Justice Committee on Oct. 24th, 2022

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Thank you, Minister.

I am done, Mr. Chair.

[The Chair, Liberal, Randeep Sarai]

Thank you, Ms. Brière.

I want to thank Mr. Lametti for attending and generously staying a little longer, as we started slightly late. We thank you.

I think his officials will continue, so I will give him a minute to leave.

In the meantime, we will have Matthew Taylor, general counsel and director, criminal law policy section, and Joanne Klineberg, senior counsel, criminal law policy section. I think Joanne is by video conference. We also have Chelsea Moore, counsel, criminal law policy section, for the remaining hour.

Thank you once again, Mr. Lametti.

We will now go to Mr. Caputo on Zoom for the first six-minute round.

[Frank Caputo, Conservative, Kamloops—Thompson—Cariboo, BC]

Thank you, Mr. Chair.

Thank you very much, Ms. Moore, and Mr. Taylor, for being here. I had one more question for the minister, so I will direct it your way. It is regarding the reference case.

I'm certainly not an expert in constitutional litigation. My understanding—and correct me if I'm wrong—is that if somebody wants to challenge the legislation, it need not be based on the specific instance before the court. It could be on a reasonable hypothetical. Is that in accord with your understanding as well?

It is.

The minister did speak about the fact that, in his words—and I'm paraphrasing—they will be quite rare, but a reasonable hypothetical doesn't necessarily have to come before the court with that rare case; it can simply be argued with that rare case.

Do you get where I'm going with that? Okay.

This isn't an instance of our simply being in a situation of a rare case that's going to be litigated and even more of a rare case that strikes it down; this is an instance in which it could be a rare case that is litigated and put forward as a reasonable hypothetical that's not before the court.

Would that not suggest that perhaps we should be going to the Supreme Court of Canada on a reference case to ensure that we get this right? I obviously voted for the legislation, so you know where I stand, but I just want to have the tightest legislation possible.

If you could comment on that, please, I would appreciate it.

[Matthew Taylor, General Counsel and Director, Criminal Law Policy Section, Department of Justice]

Sure.

I think Minister Lametti has already spoken to the thought process that he took in terms of the decision to introduce the bill and the decision not to put a reference to the court.

As he said, we did have a bit of a road map from the Supreme Court and from the Brown decision. Certainly that informed the work that the department did to support the government in introducing the legislation, noting that charter considerations are detailed in the charter statement. As you know, the law that was passed in Bill C-28 is informed by the law that came before it.

Perhaps the last thing I could say, and my colleagues could jump in, would be that the criminal negligence standard is a well understood and accepted minimum fault requirement for criminal law, and that's based on Supreme Court guidance as well.

I think all of those things taken together provide some context as to why the route was taken as it was.

[Frank Caputo, Conservative, Kamloops—Thompson—Cariboo, BC]

Thank you.

I'm sorry. I neglected to recognize our witness by video as well. Is that correct? I apologize for that. I'm looking at the screen here. I do apologize for that.

You spoke about the road map. As my colleague Mr. Garrison pointed out, there were two paths, and we took one path. Again, I voted for the legislation, but I would be remiss if I didn't ask this question, because it has to be asked.

I'm looking at paragraph 98 of the Brown decision and I'm going to quote it here.

It may be that the voluntariness problem could be avoided if Parliament legislated an offence of dangerous intoxication or intoxication causing harm that incorporates voluntary intoxication as an essential element—in this hypothetical offence, the gravamen of the offence is the voluntary intoxication, not the voluntary conduct that follows.

Then later in the paragraph:

This, however, is not what Parliament enacted in that s. 33.1 exposes the accused to jeopardy for the underlying offence, not for extreme intoxication which is not, in itself, an unlawful act.

What I'm seeing there is almost an invitation from the court to go down that path. I am mindful, as are all of us, of parliamentary sovereignty in that we dictate our own journey, if you will, and I'm also mindful of the minister's comments that you would have to charge two offences instead of one. You would have to charge sexual assault and then you would have to charge criminal negligence caused by extreme intoxication, to wit, sexual assault.

Was there a concern that perhaps the court was sending us in that direction? Is there any concern that maybe the court was saying, “Look, this is the most airtight way to do it?”

I invite your comments on that.

[Chelsea Moore, Counsel, Criminal Law Policy Section, Department of Justice]

Thank you for the question.

As you mentioned, two choices were provided by the Supreme Court of Canada, and Parliament made a decision about the choice to take.

The thing with the stand-alone offence, the option you just talked about, is that it would actually be something like a stand-alone offence for dangerous intoxication, for example. The thing with that is that the person would not actually be convicted of the underlying offence of violence, such as sexual assault or assault. They would instead be convicted of dangerous intoxication.

Concerns were expressed when this issue was raised back when the initial provision was drafted in 1995 that this would be like a drunkenness discount because the person might not have the same stigma or might not get the same range of sentencing that they would if they were charged with the underlying offence of sexual assault.

The other issue with the stand-alone offence is that only the accused is going to have possession of the evidence that goes to their intoxication, meaning the substances they consumed, so it would be very difficult for the Crown to prove dangerous intoxication because the Crown wouldn't necessarily have possession of that evidence.

[Frank Caputo, Conservative, Kamloops—Thompson—Cariboo, BC]

I believe we're out of time. I don't mean to cut you off.

Thank you for that clarification. I really appreciate your time.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Caputo.

Now we have Ms. Dhillon for six minutes.

[Anju Dhillon, Liberal, Dorval—Lachine—LaSalle, QC]

Thank you, Chair.

I will continue with Ms. Moore. With my colleague you were explaining that it's only the defendant who would have the evidence, as opposed to the prosecutor.

