Mr. Speaker, on September 30, 1994 the Supreme Court of Canada released its reasons for judgment in a case called Daviault. The effect of that judgment was to change the common law rules concerning criminal liability in cases where the accused is extremely intoxicated at the time of the alleged offence. The nature of that change, its effect in subsequent cases and the concern it caused about the principle of accountability in the criminal law lie behind the government's decision to introduce Bill C-72 which we are debating today at second reading.
With this bill, Parliament would abolish self-induced intoxication as a defence in the case of general intent offences involving violence, where basic intent is the only criminal intent required. Parliament would thus recognize a standard of care, any departure from which would make an unlawful act a criminal one.
In leading off second reading debate today, I propose to develop the principles underlying the bill and to explain why the government believes that Bill C-72 represents a prudent, necessary and valid amendment to our Criminal Code.
May I first touch upon the state of the law before Daviault. There has never been a formal defence of intoxication in the Criminal Code. Judges in the facts of specific cases have been left to formulate those rules by themselves.
Over the decades past, courts have approached this issue by creating two categories of intent in the criminal law: general and specific.
General intent has been taken to mean the basic intention to commit a criminal act in a broad category, such as assaulting someone or committing a sexual assault on someone.
The courts held that by way of distinction, a specific intent involves a special purpose in addition to the basic intent. The crime of murder, for example, requires the proof of a specific intent. It must be established that someone intended to cause a death. In theft it must be proven that the specific intent was there to achieve the special fraudulent purpose of depriving someone of specific property. With respect to the crime of breaking and
entering with intention to commit an indictable offence, again the crown had to prove that there was a special purpose in the mind of the accused.
Over the decades, the common law courts developed the rule that intoxication could be a defence to crimes of specific intent but were never a defence to crimes of general intent. As a result, if someone was acquitted of a crime of specific intent by reason of intoxication, they were almost invariably convicted of an included general intent offence. Therefore someone who might not be convicted of murder because of intoxication would be convicted of manslaughter which required a general intent. A person who was acquitted of robbery because of the lack of specific intent might be convicted of assault.
This approach to intent and the effect of intoxication upon criminal liability was one of the topics identified in the review of the general part of the Criminal Code launched by the Department of Justice last fall. It has been felt for many years that it is about time Parliament became involved in clarifying the rules with respect to defences and intention rather than leaving it to the courts to fashion their own approaches. It was in the course of that review of the general part that the Daviault judgment was released and its effect became known.
As to the judgment in Daviault itself, the effect of that judgment was to uphold the traditional distinction between crimes of general and specific intent. Another effect was to hold that extreme intoxication in some circumstances could be a defence even to a crime of general intent.
The underlying analysis was that extreme intoxication can cause a form of automatism. In the case of Daviault the evidence related to the ingestion of alcohol. The court held that in that automatic state, the state of automatism, a person would be unable to appreciate the nature of the consequence of their actions and would be unable to form the intention to commit the offence in issue. The court also held that it would be a question of fact in each case to determine whether that was so. The onus would be upon the accused person to establish that it was so and that scientific evidence would almost always be required to establish those facts.
The majority of the court also held in Daviault that under the current common law where self-induced intoxication was not held to be a sufficient basis for criminal fault, it would be contrary to the principles of the charter of rights and freedoms to hold someone criminally responsible for their conduct when they are intoxicated to the point of automatism.
I observe in passing that although the charter principles were touched upon in the facta filed by counsel in Daviault and although there was some reference to them in argument, the charter principles were not argued extensively or developed in detail. Furthermore, I observe that there was no section 1 evidence tendered by either party in the Daviault case. I also observe that the Attorney General of Canada was not invited to intervene in that case.
The Daviault judgment raised obvious concerns for members of Parliament and indeed for all Canadians. The whole question of accountability under the criminal law was brought into sharp focus.
Specific concerns related to crimes of violence against women and children. Indeed the Daviault case itself involved an allegation of sexual assault against a woman. In the weeks that followed the release of the Daviault case, there were other cases in various parts of Canada applying its principle, each case involving allegations of violence against women.
Concern grew that a person might be charged with murder and defend on the basis of intoxication. If the extent of intoxication was established to be sufficiently extreme, that person might walk out of the courtroom entirely free because they were incapable of performing a specific intent involving murder and because the intoxication was such that they were exculpated from the general intent crime of manslaughter. The result would be that they would face no sanction at all.
Concerns were also expressed that people might manipulate the legal principles so as to intoxicate themselves to some extent for the purpose of committing a crime. They would then intoxicate themselves further afterward before apprehension and rely upon the degree of intoxication overall to escape liability for the crime.
