Justice Committee on Oct. 24th, 2022

[Joanne Klineberg, Senior Counsel, Criminal Law Policy Section, Department of Justice]

I’m talking about the current act, after the new section 33.1 came into force. It is true that it is somewhat contradictory, because the accused must prove that they were in a state of automatism and also that the risk of falling into such a state was not foreseeable.

Based on our understanding of the Brown ruling, and after the new section 33.1 came into force, the only circumstances that could lead to a finding of not guilty, meaning that the defence was used successfully and there was no proof of negligence, are those in which it was demonstrated that a reasonable person could not have foreseen what would happen in a state where they were not aware of what they were doing or was not in control of their actions. In other words, the effect or consequences on their mental state were neither foreseen nor reasonably foreseeable. Those circumstances led the Supreme Court to conclude that there was a rights violation under the Canadian Charter of Rights and Freedoms.

Although this is possible from a theoretical point of view, it is extremely improbable that a reasonable person would not foresee these kinds of risks.

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

Thank you.

I agree that it is possible on a theoretical level, but once again, on a practical level, I cannot imagine such a situation. I am therefore wondering if we are currently working on something that is entirely virtual and interesting to law professors in university faculties. On the shop floor, so to speak, it would be just about impossible to use this defence.

I understand from your testimony that you do not have any examples to give me of situations where the defence of self-induced extreme intoxication could have been used. No known example exists, if I understand correctly.

[Joanne Klineberg]

Everything depends on the facts, the evidence and the quality of the evidence. It is therefore difficult to presume a verdict or the outcome of a trial, because if a small part of the evidence changes, the verdict could change. It really is a calculation that has to be done at each trial based on the evidence presented and its quality.

We think it is very rare for someone to be able to prove that they were in a state of extreme intoxication, without the Crown being able to establish the risk of finding oneself in a similar state or committing a violent act against the people present.

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

Thank you.

In just a few seconds…

[The Chair, Liberal, Randeep Sarai]

Thank you, Monsieur Fortin. We're out of time, unfortunately.

Next is Mr. Garrison, for six minutes.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Thank you very much, Mr. Chair.

I have a question about the data on a number of cases. I think you've answered that, but I want to make sure I understood correctly.

In all of the time that section 33.1 was in place, there were only about 12 to 15 cases that raised the constitutionality of the section, and none of those were successful until the most recent three cases. Is that correct?

[Chelsea Moore]

To the best of our knowledge, yes.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

The minister said that since this law was passed, there have been no cases before the court. I'd like to confirm that this is true.

[Chelsea Moore]

Yes, that's correct. There have been no reported cases that have required the use of the new section 33.1.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Great, thanks.

I want to ask a question about the wording of this new provision, which says,

The court must...consider all relevant circumstances, including anything the person did to avoid the risk.

I have two different questions about this section.

With regard to “anything the person did to avoid the risk”, are there any established legal standards for avoidance of risk that would apply?

[Chelsea Moore]

Since this legislation has not yet been tested and negligence cases tend to be very fact-specific, what a court considers to be relevant in terms of the steps that the accused took will vary depending on the circumstances. Courts may look at things like the state of mind of the accused at the time.

In terms of steps, they might expect that a person who's about to consume intoxicants would want to know what the potential effects of those intoxicants are and would want to learn about those effects and how they can be more careful when they take intoxicants. A court could expect a person to remove their weapons if they're going to take intoxicants. They could expect them to want to isolate themselves from other people or to ask a sober person to supervise them, for example.

These are the kinds of things that we might expect courts to look at here.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

My second question is probably considered even more rare, but in all relevant circumstances, how would that interplay with the Gladue principles? In other words, Gladue principles require judges to consider relevant circumstances. Will that come into play, then, with this offence?

[Matthew Taylor]

I'll start. If I understand the question, I think Ms. Moore might have already spoken to it, or Minister Lametti.

The assessment of whether the individual acted in a criminally negligent way won't be personalized. It's not simply a question of their unique circumstances.

I think the answer is that it doesn't intersect, but perhaps I've not understood correctly.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

You understood. That's the answer I was hoping for.

Again, I accept that what we've done here is to chart some new ground, and given the rarity of the cases, it may be quite a long time before we can answer a lot of these kinds of questions.

Mr. Chair, I have no further questions for the witnesses.

[The Chair, Liberal, Randeep Sarai]

Great, Mr. Garrison.

Next we will go to Mr. Van Popta for five minutes.

[Tako Van Popta, Conservative, Langley—Aldergrove, BC]

Thank you, Chair. Thank you to the witnesses for being here.

We're talking about the defence of extreme intoxication, and when and under what circumstances it is available for an accused person.

The minister in his earlier testimony today clarified that in order for an accused person to use this defence, he would first have to prove, using expert evidence, that he was indeed in a state of extreme intoxication. Mr. Lametti colloquially defined that as being that his body is functioning, but he's not in control of it, so I think that's useful everyday language. My understanding is that once he has proven that to the satisfaction of the judge or the jury, the burden of proof then shifts to the Crown to prove that he acted negligently.

