Thank you, Mr. Speaker. I will continue with my remarks. I was just saying that many women have been battered, sexually assaulted, choked, struck with an object, or threatened with a firearm or a knife. Very few cases are reported where only one form of abuse is involved. The most frequent injuries, in 90 per cent of all cases, are bruises. Then we have cuts, scratches, burns, hairline fractures or broken bones. Almost 10 per cent of injured women said they had suffered internal injuries or had had miscarriages.
The worst part of it all is that the victim of such abuse finds excuses for the abuser. Victims seldom lay charges. On average, the police are notified in only one-quarter of all of the cases of spousal abuse. When charges are laid, the victims withdraw their complaints or decline to testify. Those victims are afraid and, by that very fact, sanction the actions of the aggressors. How often have the courts heard victims say that they have decided on reconciliations, that the husband's actions were not that bad, that he had problems at work or because he had no work, that the children were annoying that day, that he was tired and that he had been drinking?
Precisely, he had been drinking. As if it were an excuse. It is not; it is an aggravating circumstance. The survey in question shows beyond a shadow of a doubt the relationship between alcohol and violence. It reveals that alcohol is a prime factor in spousal assaults. The aggressor had been drinking in half of all the reported incidents. More specifically, the rate of assault on women living with men who drank regularly, that is at least four times a week, was three times higher than for abstinent husbands.
Women whose husbands drink often-five drinks or more at one time-were six times more exposed to assault than women whose husbands do not drink. In 1993, fifty-five per cent of the men who killed their partners had consumed alcohol. Native women are particularly at risk when alcohol is present. It was a determinant factor in nearly every case of sexual assault on native women. Alcohol also played a part in every other offense against native women.
The Criminal Code contains no provisions dealing specifically with intoxication. Bill C-72 will change all that by adding to the Criminal Code section 33.1, which will prohibit the accused from using intoxication as a defence for violent acts.
Before specifically speaking of the use of intoxication as a defence, I must stress that it is important to understand the elements of a criminal offence and the types of offences for which the drunk defence can be invoked.
The concept of criminal responsibility requires that all material and mental facts, the elements of fault, be proven beyond any reasonable doubt for there to have been a criminal offence.
So, on the one hand, self-induced intoxication can diminish moral responsibility for normally criminal behaviour. But, on the other hand, the person who has committed a criminal offence while in a state of self-induced intoxication should not absolved of his or her responsibility.
Since the drunk defence does not exist in the Criminal Code, it must be drawn from case law. Where intoxication was not the result of a deliberate act, the accused could always plead the drunk defence.
Involuntary intoxication may come about through fraud or the actions of another person or through the bona fide use of a drug prescribed by a doctor, the effects of which were not known to the user.
So Common Law recognizes involuntary intoxication as a defence. By maintaining this defence, Bill C-72 codifies the jurisprudence. The new section 33.1 will still allow the involuntary intoxication defence, as is now the case.
Before Daviault, the question was whether the intoxication was self-induced, whether it resulted from the fault of the accused; it could not always be used as a defence.
However, in the case of offences requiring specific intent, such as manslaughter or robbery, intoxication can be used as a defence. Courts went to great pains to distinguish between the two categories. Even today, many legal scholars are hard put to understand the distinction between the two. Yet, this distinction is very important when the defence is based on the intoxication of the accused.
In the grey area of criminal law, there is no clear dividing line between specific intent offences and general intent offences. I will give an example. According to the Criminal Code, a murder is first degree murder when, and I quote the code: "it is planned and deliberate". This is a specific intent offence. The homicide must be premeditated, the accused must have planned the ultimate consequence of his action, that is the death of the victim.
Under section 322 of the Criminal Code, for a theft to be considered a theft, it must be committed, and I quote: "with the intent" to deprive, temporarily or absolutely, the owner of the object which has been taken. Here again, one could plead intoxication as a defence because it is also a specific intent offence.
We must remember that Bill C-72 does not change in any way the distinction between a general intent offence and a specific intent offence. In other words, a person accused of severe offences such as murder, theft, robbery, extortion, breaking and entering, and torture, will still be able to plead self-induced intoxication as a defence.
Sexual assault becomes murder when it results in the death of the victim. In this case, murder being a specific intent offence, the offender will be able to use the intoxication defence. He could not have presented such a defence if his victim had not died, since the offence he would have charged with would been sexual assault causing bodily harm, which is a general intent offence.
Which leads to the following nonsense. If the aggressor hits his victim hard enough to cause her death, he can plead that he was too intoxicated to know what he was doing. If his victim recovers from her injuries, he will no longer be able to use this defence. We must eliminate the arbitrary distinction between crimes of general intent and crimes of specific intent.
This legal fiction was created solely for the purpose of allowing drunkenness or intoxication as a defence. Criminal intent should include specific moral elements for each offence. Offences should no longer be divided into two distinct categories, but classified on a gradual basis according to their seriousness.
Bill C-72 is a step in the right direction, and I am convinced that it is constitutionally valid. The preamble to the bill will make it possible for judges to interpret section 33.1 in a way consistent with the principles of a free and democratic society. It will stand the test of section 1 of the Canadian Charter of Rights and Freedoms.
However, the justice minister should amend the general part of the Criminal Code without delay. The rules of criminal law are archaic and many of its fundamental principles are not included in the general part, as they were elaborated by the courts.
Precedents shape the law, and lawmakers are always lagging behind the judiciary. The time has come to reverse the roles, and for lawmakers to act responsibly. Thus, the justice minister will be able to stop trying to play catch up, and Parliament will be able to decide in which direction criminal law will be heading in the coming years.
Stopping violence against women will have to be part of this new direction. I urge the justice minister not to wait for another Daviault case to happen before he finally acts.