Criminal Law

Extreme inebriation defence needs top court's consideration

By Peter Small, Contributor

Two competing Ontario Superior Court decisions have left the defence of extreme inebriation ripe for constitutional review by appeal courts, Oshawa criminal lawyer Lawrence Forstner tells

"That's why I am now hopeful that there may be other Superior Court decisions coming out ... and this will be a time for the Supreme Court to actually take up the case,” says Forstner, principal of Forstner Law.

Ontario Superior Court Justice Nancy Spies ruled last summer that s. 33.1 of the Criminal Code is unconstitutional and of no force and effect.

The section bars defendants from using the defence of automatism due to extreme inebriation in cases that involve an element of assault. Spies noted in her judgment that this prohibition applies only to offences of general intent (involving minimal mental acuity) and does not interfere with specific intent offences (involving a heightened mental element).

Spies held that because an Ontario Superior Court judge had already declared s. 33.1 unconstitutional in 1999, it binds other judges, and the issue ceases to be "live" for courts to litigate unless and until the Crown successfully appeals that determination.

However, in a more recent ruling, Ontario Superior Court Justice R. Cary Boswell disagreed with Spies' opinion that judges are bound by the 1999 decision.

"There are inconsistent rulings across the country on the constitutionality of s. 33.1. Clearly, the issue is quite unsettled and in need of appellate consideration," Boswell wrote.

"Justice Boswell is saying that Justice Spies is going a little too far to suggest that one ruling in 1999 ought to be seen as the 20-year foundation for why it's null and void,” Forstner says.

Nonetheless, many have wondered why s. 33.1 has survived this long, he says.

"That’s because it denies voluntariness for mens rea,” Forstner adds. "If you're literally not present in your drugged-out head, then you're not driving the ship. And so what you do is involuntary, and you lack the mens rea for committing the crime. And that's just true.”

He says s. 33.1 is overdue for review by the Supreme Court.

"It never made constitutional sense. It was made because of the idea that you could get rip-roaring drunk and then commit sexual assault and get away with it."

The legislation was enacted in 1995 following a public outcry that greeted a Supreme Court decision ordering a new trial for a Quebec man convicted of sexually assaulting a disabled woman. The man claimed he was too drunk to know what he was doing. The court declared unconstitutional the common law principle that extreme intoxication cannot be used as a defence for general intent offences like sexual assault.

Extreme inebriation is seldom argued in criminal cases because it is a "horrible defence," Forstner says. It is an unsympathetic defendant who claims: "I raped her because I got so stinking drunk I didn't know what I was doing,” he adds.

Forstner recalls seeing a man barred by s.33.1 from invoking a similar defence in his sexual assault trial. He was found guilty and sentenced to four years in prison. According to Justice Spies' decision, however, his lawyer could have argued that the defence was open to him because the issue was already decided in 1999, he says.

Forstner is working on a case in which his client is charged with assault for allegedly biting a man who may have sexually assaulted her while they were both very drunk. Depending on how the facts are presented, she may be able to claim the defence of extreme intoxication, while he may not.

"It highlights how controlling the narrative of what goes on can make a big difference in what defences are available,” he says. "I would think this whole area now should be studied much further because it has implications.”

Our evolving understanding of alcoholism also affects the discussion, Forstner says, noting that s. 33.1 was far more palatable to Parliament in 1995 because extreme drunkenness was considered a sign of weakness.

"There was this inherent stigma of ‘if you can't control your drinking you're morally flawed anyway,'" he says, adding that today alcoholism is understood as an addiction and a disease, not a character defect.

"I'm not suggesting that justifies sexual assault in any way, but Justice Spies is saying alcoholism can and will be given its due in these cases," Forstner says.

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