Ontario judge allows accused in sex assault case to use extreme intoxication defense

A decision by an Ontario Superior Court judge released this month could have major implications for Ontario sexual assault cases that involve defendants who argue they voluntarily became so intoxicated that they were unaware of their actions, and therefore were not responsible for violent crimes.

Although the use of this defense is rare, Judge Nancy Spies’ decision, released Aug. 2, has renewed the question of whether someone charged with sexual assault can use a defense of self-induced extreme intoxication, to the point of automatism, to try to get themselves off the hook, experts tell VICE News. Automatism means someone has no conscious control over their actions. Sleepwalking, for example.

“It’s a small number of cases, but it’s so problematic,” UBC criminal law professor Isabel Grant told VICE News. “It just sends a terrible message I think in an era of #MeToo when we’re asking men to take responsibility for the sexual violence they perpetuate against women.” She added that the judge in this case was in a bind because previous Ontario judges had allowed the defense.

“The way I look at this decision is that, who bears the risk that a man’s going to get so drunk that he can’t control what he’s doing?” Grant asked. “And this decision says women bear that risk.”

In this case, Cameron McCaw, who faces charges of sexually assaulting a woman in July 2015, asked the judge if he could argue at trial that he can’t be held responsible for his actions because he had consumed so much alcohol, weed and a substance the judge called a “date rape drug” that he was in a state of automatism. His claims have not been proven in court.

Normally, Section 33.1 of the Criminal Code would stop him from using this argument, stating that someone in such a state is criminally at fault if they assault someone. Previous Ontario judges have ruled the section is unconstitutional. In his application, the defendant asked the judge to simply affirm that judges had declared Section 33.1 was no longer in effect. In her decision, the judge agreed with him, allowing him to use the automatism defense at trial.

The ruling means that during the trial, the accused can try to demonstrate on a balance of probabilities that because of extreme self-induced intoxication, he did not intend to sexually assault the victim. That argument could result in his acquittal.

The decision doesn’t mean section 33.1 has been stuck down entirely, but it does call into question whether the section is in fact unconstitutional — something that experts say should be decided by higher courts. Experts say the issue hasn’t come to the fore in this way since the section was first enacted in law, and this is the first time we’ve really had to address the issue of whether it’s constitutional or not.

The judge’s decision may have passed entirely unnoticed if not for a Globe and Mail story this week.

Circumstances of the case

Cameron McCaw is charged with sexually assaulting, K.B., who’s name is protected by a publication ban, the evening of July 11, 2015. The assault allegedly happened when K.B. was passed out on a couch in the living room of her boyfriend’s apartment. She testified during a preliminary inquiry that she was extremely intoxicated after drinking at a pool party.

She said she woke up to find McCaw, who was not her boyfriend, kissing and touching her sexually. She testified she initially thought he was her boyfriend, so she did not resist, but when she realized who he actually was, she ran into her boyfriend’s bedroom. She and her boyfriend then left the apartment. As they left, she said they saw McCaw sleeping in a chair, holding a pair of scissors. Her testimony has not been proven in court. She reported the alleged assault to police at 5 a.m. on July 12.

The trial is ongoing, and McCaw has pleaded not guilty.

According to the judge, McCaw swore in an affidavit that he voluntarily consumed alcohol, weed and a drug the judge described as “GBD, the date rape drug.”

(There does not appear to be a “date rape drug” called GBD. It’s possible the judge meant to write GBL or GHB, depressants that are also used recreationally. A “date rape drug” is any drug that is used to incapacitate someone in order to facilitate sexual assault. Alcohol can also be used as a date rape drug.)

McCaw planned to testify that he took these drugs and then performed sexual acts “without intending to do so” because he was in such a state of extreme intoxication “akin to automatism … so as to cast doubt on the voluntariness of his actions,” the judge wrote.

“Mr. McCaw wishes to rely at trial on a defense of automatism via self-induced extreme intoxication but the operation of s. 33.1 of the Criminal Code would make this unavailable to him,” judge Spies writes.

In 1994 in R. v. Daviault, the Supreme Court of Canada ruled that voluntary extreme intoxication to the point of automatism can be used as a defense against a sexual assault allegation. In that case the accused was charged with sexually assaulting an elderly woman.

The Daviault decision sparked public outrage. In response, the Liberal government enacted Bill C-72 in July 1995. The bill introduced Section 33.1 into the Criminal Code of Canada, stating the accused in an assault case cannot use self-induced intoxication as a defense.

Bill C-72 reasoned there was a close association between violence and intoxication, and the government is concerned that self-induced intoxication could be “used socially and legally to excuse violence, particularly violence against women and children.” Those who assault others while voluntarily intoxicated, the bill states, “should be held criminally accountable for it.”

Arguments

McCaw’s lawyer, Eric Neubauer, asked the judge to affirm that Section 33.1 of the Criminal Code “is of no force and effect in Ontario.”

Previous declarations by Ontario judges stating that the section was unconstitutional were not appealed by the Crown, McCaw’s lawyer argued. And when a court of competent jurisdiction declares a section invalid for constitutional reasons, it’s no longer a live issue, the defence said. The judge simply needed to affirm previous decisions, Neubauer argued.

Crown lawyer Patricia Garcia argued a Superior Court of Justice doesn’t have the authority to strike down a section of the Criminal Code. She also argued the science behind self-induced intoxication was “dodgy at best” and said Parliament had struck the right balance between the rights of the individual and the interests of society when it passed Bill C-72.

The judge agreed with the defense, saying it was not open to her court to “consider the issue of constitutionality of s. 33.1 anew and conduct its own analysis.” She affirmed that s. 33.1 had already been determined to not be in effect. She said it should be left up to the trier of fact, a judge or jury, to decide on all the evidence. But she also wrote that if it had been up to her, she would have found S. 33.1 unconstitutional.

What does this decision mean?

Carissima Mathen, a law professor at the University of Ottawa and an expert in constitutional and criminal law, says despite this decision, there is still debate over whether Section 33.1 has any effect in Ontario.

“That’s a point on which people disagree, and that relates to a more complicated question about the effect of a trial court declaring a statute unconstitutional, and whether that applies everywhere in the jurisdiction where that court sits, even if there are other courts at a similar level. That’s a broader question. I think it’s now been placed squarely on the table. I would be surprised if the Attorney General didn’t seek further clarification on that.”

If the Ontario Court of Appeal made this decision, it would be binding in all of Ontario, she explained. But in this case it’s a Superior Court judge, so it’s not clear whether her decision will be binding throughout the province.

Both Mathen and Grant say the issue needs to be appealed to higher courts to be decided once and for all. But that could be tricky.

Mathen says even when the automatism defense is allowed, previous cases have shown it’s not an easy defense to win. “Ironically, you’re not asking the judge or jury to draw a negative inference about the complainant, you’re asking the judge or jury to accept that you got so drunk that you basically blacked out and you shouldn’t be held responsible for what happened. That can be a hard sell to people.”

If the judge or jury doesn’t buy that defense and the accused is convicted in this case, the Crown can’t appeal the judge’s decision on s. 33.1, so it wouldn’t go to a higher court. But even if the Crown could appeal to a higher court, she says they may not be anxious to do that because S. 33.1 could very well be unconstitutional.

“Nobody really has wanted to face this issue, going on now almost 20 years, which I think is a failing. We should have squarely confronted this a long time ago, and we’re clearly going to have to confront this issue now.”

Cover image of a man walking on Parliament Hill in Ottawa on September 15, 2014. Sean Kilpatrick/The Canadian Press