Transcript
Speaker: This is the Red Eye Podcast. I'm Jane Williams. You can hear our live broadcast on Saturday mornings from 10 till noon at 100 .5 FM in the Lower Mainland. Today I talk with Isabel Grant about a court ruling that overturns a law set up to protect victims of sexual assault.
Speaker: Last month, the Ontario Court of Appeal ruled that a decades -old section of the criminal code was unconstitutional. The law that has just been struck down was brought in in the mid -1990s after the acquittal of a man who claimed he was not responsible for his sexual assault of an elderly woman because he was an alcoholic, and that made him do something that he would not otherwise have done.
Speaker: The federal government of the time enacted section 33 .1 in response to vigorous organizing by the frontline women's community and feminist legal experts amid reports that extreme drunkenness was being used to defend against sexual assault charges. Isabel Grant is a professor of law at the Allard School of Law, UBC, and she's joined me today to discuss the recent Ontario court ruling. Hello, Isabel.
Speaker: Hello, thank you for having me. The Court ruled against Section 33 .1, as I just said in my introduction. What reason did the Court give for its decision? Essentially, what the Ontario Court of Appeals said was that
Speaker: The section in the Criminal Code limited and accused rights under Section 7 of the Charter. And what Section 7 of the Charter says is you cannot take away someone's liberty, so you can't put them in jail, where it is contrary to the principles of fundamental justice.
Speaker: And the court held that there is a principle of fundamental justice that an accused can only be convicted of a crime where, in this case, his conduct was voluntary. So in other words, his conduct was the product of a conscious mind. And the court said that is not true when someone is in an extreme state of intoxication. And therefore, that section 33 .1 violated section 7.
Speaker: Did the court say anything about the amount of intoxication that's required? Yes, and I think that's a very important point. This decision does not mean that anyone who is drunk and sexually assaults somebody else will necessarily be acquitted. This case deals with people who are so drunk or so high on drugs that they do not control their own actions, that their actions aren't a product of their conscious mind.
Speaker: So it applies only to those who have a very high level of intoxication. So are there concerns then about this ruling sending the wrong message to men who abuse women and do that when they're drunk? I think there are a couple of problems I have with the way the Ontario Court of Appeal made its decision.
Speaker: The first is that when Parliament enacted Section 33 .1, it was very explicit about why it was enacting this provision. And it did so explicitly to protect women and children from sexual violence. And it recognized the particular risk that women and children face at the hands of potentially extremely intoxicated men.
Speaker: The Court of Appeal said, well, you can't look at that when you're deciding the accused rights under Section 7, and you can only look at it under this provision that allows the government to limit rights.
Speaker: But by doing it that way, that provision has never been used to limit rights in the criminal law context. So there are essentially saying that the safety of women and children, there's no place to consider it in the criminal context under the Charter.
Speaker: In a more specific way in terms of this context, I think what this case is about is who bears the risk of somebody getting so intoxicated or so high that they cannot control what they're doing. And this ruling essentially says that victims of sexual assault bear that risk.
Speaker: who are overwhelmingly women and children. So in other words, we might say someone who deliberately puts themselves in that state has to bear the risk that they will commit violence against another person. And that's essentially what Section 33 .1 said. But the court has said, no, you can't do that. In fact, if an accused puts themselves knowingly in this state,
Speaker: If they cannot control their actions once they're in that state, they cannot be held criminally responsible. And I think it's important to note that this isn't dealing with the situation where someone hypothetically drops a drug into someone's drink. So if a person doesn't know they are intoxicated because somebody else has given them the drug, that has never been criminalized. Their behavior after that has never been criminalized.
Speaker: This is only dealing with people who deliberately make a decision to get themselves into that state. Has Section 33 .1 always been vulnerable to being overturned by the Charter? There have been a number of Charter challenges to Section 33 .1. It's actually quite surprising that it's taken this long to have an appellate court make this decision.
Speaker: Some courts have held that it is what's called a reasonable limit under Section 1 of the Charter, but no appellate court has ever found that. So this is the first time we have a high -level court, in this case Ontario, making that decision. And I'm assuming that this case will go to the Supreme Court of Canada, and the court will have to look at when Parliament takes a step to protect a particularly vulnerable population
Speaker: Do we have to look at that law differently than they did way back at the time of the Davio case? In other words, do we look at parliament steps differently than we look at when the courts just say that a particular defense exists? And so I think this will probably come down to an analysis of how much deference do we give to parliament to make decisions about the best way to protect people who are particularly
Speaker: susceptible to violent, intoxicated men. And it is overwhelmingly men in these cases. And the Davio case, just to be clear, that was the original case where the man said he was an alcoholic and assaulted an elderly woman. Right. And what the Supreme Court said in that case was they made, if you will, a judge made rule that this defense had to be allowed.