We have a comment from Professor Kerri Froc from the University of New Brunswick, who, discussing that, recognizes the “problematic aspects of the bill, which we fear will pose nearly impossible hurdles for prosecution of intoxicated perpetrators of violence against women.” Then she goes on to suggest that maybe section 33.1 could be further revised to reverse the onus, to leave it up to the accused to prove that he had not acted unreasonably, because it's so difficult for the Crown to prove and easier for the accused to defend against. What do you say about that? It seems like a reasonable option.

[Chelsea Moore]

I can't speak to the specific merits of that policy approach, but I can provide some legal considerations to think about when it comes to the burden of proof.

To start, in the criminal law, for the most part, it's the Crown that needs to prove all the elements of the offence beyond a reasonable doubt, and any reasonable doubt must result in the acquittal of the accused. That was first recognized in the 1935 House of Lords decision in Woolmington. It's also known as the presumption of innocence, which was incorporated into the Canadian charter in 1992. The jurisprudence on the presumption of innocence has been pretty straightforward in the sense that any time a person may be convicted without a reasonable doubt, courts would likely find there to be a violation of the presumption of innocence that would then need to be justified under section 1 of the charter.

Something you might want to think about is that the reason we have this reversal of the burden with respect to the accused raising the defence of extreme intoxication is that in those cases—as it would be if someone had a mental disorder or non-mental disorder automatism and had, for example, committed an offence while sleepwalking or having a seizure—we're dealing with the internal mental impairment of the accused. The Supreme Court indicated that in those types of cases, it would be very difficult for the Crown to prove internal mental impairment of the brain of the accused, and the Supreme Court justified having the reversal of the burden in those cases to require the accused to prove on a balance of probabilities that they were in that state, so there are special considerations as to when such a reversal of a burden of proof could be justified under section 1 of the charter.

Those are some things you might want to consider.

[Tako Van Popta, Conservative, Langley—Aldergrove, BC]

Right, and those are very important considerations. I appreciate the complexity of that and how section 1 of the charter operates, yet here we have a professor of law saying that the burden on the Crown is almost impossible. For example, if we were to take R. v. Brown, the Crown might have advanced pretty compelling evidence that Brown ought to have known what the effect of consuming vast amounts of alcohol and combining that with magic mushrooms might be and would have to prove that beyond a reasonable doubt, but then Mr. Brown, on a balance of probabilities, would have to prove only that he was not acting unreasonably—maybe he had never consumed magic mushrooms before, for example, so he could not have known what the effect would be—and he would walk away a free man. It seems unreasonable to common people, non-lawyers. Do you have a comment about that?

[Chelsea Moore]

As the minister mentioned in his opening remarks, the level of risk doesn't need to be probable or even more likely than not. It's not whether an accused should have known that the drug “would” lead to a violent loss of control but whether the accused should have known that the drug “could” lead to a violent loss of control, and the court's going to look at this from the perspective of a reasonable person. A reasonable person is not someone who's going to testify as to what they knew or what they did. It's going to be assessed on a case-by-case basis.

The “reasonable person” is a concept that's well known to the criminal courts. It's someone who's prudent, who thinks before they act, and who takes steps to prevent harm when they see it happening. Courts are going to make a determination about the reasonable person by drawing inferences from the available facts and the evidence, and so the fact that the—

[The Chair, Liberal, Randeep Sarai]

Thank you.

[Chelsea Moore]

Okay, I'll stop there.

Thank you.

[The Chair, Liberal, Randeep Sarai]

I'm sorry about that. I gave you a bit of time.

Thank you, Mr. Van Popta. Now we have Ms. Brière, for five minutes.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Thank you very much, Mr. Chair.

Mrs. Moore, can you explain to us why the first version of section 33.1 was declared unconstitutional based on actus reus, mens rea and the presumption of innocence?

Furthermore, how does the new version address these shortcomings?

[Chelsea Moore]

Thank you. I will ask my colleague, Joanne Klineberg, to answer that question.

[Joanne Klineberg]

Thank you for your question.

According to the Supreme Court, the former version of section 33.1 presumed negligence on the part of the accused at the time of consumption, without the Crown having to prove it. The former version therefore allowed an individual to be found guilty if they had been in a state of intoxication similar to automatism, but could not have foreseen that it would happen, and they committed an act of violence against another person while intoxicated. The intent of former section 33.1 was to find an individual guilty of the act of violence, such as a sexual assault or manslaughter.

However, the old version could have convicted a person who had committed an act of violence while in an altered mental state and unable to control their actions. That is the main reason invoked to claim a violation of fundamental rights.

The new version of section 33.1 corrects the problem by redefining sexual assault, assault and manslaughter offences. The new definition rests not on the intentional and voluntary nature of the act of violence committed by an individual, but on the negligent nature of consuming an intoxicating substance that could lead an individual to lose control and become violent.

Henceforth, the Crown must prove that there was negligence linked to consumption, creating a risk of violence. That is now an essential point. If the Crown establishes that the individual was not sufficiently diligent while consuming, and if the resulting violence diminishes an hour later, the individual may be found guilty of this violence due to negligence on their part while they were consuming.