THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Thursday, December 8, 2022
The Standing Senate Committee on Legal and Constitutional Affairs met with videoconference this day at 11:31 a.m. ET] to examine and report on the matter of self-induced intoxication, in the context of criminal law, including in relation to section 33.1 of the Criminal Code.
Senator Mobina S. B. Jaffer (Chair) in the chair.
[Translation]
The Chair: Good morning, everyone.
We will now begin the meeting of the Standing Senate Committee on Legal and Constitutional Affairs. I would ask the senators to introduce themselves starting on my right.
Senator Boisvenu: Senator Pierre-Hugues Boisvenu, from La Salle, Quebec.
[English]
Senator Cotter: Brent Cotter, senator for Saskatchewan.
Senator Busson: Bev Busson, senator from British Columbia.
[Translation]
Senator Dupuis: Renée Dupuis, independent senator, the Laurentides senatorial division, Quebec.
Senator Dalphond: Senator Pierre Dalphond from Quebec.
[English]
Senator Batters: Senator Denise Batters, Saskatchewan.
The Chair: Senator Pate has also joined us.
Senators, we will continue our study on the matter of self-induced intoxication in the context of criminal law, including in relation to section 33.1 of the Criminal Code, which stemmed from Bill C-28.
Before I do that, senators, I want to give you a heads-up that if Bill S-11 is referred to us, then next Tuesday we will be sitting for four hours to study the bill. We will have the minister, officials and witnesses. Please watch out for that. We will need your support to be at the meeting. We have the leaders’ permission to meet Tuesday. Thank you.
For our first panel this morning, we welcome Richard Fowler, Board Member, Representative for Vancouver, British Columbia, Canadian Council of Criminal Defence Lawyers, by video conference. As an individual, Hugues Parent, Full Professor, Université de Montréal, by video conference.
We will have you start, Mr. Fowler.
Richard Fowler, Board Member, Representative for Vancouver, British Columbia, Canadian Council of Criminal Defence Lawyers: Good morning, senators. My name is Richard Fowler. I have been a criminal defence lawyer for more than 25 years. I believe this is my third time before your committee.
Thank you for your invitation to the Canadian Council of Criminal Defence Lawyers. As an organization, we have appeared many times before this committee to assist you with a variety of criminal law matters.
I understand the committee’s agenda is to examine and report on the matter of self-induced intoxication, including self-induced extreme intoxication in criminal law, including in relation to section 33.1 of the Criminal Code, which includes consideration of Bill C-28. I know that you heard from the Honourable David Lametti, Minister of Justice and Attorney General of Canada as well as counsel from the criminal law policy section of the Department of Justice yesterday. I watched that session with a view to educating myself more and to not being too repetitive.
I understand from questions yesterday that some of the concerns with Bill C-28 include the lack of consultation, the absence of a preamble, the choice of a defence of extreme intoxication over a general offence of extreme intoxication as well as concerns about how enforceable this provision is.
In addition, Senator Pate raised the interesting and extremely important point about the link between criminal conduct and other lesser forms of intoxication.
I am going to focus my remarks on the enforceability of section 33.1, by which I mean two things. Firstly, the establishment of extreme intoxication and, secondly, the Crown proving a marked departure from the standard of care.
In respect of the first point, establishing extreme intoxication, the common law standard set out in R. v. Daviault applies. Firstly, and this is extremely important, the onus is on the accused both factually and legally to prove that they were so intoxicated that they were in a state akin to automatism. In other words, their actions were involuntary or, in other words, they were incapable of controlling their behaviour, what has been described as being no link between mind and body.
This will, undoubtedly, require expert testimony. As discussed by the Supreme Court of Canada in Brown, it seems highly unlikely that alcohol alone could cause this condition.
As it has been said by almost everyone who testified before the House of Commons standing committee, by the minister yesterday and by the courts, these cases are extremely rare. In my more than 25 years of practice, I have not heard of such a case being advanced successfully or at all in British Columbia, which brings me to the second point.
If these cases are so rare, how could the Crown establish that the accused departed markedly from the standard of care?
How are the courts to consider the objective foreseeability of the risk that consumption could cause extreme intoxication and lead the person to harm another person?
It is true that courts are very familiar with objective standards of care. Dangerous driving, for example, and careless use of a firearm. Both require proof of a marked departure from the standard of care. However, despite the fact that both of these activities are engaged in by many Canadians and despite the fact that both activities are highly regulated with accepted standards of proper conduct, proof of such offences can be very difficult to establish.
For example, was the individual who drove at 20 kilometres an hour through a stop sign in a school zone, distracted by their excited child, who hits someone in the crosswalk showing a marked departure from the standard of care? Or was it just a breach of the standard of care? In other words, not criminal. These types of questions have challenged judges at all levels of court. This involves an activity — driving — that the vast majority of Canadians are involved in.
There is considerably less understanding in society of what the standard of care is when consuming intoxicating substances. Undoubtedly, the vast majority of people at risk of becoming extremely intoxicated are, by the very nature of the activity they are engaging in, not exercising any standards of care. That is the nature of serious addiction, for example.
It is important to remember that the greatest risk of harm is to the addict themselves. In 2019, West Coast LEAF noted that then there were three people a day dying in British Columbia from overdoses, 30% of whom were women. Over the last two years, that percentage has reduced to 22%, but the total number of deaths has risen considerably — 2,267 in 2021, and up until October of this year, 1,827, which is more than six a day.
This is all to conclude by saying that although I believe this provision is constitutional, it will remain an extremely difficult section to apply. However, I see no merit to any concerns that it will produce a flood of cases. Extreme intoxication as a defence to general intent offences will remain extremely rare.
The overall reality of the criminal law is that lesser degrees of intoxication, and substance abuse generally, remain a significant social problem, which is undoubtedly linked, as is my experience, to many forms of criminal behaviour, including violence against women and children. Thank you very much.
The Chair: Thank you, Mr. Fowler. I meant to tell you at the beginning that it is a pleasure to have you here. It is always great to see somebody from B.C. Thank you for being here on short notice.
Mr. Fowler: Thank you very much, senator.
The Chair: We will now go to Mr. Hugues Parent.
[Translation]
Hugues Parent, Full Professor, Université de Montréal, as an individual: Good morning. Generally speaking, extreme intoxication can manifest itself in two ways. First, it sometimes, but very rarely, happens that extreme intoxication leads to diminished consciousness, which prevents them from being conscious of their actions. They literally become an automaton. Such cases are referred to as extreme intoxication akin to automatism.
Substance-induced delirium is an example of extreme intoxication akin to automatism. This was the diagnosis used by Supreme Court in R. v. Brown.
The second and much more common manifestation of extreme intoxication occurs when the person is under the influence of pronounced delusions or hallucinations as a result of their voluntary drug use. In this case, the person remains physically aware of their actions, but is unable to know that their actions were wrong. This is extreme intoxication bordering on insanity.
To understand the distinction between the two types of extreme intoxication, consider the following example: A takes cocaine and develops delusions of persecution. A is convinced, because of their delusions, that their neighbour is a member of the criminal organization that wants to eliminate them.
To avoid being killed, A picks up a gun, goes to their neighbour’s home and fires it in their direction. Here, the accused is not in a state of automatism. On the contrary, A is fully aware of their actions insofar as they know that they have a gun in their hands, that they have their finger on the trigger and that they are firing in the victim’s direction. Although they are able to consciously control their behaviour, because of their delusions, the accused is unable to know that their actions were wrong.
There is a problem: By defining extreme intoxication as “intoxication that renders a person unaware of, or incapable of consciously controlling, their behaviour,” the Canadian Parliament limits section 33.1 to extreme intoxication akin to automatism. It leaves out the much more common and even more dangerous cases of intoxication that do not affect the accused’s ability to consciously control their conduct, but which prevent the accused from knowing that their actions were wrong.
According to government officials, extreme intoxication akin to automatism would apply to psychotic states without impaired consciousness. That interpretation is incorrect. According to the Supreme Court of Canada, in paragraph 50 of the Brown judgment, extreme intoxication akin to automatism does not apply to psychotic states without impaired consciousness. Therefore, it’s there in black and white in the judgment.
In addition to not applying to psychotic states without impaired consciousness, extreme intoxication akin to automatism causes a second major problem that I had not anticipated when I spoke to the House of Commons.
