Justice Committee on Oct. 31st, 2022

[The Chair, Liberal, Randeep Sarai]

I call this meeting to order.

Welcome to meeting number 35 of the House of Commons Standing Committee on Justice and Human Rights.

Pursuant to Standing Order 108 and the motion adopted on September 22, the committee is meeting to begin its study on the subject matter of Bill C-28, an act to amend the Criminal Code regarding self-induced extreme intoxication.

Today's meeting is taking place in a hybrid format, pursuant to the House order of June 23, 2022. Members are attending in person in the room and remotely using the Zoom application.

I'd like to make a few comments for the benefit of the witnesses and members.

Please wait until I recognize you before speaking. For those participating by video conference, click on the microphone icon to activate your mike, and please mute yourself when you're not speaking. For interpretation for those on Zoom, you have the choice, at the bottom of your screen, of floor, English or French. For those in the room, you can use the earpiece and select the desired channel.

All comments should be addressed through the chair. For members in the room, if you wish to speak, please raise your hand. For members on Zoom, please use the “raise hand” function. The clerk and I will attempt to do our best to put you in the speaking order.

For your information, all sound tests have been successfully performed with our witnesses.

I have a couple of cue cards. When you have 30 seconds left in your time, whether you're a witnesses or a member, I'll raise the cue card. When you're out of time, I'll raise the red, out-of-time cue card. Please be mindful of that so I don't interrupt your thoughts. Please wrap up when I raise the 30-second cue card.

I'd like to welcome our first witnesses. Appearing today, we will have Holly Foxall, program director from Action Now Atlantic, via video conference. Professor Hugues Parent from the University of Montreal is also via video conference. From Manitoba Prosecution Service, we have Ami Kotler and Michele Jules, executive director.

Each organization will have five minutes.

We'll begin with Manitoba Prosecution Service.

[Michele Jules, Executive Director, Manitoba Prosecution Service]

Thank you, Mr. Chair.

Good morning. We'd like to thank members of the committee for allowing us the opportunity to speak to you today.

Manitoba's justice minister, Kelvin Goertzen, has actually been deeply engaged on this issue. He's urged legislative action following the loss of the previous section 33.1. He has offered to help in any way possible, so we're here hoping that we can offer some assistance in your deliberations on this complex issue.

With me is Ami Kotler, general counsel in our office, senior counsel in our appeals unit and counsel who represented Manitoba in the Supreme Court in Brown, as well as Chan and Sullivan.

It has been said a number of times in these deliberations that cases involving extreme intoxication are rare. As the office in Manitoba that conducts criminal prosecutions, we can agree that in relation to overall offences these cases are rare, but that does not mean that they arise infrequently or that their impact is not significant in our communities. Several such cases are before the courts in Manitoba.

In one that resolved just last week, the accused fired a shotgun through the front door of a random house, nearly striking a child. The accused had consumed crystal meth and was totally incoherent. Officers noted that he ate his own feces in the interview room following his arrest.

In a previous case that went to trial last year, the accused jumped into a random stranger's vehicle at a gas station and stabbed her to death. He was shirtless, barefoot and described as “speaking in tongues”. The trial judge observed that he had taken several drugs, including, again, crystal meth, and that his behaviour was “indicative of someone in a different reality and not in touch with this world.”

In a third case, pleas had been entered in relation to a homicide. The matter was set this past May for sentencing. Instead of delivering the sentence, the sentencing judge invited the accused to withdraw his guilty plea in light of the decision in Brown. He did so, and we now have this matter set awaiting trial in September 2023. We have other cases like this before our courts, and this is an issue that we will be litigating.

I raise these examples in order to emphasize the importance of a law like section 33.1. It shows that the justice system is capable of responding to the threat posed by powerful, mind-altering substances that lead to extraordinary acts of violence often against random victims. A well-established body of medical evidence links widely available drugs like crystal meth to toxic psychosis, paranoid delusions and violent aggressive behaviour. People taking these drugs frequently exhibit suicidality, homicidality, psychosis, and abnormal behaviour and movements.

The justice system must be able to respond in the face of such violence. Not only does it risk the lives and safety of the community members we serve, but it jeopardizes the public confidence in the administration of justice and the rule of law.

At the same time, however, it is important that the law recognize realities of addiction, particularly for marginalized communities grappling with the intergenerational aftermath of colonization. If we're committed to advancing reconciliation, our laws must criminalize morally blameworthy behaviour, not addiction or poverty. For this reason, we believe the answer is not to have an offence of extreme intoxication. We support the decision to root liability in negligence, and particularly to consider steps taken by accused consuming intoxicants to avoid placing others at risk when determining whether there has been a marked departure from the standard of a reasonable person.

