Madam Speaker, I am pleased to rise to speak to Bill C‑28 this evening, in part because it got me to look over my old class notes. I am trained as a lawyer, but I certainly do not claim to be a criminal lawyer. As a result, while reading the Brown decision, I had to go back and review some of the concepts to refresh my memory.
Tonight's debate is taking place in the knowledge that, in any case, the bill will be passed at the end of the discussions that will take place. The content of the bill will not be changed in any way this evening. I think this may be a good opportunity to recap the events that led to the bill we are debating. Furthermore, I will certainly have a lot of fun this summer discussing the bill with my friends in criminal law, who already had a few things to say to me when they read the content of the bill. I hope this is something that will be done again in the fall because there are potential improvements to be made to Bill C‑28.
To explain why we are talking about extreme intoxication as a defence, we have to go back to the Daviault case. The year is 1989. Seventy-three-year-old Henri Daviault is a chronic alcoholic. One evening, a friend of his wife's asks him to bring her some alcohol. After drinking seven or eight beers at a bar, he sets out with a 40-ounce bottle of brandy to bring to her. He arrives at the home of the woman, who is partially paralyzed and uses a wheelchair. All we know of what happened next is that he drank all or most of the 40 ounces of brandy, and the next morning found himself naked in the woman's bed after sexually assaulting her, which he does not remember.
Mr. Daviault pleads automatism. He argues that he was in such an extreme state of intoxication that it was almost like sleepwalking. He was not aware of what he was doing. This is not the same as simply forgetting the next morning what happened the night before. This is about not being able to control one's body. His defence is supported by toxicological evidence. One expert states that after consuming that amount of alcohol, most people of normal constitution would have ended up in a coma or even dead.
The evidence is accepted by the Supreme Court, which considered whether a state of intoxication so extreme that an accused is in a state that bears a striking resemblance to automatism or mental illness as defined in section 16 of the Criminal Code can be used as a defence following a crime that requires not specific intent, but only general intent. Can this be used as a defence? The court decides that, yes, the principle of automatism can be used as a defence in cases of general intent offences. It is almost a though a new defence has been created.
The majority opinion in Daviault was criticized for its “alarming lack of consideration of the social context of sexual assault particularly for women and children”. At the time, Professor Grant argued that “alcohol is often implicated in gendered violence, and therefore strong equality protections are necessary”. She wrote, “The suggestion that someone could be too drunk to be convicted of sexual assault shocked the public's sense of justice and common sense”.
Parliament was therefore kind of stuck with the Supreme Court decision that allowed the defence of extreme intoxication in cases involving offences such as sexual assault and other general intent offences such as assault. That was the background to Parliament's adoption of the old section 33.1, which was at issue in Brown. Section 33.1 eliminated the defence of self-induced intoxication akin to automatism applied to the violent offences identified in subsection 33.1(3) where the accused departed markedly from the standard of care described in subsection 33.1(2).
In its response to Daviault, Parliament sought to supply a link between the intention to become intoxicated and the intention to commit a crime of violence identified by the majority. In a way, the two intentions were conflated, which was part of the problem in Brown with respect to the constitutionality of section 33.1. I will come back to that.
The purpose of drafting the section at that time was, as noted in the preamble to what was then Bill C-72, the fact that domestic and sexual violence have “a particularly disadvantaging impact on the equal participation of women and children in society”. Parliament was particularly mindful that the accused should not be allowed to use self-induced intoxication to justify acts of violence against women and children.
The purpose of using the Oakes test was to determine whether section 33.1 passed the test of the Canadian Charter of Rights and Freedoms and whether it was constitutional. In essence, this was Brown's challenge to the Supreme Court of Canada; he stated that this section was not constitutional and he should not be subject to it.
When applying the Oakes test, it must first be established that there is an infringement of the Charter caused by the wording of the section. Is there an infringement? The Crown submitted its arguments and the judges held that, contrary to the Crown's contention, the “marked departure” standard of fault in paragraph 33.1(2) clearly applies to the violent offence, not to the act of self-induced intoxication.