Following the release of Daviault and recognizing that change was needed, the government examined a variety of options. It looked at the prospect of legislating criminal intoxication as an offence under the law. Indeed, this suggestion was made almost 10 years ago by the Law Reform Commission. It suggested that we might approach the matter in that fashion. We rejected that option for a variety of reasons.
The first reason was the penalty. Clearly, it was the view of the government that if there was to be accountability in the criminal law, then the maximum penalty for any new offence of criminal intoxication would have to be the same as the maximum penalty for the original offence. Otherwise, we have the spectre of having created a drunkenness discount which would give people who intoxicate themselves an option to have a lesser penalty for the same crime. That obviously is unacceptable. If the maximum penalty for the new offence of criminal intoxication was to be the same as for the original offence, this would essentially be a long and complicated way of saying that intoxication is no defence.
The second reason for not pursuing the option of creating the criminal intoxication offence related to the labelling of the offence. The criminal intoxication option rests on the person being found not guilty of the original offence and instead found guilty of the new offence of criminal intoxication. The govern-
ment believes that a person who becomes voluntarily intoxicated to the point of losing conscious control or awareness and in that state causes violence to another person is at fault for the assault and should be held criminally accountable for that offence and for nothing less.
To acquit the person of the assault and convict them instead of a new offence of criminal intoxication would send the message that they were not criminally responsible for the assault itself. This would feed into the syndrome of blaming the alcohol instead of the man for the act of violence.
Third, a detailed examination of the criminal intoxication option in its various forms established that many of the charter and legal theory problems identified by the Supreme Court in relation to the common law rule as it applies to basic intent would apply with almost as much force to any such new offence.
If the new offence were required to be charged, there would be no opportunity to do so until trial, when the accused person invariably raises the intoxication as a defence and the crown becomes aware of it for the first time.
If the new offence were to operate as an included offence with conviction to follow automatically from acquittal on the main offence, a successful defence to that main charge which needs to be proven by the accused only on a balance of probabilities would be taken as proof beyond a reasonable doubt of the new offence of criminal intoxication. That anomaly might itself raise serious charter concerns.
If conviction for an included offence of criminal intoxication were to be not automatic but at the discretion of the judge or jury, the question arises whether the simple fact of the acquittal would be sufficient to form the foundation for liability for criminal intoxication. Would the crown be required to adduce additional evidence? If so, how?
The question arose of whether the offence of criminal intoxication would include an element of causation to prove for example that intoxication caused or led to the harm complained of.
Last, the prospect of the charge of criminal intoxication raised the spectre of the prosecuting crown attorney being required to argue contradictory positions at trial. One position would be that the person was not so intoxicated as to escape responsibility but in the alternative the person was intoxicated and therefore should be convicted of criminal intoxication.
The government also examined the prospect of a charge of criminal negligence as a separate offence, criminal negligence causing the harm contemplated by the crime in the code based upon self-induced intoxication.
Once again we rejected that approach. It avoided accountability for the central misconduct and provided a lesser label for the underlying harm which we believe should be addressed directly.
Having rejected those alternatives, we settled on the approach disclosed in Bill C-72. Fundamental to that approach is the principle of accountability. We are saying in substance that it is no defence to violent crime that you have intoxicated yourself.
For Canadians this is not just an issue in common law. This is a matter of common sense. I believe it is common sense which is reflected in this legislation. The bill applies to the basic intent element in all crimes of violence, including sexual violence and domestic assault which are of particular concern in relation to women and children.
This is not a course of mere technicality. The bill addresses an important point of principle. People cannot be permitted to hide behind drunkenness or other forms of intoxication to escape responsibility for their criminal conduct. What the government has said in this bill quite plainly, and as a principle of law, is that those who make themselves intoxicated and while in that state do harm to others cannot rely on their intoxication to escape the consequences in law.
The government also believes the approach of Bill C-72 avoids the conceptual and procedural problems I have identified in relation to criminal intoxication. I can report that in January when I met with the provincial and territorial ministers of justice and attorneys general it was this approach in Bill C-72 that was favoured by all present.
The question of the validity of Bill C-72, the constitutional validity, has also been carefully considered by the government in formulating this legislation. I observe at the outset that in the course of the Daviault judgment the Supreme Court of Canada in the majority ruling observed it was dealing not with a statute of Parliament but with judge-made common law rules and therefore did not feel obligated to show the deference it usually pays to a statute in determining the validity of the rule to which it created an exception in that case.
In Daviault the court expressly invited Parliament to legislate, to fill the gap created by its analysis of the common law. In essence the majority of the Supreme Court of Canada in the Daviault judgment said that while there is some fault in becoming intoxicated, the legal logic of the common law did not allow the court to relate that fault to the criminal fault underlying the charge.
