3 Questions and Answers

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Qs & As

Former Bill C-28, An Act to amend the Criminal Code (self-induced extreme intoxication)

• Q 1 What are the objectives of the amendments, given that there is no preamble?
• Q 2 Does former Bill C-28’s addition of the word “extreme” in the law limit its application compared to the previous version of section 33.1?
• Q 3 New section 33.1 is very similar to the old version. What is the main difference?
• Q 4 Does the requirement for criminal negligence mean that the person would be convicted of criminal negligence causing bodily harm or death?
• Q 5 What is a “reasonable person” and how can someone know what a “reasonable person” would do?
• Q 6 What is a “marked departure”?
• Q 7 What is meant by “objective foreseeability”?
• Q 8 What is meant by the words “all the other elements of the offence are present” (in para. 33.1(1)(a))?
• Q 9 How can the risk of violent loss of control, or negligence itself, be proved? Is the burden too high?
• Q 10 How does the law apply to specific drugs or where the person has an addiction? (Note: This Q&A sets out a formula for answering any question about how a specific fact or circumstance would influence the verdict.)
• Q 11 What is the impact of the legislation on persons who have an addiction?
• Q 12 What is the relationship between the defence of extreme intoxication and the new version of section 33.1?
• Q 13 How will the new law work in practice in terms of how the accused proves the defence and the Crown proves negligence?
• Q 14 How does former Bill C-28 address the Charter breaches set out in Brown?
• Q 15 Is the Bill’s definition of “extreme intoxication” in subsection 33.1(4) under-inclusive because it does not expressly refer to states akin to insanity?
• Q 16 Would the Government consider adding a presumption that alcohol alone would never result in a state of extreme intoxication?
• Q 17 How will the Bill better protect victims?
• Q 18 How would the Supreme Court of Canada decisions in Brown, Sullivan and Chan be decided under the new section 33.1?
• Q 19 What work has the Government been doing to support implementation since the Bill passed?
• Q 20 Have there been any new cases of extreme intoxication since the provision came into force?
• Q 21 How do you respond to groups like the National Association of Women and the Law (NAWL) who suggest that the test which requires reasonable foreseeability of harm will be nearly impossible for the Crown to prove?

Q 1 What are the objectives of the amendments, given that there is no preamble?

• Preambles are one way that courts can learn the purpose of a bill; the Parliamentary Record is another way. We have been clear that former Bill C-28 maintains the same objectives as the previous section 33.1 and that were reflected in the preamble to former Bill C-72: to protect the public and to hold individuals accountable who harm others while in a state of extreme intoxication.
• Former Bill C-72’s preamble explicitly referenced the “disadvantaging impact [of violence] on the equal participation of women and children in society and on the rights of women and children to security of the person and to the equal protection and benefit of the law as guaranteed by sections 7, 15 and 28 of the Canadian Charter of Rights and Freedoms” and the connection between intoxication and violence.

Q 2 Does former Bill C-28’s addition of the word “extreme” in the law limit its application compared to the previous version of section 33.1?

• No. The previous version of section 33.1 was concerned only with extreme intoxication even if the word “extreme” was not there. This is clear from the words of the previous version that required the person to be “unaware of, or incapable of consciously controlling, their behaviour”. Under the amended section 33.1, these words would now form part of the definition of extreme intoxication (subsection 33.1(4)), and the word “extreme” is added in several places to make the scope of the law explicitly clear.

Q 3 New section 33.1 is very similar to the old version. What is the main difference?

• The previous version, as interpreted by the Court, deemed the existence of criminal negligence in all cases where extreme intoxication led to violence. It could have led to conviction for someone who was not proven to be criminally negligent.
• The new version makes clear that the prosecution must prove negligence beyond a reasonable doubt (para. 33.1(1)(b)). This means that where the risk of violent loss of control was not foreseeable, or where it was foreseen but reasonable efforts were made to avoid that kind of harm, even if it should occur, the person who took reasonable care would not be guilty of a crime.

Q 4 Does the requirement for criminal negligence mean that the person would be convicted of criminal negligence causing bodily harm or death?

