THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Wednesday February 1, 2023
The Standing Senate Committee on Legal and Constitutional Affairs is meeting today at 5:30 p.m. [ET], via videoconference, to examine and report on the issue of self-induced intoxication, including self-induced extreme intoxication, in the context of criminal law, including as it relates to section 33.1 of the Criminal Code.
Senator Brent Cotter (Chair)
[Translation]
The Chair: Could senators please introduce themselves, beginning on my left?
Senator Boisvenu: Senator Pierre-Hugues Boisvenu, Quebec.
Senator Clement: Senator Bernadette Clement, Ontario.
Senator Dalphond: Senator Pierre Dalphond, Quebec.
[English]
Senator Klyne: Senator Marty Klyne from Saskatchewan.
Senator Tannas: Scott Tannas, Alberta.
Senator Jaffer: Mobina Jaffer from British Columbia.
Senator Pate: Senator Kim Pate, from the unceded, unsurrendered territory of the Algonquin Anishinaabeg.
Senator Arnot: Senator David Arnot, Saskatchewan. I’m seated for Renée Dupuis from Quebec today.
Senator Batters: Senator Denise Batters, Saskatchewan.
The Chair: I’m Brent Cotter, the chair of the committee. Welcome to you all. Just before we begin, I wanted to extend an acknowledgement and thanks to Senator Mobina Jaffer, who has served as chair of this committee. I wasn’t present when we had the opportunity to extend our thanks and appreciation to her in December, and I wanted to extend my appreciation for her excellent leadership of the committee and for serving as a role model for chairs. In particular, I have admired and hope to emulate the respect and consideration she showed for the many witnesses who appear before this committee. Thank you, senator.
Senators, today we continue our study of extreme intoxication stemming from Bill C-28. We began this study before the holidays, as you’ll recall, and our intention is to hold two more meetings on this. Tomorrow, after witnesses, we will have time to give analysts drafting instructions for a report on this bill, which is due to be tabled in the Senate by March 10.
I want to welcome Senator Klyne, who is joining this committee in an official capacity, and Senator Arnot, who is substituting for Senator Dupuis today.
On our first panel we have three witnesses, and I’ll introduce them in the order in which they intend to speak. First, we will hear from Kerri Froc, Associate Professor, University of New Brunswick, National Association of Women and the Law; our second witness will be Elizabeth Sheehy, Professor Emerita of Law, University of Ottawa; and third, we will hear from Isabel Grant, Professor, University of British Columbia. Welcome to you all.
I’m going to ask you to limit your remarks to five minutes, as is common with our committee. I’ll try and give you a signal, maybe by raising my hand when you are getting close to the end. I will try not to cut you off too rudely, but I know there will be lots of questions and we have almost complete attendance of senators today who will want to have the chance to ask questions and hear from you more fully in the question period.
There is a second panel, but I will introduce them after we have completed the first panel. For those of you who may be working from a slightly dated script since we made a bit of a change from the order, Professor Roach and Dr. Chamberland will appear on the second panel. Professor Froc, if you could, please begin.
Kerri Froc, Associate Professor, University of New Brunswick, National Association of Women and the Law, as an individual: Good afternoon. Again, my name is Dr. Kerri Froc, and I am a constitutional law professor at the Faculty of Law at the University of New Brunswick. Thanks so much for having me testify along with my fellow panellists here today. I am the Chair of the National Association of Women and the Law, or NAWL, but my remarks are in my individual capacity today.
I know that lack of consultation has come up in prior hearings, and I would only emphasize that, despite the short notice, NAWL presented to the Department of Justice viable alternate proposals on section 33.1 of the Criminal Code, vetted by experts, two of whom appear with me today.
I reject any implication that NAWL essentially wanted to reinstate the regime that was struck down with some refinements. Professor Grant will present the proposals here today, and you can judge for yourself.
Minister Lametti also testified that, to his knowledge, it was only NAWL who objected to the path that the government had chosen. This is not correct. In the span of approximately 12 hours, from the time that support for NAWL’s position was made an issue on the floor of the Senate, we had over a dozen women’s organizations support our open letter to you.
But in my presentation today, I would like to address two main points. First, I would urge you not to accept uncritically the government’s stance that it was necessary to push through Bill C-28 to counter misinformation that would affect the reporting of sexual assault. Second, I want to correct the contention that it was necessary for the new law to repeat in identical words what the Supreme Court of Canada said in the Brown decision.
I don’t think anyone on this panel will argue with the need for more public education for sexual violence prevention or to publicize the message that ordinary intoxication alone is not a defence to sexual assault. However, the idea that problems with the extreme intoxication defence was misinformation, that there needed to be a rush to legislate to solve it and that all that needs to be done about it now is public education itself relies on gendered stereotypes, and you should not countenance it.
It’s been strongly implied in public discourse that Professor Sheehy and I were part of the misinformation because we raised concerns that Brown did not foreclose alcohol intoxication as enabling a defence of extreme intoxication, and indeed this was explicit on the face of the decision, although we are aware of the science that alcohol alone will rarely, if ever, lead to a state automatism.
However, extreme intoxication is a legal determination, and a majority of extreme intoxication acquittals after Daviault did involve alcohol. Further, our views regarding how the extreme intoxication defence could be used in the real world are informed by our extensive case analysis and our knowledge of the system. Dismissing our views as contributing to misinformation or hysteria, as one media pundit called it, feeds into the worst stereotypes about women raising concerns about their safety.
It’s a mistake to point to women’s lack of knowledge about the law as the problem, rather than problems with men’s extremely intoxicated violence, the law and systemic barriers of the criminal justice system. The extensive literature about why women do not report shows that their reluctance to report is based on cultural views about what “real rape” looks like and their realistic assessment of how the justice system is likely to treat their victimization given pervasive gender bias. The problem is not with women, and it cannot be solved with education alone.
To my second point, Parliament had other options simply to legislate in identical words to those used by the Supreme Court in Brown. I wanted to say a few words and provide a constitutional analysis as to why this is so.
The court has recognized that Parliament is a constitutional interpreter in its own right and its interpretations are worthy of respect. Indeed, it recognized in Brown that its suggestions were simply that, and Parliament will be afforded deference if and when it comes up with a fix. It did not guarantee that if Parliament followed its suggestions it would be Charter-proof, nor did it maintain that Parliament must follow the suggestions it used to describe the fault standard in order for the amendment to be constitutionally sound.
When the court analyzes these second-try legislation pieces, it gives due deference to Parliament’s attempt. This doesn’t mean that Parliament has carte blanche to violate rights on second-try legislation, but it does mean that the court respects the separation of powers. Parliament’s function is to address complex social problems where, ideally, all stakeholders are heard. The government puts forth legislation that attempts to reconcile disparate interests for the collective good and that democratic representatives deliberate.
I see that I am out of time, but I’ll simply end by saying that it’s really quite commendable that the Senate is studying Bill C-28. Marginalized groups like women lack full representation in Parliament. The House of Commons report and its emphasis on education are inadequate for the reasons I have outlined. The women of Canada are relying on you to take a deeper look. Thank you.
The Chair: Thank you, Professor Froc.
Elizabeth Sheehy, Professor Emerita of Law, University of Ottawa, as an individual: Thank you very much for inviting me.
My message is, first, that men’s use of the defence of extreme intoxication places a discriminatory burden on women who experience male violence, and second, the new version of section 33.1 of the Criminal Code will have negligible effect in restricting men’s reliance on the defence.
First, in the 12 months between the release of the Daviault decision and the enactment of the original section 33.1, the defence was advanced at least 30 times in reported decisions, which represent only the tip of the iceberg. Almost half, or 12, of those cases involved clear violence against women: six sexual assaults, five spousal assaults and the murder of a woman in the sex trade. Another two cases involved attacks on women: One man brutally beat his mother, and another attacked a woman in a nightclub.
Most of those claims were rejected for want of proof, but of the six cases where the defence succeeded, four were cases of spousal assault.
Advocates on behalf of women who experience men’s violence readily understood that the extreme intoxication defence colludes seamlessly with narratives around violence against women that suggest that it is never men’s fault; it is women’s fault, or it is an agentless crime that is an inevitable feature of life. A review of the reported cases after section 33.1 came into force in the period of 1995 through 2021 further supports the prediction that this defence will be invoked disproportionately for violence against women.
