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Intoxication used as defense for sex assault

The media has recently highlighted that Justice Nancy Spies, a trial judge of the Superior Court of Justice, recently restored the defence of extreme intoxication in sexual assault cases, which begs the question: what does that actually mean?

Well, in 1994 the Supreme Court of Canada found in a case called R. v. Daviault that “extreme intoxication”, which was defined as a state akin to automatism, or in layman’s terms, when an individual was so drunk they did not know what they were doing, was a defence to sexual assault. The court essentially found that if an individual was extremely intoxicated when they touched someone in a sexual way without consent, they were not guilty of sexual assault.

However, nine months after the Supreme Court released their decision in Daviault, Parliament enacted s. 33.1 of the Criminal Code, with the intent to reverse the impact of Daviault. S. 33.1 eliminated the defence of “extreme intoxication” in sexual assault cases.

In 1999, Madam Justice Wallace of the Superior Court of Justice found in a case called R. v. Dunn that s. 33.1 was unconstitutional, and was accordingly of no force and effect. In other words, she found that the defence of “extreme intoxication” must be available for offences such as sexual assault. Justice Wallace in effect restored the defence.

Since the release of Dunn, different courts have come down on both sides of the issue; some have found that the defence should be available and others have found that it should not. No appellate courts have considered the issue as of yet. In the recent case of R. v. McCaw, Madam Justice Spies found, as did Justice Wallace, that s. 33.1 was of no force and effect such that, as it stands, “extreme intoxication” is a defence to a charge of sexual assault.

The Judge Ruled the Man was Not Guilty of Sexual Assault

Recently, a military judge, presiding over a court marital, found a soldier not guilty of sexual assault. The complainant alleged that she was assaulted in a Toronto hotel room. In ordering the case dismissed, the judge noted problems with the woman’s account, including that she willingly attended a strip club with the accused, despite claiming to have been sexually assaulted by him earlier.

This acquittal comes in the wake of a spate of other high-profile acquittals, including that of three Toronto police officers accused of rape and related charges last year. In that case, the trial judge concluded that the “believe the victim” campaign, part of the broader #meToo movement, has no place in the courts because it deprives the accused of the presumption of innocence. While critical of stereotypes invoked by the defence, such as suggesting that the complainant was dressed in immodest clothing, the trial judge was left in reasonable doubt by various implausibilities in the complainant’s story as well as pictures showing that she was not too intoxicated to consent.

Before that, there was the 2016 acquittal of Jian Ghomeshi. In that case, the credibility of the complainants was vigorously challenged by the defence, who brought out that some of the women had continued contact with Ghomeshi after the alleged assaults, and had sent selfies to him. One of the women sent him a picture of herself in a bikini as well as an email complimenting him on his show and including her own cellphone number.

All of these cases demonstrate how crucial it is to vigorously fight false sexual assault allegations. The #meToo movement has only grown stronger and it is important to hire the right lawyer to defend you. The consequences are too serious to do otherwise.

We are getting phone calls like this “Hello, I have been wrongly accused …” And we are commonly asked, “Who is the best lawyer for sexual assault crime”. Sexual assault is a broad offence that can range from uninvited sexual touching to a brutal rape. The right lawyer to defend sexual assault allegations is the one who will knows the law and will turn over every rock, investigate all possible witnesses, and pursue every avenue of defence to either convince the prosecutor to drop the charges, or secure a “not guilty” verdict. No lawyer can guarantee an acquittal, but if you retain us, we can guarantee that we will bring every resource to the table to fight for you.


Judge Shortage in Ontario

There is a crisis in the criminal justice system in Ontario. There are too many cases being prosecuted, and not enough judges to hear them. The result is that cases are taking too long to get to trial, accused people are suffering prejudice from the delay, and charges are being dismissed as a result.

The judicial shortage in Ontario is not a new problem. For decades both federal and provincial
governments have repeatedly promised to fix it, yet judicial vacancies have remained. Section 11(b) of the Canadian Charter of Rights and Freedoms guarantees an accused the right to have their trial within a reasonable time. Since the enactment of the Charter in 1982, what constitutes a “reasonable time” has been the subject of much debate. Finally, in 2016, the Supreme Court of Canada settled that debate in R. v. Jordan by outlining “presumptive ceilings” for how long cases should take to get to trial: 18 months in the Ontario Court of Justice, and 30 months in the Superior Court of Justice. Anything longer that will result in the charges being stayed following an application by the accused pursuant to section 11(b) of the Charter unless the Crown can justify the delay by proving that it was caused by either exceptional circumstances or by the conduct of the defence.

Despite the Supreme Court’s pronouncement in Jordan, the pace of judicial appointments has remained slow. Significant vacancies remain, and little is being done to correct the problem. Shortly after the release of Jordan in 2016, funds were earmarked by the federal government for the hiring of judges, and provincial advisory committees were created to assist with the process. Yet in January of 2018, the Canadian Bar Association wrote to the Minister of Justice expressing concern that despite the ruling in Jordan, promises for change were not being kept.

The problem continues to get worse rather than better. Following the dismissal of a case involving serious fraud charges in July of 2018 as a result of delay, Norine Nathanson, senior counsel to the Chief Justice of the Ontario Superior Court of Justice, said that she expects the percentage of judicial vacancies to reach an all-time high by September of 2018.


by Eva Taché-Green

A quick glance at the changing skyline of Toronto says a lot about the increasing popularity of condominiums. Condo living means cutting back on square footage and swapping big backyards for sweeping views and access to amenities. But according to recent case law in Ontario, it also means giving up our right to be free from unreasonable search and seizure by the police.
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by Catriona Verner

On January 4, 2005 Sonia Gaudet was strangled and her body was set on fire in her own apartment. Michael Kassa, a platonic friend of Sonia’s, was charged with her murder a year and a half after the offence and, based on what has since been shown to be flimsy evidence, he was convicted. This is the history of his case.
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