• No. The concept of criminal negligence is used in two ways in the criminal law. First, it is used to name a specific crime where negligence in any kind of conduct – such as manufacture of consumer goods – results in bodily harm or death. Secondly, criminal negligence is also a kind of fault, or mental state, which can be included in offences targeting specific behaviour, such as dangerous driving and failing to provide necessary care to young children under one’s care.
• The amendments to section 33.1 reflect the second way criminal negligence is used. They make criminal negligence in relation to the consumption of intoxicants – where that leads to an extreme state of intoxication and violence – the fault standard for crimes of violence like assault.

Q 5 What is a “reasonable person” and how can someone know what a “reasonable person” would do?

• The courts are very familiar with the concept of a reasonable person. A reasonable person is someone who is prudent and shows care for those around them. They think before they act, and where they see a risk of harm to others, they try to prevent it.
• In the case of intoxication, for example, a court could find that a reasonable person planning to take intoxicating substances would want to know what the potential effects are – both good and bad - and would also take steps to minimize risk where they see it.
• The legal duty of the accused is not based on his or her personal characteristics, but rather by the nature of the activity and the circumstances surrounding the accused’s failure to take the requisite care. These circumstances do not personalize the objective standard; they contextualize it.

Q 6 What is a “marked departure”?

• A “marked departure” is the legal term used to convey the standard of criminal negligence. It means the accused person’s conduct fell far below the conduct expected of a reasonable person in those circumstances. That standard is required for a criminal conviction.

Q 7 What is meant by “objective foreseeability”?

• “Objective foreseeability” reinforces that the standard set out in section 33.1 is one of criminal negligence. “Objective” refers to what a reasonable person would foresee, even if that is not what the person in question foresees (what the accused foresees is referred to as “subjective” foreseeability). As part of determining if the accused was criminally negligent, the court must consider if a reasonable person would have been aware of the risk of extreme intoxication that could lead to harm. It is another way of saying that the accused should have known, even if they did not actually know.

Q 8 What is meant by the words “all the other elements of the offence are present” (in para. 33.1(1)(a))?

• Like the former section, new section 33.1 applies to a number of different violent offences, set out in subsection 33.1(3). Because these offences have different elements, paragraph 33.1(1)(a) makes clear that the prosecution continues to have the burden to prove those distinct elements, in addition to proving negligent intoxication. For instance, in the case of assault causing bodily harm, bodily harm has to be proved, and in a case of sexual assault, the sexual nature of the touching would have to be proved.

Q 9 How can the risk of violent loss of control, or negligence itself, be proved? Is the burden too high?

• Criminal negligence is always very dependent on the unique facts and circumstances of each case. In this context, it involves a two-step process: First, would a reasonable person have foreseen a risk of loss of control and violence? Second, was the accused’s failure to appreciate or prevent the risk a marked departure from the behaviour expected of a reasonable person?
• Importantly, the accused must first establish that they were in a state of extreme intoxication, and must support that assertion with expert evidence. That same evidence would open avenues for the prosecution to prove that extreme intoxication was foreseeable in those circumstances. For instance, evidence that people have been reported to have lost control and harmed others from high quantities of certain types of drugs could be used to help prove that loss of control and violence were also foreseeable.
• Risk assessment involves balancing the likelihood of the harm, and its gravity if it does materialize. The standard is flexible and enables the court to focus on the critical question, which is whether the person fell far below the behaviour expected of a reasonable person to avoid harming others in the circumstances of the case.

Q 10 How does the law apply to specific drugs or where the person has an addiction? (Note: This Q&A sets out a formula for answering any question about how a specific fact or circumstance would influence the verdict.)

• I won’t speculate about how any one factor would influence the outcome of a prosecution. Numerous factors will be relevant in these cases.
• However, certain types of factors are expected to be relevant to the question of foreseeability of violent loss of control and negligence such as:
  • the setting where the substances are consumed;
  • the individual’s state of mind at the time;
  • the nature of substance and the quantity taken and whether different substances were mixed;
  • the known effects of the substances taken;
  • the time period over which the substances were consumed;
  • the presence or absence of hazards; and
  • efforts made to minimize risk, such as having a sober person supervise.

