Justice Committee on Oct. 27th, 2022

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

I'll pause here.

I believe it was mentioned in Professor Froc's written comments—I may be mistaken—that, in reality, somebody who is in a state akin to automatism by virtue of alcohol.... I don't know how a person who is that drunk, in a state of intoxication, gets to that point, physically.

Professor Froc, do you have a comment on that?

[Dr. Kerri Froc]

I do indeed.

The problem is that the Supreme Court of Canada, in Brown, specifically addressed that particular situation. Professor Sheehy was a witness before the committee at the time, after Daviault. We know very well that a number of experts have come out to say that alcohol will very seldom get you to that stage, but the Supreme Court said we're not going to rule it out, either. That's one of the problems.

The problem is when you get a combination of alcohol and other drugs, as well, which is appearing with fair frequency in the cases we've seen. We invited, as NAWL, to even put that.... If it never happens that it's only alcohol, why not put that right in section 33.1? That wasn't something taken up.

[The Chair, Liberal, Randeep Sarai]

Thank you, Ms. Froc.

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

I greatly appreciate your time. Thank you.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Caputo.

We'll now go to Ms. Dhillon for five minutes.

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

My question will be to any and all of the witnesses.

Can you outline for us the importance of being clear that simple intoxication is not a defence for a crime, which both the Supreme Court of Canada and the government have made clear?

[Prof. Elizabeth Sheehy]

Yes. That issue is not up for grabs. It's very clear that simple intoxication is not a defence for any of the kinds of crime we're talking about, general-intent crimes. It is a defence for specific-intent crimes, such as murder, for example, but not a defence for these crimes.

The issue, however, from the point of view of complainants, police or prosecutors, is how to tell the difference. Are we dealing with a simply intoxicated person or a person who was extremely intoxicated? That's the difficult thing and a matter of expert evidence. You're not going to know the answer to that until you actually have the expert witnesses before you.

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

May I follow up with the next question?

As you know, the onus is on the defendant to prove they were in a state of automatism, not the Crown or the victim. Could you please explain your thoughts on that?

[Prof. Elizabeth Sheehy]

As Professor Grant pointed out, it's entirely appropriate that the burden of proof be on the accused to prove, on the balance of probabilities, that they were in such a state. It's information and evidence in their hands, not the hands of the prosecution.

Furthermore, it's not considered to be a normal state, that kind of state where the person is not operating with their body and mind together. We require that the accused be the one to bring forward evidence to prove they were in such an unusual state.

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

How do you feel about the fact that, with this bill, the prosecutor will have additional means of establishing a commission of the offence, by establishing that the accused's voluntary extreme intoxication constituted criminal negligence?

[Prof. Elizabeth Sheehy]

I think the difficulty with this legislation is that it suggests the Crown has to prove the foreseeability of loss of control and 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 going to need two experts, at least, to counter the accused person's two experts. I think proving that a particular drug was likely to lead to violence is impossible. There are no studies, for example, that demonstrate links between specific drugs and crimes of violence.

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

Would you have anything to add to that, Dr. Froc?

[Dr. Kerri Froc]

I've watched your questioning in other hearings and I have reflected on it. I counted, actually.... In the Supreme Court, they said at least two or three times that mere intoxication is not a defence for assault and sexual assault, so in terms of using a complicated area of law to correct misinformation on Twitter or other social media, that is not on.

I would just implore you, particularly because there are these inadvertent effects that we are talking about, which you will probably never see.... It is going to be very difficult to collect data, for instance, on how many charges weren't laid or how many prosecutions weren't done because a defence of extreme intoxication is in the offing. You need to get this right, now.

To say that we needed to act because of misinformation on Twitter.... I agree that something needed to be done after Brown, but you now have the opportunity to fine-tune that and make sure you don't have these unintended consequences.

I just implore you to do that.

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

All right. I think that's it for time. Thanks.

[The Chair, Liberal, Randeep Sarai]

Thank you, Ms. Dhillon.

Next we'll go to Monsieur Fortin for two and a half minutes.

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

Thank you, Mr. Chair.

Professor Sheehy, you probably know that, in June 2022, Professor Parent, a Université de Montréal professor, said that it may be necessary to expand the definition. According to him, limiting the defence to extreme intoxication does not take into account other states of intoxication that are not necessarily extreme, but that cause a person to completely lose touch with reality, such as psychosis.

I'd like to hear your thoughts on this. Is Professor Parent right to be concerned that the definition of extreme intoxication is too narrow and that it does not cover cases where an individual cites the absence of mens rea owing to psychosis as a defence?

[Prof. Elizabeth Sheehy]

It seems to me that extreme intoxication will be available for drug-induced psychosis, from what I can tell.

I'm not sure if I am answering your question.

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

Professor Parent said that, by limiting extreme intoxication to a state akin to automatism, the government was discounting states of intoxication that do not disrupt the individual's awareness, but that affect their relationship with reality, such as psychosis.

Professor Sheehy, I'd like to hear your take on Professor Parent's view, seeing as you're an expert on the law. Since I have just 20 seconds left, please keep your answer brief.

[Prof. Elizabeth Sheehy]

I'm sorry. I guess I don't understand the context of his remarks.

Is he suggesting that the new legislation is too narrow or that our understanding of the defence of extreme intoxication is too narrow?

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

In his view, the definition of extreme intoxication is too narrow and may need to be expanded to include other states of intoxication, ones that are not extreme but that cause the person to lose touch with reality, such as psychosis.

[Prof. Elizabeth Sheehy]

Well, I guess I can only repeat what I said, which is that I believe that drug-induced psychosis—because it does involve a break from reality—has the potential to be the basis for an extreme intoxication defence. I think the case law may be evolving to accommodate his concern that it's too narrow.

[The Chair, Liberal, Randeep Sarai]

Thank you, Monsieur Fortin.

Mr. Garrison, you have two and a half minutes.

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

Thank you, Mr. Chair.

Two and a half minutes, obviously, is very short.

On the question of the impact on charging, if we fine-tune this with any of the three options that Professor Grant has suggested to us today, will that have an impact on the potential reduction of the number of charges that are laid?

I guess Professor Grant would be the logical one to answer that.

[The Chair, Liberal, Randeep Sarai]

I believe she had to leave.

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

Perhaps either one of you two could answer that, then.