The new section 33.1 requires proof that the “objective foreseeability of the risk that the consumption of the intoxicating substances could cause extreme intoxication.” However, very few people become intoxicated thinking that they will fall into a state of automatism. In fact, most drug users (cocaine, amphetamines and so on) know that they could have a bad trip, and delusions or hallucinations, but are unaware that they can fall into a state of automatism, since this is an extremely rare consequence.
According to the proposed amendment, paragraph 4 of section 33.1 should define extreme intoxication as “extreme intoxication akin to automatism or insanity,” therefore adding “insanity.” It is the exact expression used by the Supreme Court of Canada in the landmark case R. v. Daviault. This covers both facets or manifestations of extreme intoxication.
According to government experts, the new section 33.1 already covers cases of intoxication bordering on insanity, so why not add it?
If the government does not correct section 33.1, the provision will be challenged before the courts, and it will cause serious headaches for lawyers and psychiatrists. According to the distinguished psychiatrist Marie-Frédérique Allard, and I quote:
I’ve been a forensic psychiatrist for many years, and I regularly evaluate individuals who have been severely intoxicated while they were committing a crime. There may be altered consciousness in very specific situations, but that is generally not the case.
When a person is acutely or extremely intoxicated with drugs such as amphetamines and cocaine, the state of consciousness is not altered. The substance-induced loss of contact with reality primarily affects their ability to see that the actions were wrong under the circumstances. In my opinion, as a clinician and expert in forensic psychiatry, I feel it’s important to clarify what constitutes extreme intoxication akin to automatism and extreme intoxication akin to insanity, since the two situations are very different from a medical perspective.
I would add that, from a legal perspective, that opinion is shared by the Canadian Psychiatric Association and the Association des médecins psychiatres du Québec.
It is as illegal to punish a person who is in a state of intoxication on the verge of insanity as it is to punish a person who is in a state of intoxication relating to automatism. In both cases, it breaches the principles of fundamental justice, so there are bound to be problems on that front. Thank you.
The Chair: Thank you, professor.
Senator Boisvenu: Professor Parent, I thought you were very clear in your speech. You touched on two fundamental definitions in the bill, namely extreme intoxication akin to automatism, or akin to insanity.
In your opinion, is the bill too narrow in relation to this definition?
Mr. Parent: Essentially, by limiting extreme intoxication to intoxication relating to automatism, the bill leaves out all cases of extreme intoxication that prevent the individual from knowing that their actions were wrong. That is 95% of extreme intoxication cases, meaning that in 95% of those cases, the person remains aware of their actions, but is unable to know that those actions were wrong, as they are acting under the influence of delusions or hallucinations.
Punishing a person who was in a state of extreme intoxication when they were incapable of seeing that their actions were wrong breaches the principles of fundamental justice as much as punishing a person who was in a state of extreme intoxication on the verge of automatism. I suggest using the wording proposed by the Supreme Court in Daviault, that is, simply add that extreme intoxication is intoxication either relating to automatism or insanity.
This would cover all facets of extreme intoxication and prevent a lawyer from saying that section 33.1 doesn’t apply because their client was not in a state of automatism, but rather in a state of toxic psychosis. So the individual was aware of their actions, but was not in a position to know that their actions were wrong, because they were hallucinating or they were under the influence of delusions.
Senator Boisvenu: In other words, are you saying that if we keep the bill and the definition as is, there would be more cases in court where abusers — in cases of spousal abuse or sexual assault, among others — would have a defence to not be held criminally responsible?
Mr. Parent: They would be criminally responsible; this doesn’t challenge section 16. It’s simply a matter of willful intoxication.
Senator Boisvenu: It would lead to the same outcome, in that if this section is recognized, it will apply, for if the individual was intoxicated, the court will not recognize them as criminally responsible.
Mr. Parent: They will be released, plain and simple.
Senator Boisvenu: Under the current bill, will there be more cases of sexual assault, for example — we know that in many of these cases, intoxication is a factor — or is there a risk that more offenders will be released under the current definition?
Mr. Parent: That’s 100% certain. In my 23-year career in criminal law, which is the area I specialize in, I have only encountered two cases of extreme intoxication in which people were in a state akin to automatism. One was heard by the Supreme Court of Canada in Brown. All the other accused were suffering from delusions or hallucinations.
By restricting section 33.1 to cases of automatism, everyone will plead that it does not apply to them. All those who were conscious of their actions, but completely hallucinatory or experiencing delirium, will say that section 33.1 does not apply to them because the definition is too restrictive.
Psychiatrists will say that it’s true, and that the person was not in a state of diminished consciousness or automatism. They were simply unable to know that what they were doing was wrong, because they were delirious or experiencing hallucinations because of drugs. From this point on, 98% of cases would no longer be subject to the provisions of section 33.1.
That’s so clearly true that if I were to deliver a lecture to an association of defence lawyers in a month and a half with 300 lawyers in attendance, and my lecture was directly on that topic, and would doubtless address the issue by suggesting that section 33.1 does not apply to delirious people who commit offences, then there is absolutely no doubt that this would be challenged.
Senator Boisvenu: Thank you.
Senator Dalphond: I’ll follow up on what Senator Boisvenu said. My question is for you, Professor Parent. Thank you for being with us this morning. My understanding of what you said is that section 33.1 puts a heavy burden on the accused, a burden that is perhaps difficult to overcome.
Accordingly, if I’m the accused’s lawyer I’m going to say that section 33 doesn’t apply, because I want to plead that there was no mens rea. There was no criminal intent, because although the accused was aware of what they were doing, they did not have the capacity to evaluate whether it was prohibited, wrong or dangerous.
Mr. Parent: Exactly; they were in a state of extreme intoxication, not unlike insanity, but because the mental state was not caused by a mental disorder, but rather by voluntary intoxication, it’s impossible to plead section 16, the mental disorder defence.
And yet, section 33.1 limits the defence to cases of extreme intoxication in which people are unaware of their actions. The accused would say that not being able to claim extreme intoxication is inapplicable in their case, because the person was aware of their actions, but unable to know that they were wrong. The Supreme Court stated this clearly in Bouchard-Lebrun by saying that a person incapable of knowing that their acts were wrong cannot be punished. This contravenes the principle of fundamental justice. So that’s where we’re headed. It’s a good question, and it’s complicated, but I hope I’ve answered it.
Senator Dalphond: That gets us back to the possibility of a mens rea defence, which leads to reasonable doubt; one component of the charge is missing. Towards the end, you were saying that there are very few cases that lead to automatism, and that cases of some form of temporary mental disorder are more common. Do you have statistics on this?
Mr. Parent: Thank you for asking. I’ve worked for 23 years on cases involving mental disorders and intoxication and have seen only two like that; needless to say, I had my data checked by psychiatrists. In fact, I spoke with the Association des médecins psychiatres du Québec, and afterwards with the Canadian Psychiatric Association, and both associations corroborated my opinion, which was that it’s extremely rare for someone to end up in a state of automatism as a result of voluntary intoxication, but it is extremely frequent for someone to experience delirium or hallucinations following extreme intoxication.
All you have to do is go to the psychiatric wing of Hôpital Sainte-Thérèse which is full of people who have experienced toxic psychoses. They remain aware of their actions, but the state they are in is close to a mental disorder, which means that they cannot be held responsible. That’s where things are at in medical opinion right now.
Senator Dalphond: I understand the medical standpoint. Have you, in your experience over the past 23 years, encountered concrete examples of cases where someone pleaded an absence of mens rea? The law has not changed. You said that section 33.1 would not apply in such situations, and that the old law still applies. In such instances, have there been many decisions in which people were acquitted because of this defence?
Mr. Parent: They were not acquitted for the same reason as in Bouchard-Lebrun, in which section 33.1 was applied to these people, because no one challenged the fact. However, in Brown, the Supreme Court reviewed the matter and clearly stated in paragraph 50 that the extreme intoxication defence was limited to cases of automatism and that it did not cover cases of extreme intoxication causing a loss of contact with reality.
From that moment on, it became obvious that if section 33.1 were limited to cases of extreme intoxication that affects consciousness or is akin to automatism, 95% of cases of extreme intoxication will be set aside. There remains only one of the two instances of extreme intoxication: The least frequent, which we saw in Brown before the Supreme Court, was a case of delirium, a loss of consciousness caused by a substance. However, this is very very rare. In other instances, we mainly find psychoses or hallucinations, but these people are not held responsible, either morally or criminally. I have no doubt whatsoever about that.
Senator Dalphond: Thank you.
[English]
Senator Cotter: Thank you to the witnesses for their testimony and their insights on this question. It’s a bit after-the-fact, as you know. We’re not in a position to advance amendments such as I think are being suggested in some of the dialogue we’re having.
