Once again, A Canadian court challenges the law barring self-induced intoxication as defence for sexual assault. As sexual violence survivor advocates, we at Ontario Coalition of Rape Crisis Centres (OCRCC) are both alarmed at the implications of this challenge, and frustrated by the recurrent challenge of this particular law.

The unfortunate ‒ and ever-present ‒ ability of the courts to imperil the hard-won rights of sexual violence victims stand out to us as an act of systemic inequity, and must be strongly challenged.  

About the law and its impacts

The result of the change to this law is that an accused may now use intoxication as a defence in cases of sexual assault and other violent crimes. For example, an accused may say that they were so intoxicated that they took part in actions or crimes that they did not wish to, or acted in an “automaton” manner due to intoxication. 

The existing law was thrown out, with the court criticizing it as not constitutional and saying “It enables the conviction of individuals for acts they do not will”[1]. The ruling comes following two separate cases in court in Canada described as “tragic”, in which different men became psychotic on drugs and killed or injured relatives and were subsequently charged. Both men claimed they had no control over what they did ‒ a state called automatism ‒ due to their extreme intoxication[2].

The challenge of this law has serious impacts for those most impacted by sexual violence in Ontario—women, girls and trans people.

Our criminal justice system’s ability to support sexual violence survivors

The criminal justice system’s ability to support sexual violence survivors is already poor. The realities of sexual assault reporting ‒ and our criminal justice system’s effectiveness in holding offenders accountable ‒ deter survivors from reporting.

Today, conviction rates for sexual assault remain very low. This reality de-validates the experiences of survivors. Low convictions also suggest that sexual assault is a rare crime, and shore up victim-blaming myths about complainants. Social misconceptions (“myths”) concerning sexual assault persist, suggesting that innocent men are commonly accused of sexual assault and survivors often lie about it to get revenge, for their own benefit, or because they feel guilty about having sex[3]. 

Misconceptions about sexual violence and the use of alcohol or substances tend to shift blame to the victim/survivor, and to minimize perpetrator accountability[4].

The challenge to this law in Ontario is one more thing that will perpetuate this.

The perspectives of those most vulnerable: challenged once again

Research has shown that a person’s alcohol consumption, among other factors, is significantly related to sexually aggressive acts committed. Of interest, other gendered factors such as attitudes of hostile masculinity and the offender’s perceptions of another’s interest in sex, are also at play in these risk factors[5]. While these are all factors that rest solely on the offender, they will become totally invisible in the current legal reality, in which an accused may now use intoxication as a defence in cases of sexual assault and other violent crimes. We worry about the implications of this law on other types of crimes too, such as domestic violence and femicide.

We are incensed by the fact that this particular law has been challenged so many times. Bill C-72: An Act to Amend the Criminal Code was passed in the Legislature of Canada in 1995 in response to the intoxication defence argument, as it was commonly used in sexual assault cases. The purpose of C-72 was to hold those who sexually assault accountable for their actions. Despite this, it has been challenged many times: most recently, now and in 2011.

Like other specifically gendered or raced legal protections – for example, the right to choose abortion, or the land and territory rights of Indigenous people in Canada – it seems that these protections are never permanent, and too often the site of legal challenge by others not representative of these equity-seeking groups.

Social location – sex, race and gender identity — is a real and ongoing reality impacting who is targeted for acts of sexual violence. According to TransPulse, half of all trans persons experience sexual violence. Canadian studies also note that young women from marginalized racial, sexual and socioeconomic groups are more vulnerable to being targeted for sexual harassment and sexual assault[6]. Not only does this affect prevalence, but it is also present in the efficacy of our existing criminal justice system. While the justice system’s ability to address sexual violence is tepid overall, its response to racialized women as sexual assault complainants is decidedly poor[7].

When enacted in 1995, Bill C-72 aimed to highlight that sexual violence and other forms of gender-based violence are a real and pervasive social problem, affected by the nuances of social inequities. In presenting Bill C-72 to Parliament at that time, then-Justice Minister Allan Rock said:

“the time has come for us to speak directly of such matters and to recognize that women are not equal in this society…[and] one of the symptoms of that inequality is the extent to which they are victims of violence… and alcohol is very much tied up in that, statistically … and factually and demonstrably…Let’s also acknowledge that inequality is depriving them of the very charter rights contemplated in the sections that are mentioned [in the preamble to Bill C-72]”[8].

