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Activist Communique: Ontario judge strikes down federal law, allows intoxication defence in rape case

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On May 6, 2011, for at least the tenth time in the past 15 years, an Ontario judge has struck down a federal law that prohibits an excessive intoxication defence in cases of sexual assault.

In Superior Court Justice Terrence Patternson's ruling, he found that the 1995 federal law in question violated the Charter-given rights of a man accused of sexually assaulting an Ontario woman. The law remains in effect ("in force") despite being consistently found unconstitutional.

Basically, the "I was too drunk to know what I was doing" can now be used as an excuse as those accused of rape can claim they were too drunk to be found legal culpable for committing crimes while excessively intoxicated.

In this case, Carl Frederick Fleming can use this defence in court to argue that he was too drunk to appreciate -- and thus be culpable for -- his actions when he sexually assaulted a St. Thomas woman back in 2009.

The law remains in effect despite being found unconstitutional numerous times in the past fifteen years. The controversy over the constitutionality of the law dates back to 1994 in the Supreme Court of Canada after it was challenged in the case of R. v. Daviault. The court eventually set aside Henri Daviault's conviction for sexually assaulting a 65-year-old woman in a wheelchair. The next year, in regards to the ruling, Parliament outlawed the defence, explicitly overruling the Supreme Court.

Greg Lafontaine, a Toronto defence lawyer who acted in one of the constitutional challenges, noted that in virtually every case where Parliament's prohibition was struck down, a judge or jury went on to reject the defence evidence and convict the accused.

The federal law, defendants have claimed, it unconstitutional because the 1995 amendment Parliament made to section 33.1 of the Criminal Code violates the principles of fundamental justice and an accused person's right to a fair trial (found within the Canadian Charter of Rights and Freedoms).

Section 33.1 reads: "33.1 (1) It is not a defence to an offence referred to in subsection (3) that the accused, by reason of self-induced intoxication, lacked the general intent or the voluntariness required to commit the offence, where the accused departed markedly from the standard of care as described in subsection (2).

(2) For the purposes of this section, a person departs markedly from the standard of reasonable care generally recognized in Canadian society and is thereby criminally at fault where the person, while in a state of self-induced intoxication that renders the person unaware of, or incapable of consciously controlling, their behaviour, voluntarily or involuntarily interferes or threatens to interfere with the bodily integrity of another person.

(3) This section applies in respect of an offence under this Act or any other Act of Parliament that includes as an element an assault or any other interference or threat of interference by a person with the bodily integrity of another person."

Another legal issue is the legal concept of Mens Rea, which must be found to be present in order to secure a conviction. Mens Rea requires that the accused possess a mind sound enough to make a judgment call. The defence argument is just that, that excessive intoxication prevents such an understanding of legal right and wrong; being too drunk or high to maintain the capacity for rational thought.

Sounds like a 'get-outta-jail-free' card to me. No means no. Period. Sober. Drunk. I don't care. No means no.

In the spirit of SlutWalk, this is just another example of our rape culture.

Rape culture describes a culture in which rape and sexual violence against women are common and in which prevalent attitudes, norms, practices, and media condone, normalize, excuse, or tolerate sexual violence against women.

For more information, please see: SlutWalk: Changing a 'don't get raped' culture to a 'don't rape' culture

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