Thank you very much, and thank you for giving me an opportunity to speak to you today.
I've been a criminal law professor for 35 years. My research was cited by the Court of Appeal of Alberta and the Supreme Court of Canada in Brown, and I was retained many years ago by the Department of Justice to examine the question of whether Parliament could constitutionally limit the defence of extreme intoxication for crimes of violence against women and girls.
I believe that the response to Brown that you have before you in section 33.1 was ill-conceived and rushed, and as Professor Sheehy has explained, I'm worried that it will have effects beyond cases of extreme intoxication. I think the lack of concern that we've heard from the defence bar about this legislation gives us a signal about how effective it will be in protecting women and girls from male violence.
I'd like to raise a couple of problems specifically with section 33.1 and suggest to you that there are some pretty easy fixes. The first problem is that the legislation missed the opportunity to codify Daviault and to say that the burden of proof is on the accused when he is raising a defence of extreme intoxication. Now I hope that most judges will assume this and read it in, but it was an oversight not to codify that in section 33.1.
However, the bigger problem is the standard in subsection 33.1(2). You have the legislation before you. Subsection 33.1(1) sets out the test that the Crown has to prove, the marked departure test. That is a constitutional minimum from which we cannot depart because the Supreme Court of Canada has indicated that. Subsection 33.1(2) really complicates the situation. Subsection 33.1(2) says that a judge “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.”
Now, it's not entirely clear what this means. What does it mean that a judge has to consider a legal standard? What if the judge considers it? Is the judge free to reject it? Is it determinative of the issue? It's a confusing standard for courts to apply, and it's not clear to me why it's even necessary or helpful.
However, the bigger problem with subsection 33.1(2) is that the standard of objective foreseeability of the risk of harm is unprovable by the Crown. What that means, of course, is that there won't be any cases in which this defence is denied—in other words, section 33.1 is not putting a limit on extreme intoxication.
The reason it's unprovable is that extreme intoxication is more likely to lead to unconsciousness or sleep or some other response on behalf of the accused. Violence is not a common response to extreme intoxication. What that means is that an accused can always say, “I've been intoxicated before, and I wasn't violent then, so how could I have foreseen that I would be violent this time?” or “I've never been extremely intoxicated before, so how could I possibly have foreseen that this time it would lead to violence?”
When you're dealing with relatively rare events, having a standard of objective foreseeability of harm is completely unworkable. So, unless you have an accused who's consumed the same amount of drugs and alcohol in the same circumstances and committed violence in the past, it's almost never going to be reasonably foreseeable that harm to another person would result.
As I mentioned earlier, I think there are some easy fixes to this. The simplest one is just to get rid of subsection 33.1(2). It isn't necessary. It's confusing for judges. It's telling them how to do their jobs. Judges apply the marked departure standard all the time. They know from case law that they have to look at all the circumstances of the offence and the circumstances in which that offence took place. Judges don't need Parliament telling them that they have to consider another legal standard. Maybe that's different from applying it, but they have to consider it, and without saying what that actually means.
The simplest response would be to get rid of subsection 33.1(2). It's confusing. It could result in section 33.1 being completely useless.
A second option, though, if you think it's important to retain subsection 33.1(2), would be to change the “foreseeability” standard and require foreseeability of a loss of control over one's actions instead of foreseeability of harm. As I said, when you're dealing with foreseeability of—