Let's be clear
Here we go again.
Just as the #MeToo and Time’s Up movements are beginning to hold men accountable for unwanted sexual advances and violence against women, an Ontario court has said those accused of sexual assault have the right to claim they were too intoxicated to know what they were doing.
How is it that when women are drunk they can be deemed capable of consenting to sexual activity, but when men drink too much they can be absolved of their actions?
Ontario’s attorney general, Caroline Mulroney, should order an appeal of this ruling.
Women thought they had won this battle almost a generation ago when the federal government in 1995 amended the Criminal Code to outlaw the defence of self-induced, extreme intoxication in cases of assault.
This was in response to an odious ruling upheld by the Supreme Court the previous year, when a chronic alcoholic was acquitted of sexual assault because he was too drunk to know what he was doing when he pulled a 65-year-old woman from her wheelchair, dragged her to her bed and raped her.
The court agreed with the trial judge that someone incapable of forming criminal intent cannot be found guilty and that the man’s extreme intoxication — to the point of automatism or insanity — must be recognized as a defence. An understandable public outcry ensued, prompting Parliament to change the law.
But since then, provincial courts across the country, including at least five in Ontario, have ruled the federal law unconstitutional and have allowed men to claim extreme intoxication as a defence for sexual assault. The final determinations of the cases have been mixed. But none has been appealed.
Into this legal quagmire enters lawyer Eric Neubauer, acting on behalf of Cameron McCaw of Toronto, who is charged with sexually assaulting a woman identified as K.B. on July 11, 2015.
According to court documents, K.B., whose name is protected by a publication ban, was assaulted while she was passed out on a sofa in her former boyfriend’s apartment after an evening of excessive drinking with friends. According to her affidavit, she awoke to find McCaw, her ex-boyfriend’s roommate, kissing and sexually touching her.
K.B. says she initially thought the man on top of her was her ex-boyfriend, but when she realized her mistake, she jumped up and fled to her ex’s room. Shortly after, K.B. and her former boyfriend left the apartment and contacted police.
McCaw isn’t denying what happened. What he and his lawyer want to argue is that he can’t be held criminally responsible for his actions because over the course of the evening he drank alcohol, smoked weed and took the date rape drug. In short, he was blasted out of his mind.
Since the case law is cloudy, Neubauer asked Superior Court Justice Nancy Spies to make a pre-trial ruling on whether the federal prohibition of the extreme intoxication defence still stands in Ontario.
With no appeal court ruling to guide her, Spies agreed with previous cases that determined the federal law is unconstitutional. As a result, she essentially declared the extreme intoxication defence to be fair game in Ontario courtrooms again, meaning provincial Crowns can no longer rely on the federal law to protect women against this disturbing line of defence.
It is a chilling message to be sending young men, many of whom are experiencing booze-fuelled parties on university campuses this month for the first time: If you have enough to drink, smoke and ingest, you can do what you want with women and claim impunity.
And it is why an appeal is so important.
Women could wait until this case is heard on Sept. 12. But if McCaw gets off, it is one more ruling — albeit at a lower court level — in favour of this troubling defence.
It would be far preferable for an appeal court to weigh in now so everyone knows where they stand. If the appeal court upholds Justice Spies’ ruling, then an appeal to the Supreme Court would be in order. And if the law doesn’t stand up to scrutiny in the highest court in the land, Parliament should draft a new one that does.