In our study, Dr. Froc and I found 86 cases in the electronic databases where section 33.1 was mentioned either to consider its constitutionality or as at least one reason for rejecting an intoxication defence. Of the 86 cases, 35 were sexual assaults, another 5 were men who attacked their current or former partners and then there were another 23 cases where women were victimized by intoxicated men’s violence either as the sole target or as another victim in addition to male victims. Altogether, 63 of 86 cases had women victims, and 80 of the 86 perpetrators were men and 6 were women.
Those numbers bear up even in the cases before the Supreme Court of Canada in Brown, Sullivan and Chan: three male perpetrators, three female victims and one male victim.
Second, the expert evidence and findings in those three cases illustrate starkly the difficulties Crown prosecutors will face under subsection 33.1(2), which says the judge must consider whether loss of voluntary control as a result of ingesting the substance was reasonably foreseeable. You may not know that the Crown in Brown could not show that loss of control was foreseeable, even though Brown had ingested 14 to 17 alcoholic drinks and snacked on unspecified amounts of magic mushrooms over the course of an evening. That is because, when it comes to street drugs, it will be impossible for any expert to reliably report its potency and, therefore, its effects. Taking the example of magic mushrooms, which were at issue in both Brown and Chan, the expert evidence was that there are approximately 200 kinds of magic mushrooms, and the amount of active ingredient — psilocybin — can vary widely between samples. In neither case was there evidence of the specific kind of mushroom at issue, the psilocybin concentration or the dosage consumed.
Even if those variables are known, the effects will vary between the individuals, because psilocybin acts on the serotonin receptors such that an individual’s personality, their expectations and the stimuli they are confronted with will all have a variable effect. There are no scientific studies to indicate what dose of psilocybin tends to trigger toxic psychosis in the normal population.
This difficulty in assessing the foreseeable impact of consumption will hold true for all street drugs, whether consumed alone or in combination with alcohol or other drugs.
The additional foreseeability hurdle in subsection (2), that the intoxicants present a risk of the accused causing harm to another, is impossible for street drugs for the same reasons. Further, there appear to be no wide-scale studies on the role that particular drugs play in producing violent behaviour. It may even be difficult to prove that the abuse of a prescription drug — where its content, dosage and side effects are documented — foreseeably produces violent behaviour.
In David Sullivan’s case, he had already experienced hallucinations and had previously attacked his mother — the same woman he attacked — the expert could only say that it’s possible that Wellbutrin use could cause a normal person to develop similar conditions, including psychosis, hallucinations and violence.
The Chair: Professor, I must ask you to come to a conclusion, please.
Ms. Sheehy: It should therefore be no surprise that Brown’s own lawyer candidly acknowledged that section 33.1 will be “entirely ineffective.”
In conclusion, section 33.1 will have little impact, and the harms to women will abound, whether through lengthened trials or appeals, acquittals, or police or Crown decisions not to lay charges or prosecute. Thank you.
The Chair: Thank you, Professor Sheehy.
Isabel Grant, Professor, University of British Columbia, as an individual: Thank you for inviting me to speak to you today about extreme intoxication.
My point is quite simple, following from my colleagues: The new section 33.1 will do virtually nothing to protect victims from extremely intoxicated violence, people who are seriously injured or killed by intoxicated men should have recourse to the criminal justice system and that this legislation does not give them that.
Quite simply, the problem with this legislation is subsection 33.1(2). Subsection 33.1(1) sets out what the Crown has to prove beyond a reasonable doubt in order to deny the defence to an accused. The marked departure standard is the constitutional minimum. Subsection 33.1(2) says that the court must consider the objective foreseeability of the risk that the consumption of the intoxicating substances could cause extreme intoxication and lead the person to harm another person.
Subsection 33.1(2) is unclear and poorly drafted. The language of subsection 33.1(2) uses the word “consider.” That does not put a burden of proof on the Crown, and it shouldn’t be interpreted as such. It simply says that the trial judge must consider it.
But it would be much better if that were clear. I note that some of the witnesses before the committee in the House of Commons assumed that this did put a burden of proof on the Crown, and I’m quite concerned that judges will make that same mistake.
The very substance of subsection 33.1(2) is also problematic. That relates to what has to be foreseeable. It has to be foreseeable that the intoxication would lead the person to harm another person, but in fact, extreme intoxication is much more likely to lead to unconsciousness than to violence. So an accused will always be able to say that the harm was unforeseeable because violence is itself such a rare event. The accused will claim, “I have been intoxicated before, and I didn’t react violently,” or “I have never been extremely intoxicated before, so how would a reasonable person in my position know that harm was likely to result?”
So unless you have a very unlikely scenario of someone who has consumed the same amount of the same kind of drug and/or alcohol and committed violence in the past, it’s going to be very hard, if not impossible, for a judge to ever conclude that harm to another person was foreseeable.
I think this problem could be solved in two different ways. The best option would be to get rid of subsection 33.1(2) altogether. It’s confusing, we don’t need it and it runs the risk of being interpreted as creating an absolutely unprovable burden of proof on the Crown. Judges know how to apply the marked departure test. They do it in criminal law all the time. They don’t need subsection 33.1(2).
If, however, subsection 33.1(2) is retained, there is another way to at least minimize the harm of the current draft of the legislation. I note that the committee report recommends considering this option in three years. I urge the Senate to consider it now. That option is to change the test from foreseeability of harm to foreseeability of a loss of control over one’s actions. Harm is quite remote from the intoxication. It’s a rare event. Foreseeability of loss of control may still be difficult for a judge to be satisfied on, but it at least gives the Crown a chance to meet the marked departure test that is set out in subsection 33.1(1).
Now, I am sure you will hear from some witnesses that extreme intoxication isn’t a problem, that it’s so rare it will only be a handful of cases and that we are really just creating misinformation. But I guess what I want to ask those witnesses is this: How many victims are too many before we say this is a problem? If we have 5, 10 or 20 beaten, raped or even dead women each year, is that too many? I urge the Senate to consider fixing this problem now.
Finally, I want to reiterate a point that was also raised in the report. This decision will have an impact on charging decisions. When the Crown or police make charging decisions, they don’t have evidence about exactly what or how much an accused consumed or its potency. They may be reluctant to lay charges where there is a reasonable prospect of an extreme intoxication defence that will require expensive and time-consuming expert witnesses. This won’t be the case in every intoxicated sexual assault, but we cannot expect complainants to be able to assess exactly how intoxicated their perpetrator was.
The standard for charge approval in British Columbia, for example, is a substantial likelihood of conviction. That’s a high threshold, and it’s one which must incorporate the potential of a successful defence. This problem will be invisible because we don’t see the cases where no charges were laid, and there will be no way to monitor whether this is happening.
I have put into my speaking notes, which I have shared with you, a draft of what these recommendations would look like. I think the best recommendation would be to get rid of subsection 33.1(2). The alternate recommendation would be to change the language so that it requires foreseeability of a loss of control rather than foreseeability of harm to another person. Thank you.
The Chair: Thank you, Professor Grant. I feel, in blowing the whistle on each of you at the five-minute mark, it’s like class has come to an end and you have to stop. It’s a slight role reversal for me. Thanks very much.
I invite senators to pose questions now, and I’m going to follow the pattern of the three senators who are serving on the steering committee, followed by volunteers who signal they would like to ask a question.
[Translation]
Senator Boisvenu: Thank you very much. I listened to your evidence closely. I’m very sensitive to it, because I think — and everyone will agree — that the notion of not being criminally responsible due to self-intoxication affects women more than men when it comes to crime. In my opinion, this bill introduces a great deal of complexity into our courts when it comes to judges assessing guilt, especially with regard to the notion of predictability. This concept seems complex to me because, if my interpretation is correct, it will now be up to the Crown to prove beyond a reasonable doubt that the accused could foresee the consequences of his or her actions. That seems very complicated to me.
Ms. Sheehy, did you read the brief submitted by the National Association of Women and the Law?
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Ms. Sheehy: Are you directing that question to me?
[Translation]
Senator Boisvenu: Yes. Did you read the brief submitted by the National Association of Women and the Law?
