Reality & perception: a gap in criminal justice.

• Author: Charles B. Davison

In the law, as in most other areas of human endeavour and undertaking, there is a gap between reality and public perception or belief. Perhaps because of the emotions involved, this gap seems most pronounced in the field of criminal law and justice. Perhaps because of the human tragedies so often involved - tragedies on many sides and on many different planes - this gap also represents the potential for more serious harm in this area above most others.

When I set out to write this article, I had plans to deal carefully and closely with a number of areas in which public perceptions that "criminals have too many rights" seem to me to be at odds with reality. However, due to space constraints, the best I can do is to choose one example and explore it in some detail, in the hope that from this one situation we can learn something of the gap in general, and better understand how it is created; why it exists; and perhaps, how we might lessen its breadth in the future.

The example I have decided to concentrate upon is that involving the defence of drunkenness as represented by the Supreme Court of Canada's decision in R. v. Daviault (1) rendered on September 30, 1994. I have chosen this case because it seems to me one of the more extreme examples of public perception being at odds with reality, and because in this case we already have a Parliamentary reaction in the form of an amendment to the Criminal Code. Our examination must begin with the Supreme Court's decision itself.

Daviault - The Reality

The Daviault case involved a man who was said to have sexually assaulted an elderly, partially disabled woman in Quebec. Daviault was a chronic alcoholic who had consumed seven or eight beers earlier in the day, and then went to the complainant's home to bring her a bottle of brandy during the early evening. He remembered drinking a glass of brandy with the complainant. The next thing Daviault claimed to remember was awakening, nude, in the bed of the complainant, early the next morning.

The complainant testified at the trial that she had consumed a glass of brandy and had fallen asleep. She awoke later in the night to find Daviault about to sexually assault her. Daviault threw her onto her bed and forced her to engage in various sexual acts. Later the next morning, after Daviault had left, the complainant found the bottle of brandy was almost empty.

The defence called an expert witness who indicated that after drinking what it seemed Mr. Daviault had consumed during the hours in question here, most people would have had so much alcohol in their system that they would be either comatose or dead. For a severe alcoholic like Mr. Daviault, however, a blackout in these circumstances would not be surprising. He might well be able to physically act in a fashion close to normal, but...