Evidence of meeting #34 for Justice and Human Rights in the 44th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was defence.
A recording is available from Parliament.
Prof. Elizabeth Sheehy
I would certainly agree with Professor Grant's comment. We had a vacuum; we have a vacuum. I don't think justice is served by rushing a solution, because a bad solution is not going to address the issue.
I'm just repeating, I think, what Isabel just said.
Associate Professor, University of New Brunswick, As an Individual
I think the point that both Professor Grant and Professor Sheehy are making is that you need to get this right, because the potential consequences of getting it wrong are very serious. They're not only in terms of reported cases. We've told you that there are 86 reported cases, with most of them coming out even after section 33.1 was enacted. It's also in relation to the charging decisions and the prosecutorial decisions. Some of those we will never see, and it will be very difficult to know exactly what the implications are from leaving the defence so open.
Liberal
Élisabeth Brière Liberal Sherbrooke, QC
Do you agree that it is completely unacceptable for someone to voluntarily or negligently put themselves in a state so dangerous that they cannot control their actions, do harm to someone else and not face the consequences?
Prof. Elizabeth Sheehy
Well, I think what we're saying is that it's actually discriminatory to shift the burden of that harm onto the shoulders of women. I mean, the individuals who've engaged in over-consumption of alcohol and drugs, and who have in consequence caused very serious and sometimes life-altering injuries to other people, are able under this defence to shed all responsibility, and that's then left on the shoulders of women. I guess what we're saying is that that's discriminatory.
October 27th, 2022 / 4:35 p.m.
Liberal
Élisabeth Brière Liberal Sherbrooke, QC
Thank you.
After the decision in R v. Brown, it became clear that a lot of misinformation was floating around, online especially. Young women, for example, really thought that the law offered them no protection if they were assaulted.
I'd like to hear your thoughts on that misinformation.
Prof. Isabel Grant
I think clearly the example you give would be misinformation, but you have to put yourself in the position of a busy Crown counsel who's deciding whether to lay a charge. A young woman comes forward and says she was sexually assaulted by a very intoxicated man, and that's all she knows. She doesn't know how much he consumed or what he consumed. Crown counsel has to make a decision on whether we are going to lay charges in that circumstance. I'm not sure that in many of the cases they will.
We already know that sexual assault is vastly undercharged in this country, so I think what was overblown was the degree to which this was in fact misinformation. We don't know the impact of this decision, and we don't know how we're going to study it if the consequence is that charges are never laid in the first place.
Associate Professor, University of New Brunswick, As an Individual
In my past life, I was a practitioner in Saskatchewan, and it's kind of incomprehensible to me that the way you counteract misinformation on social media is that you enact amendments to a very complicated area of law. There are quite a few other ways that one can engage in public education. Giving core funding to women's groups might be one of them, so that they can run their education campaigns. You don't do it by amending the Criminal Code.
Liberal
Bloc
Rhéal Fortin Bloc Rivière-du-Nord, QC
Thank you, Mr. Chair.
I, too, want to thank the witnesses for taking part in our study. As Mr. Moore said, it's pretty unusual to be studying a bill after it has come into force, but that's how we have to do it.
As the witnesses have seen, we have a limited amount of time, so I want to use my six minutes to talk about subsection 33.1(2).
Ms. Froc, you talked a bit about objective foreseeability. In the bill, it says that, in order to determine “whether the person departed markedly from the standard of care, 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.”
I'm going to play devil's advocate for a moment. Objectively, when someone consumes an intoxicating substance, isn't there always a risk? The provision isn't about determining whether it was obvious that consuming the substance would cause extreme intoxication; it's about determining whether the risk was objectively foreseeable. When I first read it, I thought courts might determine that, when someone consumes an intoxicating substance, there is necessarily an objective and foreseeable risk that they are putting themselves in a situation of extreme intoxication.
I'd like to hear your view on that, Ms. Froc.
Associate Professor, University of New Brunswick, As an Individual
Certainly, and I would defer to professors Sheehy and Grant on this.
One problem with that is that you have the Supreme Court in Brown using risk of harm and risk of extreme intoxication disjunctively. We're using it conjunctively here, where you're essentially saying that the Crown has to prove both. That's one issue.
