Justice Committee on Oct. 31st, 2022

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

Mr. Parent, what changes would you make to the current wording of section 33.1? Specifically, which parts would you change?

[Hugues Parent]

If memory serves, the definition of extreme intoxication is found in subsection 33.1(4). The solution is not complicated: in this provision, extreme intoxication should be defined as intoxication akin to automatism or insanity. This would cover all manifestations of extreme drug intoxication. In fact, it would simply repeat the language used by the Supreme Court in Daviault, which referred to extreme intoxication at the threshold of automatism or insanity. The concept of extreme intoxication at the threshold of insanity could simply be added to the definition in subsection 33.1(4). This would cover all facets of extreme intoxication, even the rarest of cases, such as the one in Brown, where the person falls into a state of automatism and becomes like a robot. In that case, the person went into a state of delirium as a result of substance-induced intoxication, which is very rare indeed. I have only seen two cases like this in my entire career. I've talked to psychiatrists, and they say exactly the same thing.

This addition to the definition would also cover cases of psychosis. After using drugs, some people develop delusions of persecution or hallucinations. The cases Ms. Jules mentioned earlier are cases of psychosis.

If one were to speak of extreme intoxication akin to automatism or insanity, one would cover all facets of extreme intoxication. Then there would be no problem; that's certain.

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

Mr. Parent, I have only a few seconds left.

Subsection 33.1(4) refers to “a person who is incapable of self-control consciously”. We all understand what that means. However, when it says that the person is incapable of “consciously controlling, their behaviour”, does that not cover the cases that you are concerned about being excluded from section 33.1?

[Hugues Parent]

Absolutely not. Indeed, this is emphasized by Justice Kasirer in paragraph 50 of Brown:

This is not...the same as suffering a psychotic episode where physical voluntariness remains intact.

In his view, extreme intoxication that is akin to automatism and affects the individual's consciousness—that is, awareness of their actions—does not cover cases of psychosis without diminished consciousness. This is written in black and white in paragraph 50.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Parent and Mr. Fortin.

Next, we have Mr. Garrison for six minutes.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Thank you very much, Mr. Chair.

I want to thank all the witnesses for being here today.

We've certainly had discussion about whether the changes in the law are sufficient. We've also had discussion about whether those actions are needed. I want to particularly thank Ms. Foxall for being here and for the work that her group does.

My question to you may be an obvious question, but I think it's one worth allowing you some time to talk about. What are the obstacles you're facing in the kind of work you're trying to do to raise the consciousness on campuses about consent?

[Holly Foxall]

In general, in the sexual violence prevention space within post-secondary communities, there's a really big lack of resources and support. There's often only one sexual violence prevention adviser per campus doing the work of taking in reports, education and so many more other tasks. They're amazing people doing such important work, but it's just too much for folks to be doing. I think is something we're trying to do in our work, creating that cross-provincial conversation.

When the ruling initially came out, there was so much panic and concern about what it actually meant. When I first saw it, I thought it meant that someone can get drunk and assault someone else. The term “extreme intoxication” is something that people really didn't understand. That misinformation caused a lot of fear. I think creating that plain language interpretation of these things and a communications strategy, as someone mentioned previously, would be really valuable because the legal jargon can be very confusing.

I also think that the people who are going to really try to understand what something means in the law are not the people who are going to cause harm. The people who cause harm may see a headline and think they can get away with things that they couldn't beforehand.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

I know, having spent 20 years teaching criminal justice, that sometimes there is a tendency for things to get siloed and for people to say, “Well, this group is already doing that work.”

In the work you are doing on campus, how are you finding your relationships with other existing groups and finding support for them to talk to their members about the message you are trying to get out?

[Holly Foxall]

There are so many incredible organizations and individuals who have been doing this work in this space for so many years. We're so thankful for the work they've been doing over the years.

It's a lot about connecting and collaborating with those folks. We have bimonthly meetings with the sexual violence prevention advisers from each university in Atlantic Canada. We come together and talk about the issues and the challenges that folks are facing. We really connect and try to establish best practices across institutions because there is so much important work being done.

It's just getting it out to different people and ensuring that we have the funding and resources to get those great programs out there.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Thanks very much.

I want to turn to Manitoba Prosecution Service—either Ms. Jules or Mr. Kotler.

I want to be very clear before the committee. You are saying that the changes made in Bill C-28 do close the gap and that you will be able to use this law to successfully prosecute, in your opinion.

[Ami Kotler]

Thank you for the question.

As Ms. Jules indicated earlier, you can never guarantee a result in a criminal case. It's important to always remain conscious of the burden of proof beyond a reasonable doubt that rests upon the Crown in every prosecution. That said, there are a number of reasons for optimism in the application of this legislation. Ms. Jules referred to some of them.

There is the fact that the language of proposed subsection 33.1(2) is inclusive. It requires only a foreseeability of risk that consumption could lead to a loss of self-control. There is some jurisprudential support for the idea that as the gravity of a potential harm goes up, the public is endangered even if the risk of harm actually occurring is small. I think you can expect to see prosecutors making that kind of argument in these sorts of cases.

The test is objective, not subjective, so even if an accused says that they had no idea this was going to happen, that won't be the end of the analysis. There are a number of other avenues that we will be able to look to in determining whether a reasonable person would have foreseen the likelihood of a risk.

Finally, in Brown itself, the court seems to accept the idea of inherently risky forms of self-intoxication. Justice Kasirer refers in particular to the idea of mixing alcohol with street drugs and sort of suggests that this activity in and of itself may carry reasonably foreseeable harm.