My question mainly would be for Mr. Fowler. You talked about the enforceability dimensions of this and the point you made which is that not very many people engaging in consumption of toxicants have a plan to reach a state of extreme intoxication, and this raises the question about the application of these objective standards of care.
I wonder if you can speak to the second dimension of that, which is a matter of some dialogue that we’ve had already around the likelihood of a similar kind of objective assessment of risk of harm that would be able to be determined by courts with respect to people who are in a state of extreme intoxication, what I think of as the second dimension of this standard and its application.
Mr. Fowler: Thank you, senator. I heard your questions of the minister yesterday on this same topic and I also saw the Crown prosecutors that were referred to by the minister yesterday. I saw their testimony before the House of Commons committee.
I think it’s safe to say that an objective standard involving conduct that we all engage in every day, it’s much easier to assess whether somebody has breached the standard of care, hence my example of driving. Most people would agree that if you take your eyes off the road for a period of time or you look at your cellphone or something like that, you’re creating a risk. It’s objectively foreseeable. I don’t think any judge would have a difficulty determining what is objectively feasible in the majority of cases. There will always be cases where it’s close to the line, and the Supreme Court of Canada has dealt with a number of dangerous driving cases because it’s not always easy to assess the objective standard.
But when it comes to something that is considerably rarer and outside of the knowledge and experience of the hypothetical reasonable person, it seems to me that it would be considerably harder to make a determination of what the foreseeability of risk really is. I defer, of course, to Professor Parent because he obviously has considerable experience studying this area. As he said a moment ago, most people who take drugs, be they prescribed medications or illicit street drugs, they’re not taking them with any degree of foreseeability of becoming extremely intoxicated, which is extremely important to bear in mind, but also because of that there isn’t really a body of evidence or objective community experience of what the degree of risk is.
The Manitoba prosecutors talked about in terms of whether somebody — the risk is foreseeable, their prior experiences, their prior behaviour, where they take the drugs and those kinds of things. I still see that an objective standard in respect of behaviour like this which, as you said to the minister yesterday, the fact it’s so rare creates the problem of determining what the objective standard is. I agree with that observation. You referred to one of the professors who made essentially the same point: Because it’s so rare, what’s the standard?
Senator Cotter: I think it was Professor Grant at UBC.
Mr. Fowler: Isabel Grant, yes.
Senator Cotter: We’ve been wrestling with this as a community for a long time, and thankfully these are relatively rare occurrences, but they tend to be enormously high profile.
Are there, from your perspective and your own experience, ways by which those objective standards can be developed or is this the sort of thing that on the rare occasion when this is presented as a defence, the judge is just going to have to wrestle it to the ground one way or the other?
Mr. Fowler: I think that’s right. That’s how these standards ultimately play out in the courts. We have the statute, which sets out what the standard is, and then there’s a body of case law that develops and sets the parameters of the objective standard. With a new provision like this, with a new objective standard, of course, the burden will fall upon the prosecutors to gather as much evidence to present to the court as possible to assist the judge to determine whether or not the objective standard of foreseeability of risk was breached. It will be a case of marshalling the evidence, essentially, either from experts or people who knew the individual, knew how he behaved, his or her own experience of taking drugs. It’s usually a case of just marshalling the evidence, arguing the point and eventually a body of case law develops.
The problem is they’re so rare, it could take 10, 20 or 30 years before you develop a body of case law. That’s always the problem.
Senator Cotter: Thank you. When this was being discussed in June with the minister and others, I had expressed the view that despite the heartfelt nature of the effort and actual support in both houses of Parliament for this legislation, the risk was that it was liable to miss the mark. Ironically, I hope I’m wrong in that, but I still have reservations about whether we’ve got this right. Thanks very much for your answers to my questions.
Mr. Fowler: Thank you, senator.
Senator Batters: My questions are for Professor Parent. First of all, Professor Parent, I’m not sure if you had the opportunity to watch Justice Minister Lametti’s testimony before us yesterday, but there were a couple of things that I wanted to ask you with respect to that.
First of all, I notice that you were one of the people who were actually consulted on the consultation list that the government did provide for this bill. When I asked Minister Lametti yesterday about who was consulted and when, he had previously stated that it was almost unanimous and most of the people who had been consulted were in favour of the government’s approach on this bill, and then I asked him who wasn’t and what were their chief concerns, the only person or group that he pointed to as being against what the government had done was the National Association of Women and the Law. Then he repeated that after he said a few other things and again brought up that particular organization. He didn’t mention you.
I’m wondering what your experience was with the consultation process that was done with the government. National Association of Women and the Law were saying that this was a very slipshod consultation process and they had only been consulted very close to the end. They were consulted on June 14 and the bill was tabled in Parliament on June 17.
I’m wondering when were you consulted and what was your experience with the process? Thank you.
[Translation]
Mr. Parent: That’s a good question. I received an email asking me to take a position on the bill. Unfortunately, I was in the United States for 10 days. I had agreed with the person handling the committee that I would be able to state my views when I returned.
However, when I got back, I found that everything had been decided. In spite of the comments I had made, it didn’t matter much in the end, because everything had been decided and they had consulted me.
Another point that I nevertheless found concerning was that on the list of names of people who had been consulted, not one was from the medical community. It’s clear that they will have to play a central role in future decisions because of the assessments they will have to do. I personally was consulted and gave my opinion, but it had already all been decided. I believe I was considered to be more of a problem than a solution. I don’t think that the problems I raised went down very well with them.
Generally speaking, I believe the wording of section 33.1 is correct. It doesn’t worry me too much, except for the fact that the definition of extreme intoxication is too limited. That’s going to create some serious problems.
To return to Mr. Fowler’s comments, about the fact that for a person who uses drugs, there is no objective foreseeability that this person will fall into a state of automatism. I don’t know anyone who previously used drugs who said to themselves that they were running the risk of becoming a robot and would no longer be aware of what they were doing. However, most users who take cocaine, chronic users of cocaine, know full well — and if they don’t know, then they should — that when you take cocaine, hallucinogenic drugs or amphetamines there is a risk of delirium or hallucinations. If you take hallucinogenic drugs there is a risk of hallucinations.
Cocaine use creates a risk of persecutory delusions. These risks are objectively foreseeable. As for automatism, no one will tell you that there is an objective foreseeability that a person who uses drugs will fall into an unconscious state of automatism. No one will tell you that.
Thank you for your question, senator.
[English]
Senator Batters: Something else I wanted to ask you, Professor Parent — thank you very much for those very important comments — the chair yesterday asked Minister Lametti about your contentions in your research, and Minister Lametti responded in part with this:
I would add with respect to insanity that we’re also following the Supreme Court jurisprudence there as well. In the last number of years, there’s been a marked departure from the Supreme Court using the terminology of “akin to insanity” in its extreme intoxication decisions. It has gone towards itself the extreme automatism standard and treats insanity effectively on different grounds, not criminally liable grounds. There is a whole body of jurisprudence that takes care of the insanity questions, if you will. The path that the court has chosen, referring to automatism, goes to the voluntariness of intent, the general idea that it negates voluntariness. That’s where the court has gone and that’s what we’re following in using this terminology and using this conceptual structure of automatism. The insanity part is well taken care of by other jurisprudence.
How would you like to respond to the minister’s comments?
[Translation]
Mr. Parent: First of all, as I explained earlier, someone who takes drugs voluntarily and experiences psychosis, delirium or hallucinations, in a state akin to insanity, cannot plead an insanity defence. Even though the person is incapable of knowing that the actions were wrong, the source of the incapacity does not stem from a mental disorder, but rather voluntary intoxication. That person would have to present a defence of voluntary intoxication.
In response to your question, if section 33.1 were limited to cases of automatism, everyone in an extreme state of intoxication akin to insanity would not be subject to section 33.1. That would then be challenged in court.
I’m going to read you a passage from a very important Supreme Court decision. Justice LeBel said:
. . . The logic of Ruzic is that it can also be said that an insane person is incapable of morally voluntary conduct.
Essentially, in its current form, extreme intoxication in section 33.1 does not apply to psychotic episodes in which voluntariness in the physical sense remains intact. The exclusion in section 33.1, as I explained earlier to Mr. Boisvenu, would not apply to these people. The person would then be able to easily demonstrate that their conviction, like the conviction of a person in a state of automatism, violates section 7 and section 11 of the Charter, because it allows the conviction of a person who was incapable of acting voluntarily from the moral standpoint. That would allow the person to get around the exclusion in section 33.1 and plead a defence of extreme intoxication.
