The director of a Sudbury-based group that supports survivors of human trafficking and sexual exploitation says a decision by the Ontario Court of Appeal last week “may be viewed as a hall pass for rape.”
A decades-old law that prevented people accused of sexual assault or other violent crimes to argue they were so intoxicated they didn’t know what they were doing was declared unconstitutional by Ontario’s top court, for trampling on key rights of the accused.
“The shifting of accountability for perpetrators is now deflected by using this law,” Christina Scarpellini, founder of Angels of Hope Against Human Trafficking, said in a statement. “In other words, it may be viewed as a hall pass for rape.
“(Accused) can avoid accountability for their acts of violence against women and children through intoxication. This limits the protections for sexual assault victims.”
At issue was a law the federal government enacted in 1995 amid a backlash over a court ruling that recognized drunkenness could be raised to defend against a sexual assault charge.
The Appeal Court decision setting aside the law came in a pair of separate cases in which two men, both high on drugs, either killed or injured close relatives. Their defence, however, ran afoul of the ban on arguing extreme intoxication.
In overturning their convictions this past Wednesday, Justices David Paciocco, David Watt and Peter Lauwers said a person must act voluntarily to commit a crime. While lawmakers might have sought to help victims attain justice, they said the law violated an accused’s rights by holding them accountable for violence they really had no control over.
“It enables the conviction of individuals for acts they do not will,” the court said. “To convict an attacker of offences for which they do not bear the moral fault required by the charter to avoid this outcome is to replace one injustice for another and at an intolerable cost to the core principles that animate criminal liability.”
Scarpellini said that drug-induced psychosis, or automatism, should not be viewed as the same thing as intoxication from drinking alcohol.
“This sets our criminal justice system backwards,” she said. “This is an archaic mind set.”
While Angels of Hope encourages police reporting, Scarpellini says she understands why victims may be afraid to call police. She’s worried that last week’s ruling may further discourage women from reporting sexual assault.
“We know that one in three women in Canada have experienced some form of sexual assault in their lifetime,” Scarpellini said in her statement. “We know that 1 per cent of reported sexual cases make it through the court process in Canada. Victims of sexual violence and human sex trafficking are afraid of being re-victimized in court cross-examination by defence, loss of memory of the attack, the trauma of re-appearing in court and having to face their attacker. The trauma, shame and guilt of telling their friends and family members. The fear of judgement and victim blame. This law will absolutely roadblock victims’ voices and justify rape and child sex abuse, because the defence could now be argued ‘they do not will.’ ”
Women’s-rights activists across the province have echoed Scarpellini’s concerns, while civil libertarians have called criticism of the decision unwarranted.
The Women’s Legal Education and Action Fund, which intervened in the case, called the decision a setback for victims, particularly of sexual assault.
“We are dismayed that women’s rights to equality and dignity are not given more adequate treatment,” the organization said on Thursday. “It also risks sending a dangerous message that men can avoid accountability for their acts of violence against women and children through intoxication.”
Cara Zwibel, a director with the Canadian Civil Liberties Association, said the decision clarified the legal situation around use of the intoxication defence. While she sympathized with concerns the ruling would undermine protections of sexual assault victims, she said they were overblown.
“I don’t see it as seriously undermining the rights of victims,” Zwibel said. “This is a rarely used provision; it’s not this widespread, systemic concern.”
New Democrat MPP Jill Andrew, the culture critic and women’s issues critic for the Official Opposition, who has called on the Ministry of the Attorney General to try to fight the ruling.
The Supreme Court of Canada, Andrew said, should weigh the impact “on the lives of women, trans women and sex workers, their bodies, and the justice they deserve after surviving sexual assault or violence.”
For more information about Angels of Hope Against Human Trafficking, visit www.aohagainsttrafficking.ca.
— With files from The Canadian Press