Is the defence of extreme intoxication in sexual-assault cases back?

September 5, 2018

So episode 78 – a new record.  But you know that right? Because you subscribe to the show on iTunes and have already rated and reviewed the podcast – right? You should.

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We interrupt our Staircase aftershow series to bring you this special podcast.

Is the defence of extreme intoxication in sexual-assault cases back?

The headlines were attention grabbing after a Toronto Judge ruled that section 33.1 of the Criminal Code, which limited the defence of extreme intoxication in all assault cases, was unconstitutional.

As the Globe and Mail put it: The defence of extreme intoxication in sexual-assault cases is back in Ontario, after a judge ruled that a federal law removing it violates the constitutional rights of the accused.

The twitter storm that followed was predictably biting.

So here’s what’s up..

  1. Buck a beer.
  2. Old sex ed curriculum that doesn’t cover consent.
  3. Intoxication can be used as a defence for sexual assault.

What could possibly go wrong Ontario???

— Tiyana (@tiyana_maharaj) August 30, 2018

But in the legal world the decision came as no big surprise. After all, that section of the Criminal Code had been found unconstitutional 9 times over the last 25 years.

And a successful defence of extreme intoxication in sexual assault cases is as rare as a unicorn – you can count the times it has been successful on one hand that is missing a bunch of fingers.

So while it is completely justified to be concerned after the media reports, a deeper look at the case and the constitution may help reduce some of the shock and disgust that some people felt following the decision

In this episode we take a look at the recent court decision and the history of extreme intoxication as a defence to general intent offences like sexual assault. And at the end of the day it is not as bad or offensive as it may appear at first blush.

We also have some new art – it is still new because it is way easier to just copy and past this section each week – from an awesome young designer Parker Mazerolle – serious he is crazy good – go check out his work.

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Emilie Taman on Twitter: @EmilieTaman

Michael Spratt on Twitter: @mspratt

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