That’s the direction we are clearly headed for. I’m going to be honest with you and say that I don’t understand why people are determined to limit section 33.1 to cases of extreme intoxication akin to automatism. I think it’s because of Brown, but the problem with Brown is that it’s one of the very few cases I know of in Canada in which extreme intoxication gave rise to a state of automatism. It was substance-induced delirium, but in 98% of other cases, there was no automatism. The person was completely intoxicated, thinking they were on a divine mission, or that they had to kill someone. The person was hallucinating.
Such people will never be held responsible for their actions, unless section 33.1, specifies explicitly that extreme intoxication applies not only to cases of automatism, but also to similar cases of insanity. Otherwise, we are headed for a challenge. I have nothing to gain in that.
Thank you for your highly relevant questions.
Senator Dupuis: Thank you for being with us today, Professor Parent and Professor Fowler.
Professor Parent, you said that you had nothing to gain in that. Is that because you would have something to lose?
Mr. Parent: Yes, because I teach a course on intoxication and mental disorders, and when I have to explain to my students that someone who is experiencing delirium or hallucinations is not in a state of extreme intoxication, it bothers me. It’s a question of logic and application, meaning that from the moment section 33.1 is restricted to cases of automatism, there will be challenges and acquittals in cases where someone voluntarily used drugs, and it was objectively foreseeable that they would enter a state akin to insanity. That’s my point of view.
I’ve always been in favour of holding people who voluntarily decide to become intoxicated to be held responsible, and find it unfortunate that owing to a shortcoming in the wording, most extremely intoxicated people will be able to avoid being subject to the provision.
Senator Dupuis: Thank you, Professor Parent. You raised the issue of doctors and medical assessments and I had some questions about that.
You mentioned your 23 years of experience. That means we have about 50 years of expertise in forensic psychiatry.
Do you believe that it would be worthwhile to hear from psychiatrists on this issue? Because are referring again to the Daviault and Brown decisions. We’ve been juggling with these questions from a legal standpoint. Are there things we should learn from their experience, their point of view and their expertise as psychiatrists?
Mr. Parent: Absolutely. As I mentioned earlier, I had a meeting with the Association québécoise de psychiatrie. I followed that up by meeting with representatives of the Canadian Psychiatric Association, who also corroborated my way of seeing things. We asked what it would change for us. The problem that will come up — and it’s a problem that has existed in law for years — is that psychiatrists and legal experts don’t speak the same language at all. In other words, we’re going to ask ourselves whether the person was in a state of automatism at the time of the crime. The psychiatrist will say no, that the person was not in a state of automatism. They were conscious of what they were doing, but behaving in a state of delirium that was telling them to assault or kill someone.
Doing this will further widen the gap between law and medicine, and I believe that to be highly regrettable. As you were able to see, we are in a highly complex area where concepts are very important. It’s like shooting an arrow. If the aim is a little off, it won’t show at 5 metres, but the outcome will be terrible at 40 metres. What I’m saying is that we have an opportunity to clarify things and get the law and psychiatry on the same wavelength.
Listen, it’s an excellent question. My goal throughout this entire process was first of all, to get the psychiatric associations on board, along with the people who are most involved in this issue, apart of course from the victims and the accused.
Senator Dupuis: Thank you for being so emphatic on this matter, because it looks essential to me. And according to your experience, there is data, but only fragmentary, on the link between voluntary intoxication and violence against women.
In your experience, is it a legal or a medical problem? There’s something that has not been clearly defined and I’m trying to see how we might do a better job of it. We know, empirically, that there’s a link, but in your experience, are there factors you could identify that could be explored more extensively?
Mr. Parent: Scientifically speaking, I am not familiar with the data. I think that Professor Grant would be in a better position than I am to talk about that. Experience has shown that it’s rare. For example, two years ago, in downtown Montreal, a man smoked crack, developed persecutory delusions, and then assaulted his spouse and his child.
This was the incident in which the policewoman had fired down the lane in the direction of the accused, and missed twice. The man was holding his child in his arms and had a knife. I don’t have any statistical data for anything that may have occurred after that, but it’s clear that crime today is predominantly affecting vulnerable people, and women in particular, and this incident is an instance of it.
So, when we say it’s rare, I think we should limit that to cases of automatism. On the other hand, this is an example of a completely delirious individual who had taken crack, who knew that he could hallucinate, who attacked his wife and daughter, whom he threatened to kill. Can that person, following a murder or manslaughter charge of which he is found guilty, say: “Listen, I was not in a state of automatism?” I was in a psychological state where I was no longer able to know what I was doing. I was no longer able to know that my actions were wrong. So section 33.1 does not apply to me and for this reason I will be able to plead intoxication.
Then we come back to the Daviault ruling, which says you can plead extreme intoxication at the threshold of automatism or insanity. I don’t have any statistical data, but it’s obvious that empirically, this type of violence affects women in particular — as for children, I don’t know, but for women, it’s obvious.
Senator Dupuis: Thank you.
Mr. Parent: Thank you very much for your questions.
The Chair: Thank you, professor.
[English]
Senator Pate: Thank you to both witnesses for joining us. My question is for Mr. Fowler, although if Professor Parent wants to comment, I’d be happy to hear from him as well.
You mentioned questions that some of us put to the minister yesterday. You may also be aware that when the Native Women’s Association of Canada appeared before the Justice Committee in the House of Commons, they talked about the systemic problem associated with drug use and substance use and the fact that continuing to attempt to address this through the Criminal Code was problematic. I’m curious as to what your perspective is on this.
Mr. Fowler: Every day, I feel the shame of living in a city where six people a day continue to die from drug overdoses. Having said that, I know that there are a lot of well-meaning people on all sides of the political spectrum who may take different approaches, but all of them are horrified by those statistics.
I personally believe, from my experience, that law enforcement and more law enforcement alone is not going to solve the problem. I think criminalizing what is essentially a health problem is not going to solve the health problem.
That’s not to say that the criminal law doesn’t play a role. Apprehending somebody who’s a drug addict who’s committed a criminal offence, if that is a route by which we can get them into meaningful rehabilitation and ongoing treatment, then clearly the criminal justice system has played an essential role. However, putting them in jail and then releasing them back into the community, my understanding is that they are then at the highest and greatest risk for overdosing and mortality, effectively.
Really, the only solution that I see is that we have to have greater access to meaningful treatment, and it has to be accessible at the moment that the addict wants it. We can’t say to an addict, “You’re on a waiting list,” because in seven days that addict may not be in a place where they want to go into rehabilitation or treatment.
Now I know in British Columbia there’s talk outside of the criminal justice system about enforced treatment and rehabilitation. I know that raises some concerns under section 7 of the Charter, but I guess I would say right now that we have to try everything. We’re losing a lot of people.
Senator Pate: Professor Parent, would you like to add anything?
[Translation]
Mr. Parent: I fully agree with Mr. Fowler.
Senator Boisvenu: My question is for Professor Parent. It’s a real shame that the work we’re doing now will do nothing to improve this bill. Basically, we’re doing a bit of rubber stamping. In your opinion, should we introduce another bill that would amend the current bill and that would go in the direction of what you said this morning?
Mr. Parent: I am a little uncomfortable with this question. First of all, in terms of the usefulness of the exercise, I thought we could still change things.
However, if you’re telling me that based on your experience, this will be more or less heard, I think the rest will take place in the courts, unfortunately. I don’t see any other way out. In my opinion, this is a bill that has a flaw, but a flaw that is very important. As for the rest, I agree, but it is 100% certain that this aspect of section 33.1 will be contested. I do not have a crystal ball, but it is certain. I can’t answer for the Senate. I think it is a necessary amendment, Senator Boisvenu.
Senator Boisvenu: Thank you very much.
[English]
The Chair: Senators, we have almost run out of time. If I get another question in, we will be out of time. I am sorry to those who still have questions.
I want to thank Professor Fowler and Professor Parent.
[Translation]
Mr. Parent, thank you very much for your testimony.
[English]
Mr. Fowler, thank you very much for your testimony, too. It has been very useful to us.
Senators, we will now go to Senator Boisvenu.
[Translation]
Senator Boisvenu: I would like to thank my committee colleagues for their work this week on Bill S-205. I was in Washington for a NATO meeting, so I couldn’t be at the meeting, but I would have liked to be there. I just want to acknowledge your work and thank you for your last minutes on this bill. Thank you very much.
