
By Emily Rolson
I, like so many other women, find myself at a loss for words with the same tired challenges we’ve faced from governments in the last few weeks. How many times are we expected to shout the same pleas for protection of our rights when they are ignored every time? What else is there to say?
As someone living in Canada, and as a woman and feminist generally, the word ‘disappointed’ doesn’t even begin to describe the feeling I had this past Monday when I read our Supreme Court’s ruling on the use of extreme intoxication as a legal defence. For those living outside the country or who aren’t aware, a decision has been made by the Canadian Supreme Court that allows criminal defendants in cases involving assault – including sexual assault – to use a defence known as self-induced extreme intoxication.
What this means is that defendants who voluntarily consume intoxicating substances and then assault or interfere with the bodily integrity of someone else can avoid being convicted if they and their defence team can provide enough evidence to indicate that they were too intoxicated to control themselves and/or their actions.
Section 33.1 of the Criminal Code of Canada states that extreme intoxication cannot be used as a defence in criminal cases where the accused voluntarily ingested the intoxicating substance. Our Supreme Court found this to be unconstitutional.
Between this decision in Canada and Roe v. Wade in the American Supreme Court, I am enraged and deeply saddened by what this indicates and to see legal motions being put into place that will negatively impact women substantially. That boys will be boys and all other people, women in particular, will suffer the consequences of what that means prevailed yet again.
The truth is, they can dress it any way they want and assure us repeatedly that it won’t be used in cases of rape and extreme violence, but it’s already been used as a defence virtually since the dawn of time. Both socially and in courts of law. This ruling robs us of our Hail Mary. Our last-ditch ability to pull out the technicality that voluntary intoxication isn’t a legal defence under our constitution. Now we have nothing.
Even without the involvement of legal technicalities, if a man and woman have both consumed alcohol and the man sexually assaults the woman, the alcohol historically becomes an excuse for his despicable behaviour. But for the woman, time and time again the alcohol is used as a weapon of blame. ‘She was asking for it.’ Either our Supreme Court agrees with this neanderthal way of thinking, or they are so naïve to think they can strike this down without it impacting women and other victims of sexual assault while enabling monsters. Both options are terrifying.
Violence disproportionately impacts women and children. That is not up for debate. It has been long established and available for anyone to see in publicly available data. Not to mention most people know at least one woman or child who has been impacted by violence, including sexual assault. And if you think you don’t, you need to look at the nature of your relationships with people from vulnerable groups in your life. To say that violence, specifically violence where intoxication is involved, predominantly impacts women over men is like saying the sky is blue.
And yet, the staggering numbers and statistics that can be found within seconds of a Google search aren’t enough for our highest court to feel the need to safeguard our rights to equality and security of the person. Both of which are considered founding pillars of our Charter of Rights and Freedoms. We find ourselves in another instance of women’s safety being deemed less important than a man’s reputation.
The truth is, there are thousands of statistics I could include in this piece to prove my point. But unless you are someone who stands to be at a disadvantage from this ruling, numbers don’t always make the urgency of this issue clear.
I think the most common question we want answered is the question of ‘why.’ Why, after all the supposed progress we’ve made in paving the way for equality under the law, are we taking such a leap back in time? Why are we ignoring that certain issues affect different groups disproportionately? Perhaps this is their Hail Mary. Their last chance to hold onto ‘boys will be boys’ culture in a time when newer generations are working to move past it.
To implement the legal use of this defence in a court of law, it means that people who commit heinous crimes of sexual assault under the influence of drugs and/or alcohol can hold onto that technicality that just the right amount of either can make you lose control. Which it can.
Anyone who says they’ve never done anything stupid after a few drinks is probably lying. We’ve all done something stupid. But what level of ‘stupid’ are we willing to tolerate in our society? Are we now categorising violent crimes in the dismissive category of stupid?
My response to the Federal Justice Minister who claimed that the decision ‘does not apply to the vast majority of cases involving a person who commits a criminal offence while intoxicated,’ is: who says? In their decision they’ve made it clear that if the defendant and their team can prove that the crime was committed while they were intoxicated and unable to control themselves, that the defendant could avoid conviction.