The other issue is, and you've heard the Minister of Justice say it, that this was a contextual analysis in terms of what the objective foreseeability is. What does that mean? Does that mean someone in the shoes of the person who has consumed the intoxicants? Does that mean, as Professor Grant said, that if you've never become extremely intoxicated before, you could not have foreseen it? If you have, objectively...but contextually objectively. That's the problem.
Prof. Elizabeth Sheehy
All you have to do is look at the expert evidence in both Brown and Chan.
In Brown, the trial judge decided that, although Mr. Brown testified that he had consumed between 13 and 17 drinks and snacked on handfuls of magic mushrooms all evening, it was unforeseeable that he would lose the power of self-control. We're not even talking about harming someone.
The cases before us demonstrate that this is going to be really difficult, because the defence can get experts who are prepared to say that the person was in a state of extreme intoxication, but they're not prepared to say—or they feel they cannot say—that it was foreseeable because they don't know exactly how much he consumed. They don't know how much psilocybin was in that particular dose of magic mushrooms. They don't know the rate at which he consumed. They don't know his experience with drugs.
All of these factors mean it's going to be very hard for the Crown to prove even foreseeability of loss of control.
Bloc
Rhéal Fortin Bloc Rivière-du-Nord, QC
I think Ms. Froc was saying that one of the solutions would be to get rid of subsection 33.1(2).
Assuming that the provision isn't going anywhere, how would you phrase it, Ms. Sheehy? How should the provision be written?
Associate Professor, University of New Brunswick, As an Individual
I'd defer to Professor Grant on that because she's the expert on the reconstruction.
Prof. Isabel Grant
I was the person who suggested that you get rid of subsection 33.1(2), because it's not necessary. The standard that the Crown has to prove to remove the defence is already in subsection 33.1(1). Judges know that they have to consider the circumstances.
I think the test, if we wanted to just change that standard.... Even foreseeability of a loss of control would be a more workable standard than a foreseeability of harm. 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.
Bloc
Rhéal Fortin Bloc Rivière-du-Nord, QC
Let's assume that the idea is to provide an acceptable and valid defence to individuals accused of this type of crime and that it is possible for someone to advance the defence that the self-induced extreme intoxication was not foreseeable. Should we not, at the very least, restrict that foreseeability, as is being done, here?
If it's not restricted, one possibility is that there would be no defence for self-induced extreme intoxication. I might agree with that. I'm not expressing a view one way or the other. I'm trying to consider the matter objectively. Another possibility—
Prof. Isabel Grant
The standard is in subsection 33.1(1). It is not in subsection 33.1(2).
Liberal
NDP
Randall Garrison NDP Esquimalt—Saanich—Sooke, BC
Thanks very much, Mr. Chair.
I want to thank the witnesses for being here today and for their very valuable testimony.
Certainly, part of the agreement to act quickly, for me, was contingent on holding these hearings, so I think many of us around this table understood that we were acting quickly and would not have agreed to taking that quick action without the guarantee that we were coming back to look at this more carefully. I think you're already demonstrating today why that was necessary.
On the question of the vacuum created, I have just one question. Did it do anything to fill the vacuum by requiring the accused to prove or provide expert evidence that they were in a state of extreme intoxication in order to try to avail themselves of this defence? Was that any sort of improvement?
Prof. Isabel Grant
The Supreme Court of Canada did that in Daviault many years ago. That's always been the case. The Crown simply cannot prove whether the accused was extremely intoxicated, because it does not have access to what the accused consumed or how much, and we cannot compel an accused to provide that evidence to the state. That was already done by Daviault. Section 33.1 does not do that at all. I think section 33.1 does not narrow the vacuum in that regard.
NDP
Randall Garrison NDP Esquimalt—Saanich—Sooke, BC
Professor Sheehy, you were going to make similar remarks, I suspect, so please do.
Prof. Elizabeth Sheehy
The new version of section 33.1 doesn't add anything. The Supreme Court of Canada had already established that the burden of proof is on the accused on a balance of probabilities to prove that they were in this state of extreme intoxication. The revised version doesn't add anything.
As Professor Grant pointed out, if the Daviault standard of proof is not incorporated into the new section 33.1, there is a risk that some judges will drop that. That was the first point in her presentation, that we might want to actually have that rearticulated in the section itself.