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Ms. Froc: Professor Sheehy was one of the experts that we consulted on our position on Bill C-28.
[Translation]
Senator Boisvenu: The brief submitted by the association focuses a great deal on the notion of predictability. Do you share the views of this association, which represents the perspective of women?
[English]
Ms. Sheehy: Do I support the position of the National Association of Women and the Law? Is that the question?
[Translation]
Senator Boisvenu: Yes.
[English]
Ms. Sheehy: Yes, I do. I just want to say that, as Professor Grant has pointed out, there is a question in terms of the way the legislation is framed, whether the prosecution has to prove beyond a reasonable doubt that loss of control or harm was foreseeable, because the language of the legislation says the judge “must consider.” It doesn’t say the judge “must find” or “must determine” beyond a reasonable doubt that those foreseeability standards were met.
[Translation]
Senator Boisvenu: My other question is for Ms. Grant. Ms. Grant, you testified before the House of Commons on subsection 33.1(2) and you told the House that this new provision will be nearly impossible for the Crown to prove. You made three recommendations in your brief.
Are you proposing in your recommendations that subsection 33.1(2) be replaced by another section?
[English]
Ms. Grant: No. I’m sorry for that lack of clarity. My first position is that subsection 33.1(2) should go. I think we have seen confusion around what subsection 33.1(2) actually does. It says the judge “must consider.” It doesn’t say what the judge should do with it or what standard the judge has to meet it on. So I think the best solution is for subsection 33.1(2) to go.
The other suggestion I made about changing the wording, that would be an alternative. I think the best option is to get rid of subsection 33.1(2). The second-best option would be to change the foreseeability so that it relates to a lack of self-control.
I didn’t raise the third possibility because I ran out of time when I was testifying before the House of Commons Justice and Human Rights Committee, so I just went with the first two options when I was speaking here today.
[Translation]
Senator Dalphond: I would like to thank our guests for their suggestions.
To follow up on Senator Boisvenu’s question, I understand that the third option was — and please correct me if I am wrong — to have a reverse onus, that is, the accused would have to prove that their behaviour did not constitute a risk. This third option may be constitutionally challenging, because the Charter mentions the presumption of innocence.
Having said that, you say the best solution would be to delete subsection 33.1(2), plain and simple. Have you ever seen any charges laid?
[English]
I’ll let you answer that and then I will come back with other questions.
Ms. Grant: First of all, the burden of proof, which had been the third option I had raised, was to clarify because I don’t think there is any clarity right now on burden of proof. I don’t think the accused would have to prove that he didn’t lose self-control but rather would have to prove whether harm was foreseeable. That’s a different standard. It’s not proving what the actual accused himself had to do.
I think it’s better to get rid of subsection 33.1(2). The fact that we have had so many different witnesses interpreting it differently tells you that judges may have a hard time interpreting it, and you may get inconsistent case law. That’s why I think the best solution is to get rid of it altogether.
Senator Dalphond: It might be too early, but have we seen any charges laid pursuant to the new provisions?
Ms. Grant: The only case I’ve seen was one case where a guilty plea to manslaughter was withdrawn on the basis of Brown. But the cases have not made their way through the courts to be reported yet, so there is not a lot since the legislation hasn’t even been in effect for a year.
Senator Dalphond: In the other place, the committee has recommended that we review the legislation after three years. Do you think that’s long enough, or should we have a longer period before we proceed to the review? We were told by ministers and officials that there are very few cases where section 33.1 is raised or involved, and therefore it will take some time, as you said, to go through the court and be appealed, and maybe up to the Supreme Court. Do you think that the exercise that is being recommended, that we do a review in three years, is premature? Should we wait five years?
Ms. Grant: I have trouble with that reasoning, because we are basically saying to victims that they will have no recourse to the criminal justice system while we figure out if we have gotten it right or not. I would rather see us try to get it right.
I note that in the first legislative process after Daviault, they took quite a lot of time to do a fulsome consultation and try to get it right. I would say it would trouble me to tell victims to wait a few years so that future victims may have the benefit of the criminal justice system.
Senator Dalphond: Do we have data that supports that? Because I think one of your fears is that, because of the way it is drafted now, it has the potential that some people will no longer complain, that the police won’t charge, that the Crown won’t take over the file. This is something that will not be reflected in the numbers we will get three years from now, I guess, because we will look at the cases as they are, but we may see only the tip of the iceberg.
Ms. Grant: Yes, and those cases will be invisible. That Crown or police officer who decided not to lay a charge, we won’t see those. We won’t be able to assess the full impact of that, even after three or five years. That is why I think it is imperative that we give the Crown some tools now to deal with these serious cases that, as my colleagues have shown, are disproportionately harming women.
Ms. Froc: That data will be hard to collect, as well, because it’s not simply the Crowns and their charging decisions; it’s police officers deciding whether to charge and arrest at the first instance, and then it goes to the Crowns to prosecute. I don’t know how you are going to get national statistics from all police forces and all Crown prosecutions across Canada for that. It’s going to be very difficult.
The Chair: Thank you very much.
Senator Batters: Thank you. Wow, such a panel. It’s tough to know where to start with three such prominent academics who have all done so much for women on this type of topic.
Dr. Froc, there has been a lot of discussion about our organization’s consultation experience — in particular, a process that you referred to as a sham. Your comments garnered so much attention because the process you described confirms what many of us feared has been happening all too often in these types of public consultations. I asked your colleague about this back in December, but given Minister Lametti’s rather dismissive answer when I raised your concern with him, I thought you should have this opportunity to be on the record about it.
If you could, please detail for this committee what the consultation process was for your organization. When were you contacted? What kind of exchange took place between you and the minister’s office or department officials? When I asked the minister how far into the drafting process the department was when they reached out to you — as I suspected, it was quite a way along already at that point — he responded, “. . . we weren’t starting at zero . . . .” Could you please comment on that? Thank you.
Ms. Froc: I would suggest that they were very far from zero at the time that we were consulted. We were consulted, I believe, on the Tuesday before the legislation was tabled later that week, and we all know what kind of permutations the legislative process has to go through, including cabinet and getting an opinion from the Minister of Justice on its constitutionality, et cetera.
One thing that I was thinking about — and I was on the record before the Commons committee — but what I wanted to drive home is that to simply consult with us in a meaningless way to check a box so that you can produce a list of organizations that you consult with, it has its costs. NAWL is a non-profit organization. We are very dependent on donations and applications for government grants, so to have us work up the kinds of submissions that we’re making before the Department of Justice, that takes time that could be better spent applying for grants or doing our other very good work on behalf of women. It’s not something that has no cost. As feminists, we are used to, a lot of times, having people not agree with us, and we can handle that. But to say that you’re consulting but having it not really be a consultation and having us spend time and efforts on that is very problematic.
Senator Batters: Dr. Froc, what impact do you think an actually meaningful consultation would have had on this bill, which was ultimately tabled and very quickly passed?
Ms. Froc: I can only reiterate that when we were able to provide our legal analysis with many other women’s groups and the community, we had over a dozen sign on and say that they were also concerned after they had the ability to review our analysis. We’re the National Association of Women and the Law, and many grassroots organizations and front-line workers don’t have the resources to get legal opinions. We’re the ones who often provide those kinds of opinions.
If we had a robust consultation, it’s really important not only to bring in lawyers, but other organizations and have them able to talk to each other. Don’t just do one-offs where you’re consulting with them individually, but have them hear each other and use their experience, as well as putting that together with the legal analysis, and I think we could have provided some very good advice to the government along the lines of what Professor Grant has suggested.
Senator Batters: Thank you.
Senator Jaffer: First of all, I want to thank all three of you for the exceptional service you have done, especially for women, for many years. I just don’t know how you continue to do this. It’s very hard work, so thank you for the work you do.
First of all, I have to say that I looked at the House of Commons report and I’m just so angry that I’d better watch how I speak. The report talks about vulnerability, but then it doesn’t have a recommendation. If I am overstepping, forgive me, but it is as if you did not even make a presentation. There is no recommendation of what was said. I will start with you, Professor Grant.