Once that is put into practice, if the defence team does their job, then judges and juries will have no choice but to acquit people. That’s how courts work. And by this argument, what is to stop people from privately pre-meditating such crimes and then taking just the right amount of a substance that such a defence would hold up in court? I don’t know the answer. But I’m not sure how anyone can. Vagueness is dangerous, especially where the law is concerned.
The bottom line, which they fail to see, is this: you are either someone who would rape someone, or you are not. You either have violent tendencies or you do not. Alcohol lowers your inhibitions; it doesn’t shape shift you into a completely different person.
What this decision is proving to be is yet another systemic decision to disadvantage women and other minority groups when it comes to violence and how this decision will impact cases of sexual assault. The Supreme Court has issued three rulings on self-induced extreme intoxication. In two of those cases the victims were women but none of them were cases of sexual assault.
We are yet again reinforcing this outdated way of thinking that we have prematurely claimed to be past. Yet here we are, in the year 2022, so long after the first strides of feminism were taken, and we still must remind people that we are impacted by such decisions differently than men. But they already know that don’t they?
If they can just put down the unconscious bias to safeguard men’s reputations and boys’ club behaviours, we need the Supreme Court and the people who think they may agree with this decision to reflect on what they are asking for with something like this.
Are we asking for a country where men are free of consequence? Are we asking to live in a society where women’s realities are not considered in revisions of our law? It’s time we speak up about these things and keep having the conversations.
Postscriptum
I wrote the first draft of this article two days after the Highest Court ruled that the law barring the use of extreme intoxication as a defence for violent crimes was unconstitutional on May 13, 2022. Since first draft of this article (on June 17, 2022 to be exact) The Honourable David Lametti, Minister of Justice and Attorney General of Canada and the Honourable Marci Ien, Minister of Women and Gender Equality in Youth proposed amendments to the Criminal Code to combat the egregious gap left in our laws by the Supreme Court. This led to the introduction of Bill C-28, which completed its final reading in the House of Commons on June 22, 2022 and then its final reading in the Senate on June 23, coming into force that same day.
I decided to re-write the article for two reasons. Firstly, I do feel that too often in our society we tend to, as they say, kick progress in the balls. While the very fact that this gap was left, leaving women, children and members of the LGBTQ+ community especially vulnerable, the government did act to correct this.
Although the dates do mean that there was over a month where this gap existed, the actions taken against the Supreme Court decision is something a lot of countries would do anything for. Women’s groups, child advocacy associations, and LGBTQ+ activist groups beg governments all over the world to respond this way with amendments to harmful gaps in legislation. In Canada, we got it. Regardless of my views on our current government in general, I am grateful for this amendment and that our government was able to recognise and rectify the issue.
The second reason to rewrite this article is to make a point. Too often we are told that our protests won’t make a dent. As women, we are still told to ‘keep quiet’ about our issues or, on the other side of it, told we no longer need activism on behalf of women’s rights, that we are in a post-feminism world. This article is my contribution to the trend of ‘I need feminism because…”. The outcries and demand for a second look from women’s activist groups and similar associations are undoubtedly a reason that this was brought to the forefront of the country’s legal consciousness. This is to prove not only that we need to continue to speak up but that doing so works.
I am not a lawyer nor a member of the Canadian legislative government, therefore I am not in a position to claim that this amendment proposition never would have been brought to parliament’s floor, nor do I necessarily think that is the case. But our issues were heard. And not just our pleas on this particular issue. Decades of action and making our voices heard have brought us here to a point where our government recognises women, children and members of the LGBTQ+ community as being more vulnerable to violence in a world where institutions such as our own Supreme Court neglect this fact.
The fact that our Supreme Court does not reflect the position of the Federal Government is its own issue and its own article all together. But in this world, as I am sure we all know, often feeling heard is a win in and of itself. So many countries that we thought were evolving have begun their regression to times where women existed as vessels for new life and were lesser to men.
Bill C-28 represents another barrier being put up against this regression. While the barrier is flimsy, its very existence is a slight relief. There is still much work to be done, in Canada and throughout the world, but for those of us who are exhausted with the constant state of the world or who, like me, often find themselves wondering what the point in voicing opinions for change is, this is it. It works. Sometimes. Of course, a law won’t change our culture, but at the very least our reality is legally acknowledged.