Criminal Law

Using excessive intoxication as a defence for sexual assault

By Staff

A recent Ontario Superior Court decision means that the defence of extreme self-induced intoxication is now available for defendants to use in sexual assault cases, says Ottawa criminal lawyer Céline Dostaler.

Although the Criminal Code, in s. 33.1, states that voluntary self-induced intoxication can’t be used to argue an accused person lacked the intent to commit an assault, case law now has opened the door to it, at least in Ontario, says Dostaler, founder of Céline Dostaler Professional Corporation.

“For the defence of intoxication, s. 33.1 basically says there’s no defence to the suspected person of voluntary self-induced intoxication, so the Criminal Code is pretty clear that you can’t use it,” says Dostaler. But in a recent case, the Ontario Superior Court (OSC) decided that this rule violates the Charter and is invalid.

As a result, in certain extreme circumstances, defendants will be able to mount an argument that they were so intoxicated at the time of an assault that they didn’t know what they were doing, Dostaler tells Of course, medical and other expert evidence would then need to be presented to support the claim, she adds.

“It doesn’t mean getting drunk and being able to use that as a defence for sexual assault in any case,” Dostaler cautions. “It needs to be voluntary intoxication to the point where, as in the OSC case, the person says they were acting as an automaton — they were so drunk that they no longer had any ability to think properly or know what was happening.”

The case has not yet been judged on its merits, she says, but the court decided to allow defence lawyers to present the automaton defence at trial.

The defendant provided an affidavit at a preliminary hearing stating that he’d consumed alcohol, marijuana and GBD, a date-rape drug, before the alleged sexual assault, and was so intoxicated he was acting like a machine.

“This was a decision on whether or not self-induced intoxication can be a defence to sexual assault — not whether a person was, in fact, acting as an automaton and a sexual assault occurred,” Dostaler says. “We’ve jumped over the rule that says self-induced intoxication is not a defence. Now we need to be able to show that the person was intoxicated to the point of not being able to know what was happening.”

Criminal lawyers considering such a defence will need a great deal of research and careful arguments, she says.

“If it’s alcohol, it’ll be based on expert evidence as to how much alcohol was consumed and the effect it would have. It’s going to be more than, ‘I had five drinks, so I didn’t know what I was doing.’ We’d need an expert to show what the alcohol readings would be for five drinks," Dostaler says.

"We’d have to prove that person was not able to know what was happening. We don’t want to raise that defence if there’s no air of reality to it — it won’t go anywhere.”

Establishing the veracity of a claim of automatism involves more than simply knowing what substances were consumed and how much, Dostaler says. She would ask a client about their regular drinking or drug use.

“If someone comes to me and says, 'I had six lines of cocaine and a mickey of rum,' my next questions are, 'How often do you use cocaine? How does it affect you?' If the answer is, ‘I’ve never had cocaine before, and it really affected me,’ that might make more sense than, ‘I consume seven lines every day,’” she says.

Dostaler says it’s also important to understand precisely how a person’s memory has been impacted.

“I would also ask what the client means when he says he can’t remember: does he have a lapse in time? Does he have partial memories?”

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