Cindy MacDougall
Northern News Services

NNSL (Nov 03/99) - A Yellowknife man who was convicted of sexual assault after claiming he was too high on pot to realize what he was doing has been acquitted of all charges in Territorial Supreme Court.

Justice John Z. Vertes acquitted the man of sexual assault, assault and assaulting a peace officer. He ruled section 33.1 of the Criminal Code of Canada, which states one cannot defend oneself against any assault charge by saying one was too intoxicated to form intent, to be unconstitutional.

"I have concluded that section 33.1 constitutes an infringement of the rights guaranteed by sections seven and 11 d) of the Canadian Charter of Rights and Freedoms and is not ... a demonstrably justifiable limit on those rights," Vertes wrote in his ruling, released last week.

Section seven of the Charter guarantees everyone life, liberty and security of the person. Section 11 d) guarantees all those charged with a criminal offence the right to be presumed innocent until proven guilty in a fair and public hearing by an independent tribunal.

Crown prosecutor Mark Scrivens said he has filed a notice of appeal with the Northwest Territories Court of Appeal.

He said section 33.1 was allowable through the Charter because it is a reasonable limit on a defendant's rights.

Scrivens said this case is an important decision.

"It's only the second time in Canada that a court has ruled this way (against section 33.1)," Scrivens said.

"The other is in Ontario, and the solicitor general there has decided not to appeal."

The man was convicted on the charges last December in territorial court. The assault occurred after he smoked a single marijuana cigarette with the sexual assault complainant. He had not been drinking, and did not use the drug often.

The complainant said he grabbed her thigh and beat her a few minutes after smoking the joint.

He was also accused of punching a neighbour who came to intervene and attacked police officers when they arrived on the scene.

The Yellowknife man claims he remembers nothing after smoking the joint.

Peter Fuglsang, the man's lawyer, said the defence is rare, and not any one who was drunk when they committed an assault can use it.

"It is a controversial defence, but that controversy must be tempered with its rarity," Fuglsang said. "It takes quite a burden of proof to use automatism (inability to control oneself)."

Fuglsang said his client did not want to comment on the case.

Dr. Robert Clemmey, a psychiatrist, testified at the trial that some people's reaction to marijuana can vary dramatically. Clemmey said the man was in "a psychotic state" and not conscious of his actions.

An expert toxicologist, however, testified such a reaction is extremely rare.

The section dealing with the "drunk" defence was created in 1996, after the Supreme Court of Canada ruled in 1994 that a Quebec man charged with sexual assault, and claiming he was too drunk to know what he was doing, had the right to a new trial, which would consider his drunkenness defence.

A public outcry ensued, and Parliament quickly enacted the section to ensure no one could use intoxication as a defence.

Scrivens said the case may end up going higher than the NWT Court of Appeal, maybe even to the Supreme Court of Canada.

"Anything's possible, but we have a long way to go before that," he said.

He said the Crown will keep in touch with the victim and discuss the case's progress with her.