LEAF reflects on the recent decision of the Court of Appeal for Ontario in R. v. Sullivan and R. v. Chan with a disappointing outcome for women and children

Yesterday, the Court of Appeal for Ontario (the “Court”) released its decision in R. v. Sullivan and R. v. Chan. In separate concurring judgments, the Court found s. 33.1 of the Criminal Code infringed accused’s s. 7 and s. 11(d) rights under the Charter of Rights and Freedoms, and that this infringement was not justifiable. This section modified the common law to hold individuals criminally responsible when they commit violent acts while in a state of self-induced extreme intoxication.

Why this is important

Section 33.1 of the Criminal Code prevents the use of voluntary self-induced extreme intoxication as a defence to violent general intent offences, including sexual assault. This provision is important to LEAF’s mandate of advancing substantive equality rights for women and girls, including advocating for Courts to consider the equality rights and dignity of sexual assault and intimate partner violence complainants.

Several lower courts had previously assessed the constitutionality of s. 33.1 of the Criminal Code, but none had considered its importance for women’s equality rights or security interests under the Charter. While this decision at least references the importance of the equality and human dignity of women and children who are disproportionately victimized by intoxicated violence, we are disappointed that these rights seem to receive only passing consideration by the Court.

While we recognize the importance of protecting the rights of the accused, we are dismayed that women’s rights to equality and dignity are not given more adequate treatment. LEAF is particularly troubled by the majority’s failure to recognize Parliament’s objective of accountability as legitimate given its importance for those considering whether to report crimes of violence. The Court’s ultimate conclusion that the infringement of the accused’s rights could not be justified seemed to follow from this narrow reading of the importance of the law’s objectives.

LEAF’s intervention

In our intervention, LEAF submitted that the constitutionality of s. 33.1 of the Criminal Code must be assessed in the context of all of the Charter rights engaged by s. 33.1, including the s. 7 security interests of victims of self-induced intoxicated violence (predominately women and children), as well as the s. 15 and s. 28 equality rights that were at the forefront for Parliament when it enacted s. 33.1.

LEAF’s submissions specifically emphasized the importance of Parliament’s two objectives when enacting this law: to ensure the accountability of those who, in a state of self-induced intoxication, harm others, and to protect the security interests and equality rights of women and children, recognizing that violence disproportionately impacts them.

LEAF argued that when Parliament passed this law in 1995, it had considered how the failure to hold extremely intoxicated offenders accountable for violence against women perpetuated inequalities, legitimized violence against women, and deterred women from reporting these crimes. Simply put, s. 33.1 was enacted in part because Parliament recognized the importance of sending a message that violence against women would not be tolerated.

LEAF’s position on the Court’s decision

“LEAF welcomes the court’s acknowledgment of the importance of the equality rights and human dignity of women and children, who are disproportionately victimized by intoxicated offenders,” says Megan Stephens, Executive Director and General Counsel at LEAF and co-counsel on this intervention. “It is disappointing, however, that this acknowledgement ultimately rings hollow, particularly in the Court’s analysis of whether the infringement of the accused’s rights was justifiable.”

LEAF is disappointed that the majority found that Parliament’s purpose of holding those who are in a self-induced state of extreme intoxication accountable for the violent acts they commit was “improper” and could not be a pressing and substantial objective. In so deciding, the majority failed to consider how Parliament’s “accountability purpose” could further the equality and dignity rights of women.

Violence disproportionately impacts women and girls in Canada, particularly those who are the most marginalized, including racialized and Indigenous women, as well as those living with disabilities. This violence directly impacts women and children’s s. 15 equality rights and s. 7 security interests. The criminal justice system too often fails to address their justice needs. We are concerned that the majority of the Court did not appreciate how concerns about accountability would impact a woman’s inclination to report sexual violence to the police.

Many women are already reluctant to report sexual violence, often out of fear of not being believed and confusion about what constitutes a sexual offence under the law. This decision will arguably compound that confusion. It also risks sending a dangerous message that men can avoid accountability for their acts of violence against women and children through intoxication. LEAF will monitor whether this case makes it way to the Supreme Court of Canada. We will also consider whether other law reform initiatives, including those referenced as alternatives in this decision, could help safeguard the Charter rights of complainants.

Additional Information

LEAF thanks Megan Stephens, our Executive Director and General Counsel, and Lara Kinkartz of WeirFoulds LLP, for acting as counsel for LEAF on this important intervention. For more information about our intervention in this case, please see our factum.

About Women’s Legal Education and Action Fund (LEAF)

The Women’s Legal Education and Action Fund (LEAF) works to advance the substantive equality rights of women and girls through litigation, law reform, and public education. Since 1985, LEAF has intervened in landmark cases that have advanced equality in Canada—helping to prevent violence, eliminate discrimination in the workplace, provide better maternity benefits, ensure a right to pay equity, and allow access to reproductive freedoms. To support our work to protect the equality rights of women and girls, please consider donating today.

To support our work to protect the equality rights of women and girls, please consider donating today.

For media inquiries, contact:

Megan Stephens, Executive Director and General Counsel
Women’s Legal Education and Action Fund (LEAF)
T: 416 317-4440
E: m.stephens@leaf.ca