This balance acknowledges the challenges facing many members of our community, while still insisting that whatever our circumstances, we must still take reasonable steps to protect one another from risks caused by our own dangerous acts. We appreciate that some may feel that weakens the legislation. Respectfully, we would suggest that the decision in Brown makes the need for this kind of approach fairly clear. More fundamentally, a law is not weaker because it is humane, balanced and fair—in our submission, we believe it is stronger and, of course, more likely to survive constitutional scrutiny.

To address the enforceability of the legislation, we will close by briefly discussing how we propose to obtain convictions under the new section.

Virtually all the cases we are seeing where the accused's degree of intoxication approaches the extraordinary level contemplated by the legislation involve consumption of one or more powerfully dangerous drugs whose effects can reasonably be expected to include disassociation, psychosis and violence.

While verdicts in individual cases will obviously turn on their facts and the evidence that we're able to call, we feel there is a case to make that an accused consuming these dangerous substances, particularly in excessive amounts or over a prolonged period of time, combining them with other dangerous substances or taking unidentified substances from an unknown source, courts a foreseeable risk that their actions may lead to a violent loss of control that harms another person.

[The Chair, Liberal, Randeep Sarai]

Thank you, Ms. Jules. Hopefully, we'll be able to extract some more out of the questioning.

[Michele Jules]

Certainly.

[The Chair, Liberal, Randeep Sarai]

I'll go next to Holly Foxall, program director for Action Now Atlantic.

You have five minutes.

[Holly Foxall, Program Director, Action Now Atlantic]

Thank you so much, Mr. Chair.

Thank you so much for having me here today. My name is Holly Foxall, and my pronouns are she/her. Today I am joining you from Mi’kma’ki, the ancestral and unceded territory of the Mi'kmaq people.

I'm the program director of Action Now Atlantic, which is an initiative and campaign to end sexual and gender-based violence at universities in Atlantic Canada through education, advocacy and community engagement. We've been fortunate enough to receive funding through Women and Gender Equality Canada to launch this project.

Our mission is to promote a culture of consent on campus through virtual workshops, the development of educational material and resources, and our own youth advocacy network. A big part of our work is connecting and collaborating with other organizations and individuals and taking a cross-provincial approach to addressing the issue of sexual violence on campus in Atlantic Canada.

The inspiration for Action Now Atlantic grew out of my personal frustrations around my own experiences and the experiences of my friends and peers while attending post-secondary education. I completed my undergraduate degree at Queen's University. I remember feeling a culture, both on and off campus, where sexual violence was normalized and many people didn't understand or respect consent. When I graduated and moved home to Nova Scotia, I remember seeing news stories about similar campus cultures and attitudes here. I read of many instances of sexual violence on campus where universities mishandled the cases and caused even greater harm to survivors.

Unfortunately, sexual violence is still a prevalent issue within post-secondary communities. We know that one in four women experiences sexual assault while attending a post-secondary institution, and 71% of Canadian post-secondary students have witnessed or experienced unwanted sexualized behaviour during their time at post-secondary institutions.

The first semester of university is meant to be an exciting time for students returning to school, but it's a notable time when it comes to sexual violence on campus. The first eight weeks of each fall semester are referred to as the “red zone”, when 50% of all sexual assaults on campus will occur. This is a time of increased vulnerability on campus, when there are many new students who are often away from home for the first time and without their usual support systems. It's critical that information around sexual violence and the laws relating to intoxication and assault are understood correctly by all members of our society, but especially those who may be engaging in sexual activity, drugs and alcohol.

When the news of the Supreme Court ruling on extreme intoxication was announced, there was serious concern about what the ruling would mean for campus communities and all survivors of sexual and gender-based violence. In our society, intoxication is often used as an excuse for those who cause harm, and a way to delegitimize survivors who do come forward.

I, along with so many Canadians, had many initial questions about this ruling. Would it provide more protection for those who sexually assault people and create even greater barriers for survivors to come forward? Would the ruling impact the ability and willingness of survivors to report cases of sexual violence? Do people who cause harm know that drunkenness alone is not a defence in sexual assault cases?

While the initial ruling got a lot of press, Bill C-28 and what it actually means received far less interest or time in the media. How people understand laws can greatly impact behaviours and cultures within our communities, so it's essential to have clear and easy-to-interpret information around these laws. This will build greater trust in our government and legal institutions.