Ms. Grant: I was disappointed in the recommendations. I will say the fourth recommendation recommends considering changing the standard in three years, which is about as vague as the standard itself currently is. It does feel like when you’re trying to make these arguments that you are dismissed as being hysterical or promoting misinformation. The work that Professor Froc and Professor Sheehy did on this subject was about real people and actual reported cases — real victims, people whose lives had been devastated by extremely intoxicated violence. We’re trying to be heard and we appreciate the opportunity to speak here today.
Senator Jaffer: Professor Grant, I heard you speak many times about review. I have been here for a long time, and I can tell you that I have never seen any legislation that was reviewed. The fact that the House of Commons committee says it should be reviewed — it’s just a piece of paper. Truthfully, I may be wrong, but to me the chances of it being reviewed are almost slim to none. Really, I don’t even know why they make that recommendation, because there are hundreds of pieces of legislation that Parliament is supposed to review and they have not been reviewed.
All three of you are very learned. Have you seen any legislation being reviewed?
Ms. Grant: I saw Bill C-7 being reviewed, but it was not a very significant review. We know that the proper legislative review that was supposed to happen didn’t happen during the pandemic. That’s my only experience with that.
Senator Jaffer: Bill C-7 was a very minor kind of review, not the proper kind of review that this is asking for. Would you agree with that?
Ms. Grant: Yes.
Senator Jaffer: When Bill C-28 came to us, I was really shocked, because normally when a judgment is made, the prosecutor or the government makes the submission to hold off until Parliament has time to consult or time to work, study the bill, study the situation, and then come up with a proper bill that has been consulted and has heard from witnesses. This was all; the minister arrived to one committee meeting and that was it. We all approved, including myself, so I will not blame anybody else.
Professor Sheehy, what do you think should have happened?
Ms. Sheehy: We should have taken the same approach that we did in the last round whereby the government takes its time and it does a thorough search of the case law. I didn’t even see any briefs from Parliament itself. Normally there is some sort of study of the legal landscape they are dealing with, and they didn’t do that. Had they done that, they could see clearly in the three cases before the Supreme Court that the kinds of evidentiary standards that they are looking for in this legislation aren’t met in any of the cases; so, a process that includes Parliament’s own research, consulting its own experts but also a more thorough and actual consultation is needed with women’s groups and those who are going to be affected on the ground.
There’s a lot of back and forth that could occur in that context, and I think there are many options that were never really discussed in terms of how to proceed with legislation and response.
The Chair: Thank you, Professor Sheehy.
Senator Klyne: Welcome to our witnesses, and thank you for the information that you have been providing to us.
I did have a question for Professor Grant. In your article, Last Among Equals: Women’s Equality, R v Brown and the Extreme Intoxication Defence, you say that Parliament shouldn’t have chosen from the Supreme Court’s two suggested fixes to section 33.1 and should have instead focused only on the foreseeability of loss of control, not violence. You argued that section 33.1 should have included amendments that place the burden of proof on the accused to demonstrate that their excessive consumption of intoxicants did not fail to a marked degree the standard of care that a reasonable person would have exercised.
You mentioned two options on section 33.1(2). I don’t think they are connected to this. Are those the amendments you would like to see now? Could you explain them?
Ms. Grant: I was not a co-author of that article. I believe you are citing from Professor Sheehy’s and Professor Froc’s article.
I think the amendment the three of us are putting forward today — getting rid of subsection 33.1(2) — is the best amendment, and I stand by that. I think most of their paper was written prior to the new section 33.1 being released and so they hadn’t had the benefit of the hearings in the committee before the Senate.
Ms. Froc: Certainly, with the luxury of time, the tenor of Professor Grant’s recommendations before you today are the same as what we put in our paper. But again, with the luxury of time, I have come around to Professor Grant’s proposal that really the best way to deal with this is to just get rid of section 33.1(2) entirely and allow judges to do their job, interpret what marked departure means and not try to force them to consider some things that are legislated. Just let them do their job and interpret that section.
Senator Klyne: Thank you for that and for guiding me there, Professor Grant.
Senator Pate: Thank you very much to all of the witnesses, and thank you for your ongoing work. Having been along with some of you on part of the consultations that happened decades ago now on this very issue, we know that it was much more fulsome than what has happened here.
It is important to underscore and thank you for coming when we know there are people who have refused to come because it’s already law or believe it’s a pointless exercise. I want to appreciate that, even though it is taking precious time from your already overburdened schedules, you have taken the time to participate.
My question is not in any way to diminish from the overall issues you have already raised, but it struck me that at the same time as the government was committing to reconciliation and implementing the Truth and Reconciliation Commission Calls to Action and the MMIWG Calls for Justice, there is virtually no assessment of how often this will negatively impact racialized and poor women in particular, who very often the charges don’t proceed. I am curious as to whether you have any data around that in terms of the work you’re doing and in terms of how often charges have been dropped. I did hear you say how difficult it is to gather that data, but what are the particular implications, in your opinion, for racialized women, poor women, those who may have past trauma and, in particular, Indigenous women coming out of the Calls to Action and Calls for Justice that the government is supposed to be following through on? If each of you can speak to it, that would be great.
Ms. Froc: Professor Sheehy, I will let you handle that response.
Ms. Sheehy: Unfortunately, Senator Pate, we don’t have any data. We have a common understanding that the women most vulnerable to sexual and wife assault are racialized, Indigenous women, marginalized women. We also know that those are the women with the least credibility in terms of persuading police and prosecutors to go forward with charges.
I think we can predict that the extreme intoxication defence will have disparate impacts on specific subgroups of women. I think that’s a fair prediction.
Ms. Grant: It is difficult, looking at case law, to identify much about complainants. There are publication bans, and judges understandably don’t give you a lot of information about victims. As Professor Sheehy said, Indigenous women in particular are so disproportionately overrepresented in victims of violence that it’s hard not to think they will be disproportionately impacted here.
Senator Pate: One of the things that strikes me that we also need to be examining is where we could be going. I appreciate your recommendation about repealing or recommending getting rid of subsection 33.1(2). But it’s also clear that we have a number of situations where judicial discretion and education are raised as issues. I’m curious as to what your response is there, because we know that’s voluntary and that the very same issues in terms of misogynist, racist and ableist interpretations of the law against women who experience violence continue to be problems.
Do any of you want to comment and advise if there is anything we should be recommending in this report back to Parliament, albeit after the fact?
Ms. Froc: I tend to be one who is somewhat skeptical that we can train people out of misogyny. That being said, I think voluntary education is a great thing, but it boils down to having a judiciary that reflects the diversity of our population, and that is racial diversity and gender diversity.
But it is also reflecting diversity in terms of socio-economic circumstances and people who come from different walks of life. Those are things that maybe don’t get talked about a lot, but having people from working-class and poor communities is extremely important as well. That is the only way we are going to address this misogyny that is woven through the criminal justice system.
Senator Arnot: Thank you to the panel. Your point about eliminating subsection 33.1(2) is well made. I understand you clearly.
I’m going to take a different approach. First, the Government of Canada did make a policy decision, and it has now become law — it is cemented in legislation — but they committed to perhaps working on programs and education. There is a real power in education, and it needs to be used effectively. Your organization — the three voices here on this panel are very credible and powerful voices in this country. What is your advice to this committee?
You have a constructive opportunity here to help shape that kind of programming and education that you think would be comprehensive, robust and at a funding level that you might recommend that you feel would be effective. Thus, there is an opportunity here to perhaps diminish or eliminate the existing deep-seated stereotypes that you are talking about. This committee could play a role in that if you give this committee the constructive information and advice that you would give if you really wanted to see an effective and robust education program, either in the kindergarten-to-Grade-12 schools or the general community using community groups to reinforce these issues in a way that is constructive and would change attitudes and understanding.
I’m asking you to make a comment on that and see if you could provide this committee with that kind of advice — what platforms, what types of education — and don’t be short on the funding that’s required to do this, because it is a monumental task. But your organization could be a key partner, perhaps, to educate people in this country about these deep-seated, clear stereotypes that have gotten us to the point where we’re having this discussion today.
Ms. Froc: Thank you, Senator Arnot. I know you have an extensive background in human rights commissions and you’re probably well versed in the good work that commissions do in terms of education.
If I can be quite blunt, what we need is core funding for women’s groups, because when we’re chasing down grants for piecemeal funds and chasing down donors, we don’t have time to do as much as we would want to do.