This goes back to what I was saying before, that some sorts of activities are inherently risky on their face, such that any reasonable person would be aware, “If I'm going to do this, I really need to start thinking about what I'm going to do to make sure I'm not going to hurt anybody if things go sideways.”

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Thank you, Mr. Kotler.

Do you think that Bill C-28's requirement that the accused present expert evidence on the state of extreme intoxication has raised the bar for establishing, in that particular case, that we are dealing with extreme intoxication?

[The Chair, Liberal, Randeep Sarai]

Answer very briefly, Mr. Kotler.

[Ami Kotler]

Thank you, Mr. Chair.

As you know, the Daviault decision, some 30 years ago, already placed the burden to raise the defence on the accused. I should note that it did so in relation to all general-intent defences, not just violent ones.

I think what proposed subsection 33.1(2) does in this case is provide some useful guidance to trial judges in terms of what sorts of things you have in mind that they should be looking at.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Garrison.

For our next round of witnesses, we'll go to Mr. Brock for five minutes.

[Larry Brock, Conservative, Brantford—Brant, ON]

Thank you, Chair.

Thank you to all the witnesses for your attendance today and your testimony so far. It's been very informative and important to this committee.

I'm going to turn it over to you, Ms. Jules.

I distinctly recall you being cut off at the end of your presentation. It was on the theme of how confident you were, as a member of the Manitoba Prosecution Service, that, notwithstanding some of the commentary from legal scholars that this would make it extremely difficult for Crown prosecutors across this country to meet the high threshold, you didn't feel the same way. You were laying out some steps. I believe you got to the first step and then your time expired.

I'm going to give you the opportunity now to finish your thoughts.

[Michele Jules]

Thank you.

I do think I got a little bit further in Ms. Diab's question, but I think, again, that we anticipate.... First of all, as Mr. Kotler has pointed out, the onus is on the accused. Having said that, we believe that there is certainly expert and medical evidence that we would be able to call upon to speak about the inherent dangers of many of the substances.

The substance that we see the most—as Professor Parent pointed out—that induces psychotic states is crystal meth. There is a wealth of evidence in terms of the inherent risk of those drugs and the consumption of those drugs that we would be able to call upon. Then, when we speak of the individuals, again, there is often going to be evidence that we can call upon in terms of the individual and their history and their knowledge of how they act when they've consumed dangerous drugs.

We do see a path to obtaining convictions in these cases. We think that judges and juries are going to want to hear that evidence and are going to accept that evidence. They are aware of the dangers inherent in some of these drugs. That speaks to the foreseeability of what will happen when consuming, particularly if you're consuming multiple dangerous drugs and when you're consuming an excess of dangerous drugs for a prolonged period of time. Courts will accept that it is foreseeable that those actions will lead to a violent loss of control that will harm individuals in our communities.

Yes, we are confident that we can make the case for those who negligently consume those drugs to excess and find themselves in the situation where they endanger the safety of other members of our community, and be able to hold them accountable with this legislation.

I don't know if Mr. Kotler has any other specific technical knowledge that he wishes to add.

[Larry Brock, Conservative, Brantford—Brant, ON]

The second area I want to get into, with the time that I have remaining, is the overall impression that Canadians and victims groups, particularly women's groups.... I've engaged in a number of town hall meetings and have explained to them, as a former prosecutor, that these are rare defences that are being used in courts across this country, but it was really of small comfort to a number of these individuals because, in their view, one case is too many.

Quite frankly, despite that, they still had this overriding belief that alcohol alone could be deemed to be ultimately successful, despite my best efforts to reassure them that the Supreme Court of Canada has made it abundantly clear in this decision that alcohol alone would not be successful.

I have done some research and I've concluded that between the passage of the original section 33.1 and the Daviault case, there have been successful cases, across this country, where alcohol alone was the sole intoxicant.

Do you feel—I'd like to get some commentary from the two of you—that Parliament missed an opportunity to codify that alcohol alone could be a bar to the advancement of this defence?

[Ami Kotler]

Thank you for the question.

I think, in determining where you want to go, you probably need to start with the Supreme Court's decision, which makes it abundantly clear that, absent negligence.... Sorry, let me back up.

The court has taken a strong position that, absent fault, we will not be able to enter convictions for criminal offences. There are fundamental elements of an offence that have to be made out. If the science suggests that alcohol is capable of putting an accused in a situation where they are no longer acting voluntarily, or where they lack one of the elements of offence necessary to make out the offence, then, unless we can show negligence in consumption, they should not be convicted.

I suspect that your question is best directed to a toxicologist, a neurologist or a doctor who is an expert in the area of the impact of alcohol—

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Kotler. We're out of time.

[Ami Kotler]

I don't think the question is a legal question. It's a scientific question.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Brock.

Now we'll go to Mr. Naqvi for five minutes.

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

Thank you, Mr. Chair.

I want to thank all the witnesses for appearing today and sharing their expertise and knowledge with us.

I will go back to the Manitoba Prosecution Service. I have five minutes, and I think we've discussed all these things, but let's see if I can bring it all together. It's good for the record and for our deliberations later as well.

Can you outline the legal analysis or the legal test that you would work through as a prosecution service in the old section 33.1 before the Brown decision?

[Ami Kotler]

How would it work before Brown? Well, it was a pretty short analysis. The Crown would analyze the evidence to see whether we could make out mens rea and actus reus to the extent that an accused wanted to argue that because of intoxication, they lacked the mens rea....

I'm sorry for using technical lawyer language, but mens rea just means the fault component of the events.

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

Every single one of us is a lawyer here.