By Tasha Kheiriddin - from the National Post
As the Conservatives prepare their omnibus crime bill, here’s another item to add to their list: upholding a 1995 law which prohibits the so-called defence of excessive intoxication.
As the Conservatives prepare their omnibus crime bill, here’s another item to add to their list: upholding a 1995 law which prohibits the so-called defence of excessive intoxication.
The defence implies that if an accused is too drunk or high to know what he or she is doing, he or she can plead “not guilty”. The issue has arisen again in the context of the case of Carl Frederick Fleming, who argued that he was too drunk to appreciate his actions when he sexually assaulted a St. Thomas, Ontario woman in 2009.
In a bizarre twist, it was at least the tenth time that a judge has struck down the contentious law in the past 15 years. The rulings have created an extremely unusual legal anomaly – a law that remains in force despite being consistently found unconstitutional.
The controversy over the defence dates back to 1994, when the Supreme Court of Canada ignited a public furor by finding it legitimate in the case of R. v. Daviault. The court set aside Henri Daviault’s conviction for sexually assaulting a 65-year-old woman in a wheelchair.
Soon afterward, several men were acquitted of beatings and sexual assault based on the judgment. Enraged editorialists and politicians referred to the defence as a “licence to rape,” while feminists and victim advocates condemned it as a get-out-of-jail-free card for criminals who drank themselves into a stupor.
Readers might remember another recent case where this defence was raised, and the accused pleaded guilty to a lesser charge of manslaughter. In 2008 Chirstopher Hurd brutally raped and murdered Loretta Lavallee in her Toronto-area apartment; Lavallee was a stranger and Hurd was high on magic mushrooms, and claimed he couldn’t form the intent to commit his heinous crimes.
Since 1995, according to a Toronto lawyer, only three accused have been acquitted based on the excessive drunkenness defence. But three acquittals is frankly three too many. And the mere fact the defence can be raised is insulting to the memory and dignity of victims. Read more...
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