I'm not a legal expert, so I will not try to comment on the technicalities of the initial Supreme Court ruling and Bill C-28 and what it means from a legal perspective, but I do hope to bring a youth perspective to this conversation. I can share why many survivors don't trust legal institutions and why rates of reporting sexual violence are so low, as well as what the initial reaction was within campus communities to this ruling and how it may impact campus cultures even with the implementation of Bill C-28.

I am someone who cares deeply about the safety and well-being of young people, and especially survivors of sexual violence. Anything that has the potential to create opportunity for people to cause harm and to build further barriers for survivors is something that we need to think critically about. How our legal institutions and governments share this information with the general public is important for community safety and overall trust within our institutions.

Thank you for your time.

[The Chair, Liberal, Randeep Sarai]

Thank you, Ms. Foxall.

We will go next to Professor Hugues Parent from Université de Montréal.

You have five minutes.

[Hugues Parent, Full Professor, Université de Montréal, As an Individual]

First, I would like to inform you that I currently have COVID-19 and may have to interrupt my presentation a few times to catch my breath. I apologize for that. Without further ado, I will begin my presentation.

In law, extreme intoxication can manifest itself essentially in two ways.

First, sometimes, but rarely, extreme intoxication disrupts the subject's consciousness to the point where the subject is no longer able to act consciously. In this case, the person can move, but is not aware of their actions. In fact, the person is like a robot. This is referred to as extreme intoxication akin to automatism. Substance-induced delirium is an example of extreme intoxication akin to automatism. This is exactly the diagnosis used by the Supreme Court in Brown.

The second manifestation of extreme intoxication occurs when the person is under the influence of delusions or prominent hallucinations as a result of their voluntary drug use. In this case, the person remains physically aware of their actions, but is unable, because of the psychotic episode, to appreciate the nature and quality of their actions, or to know that the actions were wrong. This is called extreme intoxication bordering on insanity.

To understand the distinction between the two types of extreme intoxication, consider the following example. A man takes cocaine and develops delusions of persecution. The man is convinced, because of his delusions, that his neighbour is a member of a criminal organization that wants to kill him. The man, in order to avoid being killed, takes a gun, goes to his neighbour's house and fires at him. Here, the accused is not in a state of automatism. On the contrary, this man is fully aware of his actions, insofar as he knows that he has a gun in his hands, that he has his finger on the trigger and that he is firing in the direction of the victim. Far from being unconscious, this man's act is in direct pursuit of the goal imposed on him by his delusions—that is, to save his life by killing his attacker. Although he is capable of consciously controlling his conduct, the accused is not capable, because of his delusions and psychosis, of knowing that his actions are wrong, hence the presence of extreme intoxication bordering on insanity.

I will now talk about extreme intoxication in medicine.

The presence of psychotic episodes without disturbance of consciousness is a well-known manifestation of drug intoxication. Discussing the symptoms associated with acute intoxication and the importance of considering psychotic episodes without disturbance of consciousness, Dr. Marie-Frédérique Allard, a leading forensic psychiatrist, writes that, as a forensic psychiatrist for many years, she regularly evaluates individuals who severely intoxicated while committing a crime. She also writes that altered consciousness may occur in very specific situations—for example, severe alcohol or benzodiazepine intoxication, delirium, and so on—but this is not the generality.

In Brown, it is a matter of delirium, but these situations are rather rare, indeed.

Dr. Allard writes that, when there is acute intoxication by drugs such as amphetamines and cocaine, which are often linked to behavioural disorders seen in criminal law, the individual's state of consciousness is not altered. On the contrary, psychostimulants have the property of stimulating alertness. These substances also have a high potential to induce psychotic symptoms that may even last well beyond the period of intoxication.

In fact, the first witness pointed this out very well a few minutes ago. Dr. Allard also writes that, when individuals suffer from stimulant-, cannabis-, or other substance-induced psychotic disorder, they generally remain able to control their actions and aware of their behaviours. According to her, the substance-induced loss of contact with reality therefore primarily affects their ability to know that the actions were wrong under the circumstances.

This is what explains all the importance of adding extreme intoxication to the threshold of insanity to that of automatism.

I will now turn to the problem with section 33.1 of the Criminal Code as it is currently written.

By limiting the definition of extreme intoxication to cases akin to automatism, the government is focusing on only one manifestation of extreme intoxication: automatism. It leaves out cases of intoxication that do not affect the accused's ability to consciously control their behaviour, but that prevent them from knowing that their act is wrong.

Unfortunately, I won't have time to make my entire presentation. That's too bad, because I took the time to write it all down and it's extremely important.

