Uproar over drunkenness defence a distraction to the main issues: Mandin

Critics attacking the judge and justice system over a decision to allow the accused to present a drunkenness defence in a sexual assault trial are missing the point both legally and socially, says Toronto civil litigator Stephany Mandin.

Mandin, founder of Mandin Law, says the decision in the sexual assault case is founded properly in law but the social outrage which has resulted underscores the need for alternate forums to address sexual assault.

She says victims should consider civil litigation as a way of seeking justice in sexual assault cases because the burden of proof is lower, it allows for more direct participation in the process and may provide a higher chance of success than with criminal courts where the bar is set much higher.

“The judge quite rightly noted there have been nine earlier decisions — two at the Court of Appeal — on this defence, that an accused was so drunk and impaired they had no control over their mind or body and thus failed to have the mens rea, or guilty mind, to commit an offence,” Mandin tells AdvocateDaily.com.

“Section 33.1 of the Criminal Code, which had blocked that as a defence, has previously been ruled unconstitutional and the judge held that she was bound to follow that,” she says.

Mandin says it should also be noted that while the judge allowed the defence counsel to mount the argument, there’s no certainty it will succeed and result in an acquittal.

“There’s a presumption of innocence under the Charter,” she says. “And that means that no accused should be prevented from making an argument in their defence. Whether that argument succeeds, of course, is a different matter entirely.”

Mandin says the judge clearly articulates her thoughts in the decision and is fully cognizant of why the law was changed in 1995 to forbid such defences.

“Section 33.1 of the Criminal Code was enacted in July 1995. It bars the defence of self-induced intoxication in cases that involve an element of an assault. The provision applies only to offences of general intent. It does not interfere with the common law rule that a state of ‘advanced intoxication’ can raise a reasonable doubt as to the mens rea of specific intent offences,” wrote Justice Nancy Spies.

But, she concluded, the section should be “declared as invalid as it is inconsistent with ss. 7 and 11(d) of the Charter, and is not saved by operation of s. 1 of the Charter.”

Meanwhile, says Mandin, the critics attacking Spies and the system — a continuation of the furor following the acquittal in 2016 of a radio personality Jian Ghomeshi on sex assault charges — are misdirecting their outrage.

“What we have to do is look at other ways of establishing guilt and meting out punishment and justice,” Mandin says.

“We have to remove the stigma of sexual assault and allow for monetary compensation in some cases. In criminal court, the burden of proof for conviction is beyond a reasonable doubt, which is 99.1 per cent. That’s very high. In civil matters, it’s on a ‘balance of probabilities,’ which is much lower and may be substantiated at 50 per cent plus one.”

While a civil process will not result in a criminal record, it could result in a finding of liability and monetary compensation for the victim.

“However, there first needs to be a recognition that victims of sexual crimes are entitled to seek legal advice without the risk of being labelled as extortionists or gold diggers,” says Mandin.

“The fact is that victims of sexual assault may fair better outside of the criminal courts in light of the different burdens of proof in sexual assault cases, but without any legal advice, most victims are unaware that this is even an option until it’s too late,” she says.

For example, Mandin says, former football player O.J. Simpson was acquitted of a double homicide in criminal court but was successfully sued by the families of the victims and ordered to pay $25 million in the civil suit.

The issue for the victims is to ensure they get guidance at the outset of their complaint, says Mandin.

“There’s no reason why a victim of sexual assault shouldn’t have legal advice on both the criminal process and the prospect of a civil suit while police investigate,” she says. “Being drunk or being an automaton or sleepwalking while committing a criminal act may be successful defences because they can cast a reasonable doubt on guilt. You can’t hide as much behind such defences in a civil trial.”