Mens Appotus

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The Yukon Territorial Court recently entered a sexual assault conviction in R v Harry [2019 YKTC 7] an uncomfortable case which, ultimately, shows the inextricability of rights and responsibilities. The entire series of events (which I will not fully recount here) is a headache-inducing string of drunkenness and decisions inexplicable but for the involvement of excessive amounts of alcohol. Despite the complainant and defendant both being under the influence, their rights, liberties, and most importantly responsibilities were not lessened or meaningfully altered.

The defendant, Harold Hans Harry, is a man with extensive alcohol problems who had essentially been on a days-long binge shortly before the sexual assault occurred. The complainant, C.S., had been drinking heavily the night before and was, in the court’s words, “10 out of 10” in wanting a drink to “take the edge off.” She was staying at the Salvation Army the night prior and reasonably felt she could not sleep there during the day, as this contravened Salvation Army policy. She recounts going to a house owned by a relative of Mr. Harry to sleep, and Mr. Harry assaulting her in the basement. Mr. Harry obviously disputed the charge, but the trial judge found that Mr. Harry was far too drunk to be a credible witness. His testimony was inconsistent, and he told police in a statement that he was too drunk to remember what happened on the day of the assault. His evidence could not raise a reasonable doubt because it was, essentially, useless.

Binge drinking is a significant part of contemporary culture. When done irresponsibly, drinking lowers inhibitions, impairs judgment, and hampers motor skills. It also heavily affects memory, as seen in this case. When criminally charged, every Canadian must be found guilty beyond a reasonable doubt to be convicted. The right to counsel is directly connected to this, as on the “neutral conduit” theory an attorney acts as the client’s guide through the labyrinthine legal system, helping the client avail themselves of every right and remedy available to them on the facts of their case. The conclusion is that an attorney represents the client, acting as they would if armed with the specialized legal knowledge of an attorney. The client is the expert in the facts – or at least their version of them. Applying the law to fuzzy, contradictory, or nonexistent narratives is an exercise in futility. Here, Mr. Harry’s attorneys had little to work with.

What has all of this to do with civil liberty? In criminal cases, the Crown needs to prove, beyond a reasonable doubt, both the action which constitutes the crime (actus reus) and the mental element, which is the intent/recklessness/willful blindness (mens rea) to secure a conviction. This is to avoid prosecuting and punishing the morally innocent. However, one cannot convincingly argue for, say, an honest but mistaken belief in consent if one cannot remember anything material about an incident. While we have the liberty to drink what and how much we please, this liberty does not absolve us of responsibility for our actions. Being drunk is not an excuse one can avail themselves of in court, which is why Mr. Harry’s attorney did not bother with that line of argument. Your responsibilities to others don’t lessen when you avail yourself of one of your liberties. And drinking is a liberty, not a right; that which is not expressly prohibited by law does not de facto become a right simply because we like it.

In sum, the criminal law has the restrictions it does to avoid, as much as possible, punishing the morally innocent. Some call refer to this as over-protection of the guilty to grant “spillover” protection to the innocent; if a vigorous defence can be mounted for the man who actually committed a crime, an even better defence may be mounted for the man who didn’t. Intoxication which is not intentionally self-induced – such as eating an innocuous brownie without knowing it is laced with cannabis – can negate mens rea. The old case of R v King, where the after-effects of anaesthetic were not known by the accused who proceeded to drive and crash into a parked car afterwards, stands for this principle. R v Harry – and a string of other cases, for that matter – stand for the principle that self-induced intoxication is no defence. When one subjects themselves and others around them to drunkenness, the intoxicated person is responsible for what they do. An intoxicated mind can easily be a guilty one, regardless of a total lack of memory.

This post was written by a CCLA-PBSC Rights Watch student. Views expressed do not necessarily reflect the views of the CCLA or PBSC.