As I was saying, Parliament sort of combined these two principles, so that when a person committed an offence, such as sexual assault or assault, they were always departing from the standard of good conduct. That person automatically ended up being subject to section 33.1 and having no defence to put forward.
What was said, and what the judges held, was that section 33.1 operated akin to a regime of absolute liability by allowing conviction without proof beyond a reasonable doubt that the accused intentionally or voluntarily committed the offence. Section 33.1 improperly substituted intent to become intoxicated with intent to commit a violent offence.
Section 33.1 directed that the accused was criminally responsible even in the case of involuntary conduct. Because involuntariness negates the actus reus of the offence, involuntary conduct is not criminal, and Canadian law recognizes the requirement of voluntariness for the conviction of a crime, the person was deprived of an aspect of fundamental justice. The judges wrote that the defence of automatism denies the element of voluntariness and therefore negates the actus reus of the offence. Involuntary conduct is understood to be genuinely exculpatory because, while the prohibited act was harmful, the accused lacks the capacity to answer for what they did. A physically involuntary act, however wrongful in outward appearance, is not a guilty act that can be imputed to an accused.
What this means is that this defence, in this context, appears to be a violation of a charter right, because it amounts to an absolute liability offence. As soon as a right is violated by the Charter, the Oakes test can be used to determine whether upholding the section in question is justified, in the context of today's society and in spite of the fact that it infringes on a charter right.
There are several steps to the Oakes test. First, the section in question must respond to a pressing and substantial need. Then, there must be a rational connection between the objective and the means used to achieve it. After that, it must be proven that the section is minimally impairing and that there is no less rights-impairing means of achieving the objective. Lastly, there must be proportionality between the effects of the section and the objective.
For the first step, there must be a pressing and substantial objective. As I already said, parliamentarians went through this exercise when they drafted section 33.1. This was even mentioned in the preamble, which pointed to the broad reasons the section was enacted in the period following Daviault, namely the protection of the victims of extremely intoxicated violence and a sense that the law should hold offenders accountable for the bodily harm they cause to others when, by choice, they become extremely intoxicated.
It was in this context and with these two specific goals in mind that Parliament drafted section 33.1. The Court agreed that the section served a pressing and substantial purpose and cited Justice Lamer in Robinson: “There is no question that the protection of the public from intoxicated offenders is of sufficient importance to warrant overriding a constitutionally protected right or freedom”. The first part of the Oakes test was satisfied.
The second part of the Oakes test is that it must be proven that the means has a rational connection to the objective. I will quote the Supreme Court, which upheld the Court of Appeal ruling that the deterrent and denunciating effects of section 33.1 provide a rational connection to Parliament's protective objective.
In addition, s. 33.1 is rationally connected to the objective of holding individuals accountable, in as full a manner as possible, for the choice to become extremely intoxicated and the violence committed while in that state. It is obvious that where a person is foreclosed from advancing a defence that could result in an acquittal, that person is held accountable for something they otherwise would not be.
The second part of the Oakes test is satisfied here.
It is on the third part of the test that things start to get dicey. That is where the court is suggesting to Parliament—which is rather exceptional— what legislators could do to rewrite section 33.1 so as to make it constitutional. The court analyzed the third part of the Oakes test to see if there was any way for the rights of the accused to be less substantially impaired while still meeting the original objectives of that section of the act.
The court suggested two options. The first, and some members have spoken about it, was to create a separate offence that would criminalize the act of becoming so extremely intoxicated that a person puts themselves in a state that is dangerous to others. However, Parliament has dismissed that option in the past for two different reasons.
I, too, submit that this option would not be the right course of action to replace what we currently have in Bill C-28. It could be a subsidiary or complementary approach, but it is not the right way to replace section 33.1. In fact, it could open the door to lesser sentences for offences committed in a highly intoxicated state. Some people even called it a “drunkenness discount”. For example, the sentence for voluntarily becoming highly intoxicated could correspond to dangerous driving and the person might avoid being sentenced for aggravated or sexual assault.