In other words, what will happen is that the person who finds himself or herself in a state of extreme intoxication at the threshold of insanity will be able to plead extreme intoxication because section 33.1 only focuses on states of extreme intoxication at the threshold of automatism. From that point on, a decision will be made, and it will definitely go to court. Section 33.1 will suffer exactly the same fate as the previous incarnation.

I have given you a report on this, but I cannot comment. Do what you want based on that.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Parent.

I'll go to the first round of questions, beginning with Mr. Caputo for six minutes.

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

Thank you very much, Chair. I'd like to thank everybody here.

First off, Prof. Parent, I'm sorry to hear of your illness, and I hope that you get better soon.

Ms. Foxall, I just want to very briefly mention something. I really do appreciate your work. In fact, my wife does a lot of the same work that you do. She recently attended a seminar where the focus was “No means no.” In fact, I think we have to start shifting the narrative, as you are, to “Only yes means yes.” I really do appreciate that work, and I wanted to put that on the record.

To the Manitoba Prosecution Service, thank you for being here. So often when we're here, we debate things in the abstract and we don't hear from people on the ground who are actually impacted. I encourage this committee and all committees to bring people here who are on the ground, because this is a unique perspective and it may be the only perspective we have from people who are in the trenches in the prosecutorial end of things, so I really do appreciate that.

I'm going to start there, Mr. Kotler. You're obviously a distinguished appellant litigator, and we're so fortunate to have you and Ms. Jules, somebody at the top of your organization. Thank you.

I'm going to ask a bit of a nerdy question. It's about foreseeability of harm versus foreseeability of loss of control. You may have anticipated us going there with this. They are two very different things. I'm just wondering if either or both of you could comment on that distinction.

I don't have the legislation right in front of me. My recollection is that it refers to foreseeability of harm. A reasonable person must reasonably foresee that the self-induced intoxication would result in harm. Can you comment on that distinction and whether it's material?

[Ami Kotler, General Counsel, Manitoba Prosecution Service]

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.

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

Thank you. That's very clear.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Caputo.

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

Was that it?

Okay. Thank you.

[The Chair, Liberal, Randeep Sarai]

Ms. Diab, you have six minutes, please.

[Lena Metlege Diab, Liberal, Halifax West, NS]

Thank you very much, Mr. Chair.

Thank you and welcome to all our witnesses.

We started this study and it's been a couple of meetings now. The witnesses we have encountered have really spoken to how technical the law is, particularly when we're talking about the criminal law and those particular sections of it, and how it affects people. Thank you very much for coming to aid us in our deliberation as we study the afterthought of this.

Ms. Jules, I have questions based on where you left off. You began by saying that Manitoba is urging the government to act. In fact, there was an urgency in that there was a gap left in the system when the decision was made at the Supreme Court of Canada. Then you went further and recognized, which I actually very much appreciated, that there's always a balance that needs to be made when making policy and when creating laws, a balance between the justice system needing to respond but also recognizing certain realities that we have in our society.

I think you left off by trying to propose how you believe, or how Manitoba believes, you can still get convictions. You were not able to complete that. Would you mind starting us off by going back to where you left off and talking to us about that, please?

[Michele Jules]

Certainly.

Again, I think we had indicated that we believe that the inherent dangerousness of certain drugs themselves will be evidence that will assist us in terms of the effects that we would expect everyone to have some concept about...and can be reasonably expected to potentially lose control and have a violent loss of control. We anticipate that there would be expert evidence that we would call in many cases.

The individuals we're talking about may also often have a history—a history that we're aware of, a history that has been introduced to the court previously. We often hear submissions in court from defence counsel when explaining their client's behaviour that speak to this Jekyll and Hyde change in behaviour when they've consumed a dangerous drug. We may very well have history to call to demonstrate how foreseeable it was for this particular individual that they would act in a violent way if they were consuming and becoming extremely intoxicated.

So we do think that it is a foreseeable risk in many instances and that we will have evidence put before the court of that in terms of the negligent action of the individual when compared with the reasonable person. We are confident that we can make this case in front of judges and juries, that those who negligently jeopardize the safety of other members of our community can be held accountable through this legislation.

[Lena Metlege Diab, Liberal, Halifax West, NS]

I'd just like to again clarify something that goes to Ms. Foxall's point and to a question I had the last time I had an opportunity on the committee. It's about the need to be very clear and very concise. There's been a lot of misinformation about this, in particular after this came about, and in my opinion there's been a gross amount of misinformation, particularly online for young women.