The Chair: Senator Boisvenu, thank you very much for your work.
[English]
When you were away, many of us said that we really admire your commitment to the issue of violence against women and we salute you for your work.
Senator Boisvenu: Thank you.
The Chair: For today’s second panel, we have appearing before us from the National Association of Women and the Law, Suzanne Zaccour, Head of Feminist Law Reform. As an individual, Michelle Lawrence, Associate Professor and Director, Access to Justice Centre for Excellence, University of Victoria.
I welcome both of you. We will start with you, Ms. Zaccour.
Suzanne Zaccour, Head of Feminist Law Reform, National Association of Women and the Law: Thank you, Madam Chair. Thank you to the committee for the invitation. I am Suzanne Zaccour, Head of Feminist Law Reform at the National Association of Women and the Law, or NAWL, which is a national not-for-profit organization that advocates for women’s rights in Canada since 1974.
When Bill C-28 was rushed through the legislative process, NAWL and 19 other women’s rights organizations expressed concerns about the lack of sufficient study and consultation. We are very grateful for the senators’ time and attention today.
I would like to share with you three sets of concerns we have regarding this bill.
[Translation]
First, it is important to consider the effects of a law as a whole, even in the absence of a valid defence that would lead to an acquittal. We are concerned that in some cases, simply raising a potential defence of extreme intoxication may influence the victim, the police or the prosecutor in their decision not to report, not to charge or to negotiate a response to the charge.
You know as well as I do that it is a tiny minority of sexual assaults that make it to trial. So it’s important to consider the effects of the law both before and after that stage.
We are particularly concerned that some cases do not go to trial because the accused claims that they had consumed too much alcohol. It would be appropriate to clarify in the law, for victims, for police and for prosecutors, that alcohol itself is not presumed to cause extreme intoxication. Of course, training and information for the public is also an important way to do this.
[English]
Second, we are concerned about the Crown’s ability to prove marked departure given the lack of clarity in the law. As Professor Isabel Grant explained to the House of Commons Committee on Justice and Human Rights, subsection 2 of section 33.1 says that the court must consider the objective foreseeability of the risk of extreme intoxication and risk of harm to another person. However, judges should consider all the circumstances of the case rather than being directed to consider two particular factors. As written, the legislation can be read to suggest that the Crown has to prove beyond a reasonable doubt that the risk of harm and the risk of extreme intoxication were foreseeable or even likely.
We have concerns that this might be simply unprovable. Imagine an accused who has taken these drugs before and says that it wasn’t foreseeable because they have done this before and they didn’t lose control. Now imagine an accused who has not taken these drugs before and says, “I’ve never done these drugs before, so how could anyone know that my body would react in this particular way?” The law will not fulfill its objective if getting a conviction becomes virtually impossible.
Our third point is that we invite you to recommend a three-year review of the law. A lot of the conversation around this bill has been about how this defence is allegedly very rare, but how can we know? How can we say and know that the defence is rarely used when it has been unavailable, for the most part, for the past 27 years?
Research by Kerri Froc and Elizabeth Sheehy suggests that the extreme intoxication defence could be used more regularly than anticipated, but in any case, we do not know and cannot know what kind of impact this defence can have and will have outside of the trial, for example, in charging decisions.
A recommendation for a review of the law in three years would give women’s organizations who were not sufficiently consulted before the bill was passed some reassurance that any problems and adverse consequences of the law can be addressed.
[Translation]
I thank you for your attention and I will be happy to answer your questions.
The Chair: Thank you for being with us, Ms. Zaccour.
[English]
Michelle S. Lawrence, Associate Professor and Director, Access to Justice Centre for Excellence, University of Victoria, as an individual: Thank you, Madam Chair. I’m pleased to join you today from my home in Victoria, from the traditional territories of the Lekwungen-speaking people and the Esquimalt, Songhees and WSÁNEC people, whom I acknowledge with respect.
By way of background, I work as an associate professor of law at the University of Victoria, and I serve as the director of the Access to Justice Centre for Excellence. I am a former associate director of the FREDA Centre for Research on Violence Against Women and Children.
I am an interdisciplinary scholar. I hold graduate degrees in law and in criminology. I have a particular interest in cases at the intersection of crime and mental health. My PhD research concerned the treatment at law of accused persons found to have committed offences while in states of substance-induced and substance-associated psychosis where intoxication was voluntary.
My research on the former section 33.1 was among the body of scholarship that the Supreme Court of Canada considered in the R. v. Brown case. I previously practised law as a partner at a national law firm. I have experienced criminal litigation, representing both the Crown and the defence. I sit now as an alternate chair of the British Columbia Review Board.
To prepare for this meeting, I reviewed the governing law and the major speeches delivered by senators on Bill C-28. I appreciate that the issues before you are many, and they are complex.
For my part, I endorse Senator Gold’s analysis of the legislation as presented in his speech on second reading. In my view, the new section 33.1 is a welcome addition to the Criminal Code. It pursues legitimate legislative objectives of holding offenders to account and of protecting the public, and it is likely constitutional.
I would be happy to answer questions you might have of me in connection with the provision and, perhaps, its application to psychosis cases in particular at the close of this opening address.
With the greatest respect to Professor Parent, I do not share his view that amendments are required to capture these cases.
Otherwise, I would like to speak more generally of the law’s response to intoxicated offending. For me, the focus for lawmakers should be on outcome. Our law is — and continues to be, with the benefit of the new section 33.1 — configured for convictions, for the attribution of criminal responsibility in cases where individuals make themselves dangerous through voluntary intoxication.
But we must ask, is a conviction always the right result? Where criminal acts are the product of a rational, willful or even a negligent criminal mind, the criminal actors can and should in this country expect to be met with the firm hand of the law. My question is whether the firm hand of the law is an appropriate response if intoxication and intoxicated offending is the product, in whole or in meaningful part, of mental disorder?
The data makes plain that criminal actors are not all the rational, restrained people that the law contemplates. On the contrary, many — if not most — are struggling with serious substance-use disorders and other mental disorders. They are individuals with complex neurobiological vulnerabilities. Some were born with these, and others have acquired them in difficult life circumstances.
A recent study of B.C. inmates released just last year found that 75% had either a substance-use disorder or some other kind of mental disorder, while 32% had both concurrently. In my view, there are arguments and opportunities for this committee to consider in the discharge of its mandate toward increasing the legal pathways for individuals in circumstances where their intoxication and where their intoxicated offending, again, was motivated by mental disorder, in whole or in meaningful part, and toward increasing the pathways for them from the criminal justice system to the forensic mental health system, if not for the sake of the offender’s dignity, then critically for the safety of the public.
I did not have the opportunity to confirm the figures before today’s meeting, but my understanding is that recidivism rates on release from forensic mental health systems following treatment of underlying mental disorders are markedly lower than those on release from correctional systems.
Our present pathway, our primary pathway for diversion to the forensic mental health system, is through the not criminally responsible by reason of mental disorder defence in section 16. The language of section 16 captures cognitive impairment, like psychosis. There is no statutory equivalent for volitional impairment. For automatistic states, we rely on the common law to effect diversion.
A question for this committee to consider is whether to codify if not the whole common law pathway for automatistic statements, at least the common law presumption that automatistic acts are the product of mental disorder and not external triggers. Ideally, a codification could supplement section 16 and align well with the new section 33.1.
Alternatively, or in addition, this committee might consider new diversionary tools for use in sentencing. Doing so could avoid more complicated amendments to provisions concerning criminal responsibility. These tools could then be available for cases of non-extreme intoxication.
Unfortunately, though, I’m not in a position to recommend a particular tool to you today. I need more time for that research, but I can commend to you for your own review and for your own research the hospital order regime in the United Kingdom. There, as I understand it, sentencing courts can divert an offender to the mental health system if they are satisfied the offender is suffering a mental disorder of a nature and of a degree that makes it appropriate for them to be detained in hospital for treatment. I’m very interested to learn how often and to what effect hospital orders are issued in cases of repeat, violent, non-extreme intoxicated offending where substance-use disorders are implicated.
I note before I close that there are contrary views to my own about the relative advantages of a forensic outcome, particularly among the defence bar. There is understandable concern that diversion can result in a client spending far more time in hospital detention or under review board supervision than they otherwise would if they pled guilty and were sentenced in the ordinary course. I take this concern seriously.
For me, the answer lies in the bright-line test already set out in Part XX.1 of the Criminal Code and tested under our Charter. So long as the accused person represents a significant threat to public safety, as defined in that part, this is an outcome that is both lawful and justified.