Bill C-72 provides for the link between the fault in self-induced intoxication and the harm or fault in the criminal conduct which forms the basis of the charge. Bill C-72 creates a
legislative standard of care. It says expressly that if you intoxicate yourself to the point at which you lose conscious control and do harm to another, you have departed from a standard of care we are entitled to expect from each other.
With that criminally blameworthy misconduct you are not entitled to rely on your self-induced intoxication as a defence in law. That is the link that was missing when the court analysed the common law rule in Daviault. By this bill we are inviting Parliament to provide that link and to demonstrate that self-induced intoxication will not be a response.
While we are creating a legislative standard of care it is not the case that the crown attorney will have to prove in each case that there was a departure from the standard. It is not the case that standard is open to different interpretations depending on who is prosecuting, who is judging and where the case is being tried. We are stating in Bill C-72 conclusively that intoxicating yourself to the point at which you lose conscious control and harm others is a departure from the standard of care.
That is not going to be an issue at a future trial. It is a conclusive assertion by the House of Commons and the Parliament of Canada as the starting point for determining criminal liabilities.
Another important feature from a constitutional perspective is that the Daviault judgment was in relation to all crimes in the Criminal Code. The analysis of the Supreme Court of Canada was in relation to the criminal law generally.
Bill C-72 has been crafted so that it is relevant to crimes of violence. Having narrowed the ambit of the principle for the purposes that we have identified in this statute, we have demonstrated this parliamentary response is proportionate to the threat of violence and association with intoxication. It is a reasonable response from the legislature in that regard.
While there was no section 1 evidence before the court in Daviault, I hope when the bill is heard by committee there will be evidence to establish the facts referred to in the preamble, the close association between violence and intoxication, the disproportionate effect of such violence on women and children, and the extent to which that violence deprives women and children of the equality rights to which they are entitled under the charter so that a firm foundation will be laid for demonstrating the valid purpose and power of Parliament in enacting this legislation.
We must not underestimate the value and scope of the preamble to the bill. It is an expression of the reasons and considerations that have led Parliament to legislate in this way. These reasons and considerations have been written down and may usefully guide the courts in applying these amendments to cases that come before them.
It was suggested during the consultation process leading to the bill that as a matter of perception if we left Daviault alone and did not legislate, the perception would be clearly given that self-induced intoxication could excuse criminal behaviour with the result of a decrease in the reporting of crime, including in particular crimes of violence by men against women.
The feeling is if in the end result in any event the man were to be held not accountable, what is the purpose of going through the reporting of the prosecution. The preamble recognizes violence and the threat of violence have a disadvantaging effect and play a significant role in placing women and children at risk and denying them the right of security of the person and equal protection of the law guaranteed by the charter.
The new standard of care requires all members of society to take responsibility for not harming others. It would thereby assist in protecting the rights of all Canadians to the security of the person and the equal benefit and protection of the law.
The 1993 violence against women survey demonstrated that alcohol played a prominent role in violence against women. In more than 40 per cent of violent incidents the abusers had been drinking. The rate of assault for women living with men who drank heavily was six times higher than for those whose partners did not drink at all.
The preamble recognizes the close association between violence and intoxication. A number of studies have suggested that without necessarily being the cause, intoxication creates an environment that is conducive to violence. The new standard of care will reinforce among Canadians the obligation we all have not to do violence to others, whether we are sober or in a state of extreme intoxication.
It is important that the bill go to committee so that a parliamentary committee can hear evidence on these important factual points to provide a foundation for establishing the need for this legislation. I have already identified as an option which the government is considering the prospect of referring the legislation, after its enactment and before its proclamation, to the Supreme Court of Canada to establish its validity before it is proclaimed in force. That judgment will be exercised once we have the opinions of Canadians on the issue of validity. If we feel there are significant questions which require reference we will keep that option in mind.
Above all, we are anxious to have this law in place to restore certainty and particularly accountability to criminal law.
I take this opportunity to acknowledge the government's indebtedness to the initiatives shown by Senator Philippe Gigantès in the other place. Senator Gigantès presented Bill S-6 in the Senate shortly after the release of the Daviault judgment. Bill S-6 proposed the offence of criminal intoxication. There was an outstanding effort by Senator Gigantès to address the underlying public concern arising from this judgment. In the final analysis the government did not favour the precise approach he described in that bill. However, we are indebted to him for his initiative. In examining both his bill and his assessment of the issues we were better prepared to address those issues in Bill C-72.
I also acknowledge that the co-operation and collaboration of the other parties today is making it possible for us to deal with second reading on this one occasion. The bill will thereafter go to committee for the consideration needed. I am indebted to hon. members opposite for their collaboration in that regard.
I commend this legislation to the House for approval in principle at second reading. It will improve and strengthen the criminal law of the country.