Speaker: So we had about a year where we had this judge made rule. And then Parliament intervened and said, no, wait, we're going to exercise what we think is the right thing to do here and enact a provision that was explicitly directed at protecting women and children from violence.
Speaker: Defense lawyers say that the reaction to the ruling is overblown. It's not going to be used because it's such an unusual kind of situation that somebody is this intoxicated. Is that the case? I think that the importance of this case has been understated. I don't think it means that all of a sudden anybody who is drunk and sexually assaults another person will be acquitted.
Speaker: A colleague and I went back to look at what happened in that one year period. So between the time when the Supreme Court said you have to allow this defence and the time when Parliament said, no, we're not going to allow it. And they enacted Section 33 .1. We found in that year 23 cases that we were able to track down. Now, my guess is that that's an understatement of the number of cases that raised this defence.
Speaker: It was not successful in all of those cases. It was successful in about a third of those cases. But even in that one year time span, we were able to find that many cases. So I guess it's a judgment call about whether you think that many sexual assaults involving people whose lives may well have been quite devastated by what would otherwise have been a crime, whether that's a significant problem or not.
Speaker: I think that number is high enough to make this a problem. I also think it's part of a trend that we've seen particularly from the Ontario Court of Appeal, which is one of the most highly respected appellate courts in the country, of undermining provisions that were enacted to protect women and children.
Speaker: And so I do think that this case is important on its own merits and that we will see enough people trying to argue this defense to make it a problem. And I also think it's part of a trend that safety and physical integrity and equality for women and children don't get much consideration in the context of considering men's charter rights.
Speaker: Now, I mentioned in my introduction that there was a lot of organizing that got section 33 .1 brought in in the first place. Has there been a reaction from feminists? I think feminists are beginning to organize. It is difficult, as you can imagine, to organize during a global pandemic. More difficult when a government has
Speaker: other priorities that it's dealing with, understandably. I think we're all waiting to see whether this is going to the Supreme Court of Canada. I think it's probably unlikely that the government will amend the law prior to having the Supreme Court of Canada weigh in, because technically this decision is only binding on Ontario courts.
Speaker: Now it's quite possible that courts and other provinces will show respect to the Ontario Court of Appeal and follow this decision, but it is not technically binding in other provinces. So my guess is that we won't see the full force of the activist movement until the Supreme Court of Canada has heard this case. All of that has been slowed down.
Speaker: by the pandemic and the time limits within which parties can appeal have been extended and there are various reasons why that may take some time. And in the meantime, do you think that there's a real and present danger for women in Ontario? I think that we have to think about the impacts of this decision, which did receive a lot of media coverage.
Speaker: both in terms of what happens when your case gets to a courtroom, but also in terms of what do women do around reporting sexual violence. You've read something in the media that now if a man is extremely intoxicated, he cannot be convicted of sexual assault. Does that impact women's
Speaker: likelihood of going to the police, which we know there are already so many barriers to women reporting the sexual violence against them, and this is one more. And then you have to look at the barrier of, are police in Ontario and Crown Council in some provinces, are they going to lay charges where there's evidence that this person was extremely intoxicated? And then finally, we have to look at the cases where courts allow the defence
Speaker: So I think saying, well, there are only 23 cases in that one year tells us nothing about how many women didn't go to police and how many crowns didn't lay charges because of this defense.
Speaker: So the full impact will take some time to see, but I think, yes, the decision is problematic. And could the federal government step in and amend that section without waiting for the case to go up to the Supreme Court? I think the federal government absolutely could intervene at any time and amend the legislation.
Speaker: I think it's unlikely that they will do so before we at least know whether it's going to the Supreme Court of Canada. The Crown may, for whatever reason, decide not to appeal in which case this verdict is as high as it's going. And then presumably there will be a push for Parliament to enact some sort of revised provision. But I think we want to at least wait and see whether the case is going up to a higher court. Because if the Supreme Court of Canada allows the appeal,
Speaker: then the verdict of the Ontario Court of Appeal will be quashed and will not stand. Well, it's very good to talk to you today, Isabel, and thank you for explaining all that. Thank you very much. I've been speaking with Isabel Grant. She's a professor of law at the Allard School of Law to UBC. The Red Eye podcast is produced at the studios of Vancouver Co -op Radio. You can support us by supporting Co -op Radio.
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