With that, I will conclude my remarks and welcome questions.
The Chair: Thank you very much, Professor Lawrence.
Just so that you know, after today, the committee will be adjourning the hearings on this bill. If you have any findings — I know it is not a lot time to do research, but if you have anything by mid-February, can you please let the clerk know.
Thank you very much.
Ms. Lawrence: Thank you.
The Chair: We will now go on to questions.
I have a question for you, Ms. Zaccour.
Yesterday, Minister Lametti said that women’s groups did not support an alternative route that would create an offence of extreme intoxication. Do you have a response to what he said?
Ms. Zaccour: Yes. I believe that the statements refer to what the Supreme Court described as the two ways to criminalize violence while in a state of extreme intoxication. Under the first option, the person is convicted of, say, murder, sexual assault or assault, even though they were extremely intoxicated because some criteria are satisfied. The other option is that the person is acquitted of, say, murder, sexual assault or assault, but gets a conviction either for being violent while extremely intoxicated or for negligent intoxication.
As far as I know, most or all women’s groups have opposed this second avenue because the sanction and the labelling of someone who commits, say, murder or sexual assault as someone who is just negligently drunk, for example, would not satisfy the purpose of the criminal law to adequately label that offender. This was described as “the drunkenness discount” in the sense that the person would not get a full conviction for sexual assault or murder, but would get one for what would likely be a lower offence.
We support establishing criteria under which a person who was intoxicated is convicted for the full offence as a way to signal the responsibility that people have of not getting drunk and then being violent, especially in cases of violence against women.
[Translation]
Senator Boisvenu: Ms. Lawrence, I very much share your concerns that for people with mental health or substance abuse problems, the public health route should be prioritized over incarceration. However, in Quebec in particular, it is easier to receive psychological services if you are incarcerated than if you are sent to a hospital.
For someone who suffers from illness or substance abuse problems today and needs psychological or psychiatric treatment, the wait time in Quebec is between one and two years before you can enter the health system. If you are incarcerated, you can see a psychologist or a psychiatrist after three weeks. This is the great contradiction in our system. The discourse is that we prioritize health over incarceration, when it is easier to obtain services if you are incarcerated than to wait for a hospital or a psychologist. That’s the big contradiction, I think, in this bill.
My question is for Ms. Zaccour. Were you consulted by the Minister of Justice on this bill, and did you propose any amendments? When the Supreme Court decision was handed down a few months ago, many women’s rights groups, especially those dealing with women who have been assaulted in the context of domestic violence or sexual assault, showed great concern about the Supreme Court’s decision. Were you consulted on this bill? Did you propose any amendments and were you listened to?
Ms. Zaccour: Thanks for the question. Our view of the way this bill has gone is that we have not been consulted enough. I’m not speaking for myself, I’m speaking for the organization, but a consultation that takes place two days before a bill is tabled, in our view, means that we have not been listened to enough.
We proposed amendments. Already, the deadlines for consultations were very short, and the proposals we made were not retained in the bill that was tabled two days after we were consulted. We consider that we were not sufficiently consulted. We wrote a letter, particularly to the senators, saying that we had not been sufficiently consulted and that the process needed to be slowed down a bit. I think it is clear from the testimony that this is a complex issue, that there are several factors to consider. This rushing of the bill through with hearings held afterwards, as if what was going to be said was not so useful in creating the bill, in terms of the process, is considered something that is deplorable.
Senator Boisvenu: As this bill places maximum limits, I would say, on the use of self-intoxication as a reason to be found not criminally responsible, in your opinion, according to the current draft of the bill, are women who are now in a context of domestic violence or sexual assault — because intoxication is often a factor in these situations — more at risk than with the former bill or the former law that was recognized as unconstitutional by the Supreme Court?
Ms. Zaccour: This law leaves more room for the extreme intoxication defence than the previous version of the law. It is quite clear that once a law is declared unconstitutional, it is not an option, the law must be amended.
What is a bit strange is that we were told not to worry, that it would rarely be litigated, that it would not put women at risk. On the other hand, we were told that this law absolutely had to be passed in five minutes, because as long as no action is taken, there is no law; the accused can plead this defence and it puts women in danger. That’s where I think there was some contradiction. If it’s so rare, why can’t we take our time?
Also, to complete the answer, there are concerns about the law. There are two types of concerns about this law. The first is what the law does; the second is what the law gives the impression of doing. What the law does, as I mentioned in my remarks, is not very clear as to the level of proof that is required regarding the predictability of the risk of committing violence and being extremely intoxicated.
One question that can be asked is: do we really need both? If I put myself in a situation where I know I’m going to lose control entirely, isn’t that enough to say it’s problematic? Conversely, if I get intoxicated and say I’m pretty sure I’m going to commit violent acts, isn’t it enough, even though it may not be foreseeable, that I’m extremely intoxicated? It’s in the law from a legal perspective.
Then, as I was also saying, you have to question what impression the law is creating. I understand that these are more complex issues. However, we know that the main obstacle to criminalizing a sexual assault is that the victims do not report it. This is where the bottleneck happens. If the law is perceived as saying that if the aggressor was intoxicated, he cannot be reported, that is problematic, even if that is not what the law says. You have to be very careful and really explain clearly what the law does. However, it is not entirely clear what the threshold is that needs to be proven. It becomes even more difficult to explain it to the public.
Senator Boisvenu: I have a quick comment.
The Chair: I’m sorry, but your seven minutes are up.
Senator Dalphond: Thank you Ms. Zaccour and Ms. Lawrence. I would like to come back to the last comment made earlier. I myself have some difficulty in understanding the scope of the amendment and its outline. I would have great difficulty in popularizing it and explaining it to the public who want to know what it means. There is a challenge.
[English]
My question is for Professor Lawrence. You said that you are in disagreement with Professor Parent, who has explained to us that while he thinks the provision as drafted might be challenged, that does not mean it’s unconstitutional. I would like to know exactly what you propose. Do we understand that those who are what the Supreme Court described at paragraph 50 as “suffering a psychotic episode where physical voluntariness remains intact” shall go into a diversion program?
Do you mean that if we were to extend, as proposed by Professor Parent, the sections to include what he called the second track of intoxication — that is, those leaning to a kind of mental alienation — this would be unconstitutional because the presumption is of innocence and the need to have mens rea will no longer exist?
Ms. Lawrence: Thank you for that question.
As I read the Brown case, the court has found unconstitutional the attribution of responsibility where there is the absence of voluntariness or the absence of general intent. It cannot be said that the experience of psychosis always renders an individual’s actions involuntary or produces a lack of general intent. Quite on the contrary, there’s a vast body of case law in this country in which the courts have viewed psychotic intent as meeting the general intent, even the specific intent, required for conviction. There is a vast body of case law that finds psychotic acts to be voluntary acts.
One case that I think of is R. v. Paul, which came before the B.C. Court of Appeal in 2011. Here we had an accused in circumstances of psychosis, induced by consumption of alcohol, cocaine and cannabis, who, in his delusions, formed the view that he should kill himself and take with him his friends, who were with him at the time. He proceeded to shoot and kill three people and almost kill two others. The court held that his action was voluntary, intentional and he was convicted on three counts of murder and two counts of attempted murder, despite being psychotic at the time.
Professor Parent’s comments suggest that a diagnosis of substance-use psychosis is going to automatically or, in most cases, be different than this, that we’re going to see a lack of voluntariness or a lack of general intent, and I don’t see that. I think there may be specific cases where a forensic psychiatrist does find that connection, but those I see as the atypical or the outliers, not the typical. Does that assist?
Senator Dalphond: Yes. From your answer, I summarize that you say this section 33.1, as drafted, won’t give a free ride to those who would be in the second stage. On the contrary, the case law will normally lead to a conviction, and it would be very rare that they have the burden to prove they couldn’t have had general intent.
Ms. Lawrence: Yes. From my point of view, if a case presents with allegations of substance-induced psychosis, the first question will, in fact, be: Were the psychotic acts intentional? The second question will be: Was the actor aware of their behaviour? If that is satisfied, then the analysis moves on to section 16, to the pathway of not criminally responsible by reason of mental disorder.
The first question the court will have to ask is whether the psychosis was the product of mental disorder. For that, we have an excellent test in R. v. Bouchard-Lebrun, which is a more holistic approach test. If the answer is no, that the psychosis is exclusively the product of substance abuse, then there is no defence in this country.
