The Ontario Court of Appeal struck down Section 33.1 of the Canadian Criminal Code on June 3 on the grounds that it was unconstitutional. Since then, there has been an outpouring of concern about the effects this ruling could have on cases of sexual assault and violence against women, including a petition with over 300,000 signatures. 

 

This reaction is overblown. Most lawyers have come out in support of the Court of Appeal’s legal reasoning which, upon reading, is sound. However, the ruling still needs to be appealed.

 

Headlines shouting that defendants charged with sexual violence will now be able to use simple intoxication as a court defense are understandably alarming—but they also get the facts of Section 33.1 wrong. Section 33.1 refers to automatism: intoxication so extreme the person enters a state of total unconsciousness, like sleepwalking. It’s notoriously difficult to prove in court, requiring medical experts to support the diagnosis, and is thus used rarely. 

 

It doesn’t apply to a guy at a bar after a few drinks. 

 

However, the automatist state of an involuntary sleepwalker is not the same as someone who has consciously drank or used drugs. It’s reasonable to assume people know that, while intoxicated, they may act in a way they wouldn’t act when sober. Violence may have been perpetrated in a state of automatism, but since the individual chose to enter that state, they should still be held responsible for their actions—actions that, statistically, are more likely to be made against women.

 

In fact, the problem with this decision is not whether people accused of sexual violence will be acquitted simply because they claim they were drunk. That won’t happen. The issue is that this ruling will disproportionately affect women, mainly in the form of sexual violence cases—the only kind of violent crime in Canada that is not declining.

 

Canadian law is supposed to ensure equality, but women are seven times more likely to be sexually assaulted than men. Allowing this defense will not affect Canadians equally and, therefore, it shouldn’t be available to defendants.

 

It’s extremely difficult and courageous for survivors of sexual violence to come forward. It’s my hope that our justice system looks for ways to give survivors more legal resources, instead of their assaulters. It’s also important to recognize that it’s the law’s job to place boundaries on criminal proceedings, and measuring constitutional rights against one another is a delicate balancing act. 

 

The fact that we’re talking about how the law affects women and survivors of sexual violence differently is a sign of progress. Hopefully, the discussion continues as the case moves forward. Once it does, I also hope the Justices of the Supreme Court think carefully about the message they send to survivors of sexual violence—and to every girl like me—about how much our safety and equality matters.

 

Carolyn is one of The Journal’s Features Editors. She’s a third-year Political Studies student.