In our current strategic plan of the National Association of Women and the Law, we’ve made violence against women one of our three fundamental areas that we’re hoping to make some headway. We’re doing great things. We’ve got our online Feminist Law Reform 101, as we call it, where we teach young women to advocate for changes in the law. Frankly, I think we sometimes focus overly much — I know Senator Pate has talked about deputizing women to be responsible for ensuring they don’t get sexually assaulted, but I think there needs to be a lot more work that we do on telling young men not to sexually assault. There are ways to do it in ways they would listen. That kind of education has to start early.
But core funding for front-line organizations that see the problems and do the work all the time has to be top of mind for sure.
Ms. Grant: I agree that any educational efforts have to start very early, including with limits on access to pornography. Children in their early ages are having access to violent pornography. It’s hard for education to out-power the force that can have on an eight-year-old or nine-year-old boy, as well as girls, frankly, watching that and having expectations put on them.
And yet, however good the education, the criminal justice system has to be responsive to the failures of education, and however good the education, there will be some failures. This legislation isn’t responsive. It feels like a government that wanted to be seen to be doing something but not something that will have much impact. The fact the defence bar hasn’t complained about it tells you how little impact they think it will have.
Education is important, but we need a criminal justice system to be there for the people who fall through the cracks.
The Chair: Thank you very much. I will forego my questions to provide the next senator with an opportunity for a few minutes more of questioning.
[Translation]
Senator Boisvenu: My question is for Ms. Grant. I am certain that the minister’s intention in introducing the bill was not to increase the number of abusers who could rely on self-induced intoxication to escape justice. The intent of Bill C-5 was not to exempt abusers from incarceration. However, we are now seeing cases in which offenders have been sent home to serve their sentences.
Here is my question: Compared to the old regime and the one the minister is proposing or wishes to adopt, are women at greater risk than before?
[English]
Ms. Grant: I can’t say that this increases the risk against women, because the criminal justice system doesn’t eliminate the risk. However, what will happen is that women will feel that the violence against them is not being responded to, recognized or acknowledged. We need a response that says that when you are violently assaulted, the state cares about that and will take steps to deter others from doing that and to create that kind of deterrence impact and denunciation impact that the criminal law is supposed to have.
Women, realistically, are at risk every day in this country from sexual assault. The more we can do to say that we will respond to that risk when it happens and encourage you to report, and give Crown prosecutors and police the tools they need, as well as educating police officers on how to support complainants — all of those things are very important.
The Chair: Thank you very much. That will bring this session to an end. I would like to close it with two observations. First, many of us around this table and within the Senate had reservations about the bill; we felt that it was heartfelt but misguided and would miss the mark. I don’t know that we had the “meat” on that the way you have provided in this conversation, particularly with the sharp focus, Professor Grant, on the specific language of the provision that is itself highly problematic. Thank you for that.
More generally, there was some suggestion that some might disregard the views of yourselves or your organizations as extreme. I think the opposite is true. I think your contributions to us have been extremely valuable and will continue to be. We really appreciate the time you have taken to share your views in this somewhat unusual situation, where we’re doing kind of an ex post facto review.
If I can just say personally, I’m delighted in the role reversal, where you are educating us. I think of that particularly, Professor Grant, in the role reversal as between us. Thanks very much to all three of you today.
Ms. Grant: Thank you very much.
Ms. Sheehy: Thank you.
The Chair: For the second panel this evening, we have Kent Roach, Professor of the Faculty of Law at the University of Toronto. Welcome, Professor Roach. And we also have with us Dr. Gilles Chamberland, a psychiatrist with the Philippe-Pinel National Institute of Forensic Psychiatry. Welcome, doctor.
I’m going to invite each of you to speak for five minutes. I’ll give you a little signal when you are getting near the end so I hopefully don’t have to interrupt you mid-sentence or anything. Following that, there will be a series of questions from the members of the committee. Professor Roach, please go ahead.
Kent Roach, Professor, Faculty of Law, University of Toronto, as an individual: Thank you very much for the invitation.
The reformulated section 33.1 is certainly better than enacting new intoxication-based offences, which was the Supreme Court’s alternative suggestion. In the real world of plea bargaining and society, this could make offences such as assault and sexual assault seem less serious.
But I must disagree with my colleagues who testified before you because, in my view, to only require fault with respect to extreme intoxication — or as Professor Grant has recommended, remove section 33.1(2) — would essentially be punishing people for extreme and negligent intoxication, when at the end of the day, they would be convicted of the most serious, violent and general-intent crimes such as assault, sexual assault and manslaughter.
You have also heard that the new fault requirement — could a reasonable person foresee both, one, extreme intoxication, and two, harm to others — would be impossible to make out. I am more skeptical of that view. Courts, in my view, are likely to require the reasonable person to be cautious, especially when combining drugs. I think that educational campaigns can also reinforce this cost.
It has also been suggested that Parliament should have placed a reverse onus on the accused, that they did not have the fault requirements of objective foresight of extreme intoxication and/or harm. The problem with that is it would pile one reverse onus on top of another reverse onus. Nothing has changed the fact that the defence of extreme intoxication has to require the accused to prove it on a balance of probabilities with expert evidence. So the criminal law should always be concerned about convicting people in the face of reasonable doubt. It should be especially concerned about convicting people in the face of two reasonable doubts.
If Parliament or this committee concludes that the reformulated section 33.1 is inconsistent with public protection, I see only two paths forward. One is to either enact the old section 33 or abolish the defence of extreme intoxication to general intent offence, which was, in fact, the law before Daviault. In my view, given the Supreme Court’s unanimous decision in Brown, this would require an override of sections 7 and 11(d) of the Charter. The second — and I would defer to my colleague, who will be speaking to you next, and he may not agree with me — would be to expand the mental disorder defence under section 16 by providing that extreme intoxication is a mental disorder. This would be contrary to the Supreme Court of Canada’s 2011 decision in R. v. Bouchard-Lebrun, but this could be done without the Charter override because Bouchard-Lebrun, unlike Brown, was not an interpretation of what is permissible under the Charter.
I look forward to your questions. Thank you.
The Chair: Thank you, Professor Roach.
[Translation]
Dr. Gilles Chamberland, Psychiatrist, Philippe-Pinel National Institute of Forensic Psychiatry: Good morning.
The people who spoke before me are academics. I am more of a clinician. I would like to raise two points that are significant in my mind.
When I say I am a clinician, it is because I have written over 400 reports for the Review Board and have prepared over 3,000 expert opinions. In my view, there are two significant problems with section 33.1 of the Criminal Code.
First of all, the definition of extreme intoxication provided in the fourth paragraph states that intoxication renders a person “unaware of, or incapable of consciously controlling, their behaviour.” The first criterion does not compare with the second. According to the first criterion, a person is said to be incapable of conscious self-control. One can always find a psychiatrist who can demonstrate that the person, had they not been intoxicated, would have been able to consciously control themselves.
The purpose of taking alcohol is precisely to perform actions more easily than if one had not consumed alcohol. A criterion whereby the person is no longer able to control themselves consciously seems extremely broad to me. One might even envisage a perverse effect. Someone might say, “You see, every time I get intoxicated, I fight. Evidently, when I am intoxicated by alcohol, I am unable to control myself.” That leaves the door wide open.
According to some psychiatrists, intoxication renders certain people incapable of controlling their impulses. In my opinion, if you compare it to the other criterion of being aware of your behaviour, you end up at the other extreme. The person is simply not aware of what they are doing. If we have reached that point, it is indeed extreme. In my opinion, the two criteria are not on an equal footing.
Secondly, as I understand it, someone who is found not responsible on the grounds of extreme intoxication would fall under the responsibility of the Review Board. The Review Board is governed by a Supreme Court judgment which says that if the person does not pose a serious threat to society, the Review Board must order an absolute discharge. This means that if it cannot be proven that there is a serious threat, the case is closed and the patient is released.
Many people sit on the Review Board. It is somewhat of a mixed bag. There is less consistency when it comes to the chairs of the Review Board. Some have quite liberal views on what constitutes a serious threat to society. The Review Board has quite readily ordered absolute discharges. I have patients who are reoffending for the third time following an absolute discharge by the Review Board. Under this criterion, they no longer posed a serious threat to society.