As a matter of evidence, to avail themselves of the extreme intoxication defence, the accused would have to show that the psychosis was so severe that they didn’t even have an awareness of their behaviour. Again, I suggest to you — though I would recommend that you speak to medical experts on this — that would be the atypical case, not the typical.
Senator Batters: My questions are for Ms. Zaccour.
Professor Kerri Froc called the government’s consultation process with your organization a sham. I’m wondering if you can further explain the process with your organization to the committee. When your organization was contacted, what sort of back-and-forth exchange took place between your organization and the minister’s office or the department officials?
I did ask Justice Minister Lametti how far into the drafting process the department was when they reached out to the National Association of Women and the Law, which was three days before the bill was tabled, and all he conceded was, “We weren’t starting from zero,” talking about how previous law profs and that sort of thing had talked for a long time about how this area was subject to this type of a decision. Law profs, from my recollection, talk about those kinds of things all the time.
I’m wondering if you could comment about that consultation process, please.
Ms. Zaccour: Thank you for that question. I also want to allow myself to comment on the fact that I have already commented on the irony of framing this as an emergency while saying that it won’t have an effect in most cases.
The other issue is this wasn’t a huge surprise. We know that the Supreme Court decision is coming. We know that the case has been granted leave, is being heard and the decision is coming, so I wanted to add that. Although we cannot just assume a decision by the Supreme Court, I believe it would have been possible to start consultations.
As you said, it was two or three days before the legislation was tabled that we were consulted. We repeatedly asked for broad consultation with a diversity of women’s organizations, not just us. We work in coalition with other women’s organizations, and many of them shared our concerns both about the process and about the law.
Also, I don’t know if it’s the right term, but we were approached after the legislation was tabled, and other groups that were working in coalition with us were approached and told what the new legislation was. We didn’t have any kind of substantive discussion on some of the concrete legislative proposals that we submitted. That’s why we feel that the consultations were not meaningful.
We’re very grateful that these hearings are now taking place, although, as I think everyone in the room will agree, it would have probably been better to have them before the law was adopted, especially if there’s no intent to go and change the law. I think if these consultations are to be seen as meaningful, then there needs to be some kind of willingness to amend the law in light of the consultations. I think all of the experts who were heard also had relevant things to say, not just our organization. We emphasize the need for broad consultation.
Senator Batters: Thank you very much for that. Yes, I have frankly far too often heard the expression “let’s not let perfect be the enemy of the good.” We are the Senate of Canada. It’s our business to be making things more perfect. The fact that we didn’t have that opportunity before isn’t great.
We haven’t yet received the report from the House of Commons Justice Committee, but several witnesses have recommended the lowering of the threshold to simply foreseeability of loss of control rather than foreseeability of loss of control and foreseeability of risk of harm as the law currently requires since Bill C-28 was enacted.
Many believe that it would be impossible for the Crown to prove that second standard. In the paper written by Dr. Kerri Froc and Dr. Sheehy, they raise this concern as well. I’m wondering if you could explain the difficulties you believe the Crown prosecutor would face under those current foreseeability standards.
Ms. Zaccour: Thank you for the question. There are, again, two sets of issues. There’s how high the threshold is and whether it’s even possible to get a conviction. The other issue is, again, more legislative technique in the sense that marked departure from a reasonable person is something that courts are used to applying. It’s a known standard in the law.
One possibility that was raised by Professor Isabel Grant at the House justice committee is why not just remove subsection two and let judges consider whether it’s a marked departure? Because in some circumstances, maybe foreseeing that there’s going to be violence is already reprehensible behaviour.
Let’s say a man habitually assaults his wife while intoxicated. It is foreseeable that if he drinks, he’s going to assault his wife. Maybe it’s not foreseeable at the time he became extremely intoxicated, but as a society, is it a sufficient departure from what a reasonable person would do to justify criminal liability?
Perhaps judges are best placed, rather than being told these are two criteria that must be considered. Must they be considered, or do we need proof that both were foreseeable?
This is why, indeed, we believe that the threshold is probably too high or at least unclear, or not sufficiently clear, for judges to apply it in a productive manner.
Senator Cotter: Thank you to our witnesses for giving these insightful presentations regarding a complicated issue.
I have a brief observation more than anything, Professor Lawrence, to your point that the Criminal Code can be a blunt instrument for addressing society’s challenges. There’s no doubt about that.
With respect to this specific bill and provision of the Criminal Code, a couple of questions for you, Ms. Zaccour.
My sense of the challenge that existed here is that the Government of Canada and the Minister of Justice are trying to thread a needle that is a small needle, and the smallness of the needle is imposed by a series of requirements in criminal law connected to intent before one is found guilty and sacrifices their liberty. I have read the parts about observations that Professor Grant has made and Professors Froc and Sheehy about their concerns about the bill, and you’ve articulated them well here.
One of the challenges with the suggestion you have just made, partly in response to Senator Dalphond’s question, is the challenge of what will still feel like transferred intent from the criminal negligence and becoming severely intoxicated or very bad judgment in doing that to suddenly being convicted of another crime for which you don’t have an obvious form of intent. The possibility that Professor Grant offers is one. But this model, or at least a model close to this, is in a way what many organizations recommended or preferred rather than criminal negligence by getting severely intoxicated and the drunkenness discount you observed.
It seems to me we’re playing in the territory of the dialogue with Minister Lametti we talked about, door number two: How can we get to the more serious accountability and the mechanisms around intent make it a challenge? I think that was an observation you mentioned both about lack of clarity and unenforceability. I think we’re on the same track on that.
The question I have for you is the observation that maybe the bill should be reviewed in three years, and connected with that, the worries that you identified about the ways in which this could discourage women from coming forward, particularly with respect to sexual assault.
I was noticing in some of the material I looked at that Professor Ashley had done a study of 25 years of these accounts and found only five acquittals in the span of 25 years on the basis of this section. At the same time, there were 5,459 sexual assault cases. Those 5,459 are probably the tip of an iceberg of many more cases that never went reported. It does seem to me that this being 1/10 of 1% of the cases suggests, as many have said, relative rarity. The more rare that is understood, hopefully the less it will deter people from coming forward because these defences are hardly ever raised and hardly ever work out.
The question is the difficulty of thinking of a review in three years’ time, at least if it’s tried to be connected to the evidence as opposed to better ideas about the provision. Because I’m not sure we will have much evidence in three years’ time. In fact, quite frankly, I hope we don’t because the less this happens, the better. But chances are pretty good we won’t have very much. Some thoughts on that. Is three years too soon or is three years an exercise in trying to improve the legislation without particular attention to: Has it been used much in the courts in that period of time?
Ms. Zaccour: Thank you for these comments and questions. I want to comment on Florence Ashley’s paper and what you said about it with an analogy.
Let’s say the Parliament of Canada decides to legislate that wearing black pants while committing a crime is now a defence. So now anyone could go and look through the court records and see it’s a very rare defence. You have no acquittals for people who have been wearing black pants. Therefore, it’s very rare for people to wear black pants. Of course, the reasoning would be problematic because the reason there are no cases on that is because the defence does not exist or is not available. It’s crude as an analogy, but to understand that few accused people will plead a defence that is not available. It does not tell us that much about how rare or not rare a defence would be if it were open.
If I remember correctly, I believe Professor Froc and Sheehy found the defence being advanced at least 30 times in the 12 months following Daviault when the defence was actually available. Of course, it doesn’t mean that all of them would have gotten an acquittal, and that’s where there’s uncertainty. Because even the people who have advanced this defence and a constitutional challenge, how much energy will you put as an accused in a defence that your chances of success are very slim because the defence is not available?
That’s where I think we need to be a bit careful.
As for the three-year review, I understand the concern with the lack of speed the criminal justice system goes, and that perhaps we won’t have that much evidence. But I think we will have anecdotal evidence or testimonials, especially from the women’s sector, because they also see how the law works in action. Even all of the testimonials that we are giving now could also be part of the record that is considered in the review of the law. Whether it’s three years or five years, I think the important thing is that if we’re being told we’re having these hearings because we think it’s still possible to improve the law, and we don’t want this to be completely forgotten, hence a recommendation that it’s reviewed. It doesn’t mean the law is changed. It means let’s find out if some concerns need to be addressed.
Senator Pate: Thank you to the witnesses.
I’d like to follow up, Professor Lawrence, with some of the issues you raised. You’re probably familiar — you mentioned you had reviewed the testimony as well as speeches — so you’ll know that one of the concerns I have is the fact that oftentimes it’s those who have the greatest privilege, typically money resources, to mount these kinds of defences. So the very many people who are before the courts who don’t have the benefit of all kinds of defences was underscored by you, Professor Lawrence.