There's a particular need to really be clear and not talk so much legalese. There's a need to have plain language in the law, no matter what the law is but particularly in these cases. Can you, just for the record, again...? Let's be clear that anybody who puts themselves negligently in a dangerous state, in which they cannot control their actions, cannot think that they should be escaping a conviction if they hurt somebody. Do you know what I'm saying?

[Michele Jules]

I do. I think I know what you're saying.

Again, I don't think we can guarantee in all cases that each case will turn on its facts in the evidence of the case, but we do think that the legislation can get us there in terms of being able to obtain convictions.

I will say, in listening to Ms. Foxall, that I also would encourage a communication strategy to reach the public so that there is an understanding of the risk that individuals have and the expectation of that foreseeability when they're in those circumstances. I also had young adults in university when the decision came out, and within 24 hours they were contacting me and asking, “Mom, is it true that you can sexually assault someone if you just get drunk enough?”

I do appreciate very much what Ms. Foxall indicated, and the need for clarity, as well as perhaps, I think—as I said, it's not really for me to say as a prosecutor—a communication strategy, so that the law is clear to those who may face this jeopardy.

[Lena Metlege Diab, Liberal, Halifax West, NS]

Thank you.

Ms. Foxall, just to end—

[The Chair, Liberal, Randeep Sarai]

I'm sorry, Ms. Diab.

[Lena Metlege Diab, Liberal, Halifax West, NS]

Okay.

Ms. Foxall, thank you for being here. Thank you for coming online from Nova Scotia. Maybe someone else will come back and ask you what I was going to ask you.

[The Chair, Liberal, Randeep Sarai]

Thank you, Ms. Diab.

Next is Mr. Fortin for six minutes.

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

Thank you, Mr. Chair.

Ms. Jules, Mr. Kotler, Ms. Foxall, and Mr. Parent, thank you all for being here this morning.

Mr. Parent, I understand by the hasty end of your presentation that you were a bit rushed. We are unfortunately still caught with the problem of time management. However, I would like to hear more from you this morning. So, if it is okay with you, I would like to give you a few minutes of my time to finish your presentation.

We are ready to hear what you wanted to tell us in the rest of your presentation, Mr. Parent.

[Hugues Parent]

What I am saying, essentially, is that by limiting itself to the definition of extreme intoxication akin to automatism, section 33.1 of the Criminal Code leaves out the most serious and, more importantly, the most frequent manifestations of extreme intoxication—namely, all psychotic states that do not diminish the individual's consciousness. It is certain that section 33.1, as currently worded, leaves out all such states.

I will read you a passage from the Brown decision. Justice Kasirer is of the following opinion:

...it is notable that extreme intoxication akin to automatism is an exigent defence requiring the accused to show that their consciousness was so impaired as to deprive them of all willed control over their actions. This is not...the same as suffering a psychotic episode where physical voluntariness remains intact.

Section 33.1 is essentially limited to this type of extreme intoxication. However, in the majority of extreme intoxication cases—95% of such cases—people have taken drugs, and these are situations where there is no diminished consciousness or state of automatism. For example, if a person takes cocaine, develops delusions of persecution and then kills someone else, that is not a case of automatism. It has nothing to do with it. So section 33.1 would not apply to this person. In that case, the person could plead extreme intoxication at the threshold of insanity and they would be released, plain and simple.

Section 33.1 is limited to only one facet of extreme intoxication, which is what the Supreme Court stated in Brown, because it was a question of delirium. This is the rarest manifestation of extreme intoxication. We're talking about cases where the intoxication causes a state of automatism and the person becomes like a robot. This is extremely rare. The Association des médecins psychiatres du Québec and the Canadian Psychiatric Association will tell you that in 95% to 98% of cases of extreme intoxication, a person develops delusions or hallucinations as a result of drug use. Yet this type of manifestation is not covered in any way by section 33.1.

Under section 33.1, the prohibition on pleading extreme intoxication as a defence applies only in cases where, “intoxication...renders a person unaware of, or incapable of consciously controlling, their behaviour.” This leaves out the most serious and, more importantly, the most common manifestations associated with voluntary intoxication—that is, psychotic episodes where the person's consciousness is not diminished or obliterated. Since a person in a psychotic state is generally not in a position to know that their act is wrong, their conviction violates principles of fundamental justice as much as that of a person who commits the same act in a state of automatism.

It is certain that this will be challenged in court and that section 33.1, whose current wording limits extreme intoxication to a defence of automatism, will be declared unconstitutional. I'm not going to say anything else; that's the reality.