The danger with extreme intoxication is that those who will argue these cases... It is not like a disease, where you can say that as soon as the person’s condition is stable or the disease is under control, as mentioned in section 16, the risk of reoffending is virtually non-existent. That is not what we are going to see.
We will see people who consumed alcohol and who are in therapy; they will say that their therapy has enabled them to control their consumption and that they no longer pose a serious threat to society. Worse still, there will be people who do not have an alcohol use disorder, but who will say that on a particular night they drank inappropriately, which they will never do again in their lives. It would then be quite easy for the Review Board to conclude that these people no longer pose a serious risk to society. The danger is that this category of people will be released quite quickly, given the criterion that the Review Board must apply.
If I had a suggestion to make in that regard, it would be that at the very least people who would come before the review board as a result of extreme self-induced intoxication should remain under the board’s responsibility for a period of time. It seems to me that requiring someone who is released to undergo treatment, live in an approved place and not take drugs are not demanding conditions. I don’t see why those requirements shouldn’t be maintained, at least for the minimum sentence, if the person is convicted of an offence.
I won’t hide the fact that here, at the Philippe-Pinel Institute, we see a lot of people who are found not criminally responsible in murder cases, and we always wonder why the review board isn’t responsible for their file for life. If people are doing well, they will simply behave like any other citizen. They will take their medication and not take drugs. By removing these conditions, people often feel that they now have the right to stop taking their medication, and the risk of reoffending is high.
[English]
The Chair: Thank you very much, doctor. I will now turn to senators for questions.
[Translation]
Senator Boisvenu: Welcome, Dr. Chamberland. It’s a pleasure to have you back before the committee. Welcome to Mr. Roach, as well.
My question is for you, Dr. Chamberland. The bill adds new vocabulary, namely foreseeability. How do you interpret the application of this concept in relation to the risks of substance use? Legally, how can we play with this new concept, according to which the individual who has engaged in self-induced intoxication knew the foreseeability of the substance and the quantity consumed? You could be faced with such cases. How are you going to deal with this situation from a psychiatric and legal standpoint?
Dr. Chamberland: Indeed, this could have the opposite effect. I’ve given an expert opinion on a murder case that deals with exactly these circumstances. This trial begins next week. It’s said that it’s quite easy for the intoxicated person to say, “I’ve been intoxicated several times in the past, and I haven’t reacted that way. I didn’t feel those things. It was completely unforeseeable to think that I would react that way by intoxicating myself as usual.”
The concept of foreseeability will be very difficult to prove. It would have to be proven that the individual knew that they would react this way and continued to use the drug anyway. People will automatically say, “I’ve never reacted that way before. The proof is that I’ve never done that.” There is a kind of presumption that the individual acted that way and could not have predicted their behaviour by taking the same intoxicants. We know this is difficult to predict. Individuals can take the same dose and react quite differently. The person will just say, “I took the same thing as usual, I just reacted more strongly than usual. It was unforeseeable for me.” Then it would be considered extreme intoxication.
Senator Boisvenu: Earlier, we heard testimony from three women who are very concerned about this bill, particularly with respect to the victimization that could ensue.
You have a great deal of experience in assessing these cases of mental disorders and cases of self-induced intoxication. You do a lot of assessments at the Philippe-Pinel Institute. You worked under the old system, and now you’re going to work under the new system. Under this new system, are you likely to have more patients to assess, or do you think this legislation will further restrict the call to self-induced intoxication?
Dr. Chamberland: I think we will have many more patients to assess. If extreme intoxication is defined as intoxication that has rendered the patient incapable of conscious self-control, that means that the accused has not been capable of self-control. There is a presumption, if this time the individual acted out, that they were unable to control themselves. I suspect that it won’t be difficult to find an expert psychiatrist whose philosophy will be that these substances quickly take away someone’s ability to control themselves consciously. So there may be a lot of that.
However, the review board will be able to quickly say that this person, who has undergone three months of therapy, for example, doesn’t pose a serious risk to society. So the person would be unconditionally released, and the case would be closed.
I think there’s already a perception in society that some individuals are trying to plead insanity or have an interest in doing so, as they say. I think we’ll see a resurgence of that, especially in terms of the public’s perception that once a patient is found not responsible, it’s like they’re getting away with it.
This isn’t true. Some patients stay in prison longer because they are dangerous, and time is taken to treat them properly, rather than giving them a longer sentence, especially for more minor offences. In this case, I’m concerned that we’ll end up with major, serious offences, even murder, and that people will be able to prove quite easily that they are no longer a serious danger because they’ve been in therapy or something like that. All of this opens a door that is frankly worrisome.
Senator Boisvenu: Thank you.
[English]
Senator Dalphond: Thank you again to both witnesses. These are complex issues, and many elements are being raised by the witnesses. My question will be addressed to Professor Roach.
I understand that you disagree with the idea of deleting subparagraph 33.1(2). I think I understand properly that you say it will become an unconstitutional provision. Could you elaborate on that?
I’ll put my second question right away. For dangerous driving, for example, you may be charged and found guilty because you’re driving in such a way that you may kill somebody. You don’t need to have the intent to cause harm, but you behave in such a way that the reasonable person will think there is the possibility of danger, that harm will result and therefore the simple fact of disregarding that becomes a sufficient mens rea.
Is that the way that we should read subparagraph 33.1(2)? Or is it too specific because it seems to say that it has to lead the person to harm another person and to disregard the possibility that there may be harm will not be enough and you have to go further? Is it too narrowly defined so that it becomes very difficult to prove or are we closer to what I said about dangerous driving?
Mr. Roach: Thank you very much, senator.
On the first, if you read the unanimous decision in Brown, although there are a few slips, it’s pretty clear that the Supreme Court of Canada says there should be objective foreseeability of both intoxication and some degree of harm to others. I think that is really where subsection 33.1(2) has come. The problem is that removing subsection 33.1(2) contradicts how the Supreme Court is interpreting section 7 of the Charter. Given that, I think you are quickly into override sort of territory.
With respect to whether it is more like dangerous driving, this could apply to dangerous driving, but I think harm to others is also related to subsection 33.1(3), which says this only applies if there is an element of an assault or “. . . interference . . . with the bodily integrity of another person.” So we’re really talking about assault, sexual assault and manslaughter.
With respect, we’re not talking about murder. Murder is a different kettle of fish. That’s why I think that should your judgment be that this doesn’t do the job for public protection — and I think it’s too soon to make that judgment, but if it’s your considered judgment, I think there are only two ways to go: section 33 or expanding the mental disorder defence.
I realize that my colleague who has also spoken on this panel has some misgivings about it, but I agree when he says that a finding of not criminally responsible does not mean you walk. You can be detained, potentially for a very long time, if you are a continuing danger.
I go back to the Bouchard-Lebrun case, where our Supreme Court has said there is the intoxication track and there is the mental disorder track, and never the two shall meet. It seems to me that, as lawyers, so much of our thinking about mental disorder is based on Queen Victoria and 19th-century ideas of mental disorder.
One of the things you might want to recommend is that the new law commission take a look at how we deal with a range of mental disorders, including the testimony that was heard in the House of Commons about crystal meth and so on.
In this area, I’m not doctrinaire about whether there is or is not a threat to public safety or protection. That’s a matter for empirical examination. But I do think that if we’re talking about extreme intoxication — which is not intoxication that is already a defence for murder but a form of intoxication that is inconsistent with any voluntary conduct, let alone mens rea — you may be into a situation where you want to consider that under section 16.
Senator Batters: Thank you very much to both of you.
Professor Roach, you have spoken again today in support of the threshold as outlined in Bill C-28, which requires the Crown to prove foreseeability of risk of harm rather than simply foreseeability of loss of control. Many witnesses, including the panel that we had earlier with three distinguished professors who have spent much time in this area — legal experts, women in the law, advocacy organizations, et cetera — have expressed great concern with that high threshold, with some even stating that this is an “impossible standard” for the Crown to prove. Professor Isabel Grant said:
Where it is foreseeable that you will lose control of your actions, then you should bear the risk that those actions are going to seriously harm another person. That burden should not be placed on the victims who are disproportionately women and girls.