I’d be curious whether you’ve looked at the existing provisions that exist that could be used in the ways that you were suggesting. There are, in fact, provisions in the Criminal Code as well as in corrections legislation that provide exactly the avenues out of the system that you’ve described that have been curtailed by usually government policy as opposed to legislation. I’m curious whether you’re looking at some of those provisions, and if not, if there are ways, if you’re interested in getting some of that information, I’d be happy to share some of it with you.
Ms. Lawrence: Thank you, senator. I very much share your concern with respect to privilege. In my PhD research, I was looking at the circumstances of accused persons who were presenting in our criminal justice system with substance-induced psychosis. The law, as I understood it at the time and still do, was forcing this dichotomous choice. The courts needed to find that the etiology or source of the psychosis was either mental disorder or substance use. Often, that factual determination turned on the evidence that was available, and the presence or absence of a clinical record. I came to the view that if an accused was so fortunate as to be born into circumstances, into a family or into a place where they had access to mental health services, they were on a trajectory that was more likely to result in a not criminally responsible on account of mental disorder, or NCRMD, outcome than a trajectory that was likely to result in that avenue being foreclosed and only the defence of intoxication being available. We know that where the psychosis is the product of substance use exclusively, there is no defence. You would end up in the correctional system.
Therefore, I do have great concerns with respect to access to forensic mental health and the privileges that inform that question. Privileges that carry on as we continue through the correctional system. I’m aware of some of the provisions you’ve mentioned, but not to the level of understanding that I know you have.
From my point of view, I’d like to see more pathways in the Criminal Code, work that can be done by our courts at the front end to divert to the forensic mental health system, with the comfort and security of the safeguards in Part XX.1 of the Criminal Code. We know, under XX.1, that an individual who is in the forensic mental health system will stay there so long as they present a significant threat to public safety. This is not dependent on the term of a sentence. This could be prolonged detention or it could be short detention. Public safety becomes the key factor to determine release. From that, I take some comfort.
Senator Pate: One of the areas in particular I’m interested in an access to justice perspective from both of your perspectives is the National Inquiry into Missing and Murdered Indigenous Women and Girls talked about the issues that give rise to women being disappeared, murdered and on the streets as the same issues that give rise to them being in prison, and their lack of access to defences, particularly self-defence, defence of other, is in some ways the other end of this same discussion we’re having in terms of the availability or lack of availability and the extent to which the racism and sexism of the system gets weaponized against them at both ends, both when they’re victimized and when they are then deputized to protect themselves and if they do so they end up being criminalized. I’m curious as to whether either of you, your organizations or the work you’re doing has looked at some of those issues and the intersections with these kinds of issues.
Ms. Zaccour: I’ll just say that the concerns that I believe you have and raise regarding the criminal justice system as a tool that re-victimizes women and as a tool that is very often ineffective is something we really share. It’s the nature of bill making, I guess, that we’re always commenting on one bill separate from the others. But we also share these concerns that women, let’s say, who are victims of domestic violence will be punished for it both in the criminal justice system, where they’re sometimes punished for acts committed by their partners, and in the family courts, where the courts might have the tendency to see both parties as aggressors when it’s not the case. Definitely more resources, better understanding of the unique circumstances that women face, especially when they’re victims of domestic violence, and understanding how self-defence is different from aggression, that’s definitely something that needs to be improved.
I know there are other bills on the table on judicial education, on universal basic income. There are all of these other aspects that must be considered because the criminal justice system remains, as someone said earlier, a blunt instrument and women know that, I think, and Indigenous women will know that better than anyone else.
[Translation]
Senator Dupuis: Thank you to our witnesses for being here today. My question is for Ms. Zaccour.
I would like you to go back to the first problem you raised in the current law. You just pointed out the fact that there is already a problem of systemic discrimination against women in the criminal justice system.
I’d like you to clarify what you were talking about when you suggested that we should look at the effects of the law as a whole. You were talking about looking at alcohol, which was not assumed to be a cause of intoxication. You did not have much opportunity to clarify your thinking. I would like you to explain what you meant by that.
Ms. Zaccour: Thank you very much for the question, senator.
In the particular area of sexual violence or violence against women, in general, there is often a distinction between the law on the books and the law in practice. For example, under the current law, the accused must prove extreme intoxication. The Supreme Court tells us that this is unlikely to be proven in cases where alcohol was the only intoxicant, but they have not closed the door entirely.
The law, as interpreted or applied by the Supreme Court, is important in far fewer cases than the law as interpreted by police officers or Crown prosecutors. That’s why we hear women tell us, “I went to report a sexual assault, but I was told it was prescribed,” or “because there was no penetration, it wasn’t really a sexual assault.” So these are things that are patently false and are perpetuated by police officers, Crown prosecutors and other sources of misinformation.
If the law were explicit and clear, saying, for example, “cannot give rise to a defence of extreme intoxication,” or as I was saying earlier, a law that is clearer, more explicit, it would be helpful on that front. There is also this idea of a review, after a certain number of years, to see what we hear on the ground and what happens with this law. Because one of the concerns — and one of the reasons why this law was passed so quickly — was that people were writing on Twitter that if you’ve had a beer, you can’t be found guilty of sexual assault. This law never said that, it’s not that at all. I think that this has to be part of our concerns; even if it is something that is more difficult to deal with in a piece of legislation, we have to always keep that in mind. These are concerns that are going to be shared by the people who are on the front lines and accompany victims, and it will be really relevant in those situations.
Senator Dupuis: I’m going to venture to ask you my question.
It seems to me that the substance use defence has always been an excuse not to address the act of, for example, sexual assault, rape, or whatever you call it.
Here’s the question I’m asking myself today: aren’t we trying to refine the possible excuses for someone who is intoxicated voluntarily, which leads to automatism? Aren’t we just making it more sophisticated and more complex, so that no one can figure it out, and so that it provides an excuse for some people to say, “If I have a beer or whatever, I’m okay, I can do what I want and there’s no problem”?
It’s as if we’re agreeing that if someone is in an altered state, or as soon as they are, sexually assaulting a woman is less serious. That’s the impression I have all of a sudden this morning, Thursday, December 8, 2022, in the Senate of Canada.
Ms. Zaccour: I understand the question, and I think we need to understand the law in the context that we are in, a patriarchal and deep context of lack of trust in the system by victims.
If we were in a situation where it was not mainly men who were going to commit acts of violence against women and where the victims trusted the system, perhaps this law would not be a problem because indeed, someone who is really in a state of automatism is not responsible for his actions, and in any case, the Supreme Court tells us so. These are the constraints we have to deal with.
I think you wouldn’t hear many of the concerns you hear if we had a system that was more functional. You can look at it this way: Victims are saying that judges, police officers and the law are not even able to recognize sexual assault.
Won’t this just be another tool to perpetuate myths? As I said earlier, these myths, even when they are disproved by the law, are still expressed. We have a law that prevents evidence of the victim’s sexual past from being presented in a trial, except in certain limited circumstances.
When you look at the judgments — which are the tip of the iceberg — you see that this is not applied. Repeatedly, we see that evidence of the victim’s sexual past is brought in. The judges do not object and often even the Crown does not object. I think it’s that context that’s part of the problem. If it were a gender-neutral issue, maybe we wouldn’t be having this discussion, but that’s not the society we live in. That’s why, also going back to the discussions earlier, we need to improve the system as a whole.
[English]
Ms. Lawrence: My response to Senator Pate’s question was with respect to access to justice for marginalized populations. She is right. We need to be very attentive to the particular complexities and adversities that folks, especially Indigenous women, are experiencing in our system. There is an important role for lawyers to play in navigating and supporting clients through this otherwise potentially hostile and problematic space. As director of the Access to Justice Centre for Excellence, I would encourage appropriate legal aid funding in these cases.
In my research, I encountered one lawyer who told me that the situation in my home province of British Columbia was scandalous. That is intolerable. I appreciate that this is provincial jurisdiction, but if there is an opportunity for this committee to lend its voice to more legal aid funding, that would be welcome.
The Chair: Thank you very much, Professor Lawrence.
Senators, we are out of time. I thank all of you. Thank you, Professor Lawrence and Ms. Zaccour, for your testimony today. It was very useful for our study.
Senators, we have come to the end of our meeting today. I want to remind you that we will have four hours of meeting on Tuesday on Bill S-11.
(The committee adjourned.)