On June 3, the Ontario Court of Appeal released its decision in the cases of R. v. Sullivan and R. v. Chan. If that news doesn’t ring a bell, you might be more familiar with the headlines the decision produced: “Extreme intoxication a defence for violence, court rules” on the front page of the Globe and Mail and “Ontario court throws out law barring self-induced intoxication as defence for sexual assault” read the National Post.
This story goes back to the mid-’90s when Henri Daviault successfully argued that he was not responsible for sexually assaulting an elderly woman because he was an alcoholic whose intoxication made him do something he would not have otherwise done. The case horrified the feminist legal community who rallied hard to create Section 33.1 of the Criminal Code which “prevents the use of voluntary self-induced extreme intoxication as a defence to violent general intent offences, including sexual assault.”
“When the Daviault decision was released by the Supreme Court of Canada in 1995, the frontline women’s movement sounded the alarm,” Elizabeth Sheehy, Professor Emerita of Law at the University of Ottawa tells me. “A number of acquittals were registered for men accused of sexual assault and wife battering, and women reported their partners’ renewed threats based on the impunity Daviault afforded them: ‘I’ll just get extremely drunk before I assault you next time!’”
The Liberal government at the time pushed for the creation of Section 33.1 of the Criminal Code. In discussions on the Bill, the government named the protection of women and girls as a key motivator.
“Section 33.1 was an example of democracy working,” says Isabel Grant, Professor at the Allard School of Law. “Our elected government decided to take steps to protect women and children from violence in response to the Daviault decision.”
It was a huge win for women and girls. But last week, more than 20 years after the bill was passed, Section 33.1 was thrown into question by two separate cases involving men who willingly took drugs and then committed violence. Thomas Chan took mushrooms and started raving “I am God” before he stabbed his father to death and critically injured his father’s partner. David Sullivan tried to take his own life by overdosing on nicotine cessation medication and stabbed his elderly mother. Thankfully, David’s mother survived.
In both cases, the men argued that they were in a state of “automatism” which is defined as “impaired consciousness, rather than unconsciousness, in which an individual, though capable of action, has no voluntary control over that action.”
In other words, they were not otherwise mentally ill, but because of the drugs they were in a state that caused them to do things they would not have otherwise done.
I’ve been working to end violence against women and girls in Canada for almost 20 years. This news horrified me and I wasn’t alone. Twitter blew up with people outraged by the slippery slope this presented. Does this mean a lifelong alcoholic could argue they’re not responsible for drinking and driving? Could a man contend he was too high to be responsible for beating his wife?
The response from the feminist legal community was swift. The Women’s Legal Education and Action Fund (LEAF), Canada’s most prominent feminist legal association, called the decision “disappointing.” We live in a country where women are already reticent to report the violence they experience, LEAF stated in its official response. Why create another barrier to women getting justice?
Ms. Sheehy agrees: “[This decision] approaches the issue with the narrowest legal analysis possible, eschewing the abundant feminist literature and even the addictions research on sound policy development in the area of intoxicated criminal offending,” she says.
But as I joined my colleagues and allies on social media, drawing attention to the myriad ways the legal system fails to show up for women, the backlash from the mainstream legal community slowly started trickling in.
Defence lawyers accused feminists of exaggerating the impact of this decision. Automatism is an incredibly difficult thing to prove, they argued, and the bar is set really high. The idea that this will be a widespread defence is “overblown.” Critics also argued that the media’s decision to focus on the implications of this defence for sexual assault cases was unreasonable considering the two cases in question had nothing to do with sexual assault. The Canadian Civil Liberties Association slid into my DMs to assure me that automatism “is not an issue that arises frequently.” But, the irony here is that automatism couldn’t easily be used because of Section 33.1. Even more than that, the idea that it would never be applied in the context of a sexual assault is a wild assertion considering Section 33.1 was created because of a bad decision in a sexual assault case.
I would love to buy into the fantasy that the legal system is an objective entity that makes decisions based solely on the facts presented. But that system does not exist, especially when you’re talking about gender-based violence. Sexual assaults rarely have witnesses, let alone physical evidence that proves a lack of consent. Intimate partner violence most often happens behind closed doors, too.
One in five sexual assaults are dismissed by police in Canada as “unfounded.” And even when charges are laid, only one in 10 cases will actually get a conviction. So the idea that we should all just calm down and trust that the “automatism” defence will only be used selectively requires a level of trust in the system that is, frankly, unwarranted.
But I think the wildest criticism my colleagues and I are receiving is the accusation that in talking about this decision, we are actively deterring women from reporting sexual assaults—that by talking about the implications of this decision, we are telling women “There’s no point in reporting because he’s just been guaranteed a free pass.” Look, feminists are not harming women; we’re arming them. Women deserve to know the truth about how harrowing the process of reporting an assault can be if you’re lucky enough to be believed.
The good news here is that outside of the mainstream legal community, Canadians seem pretty unanimous in their rejection of this decision. A petition that began circulating on Thursday garnered nearly 50,000 signatures. And this mobilization is certainly responsible for the fact that Ontario has decided to appeal the decision.
Whether the appeal does anything is yet to be seen, but I want us to keep talking. In this moment of unprecedented levels of discussion around the very purpose of a legal system, now is the time for us to consider who is getting justice because it certainly isn’t women and girls.