The lowering of that threshold was also repeatedly asked for in the House of Commons Justice Committee. Professor Roach, why do you contend that those legal experts are wrong?
Mr. Roach: As I understand it, Professor Grant’s first recommendation was not loss of control but simply to remove subsection 33.1(2), which would really only leave you with the requirement that the person departed from the standard of care expected of a reasonable person with respect to the consumption of intoxicating substances. It’s basically saying that if you have the fault of negligent intoxication, that is good enough for the fault of manslaughter, sexual assault or assault. To me, there is a real disjunction there.
Her alternative is a loss of control. I’m not sure that loss of control and what is in subsection 33.1(2) — “lead the person to harm another person” — are all that different. I would be less categorical about Professor Grant’s second, but it was very much — as I understood, listening to her earlier — her fallback position. She just wanted you to take a red pen and obliterate subsection 33.1(2). In my view, if you do that, then you are going to be back here in the exact same situation in a couple of years because the Supreme Court is going to tell you, again, that what you have done is unconstitutional.
Senator Batters: Professor Roach, how would you react to this quote from Professor Elizabeth Sheehy, who also was on the panel earlier:
I think the difficulty with this legislation is that it suggests that the Crown has to prove foreseeability of loss of control and has to prove foreseeability of risk of harm. In particular, I think the second standard is going to be impossible for the Crown to prove. They’re going to have to prove it beyond a reasonable doubt, and that’s a very high standard of proof. The Crown’s at least going to need two experts to counter the accused’s two experts.
Mr. Roach: I don’t think that this is a matter of expert evidence. This is simply a matter of either the judge or the jury, as trier of fact, determining whether the reasonable person standard is violated. As I said at the beginning, the alternative that Professor Sheehy has suggested in her article with Professor Froc is to put a reverse onus.
As I said, we already have a reverse onus on the defence. You would be allowing a conviction in the face of two reasonable doubts. One of my concerns is that would not be acceptable to the Supreme Court. I also don’t think it should be acceptable in a society that embraces the presumption of innocence.
Senator Klyne: My question is for Professor Roach, but Dr. Chamberland is welcome to chime in. Welcome to both of you.
Bill C-28 incorporates the requirement of criminal negligence into section 33.1 of the Criminal Code to take into account the objective foreseeability of the risk that consuming intoxicating substances could cause extreme intoxication and lead a person to harm another person.
Professor Roach, you have mentioned a number of times in your remarks here to foresee extreme intoxication and/or some degree of harm to someone or others; wouldn’t that foresight need to come from a lived experience, rather than through representations constructed by other people? That would be my first question.
The second question is: How does or does not incorporating a requirement of criminal negligence into section 33.1 of the Criminal Code make the section constitutional?
Mr. Roach: Criminal negligence is not about the subjective experiences or lived experiences of the accused.
The idea that this particular person would never have done this if he or she had not consumed drugs is not going to be relevant when it comes to criminal negligence. It is relevant to subjective mens rea; It is relevant in a murder trial, but not in a manslaughter trial.
The Supreme Court has already — I think implicitly in Brown — suggested that, although at the end of the day the accused will be convicted of assault or sexual assault, you can substitute criminal negligence, which is actually a lesser form of fault. But it has to be criminal negligence, according to Brown, both with respect to the extreme intoxication and the harm to others.
We’re all already substituting a lower form of fault; that is, the reasonable person would not have done this. The reasonable person would have recognized that there was a risk, as opposed to what the usual question is in a murder trial: Did this particular person, in all of their lived experience and all their idiosyncrasies, know that the victim was going to die? Again, this is why.
As I said, I think I agree with the prior panellists that I didn’t want a fourth offence. I agree with feminist analysis that a fourth offence — an intoxication-based offence — would devalue violence against women. I hope I’m not blind to those concerns.
The court is already making exceptions, whether it be to the presumption of innocence with respect to the proof of extreme intoxication — where the burden is already on the accused — and also allowing criminal negligence to be substituted — which the court is usually very strict about — or the intent of sexual assault or the intent of assault, which is a subjective intent.
Senator Klyne: To help me get through this, I will ask you to respond to a comment here that the only person the new provision would capture is someone who had previously ingested the same substances, lost control and became violent.
Mr. Roach: That’s based on a misunderstanding of what criminal negligence is about. You shouldn’t make that a self-fulfilling prophecy.
All criminal judges are well aware that there is a huge distinction between negligence, which is about what a reasonable person would do or know in the circumstances, and subjective fault, which is what this particular person knew.
As I said, I’m aware of no decided cases under this new provision. It would be premature to pronounce what Parliament intends as dead on arrival or as next to useless on arrival.
Senator Jaffer: I will start with Dr. Chamberland.
Doctor, in your opinion, how does the new section 33.1 of the Criminal Code apply if an individual consumes an unknown substance and he wasn’t aware that this was something that would lead him to extreme intoxication?
[Translation]
Dr. Chamberland: Indeed, it will be much easier to plead extreme intoxication if the substance is unknown. The person who invokes it will say that a lot of people who have used this substance in the past haven’t done anything very serious. From the moment I did something serious or committed a crime, I couldn’t expect to commit that crime. There will be a presumption, because the more serious the crime, the easier it will be for people to say that it was unforeseeable that someone could commit such a crime.
This will make it easier to say that you were extremely intoxicated. It’s also important to know that in practice, the people who are assessed will say, “I don’t remember.” If it’s a case of extreme intoxication, that’s what they’re going to say. That’s the easiest thing to say. Most people will say, “I don’t remember anymore, I committed a crime that no one would have thought I could have committed by consuming what I did, and I don’t remember anything.” It opens a door very wide to say that it was impossible to predict what would happen, especially if that person had never used the substance before. These cases are quite rare — mind you, that’s exactly the case I reported on, but in this case the person had used the substance before, had previously been in a psychotic state and used it again. So it’s much easier to say, “You’ve used it, you’ve been in a psychotic state, you were able to expect to be in another one.” However, if the person has never taken the drug and many people have taken it without psychosis, it will be very easy to say that it was impossible to predict what was going to happen and that this is a case of extreme intoxication.
[English]
Senator Jaffer: Professor Roach, how would you respond to someone saying, “I didn’t know what I had consumed; I wasn’t aware this would lead to extreme intoxication”?
Mr. Roach: Thank you for the question. I don’t think, given the criminal negligence standard, that is determinative. This is the issue of public education that Senator Arnot talked about.
The issue is whether a reasonable person in that situation would have recognized the risk. That is something we can change.
Think about how we have all — or many Canadians have — been talking about alcohol since the news a couple of weeks ago about what a safe limit is. I would think after these three cases, which were cases involving horrific violence, we need to educate the public that magic mushrooms are not that magic. They can be very dangerous and that you shouldn’t take them.
So I would really see this as a question of public education and norm building, and I think that courts are not oblivious to that. The fact that this particular person didn’t know is not determinative. The issue is what the reasonable person would have known, and that depends in part on how much public education there is about that.
Senator Jaffer: Thank you.
Senator Pate: Thank you to both of you for being here. I think you both heard the evidence of the panel before and the fact that the majority of cases where this has been raised are cases involving misogynist violence in particular against racialized women. My understanding — and if you have evidence to the contrary, I would like to hear it — is that many of the cases where these issues are raised, particularly the ones that ended up at the Supreme Court of Canada and gave rise to this legislation, involve a fair number of experts and involve a fair number of resources. I’m curious how many accused would have access to those kinds of resources, in both of your experiences — legal as well as medical.
[Translation]
Dr. Chamberland: I don’t know exactly what “resources” means, but certainly I think it will be a defence. If someone is intoxicated and has committed a crime, they will spontaneously come to the idea, as a defence, of saying that they were so intoxicated that they were unable to control themselves consciously. If a person has a similar background, or if charges have already been laid, it will be easy to show that when they drink alcohol, for example, they have trouble controlling themselves or don’t control themselves.
I find it extremely difficult to apply the criterion that the person is incapable of conscious self-control, because it’s too easy to say. People take substances to do things they wouldn’t otherwise do; they wouldn’t let themselves go. It will be very easy to say, “I didn’t expect to react that way, I wasn’t able to control myself anymore, so mine is a case of extreme intoxication.” Again, they will appear before the review board, and then they will go to therapy and simply say that they no longer pose a serious danger and are no longer accountable to society. I expect there will be an unprecedented increase in that kind of defence.
