Sure. First of all, the legislation refers to both. You will see that it says, in subsection 33.1(2), that in “determining 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.” You have the reference to loss of control and to harm.
We took the position in the Supreme Court that the fault element of the offence should follow the physical element, so that the risk at issue when discussing negligence should be the risk of a violent loss of self-control, as opposed to simply a loss of self-control. There are a number of paragraphs in Brown that suggest that the court took a similar position.
That said, we don't want to overstate, and I think you may not want to overstate, that requirement, because in many cases, bringing yourself to the point where you can no longer control your body will strongly imply a risk of violence. If you're not in control, then anything is possible. Ipso facto, that's going to include violence. Someone who takes their hands off the steering wheel of a moving car can hardly be surprised when the car runs into somebody. Monsieur Fortin, I believe you have made similar observations in the course of previous hearings.
But you can foresee a case where that isn't the situation—for example, where a defendant is using a drug like crystal meth at a safe consumption site. There is a foreseeable risk of a loss of self-control because you're taking a drug that removes that self-control, but that person reasonably expects that they will be supervised and kept away from other people, so there isn't a foreseeable risk of harm to another person. In such a case, depending on the facts, it might not be fair to conclude that the person was negligent and was therefore liable for what happened—for example, if there was a failure of supervision or the door was left unlocked.
To finish on this, the current wording of the legislation I think arguably does place unnecessary emphasis on the foreseeability of violence as a stand-alone requirement. The use of the word “and” generally is a strong signal to judges interpreting legislation that these are independent elements, as opposed to simply a way of describing what kind of losses of self-control the legislation is looking to address.
That might cause a concern if a judge were to interpret the legislation as saying they need proof that this particular substance in this particular dosage will cause people to become violent, because the Crown is rarely going to have precise information about the toxicology of what an accused was taking. Also, street drugs are unpredictable. They are constantly evolving. It makes it hard to get expert evidence even if you did have that kind of information available to you.
So if you are looking for ways to amend the legislation, you may want to consider something along the lines of “foreseeability of risk of a violent loss of self-control”. In the Brown decision, at paragraph 119, Justice Kasirer refers to the “choice to voluntarily [consume] intoxicants where that choice creates a risk of violent crime”, as opposed to setting out self-control and harm as independent requirements that both need to be proved beyond a reasonable doubt.