Could you explain to us what this evidence would consist of? Would it be blood tests or other indications that there was extreme intoxication?

[Chelsea Moore]

It could be evidence from blood tests. It's unlikely an accused would have that type of evidence. It would likely be in the sense of testimony that the accused provides about what they consumed. There could be other witnesses who might testify as to the state that the person was in at the time. The reason the accused must prove the defence on a balance of probabilities and with expert evidence is that the accused will be in possession of that type of evidence. That's why the common-law rule sets out that the accused must first prove that they were in that state before the court will accept the defence.

[Anju Dhillon, Liberal, Dorval—Lachine—LaSalle, QC]

That's very similar to an alibi defence, when it's up to the accused to prove that there was a mitigating factor.

[Chelsea Moore]

Yes. For the defence of extreme intoxication, the burden is on the accused to prove that they were in that state.

[Anju Dhillon, Liberal, Dorval—Lachine—LaSalle, QC]

Can you explain that to us in laypersons' language? I've heard during testimony—and this is in the same vein that our colleague Ms. Diab spoke about—about the difference between intoxication and extreme intoxication, and I'm hearing the words “dangerous intoxication” being used interchangeably. Is there a different level to all three?

[Chelsea Moore]

I was using the term “dangerous intoxication” to refer to the approach that was suggested by the Supreme Court, one of the two approaches whereby there could be a stand-alone offence, but there are some rules in the common law about the different degrees of intoxication, and those were established in the 2007 decision, I believe, in R. v. Daley. It's a Supreme Court of Canada decision, and they go over the three degrees of intoxication in the criminal law.

There's mild intoxication, which is never a defence to any crime in Canada. There's advanced intoxication, which could be a defence to specific-intent crimes like murder. Then there's extreme intoxication, which can be a defence to crimes of general intent, violent offences such as sexual assault or assault. Those are the three degrees of intoxication that we have in the common law.

It's important to note that even advanced intoxication, in which someone is very inebriated—they can't tie their shoes and they have difficulty driving—would not be a defence in the vast majority of violent offences in the Criminal Code that are general intent offences.

[Anju Dhillon, Liberal, Dorval—Lachine—LaSalle, QC]

As the minister mentioned before, it's very rare that this defence, even when invoked, is successful.

[Chelsea Moore]

That is correct, given the significant evidentiary burden that's placed on the accused—they need to call expert evidence—but also the test that they need to meet. They need to prove it on a balance of probabilities, which, in other words, means that they were more likely than not in a state of extreme intoxication at the time that the violence was committed. They need to prove it on a balance of probabilities, which is the most rigorous test that we have for raising a defence in the criminal law. It is considered to be quite an onerous test to meet. In that case, it could rarely be successful.

The other thing is that the former provision in section 33.1 has effectively prevented the defence from being successfully used since it was enacted in 1995, so we don't have a lot of data with respect to the defence over the last 20 years or so.

[Anju Dhillon, Liberal, Dorval—Lachine—LaSalle, QC]

This is the R. v. Brown case, in which the Supreme Court spoke about the two different options.

Can you please state to us the advantages and disadvantages we would see?

[Chelsea Moore]

My apologies—you are talking about the advantages and disadvantages of...?

[Anju Dhillon, Liberal, Dorval—Lachine—LaSalle, QC]

I mean of the creation of the offence of dangerous intoxication or intoxication causing harm.

[Chelsea Moore]

I can't necessarily speak to the merits of the policy option that was taken. As I mentioned, the stand-alone offence option wouldn't necessarily allow for the same sentencing range or the same level of stigma that the option proposed, the option that was actually enacted in section 33.1, would allow.

I think that's all I'm going to say on that. Thank you.

[Anju Dhillon, Liberal, Dorval—Lachine—LaSalle, QC]

Thank you.

Maybe I will ask this to all of our witnesses: Could you cite a concrete example of when this defence was successful, and maybe in what conditions the person was found to be, as opposed to when it was not successful at all? I'm just looking for a concrete example.

[Chelsea Moore]

To our knowledge, it has not been successfully invoked since section 33.1 was originally enacted in 1995. It's been raised on many occasions, but it hasn't been successfully invoked.

There were approximately 12 to 15 cases that considered the constitutionality of the provision leading up to Brown and Sullivan and Chan, and in those cases, I think six or seven of them struck down the provision and allowed the defence to be pursued. In all of those cases, however, the defence was rejected on the merits, so we didn't have, from the time the original provision was enacted in 1995, a case up until Brown and Sullivan and Chan in which the defence was successfully used.

[The Chair, Liberal, Randeep Sarai]

Thank you, Ms. Dhillon.

Next we have Monsieur Fortin for six minutes.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

Thank you, Mr. Chair.

I will continue along the same lines as Ms. Dhillon. In fact, she kind of stole my question.

Don’t you think it somewhat contradictory for an individual to choose to put themselves in a state of extreme intoxication—a very rare situation, according to the minister—then be able to commit a crime, but claim afterwards that they could not be found guilty because they were in a state of extreme intoxication?

In the case of involuntary intoxication, if someone drugged my drink, I can understand. However, we are talking here about an individual who chose to become intoxicated. Not just someone who drank five glasses of wine and whose blood alcohol level is over the allowable limit of 0.08% to drive, but someone who is in a state of extreme intoxication and chose to put themselves in that situation.

I know that this defence can be used unsuccessfully. However, do you have any examples of cases where it could have been used successfully? I am having a great deal of difficulty imagining it.

[Chelsea Moore]

Thank you for your question. I will ask my colleague, Ms. Klineberg, to answer.