[English]
The Chair: Dr. Chamberland, could I intervene here? I think what Senator Pate was asking was how easy it is for people to get the potentially costly expertise of psychiatrists, for example, or other professionals to help them out. I’m not asking you to reveal your bank account or anything, but could you give us a sense of the cost and burden that this is, and that there may be a fair number of people who might fit into this category but who don’t have the resources.
[Translation]
Dr. Chamberland: Here in Quebec, legal aid has always agreed to cover the costs of psychiatric expertise. I have as much expertise for the defence as for the Crown. Every time a lawyer called me and needed expertise for the defence, even if people couldn’t afford it, legal aid could do it.
However, I would expect that this would be the kind of expertise the court could ask for from a hospital. At the Philippe-Pinel National Institute of Forensic Psychiatry, we conduct 1,000 assessments a year at the request of the courts. If a judge can request that kind of expertise, it won’t be expertise that I would call partisan, but rather to enlighten the court. In cases like that, there won’t be any costs to cover.
[English]
The Chair: Thank you very much.
Briefly, if we could, Professor Roach?
Mr. Roach: As Dr. Chamberland indicated, it really will depend on each provincial legal aid plan, so that will vary from coast to coast to coast.
Senator Pate: I’m concerned that when I went into prisons and worked with men, it was predominantly poor, Black and Brown men who were in for sexual assault offences, and I could see the stereotypes that apply to victims also being applied to accused: that they were known to have used alcohol before or whatever substance they should have known reasonably. Are you concerned about those stereotypes being used and privileging really the most privileged and well resourced?
Mr. Roach: Yes. I could very well imagine an advantaged White man being able to privately retain lots of expert evidence. I’m not sure that was the case in the Supreme Court of Canada case. I think there was at least one accused who was racialized. I agree with you, Senator Pate, that there is disadvantage on both sides of this equation: the person accused and the person who is victimized. And I don’t think that should be lost sight of.
Senator Pate: Thank you.
The Chair: I have a question mainly for Professor Roach, if I could. I am in one respect not convinced that the enforcement of this provision will be straightforward. In fact, the rarity of this circumstance almost assists in the acquittal of people in the sense that maybe tens of thousands of people have taken those magic mushrooms and a very small number have ever done violent offences in the categories that you have identified.
As a consequence, I think it will, in lots of cases, be reasonable for a person taking these substances to assume that they will not engage in the very bad behaviour that will severely harm many victims. I’m worried, then, and I would appreciate your view on whether this then will ultimately lead us back to the concept of criminally negligent extreme intoxication — period — what I think is first of the Supreme Court’s thoughts on this.
I’m wondering, and here I’m trying to extrapolate a little from Senator Dalphond’s observation. We have provisions, for example, criminal negligence causing death. There is a consequence built in, but the key is around criminal negligence, and whether or not we ought to be thinking of a provision that doesn’t spend so much time trying to link the criminal negligence to the harm that gets caused, but more around the outcome. That way we could impose a richer sanction than just criminally negligent extreme intoxication, but not have to worry about the challenges around intent and that dilemma around reasonableness about the harm likely to happen. Could you speak to that?
Mr. Roach: Like Professor Grant, I was involved in the consultations that led to the legislation that was struck down. We have both been around long enough. At that time, I would say, most of the criminal law professors and most of us at the time were male, who said, “Okay, the answer is to create a new intoxication-based offence,” because that’s what Justice Dickson thought should happen.
But I actually learned from my feminist colleagues who said, and I came to agree with them, that once you introduce another offence, even if it has the same penalty, then it is going to be seen as a lesser form, so it will be an assault or negligent assault while intoxicated or a negligent sexual assault while intoxicated or just a negligent sexual assault.
I agree with feminist colleagues that we already have three levels of sexual assault; the vast majority are pleaded out at the lowest level, so to introduce a fourth level, however you define the maximum penalty, will lead to that kind of devaluation.
I obviously won’t speak for those who came before me, but I wrote immediately after Brown that was not what Parliament should do, and that’s why I ended up supporting this legislation as the alternative.
To your point about not wanting to wait a long time, I would have had no problem with referring this as a draft bill back to the Supreme Court, or perhaps even referring it now. As I think Professor Sheehy said, there were 30 in the first year and 86 overall, which sounds like a lot but we all know there are a lot of cases out there. The constitutionality of this provision took way too long to decide. I kept waiting and asking, with every edition of my criminal law text, “When are we finally going to know whether this is constitutional or not?”
Another thing you might want to consider recommending is that the government refers the constitutionality and give the Supreme Court a second chance to articulate what is, in its view, required under the Charter.
The Chair: That observation is helpful, but my concern is less about the constitutionality and more about the enforceability. That last dimension — the link to harm — will be hard to prove under this provision, so we won’t be dealing so much with an unconstitutional provision but finding over time that it doesn’t work.
Mr. Roach: Whether it’s dangerous driving or criminal negligence, objective harm is alive and well in Canadian criminal law. Our prosecutors and judges are very familiar with it. I think it would be premature to say it is going to be impossible to prove.
During the course of my career, I’ve seen a sea change where criminal negligence has become a legitimate form of criminal liability, and I don’t think that we can assume that it’s unworkable in this situation.
The Chair: Thank you very much.
[Translation]
Senator Boisvenu: Dr. Chamberland, we know that this legislation has already been passed, that it is currently in effect and that we aren’t in a position to change its content. What concerns me greatly after hearing the testimony of the three women is that we’ll have to wait three years before assessing the applicability and impact of this legislation.
Do you think we should have a review process that is much faster than three years? If we take your comments into account and if there is an explosion of cases, we know that women will be the main victims. Shouldn’t we review this bill after a year and a half or two years, rather than waiting three years?
Dr. Chamberland: If it were possible, yes. There are people who are stuck when it comes to establishing a defence. Many crimes are committed under intoxication. This opens a door that wasn’t open before, which is extreme intoxication, and I’m convinced that a lot of people will use it.
Depending on how the legislation is written, all indications are that it will be fairly easy for people to say, “I didn’t expect to react that way.” Even though we know that substances can be harmful and cause psychosis — just think of cannabis, which is now legal in Quebec — despite the number of people who use it, the number of people who commit crimes is still very small. It will always be very easy to say that no one could have foreseen that a particular crime would be committed, given the number of people who use this drug without causing problems.
I repeat, the more serious the crime, the more there will be a kind of presumption that it was not foreseeable to believe that something so serious would happen. I think that this defence will be used a lot and that a door will be opened very easily. As I said, it will also be easy to find an expert who will say that the person was unable to control themselves consciously after using a given substance, because there are many whose view of substance use is exactly that. I think a big door is being opened and that it would be worthwhile to quickly review the legislation to see whether it has been opened too wide.
Senator Boisvenu: Thank you, Dr. Chamberland.
[English]
Senator Klyne: I have to keep coming back to this, Professor Roach. In the absence of public education, there will be occasions of people becoming extremely intoxicated for the first time and harming another person for the first time under extreme intoxication. How does this bill deal with a first-time offence in the form of a marked departure for this individual?
Mr. Roach: The issue is not whether it’s a marked departure for this individual but whether it’s a marked departure for all individuals.
Our Supreme Court has said the reasonable person is the reasonable person is the reasonable person.
The issue really then becomes public education and norm construction about alcohol consumption, but most particularly the combination of alcohol with either prescription drugs or non-prescription drugs.
The Supreme Court in Brown, although not creating a rule, has suggested that alcohol alone will rarely produce extreme intoxication, which, I reiterate, the accused must prove on a balance of probabilities; it’s not enough for the accused to simply raise a reasonable doubt.
Senator Klyne: Thank you.
The Chair: That concludes our rounds of questioning. Let me thank Professor Roach and Dr. Chamberland for joining us. In particular, thank you for adjusting your time given we were delayed commencing the committee proceedings.
I want to thank the senators on the committee for hanging in longer than our normal time structure. As a reminder, we will be continuing consideration of Bill C-28 tomorrow and then we will have an opportunity to reflect on what kind of report we would like developed on our behalf.
Thank you all and have a good evening.
(The committee adjourned.)