Is the defence of extreme intoxication in sexual-assault cases back?

Is the defence of extreme intoxication in sexual-assault cases back? 

The headlines were attention grabbing after a Toronto Judge ruled that section 33.1 of the Criminal Code, which limited the defence of extreme intoxication in all assault cases, was unconstitutional.

As the Globe and Mail put it: The defence of extreme intoxication in sexual-assault cases is back in Ontario, after a judge ruled that a federal law removing it violates the constitutional rights of the accused.

The twitter storm that followed was predictably biting.

But in the legal world the decision came as no big surprise. After all, that section of the Criminal Code had been found unconstitutional 9 times over the last 25 years. 

And a successful defence of extreme intoxication in sexual assault cases is as rare as a unicorn - you can count the times it has been successful on one hand that is missing a bunch of fingers.

So while it is completely justified to be concerned after the media reports, a deeper look at the case and the constitution may help reduce some of the shock and disgust that some people felt following the decision.

This episode we take a look at the recent court decision and the history of extreme intoxication as a defence to general intent offences like sexual assault. And at the end of the day it is not as bad or offensive as it may appear at first blush.