The other problem is that the real harm caused by the offender would not be recognized. This approach would imply that the offender should not be held responsible for the harm they did by committing assault or sexual assault. This option should not replace the current wording of Bill C-28, but could be used as a complementary approach.
The second option upheld by the court was to review, to a certain extent, the question of the marked departure by intoxication. The idea was that individuals could still be found guilty where there was a genuine marked departure from the situation in which they had placed themselves. Parliament asserted that it was open to Parliament to enact legislation to hold extremely intoxicated persons accountable for violent crimes where they had chosen to create the risk of harm by ingesting intoxicants.
In other words, perpetrators could be held accountable for the offence in subsection 33.1 if the legal standard of criminal negligence required a demonstration that both the risk of loss of control and the risk of the resulting harm were reasonably foreseeable. In either scenario, Parliament would enact a law based on the moral instinct that individuals who choose to become extremely intoxicated can legitimately be held responsible for creating a situation where they threaten the integrity of others.
That is what Parliament is proposing as the alternative to the current subsection 33.1(2). Since it had proved that there were other legislative solutions that would achieve the same objectives and be less harmful to the accused, the court concluded that the minimal impairment standard of the Oakes test had not been met. As a result, the court found that section 33.1 should be declared of no force or effect.
Finally, the last component requires proportionality between the limitations to the section of the law and the legislative objectives. The court ruled that the risk of imprisoning the morally innocent outweighed the objective of protecting society.
All of this influenced the wording of the new section 33.1. Now, rather than associating the departure from the standard with the offence, it is actually associated with the person's consumption, that is, the way in which the person induced their own state of extreme intoxication.
I want to raise two points in connection with that. As I said, Bill C‑28 is being passed a little hastily, unfortunately. The courts tasked with interpreting its provisions will not be able to consult the debates of the House on this bill to understand the legislator's intent because they were so short, abbreviated even. That is kind of problematic.
Nevertheless, there was also an urgent need for action. If the legal void created by invalidating section 33.1 was not filled, we could have seen a situation like what happened right after Daviault, when there was a distinct possibility that an accused could raise the defence of extreme intoxication akin to automatism. In the absence of any structure, it made sense to act quickly.
Having said that, certain questions remain unanswered, and there have been some criticisms. I am thinking in particular of Professor Hugues Parent, who was quoted as saying the following in yesterday's edition of La Presse:
“The problem—and it is a serious problem—is that by limiting extreme intoxication to a state akin to automatism, the government is discounting states of intoxication that do not disrupt the individual's awareness, but that affect their sense of reality, such as psychosis.”
Automatism induced by a substance, such as a drug, is “very, very rare”, said Mr. Parent. In his more than 20 years of research on this subject, he saw the courts accept no more than four cases.
However, cases of psychosis triggered following drug consumption, where the highly intoxicated individuals are aware of their actions, “occur very frequently, as police and psychiatrists will tell you”. But these individuals are not covered by Bill C‑28...
This deserves another look. I submit that the automatism defence is a common law creation and that it is not expressly mentioned in the wording of the proposed section 33.1, any more than psychosis is. The interesting thing about the Brown decision is that it says that Brown was in a psychotic state akin to automatism. Maybe that is covered by section 33.1, but maybe not. That is worth exploring.
The proposed section 33.1 reads as follows: “A person who, by reason of self-induced extreme intoxication, lacks the general intent or voluntariness ordinarily required to commit an offence referred to in subsection (3), nonetheless commits the offence”. Does that not also encompass psychosis? Is there not a mens rea defence that in any case would fall outside section 33.1? It is a valid question.
As I was saying, it would be good if the government could avoid falling into the same old bad habits this fall when the time comes for the ex post facto review of this section in committee. If we encounter pitfalls, if we observe that the interpretation is not clear when it comes to substance addiction, the type of drug consumed, the individual's predisposition, or the emotional or family circumstances, I hope the government will have the humility to be open to amending the proposed section.
