Supreme Court of Canada rules setback for women

The Supreme Court of Canada’s decisions in R v Brown and R v Sullivan and Chan, published on Friday, mark a sad day for Canadian women. The court struck down section 33.1 of the Penal Code, enacted to promote the “equal participation of women and children in society” and their right to “full protection of the rights guaranteed in (sections) 7, 11, 15 and 28” .

Since 1995, section 33.1 has prevented those accused of crimes of violence, committed overwhelmingly by men and disproportionately against women, from being acquitted on the basis of their “extreme drunkenness.”

The court ruled that the section violates the constitutional rights of defendants by allowing conviction when the defendant voluntarily (i.e., of his own free will; was not drugged or coerced into intoxication) became extremely intoxicated to the point of being in a state of intoxication. Similary. to automation. Such status means that the defendant’s acts, despite being voluntarily intoxicated, are physically involuntary and without the necessary mental incompetence required to be held liable under criminal law.

Presuming guilt by denying access to the extreme intoxication defense was said to violate defendants’ rights under section 7 (liberty and the right not to be convicted if “morally innocent”) and section 11(d) (the presumption of innocence).

Our study of reported cases shows that the people affected by the court’s decisions will be primarily women who survive crimes of male violence and the families of those who do not survive. Nearly all of the perpetrators who relied on this defense were men, and the vast majority of victims were women.

Although the court questioned whether this defense could succeed on the basis of alcohol intoxication, it also said it would be “inappropriate here to exclude a finding … through any intoxicant taken alone” if an accused person can find an expert willing to back him up. .

Beyond the immediate impact of unleashing the extreme intoxication defence, the decisions have serious implications for Parliament’s legislative efforts to protect women from male violence. The court explicitly stated that women’s rights—to liberty and security of the person under article 7, to equality in article 15, and to the promise in article 28 that, notwithstanding everything else in the Charter , “the rights and freedoms mentioned therein are guaranteed equally to male and female persons”—should not be considered at this stage of assessing whether the rights of an accused person have been violated.

Rather, the court stated that the “equality, dignity and safety interests of women…are best considered under section 1 [of the Charter]” where the courts decide whether constitutional violations can nonetheless be upheld as “demonstrably justifiable in a free and democratic society”.

This placement of women’s rights not only suggests that they are mere social interests to consider when weighing the seriousness of constitutional infractions against the beneficial effects of a law, it also virtually guarantees that women’s rights will never prevail. The Supreme Court has never upheld a section 7 violation using section 1.

After the 1994 “Daviault” decision overturned the conviction of a man who, extremely intoxicated by alcohol, sexually assaulted an elderly disabled woman, public outrage resulted in then-Attorney General Allan Rock introducing section 33.1. Parliament’s explicit justification for section 33.1 was to protect the rights of women and children.

In reaching its decisions in the cases on Friday, the Supreme Court acknowledged that Parliament has an interest in responding with new legislation to protect victims of extremely intoxicated violence. It also acknowledged that convicting those who commit violent acts of a new offense of “criminal intoxication” would not hold criminals to meaningful account for the full extent of the harm they caused, allowing them to “benefit from what [has been described] as a ‘drunk discount’”.

We can only hope that Justice Minister David Lametti will show the same courage as Rock and that our self-styled “feminist” government revises the law as recommended by the court, following the advice of women’s equality advocates and stating women as bearers of full rights. in Canadian society.

Elizabeth Sheehy is Professor Emeritus at the University of Ottawa School of Law. Isabel Grant is a Professor at the Peter A. Allard School of Law at the University of British Columbia. Kerri A. Froc is an Associate Professor at the University of New Brunswick School of Law.

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