Once again, in 2020, the changes to the intoxication law refer to the rights of the accused only. We are dismayed that those most at risk of facing the impacts of this legal change – those at risk of sexual violence: women, girls and trans persons – do not see their rights given significant consideration in the discussion and decision of this matter.

There’s work to do to uphold the rights of sexual violence survivors

Ontario Court of Appeal decision flies in the face of some of the progress made by the #MeToo movement, and past legal victories protecting survivors.

Here’s what you can do to help in resisting this legal decision.

  • Join others in urging an appeal. This would mean that a higher court can weigh the impact this decision will have on the lives of survivors of sexual violence
  • Add your name to Jill Andrew (MPP for Toronto-St.Paul’s; NDP Culture Critic and the Women’s Issues Critic for the Official Opposition)’s petition, urging the Ontario Ministry of the Attorney-General to appeal the Ontario Court of Appeal’s decision. Go to the petition here
  • Share the petition and this statement in your networks, and on social media
  • Talk about this legal ruling with others you know

Ontario Coalition of Rape Crisis Centres (OCRCC) is a network of community-based sexual assault centres in Ontario. Member centres have been supporting survivors of sexual violence and offering prevention education since 1977: services include counselling to survivors of recent and historical sexual violence, accompaniment to hospital, police and court, advocacy and crisis support. If you or someone you know has experienced sexual violence, go to sexualassaultsupport.ca/support.  

[1] Perkel, Colin for The Canadian Press. June 3, 2020. Ontario court throws out law barring self-induced intoxication as defence for sexual assault. Online: https://nationalpost.com/news/canada/court-throws-out-law-barring-self-induced-intoxication-as-defence-to-violence?fbclid=IwAR11A-DGTvAZk1p4IzGPY9v2A-92OffyE0ws2_IcwXmkGfIG43H-4qC7vnM

[2] Perkel, Colin for The Canadian Press. June 3, 2020. Ontario court throws out law barring self-induced intoxication as defence for sexual assault. Online: https://nationalpost.com/news/canada/court-throws-out-law-barring-self-induced-intoxication-as-defence-to-violence?fbclid=IwAR11A-DGTvAZk1p4IzGPY9v2A-92OffyE0ws2_IcwXmkGfIG43H-4qC7vnM

[3] See: The Learning Network. Overcoming Barriers and Enhancing Supportive Responses: The Research on Sexual Violence Against Women A Resource Document. May 2012: 14. See also: The Attrition Pyramid (Sexual Assault). Online: http://www.vawlearningnetwork.ca/our-work/issuebased_newsletters/issue-1/Issue_1-LN_Newsletter_May_2012_.pdf, page 2.

[4] The Learning Network. Overcoming Barriers and Enhancing Supportive Responses: The Research on Sexual Violence Against Women A Resource Document. May 2012: 11.

[5] Abbey, A. & Jacques-Tiura, A.J. (2010). Sexual assault perpetrators’ tactics: Associations with their personal characteristics and aspects of the incident. Journal of Interpersonal Violence, 26(14), 2866-2889, as quoted in: The Learning Network. Overcoming Barriers and Enhancing Supportive Responses: The Research on Sexual Violence Against Women A Resource Document. May 2012: 14.

[6] Wolfe and Chioda, as quoted in Safe Schools Action Team Report on Gender-based Violence, Homophobia, Sexual Harassment & Inappropriate Sexual Behavior in Schools.  2008.  Shaping a Culture of respect in our Schools: Promoting Safe and Healthy Relationships: 3.

[7] See: Cossins, Anne. “Saints, Sluts and Sexual Assault: Rethinking the Relationship Between Sex, Race and Gender.” Social and Legal Studies 12 (1)(2003): 77-103; Pietsch, N. “‘Doing Something’ About ‘Coming Together’: The Surfacing of Intersections of Race, Sex, and Sexual Violence in Victim-Blaming and in the SlutWalk Movement.” This Is What a Feminist Slut Looks Like: Perspectives on the SlutWalk Movement, edited by Alyssa Teekah et al., Demeter Press, Bradford, ON, 2015, pp. 77–91. JSTOR, www.jstor.org/stable/j.ctt1rrd96j.11. Accessed 1 June 2020.

[8] Isabel Grant, Second Chances: Bill C-72 and The Charter (Osgoode Hall Law Journal – Vol. 33 No. 2, 1996) p. 385