Hi everyone. My name is Suzanne Zaccour, and I am the head of feminist law reform at NAWL, the National Association of Women and the Law, L'Association nationale Femmes et Droit.
NAWL is a national not-for-profit organization that advocates for women's rights in Canada. We've been doing this work since 1974, and have consulted many times with many governments on the development of legislation that protects women's rights, including major reforms of sexual assault law in the 1980s and the 1990s.
The National Association of Women and the Law has three major concerns regarding this bill.
First, we need to consider all impacts of the law, not just its impact on acquittals. Even if an accused does not have a valid defence, he can still claim extreme intoxication to influence the victim, the police, and prosecutors in their decision to report, charge, and plea bargain. I probably don't have to remind you that most sexual assault and domestic violence cases never make it to trial, so it's really important to consider the law's impact before the court process. We are particularly concerned about cases not being brought forward because the accused was drunk. To make things really clear to victims, to police and to prosecutors, we have recommended that the law explicitly state that alcohol is presumed not to cause extreme intoxication. Also, adequate training and public information will be necessary.
Second, we are concerned about the Crown's ability to prove marked departure, given the bill's mention of the foreseeability of both the risk of extreme intoxication and the risk of harm. Will the use of any street drug guarantee the success of the defence because there is no way to know what's really in there? Or will an accused who has taken these drugs before say it wasn't foreseeable because he has done this before and he didn't lose control? Or will an accused who has not taken these drugs before say the same thing: “I've never done these drugs before, so how was it foreseeable that my body would react in this way?” Will a man who regularly assaults his wife while drunk say that losing control on that particular occasion wasn't foreseeable because he's a habitual drinker and he has never reached extreme intoxication before? The courts, but also police and prosecutors, must receive proper guidance on these issues.
Our third point is that we need a commitment to reviewing the law after these hearings and documenting the use of the defence, because a lot of the conversation around this bill has been about how this defence is allegedly very rare. That's what we keep hearing, but how could we know that if most accused have been completely barred from raising the defence for the past 27 years? You've heard research presented by Professor Sheehy in the previous panel that suggests that the extreme intoxication defence could be used more regularly than anticipated. And, as was made clear, we don't know what the impact will be of this defence outside of the trial, for example in charging decisions.
The bill has now passed. How are we going to find out if the defence is indeed rare and working as intended or if it becomes the new cover-up for drunk violence against women? Are repeat abusers using the defence? Does it succeed when alcohol alone is involved? Are the courts strict or permissive? We need answers to those questions.
We ask that your committee recommend a three-year review of the law. I'm speaking with you today at a time when it's too late to amend the provisions, but there is still time to get this issue right.
I thank you for listening and thank you for giving this issue the consideration it deserves.