Q 11 What is the impact of the legislation on persons who have an addiction?

• Former Bill C-28 neither promotes nor criminalizes consumption of drugs, nor does it say anything about particular drugs or their legality.
• This is consistent with criminal law generally – having an addiction is neither a thing that makes someone guilty nor not guilty of a crime. It’s also how the law treats all forms of intoxication that fall short of this rare, extreme state.
• While a court in a particular case could potentially find addiction to be relevant to negligence, depending on the evidence, this would not, by itself, be determinative of the outcome.

Q 12 What is the relationship between the defence of extreme intoxication and the new version of section 33.1?

• The amended section 33.1 does not deal directly with the defence of extreme intoxication, which remains a matter of common law. Pursuant to the Supreme Court of Canada’s 1994 Daviault ruling, an accused charged with a general intent offence may raise the defence of extreme intoxication if they can prove on a balance of probabilities and with expert evidence that they committed the acts involuntarily.
• The new version of section 33.1 does not remove or limit the defence; it operates alongside it. Practically, being in a state of extreme intoxication would not be a defence where that state was created by the accused’s own criminal negligence.

Q 13 How will the new law work in practice in terms of how the accused proves the defence and the Crown proves negligence?

• For section 33.1 to come into play in a given case, the accused person would have first raised the common law defence of extreme intoxication in accordance with its requirements under the Daviault test established by the Supreme Court of Canada, including by having expert evidence.
• The prosecution could try to prove that the person was not extremely intoxicated, in which case they could be convicted in the normal way, for having voluntarily and intentionally harmed the victim. Under newly enacted section 33.1, the prosecution would also have the opportunity to prove that the accused person’s consumption of intoxicants was criminally negligent. The jury or court would consider all the evidence and apply the law in the usual way to determine the appropriate verdict.

Q 14 How does former Bill C-28 address the Charter breaches set out in Brown?

• The Supreme Court expressly noted that it would be open to Parliament to provide for liability for general intent offences of violence based on criminal negligence in consuming intoxicants prior to a violent loss of control. That is exactly what the Bill does.
• Former Bill C-28 is consistent with the Charter and responds to the reasons given by the Supreme Court in Brown. The objective of the amendments is to seek to protect the public, particularly women and children, from extremely intoxicated violence. They also seek to hold individuals accountable for the violence they inflict on others where individuals depart markedly from the standard of care of a reasonable person in voluntarily ingesting intoxicants and where there is a foreseeable risk of violent loss of control.
• The Bill follows the guidance of the Court on the nature of the risk that must be foreseeable, which is a critical aspect of criminal negligence; there must be an objectively foreseeable risk of extreme intoxication which could lead to violence. Individuals who could not reasonably have perceived a risk of losing control and harming others, or who take reasonable measures to prevent that risk, cannot be held responsible under new section 33.1. This was the heart of the Court’s concern with the old law.

Q 15 Is the Bill’s definition of “extreme intoxication” in subsection 33.1(4) under-inclusive because it does not expressly refer to states akin to insanity?

• Newly enacted subsection 33.1(4) uses the same expression found in the former version of section 33.1 that described the state of self-induced intoxication, namely “intoxication that renders a person unaware of, or incapable of consciously controlling, their behaviour”.
• For over 25 years, these words have described the state that the Supreme Court loosely referred to as “akin to automatism” or “akin to insanity” that undermines criminal responsibility for one’s actions.
• In recent years, the Supreme Court appears to have abandoned the expression “akin to insanity”, and now uses the singular idea of “akin to automatism”. The Court repeatedly characterizes the relevant situation as including states of “toxic psychosis” where the person’s actions are strongly influenced by drug-induced delusions, without expressing any concern over the wording that is now found in the definition at subsection 33.1(4).
• For instance, in its 2011 Bouchard-Lebrun decision, the Supreme Court adopted a flexible interpretation of former section 33.1 as including “any mental condition that is a direct extension of a state of intoxication” (at para. 91).
• The words “incapable of consciously controlling their behavior” used in former Bill C-28 provide sufficient flexibility to adapt to the evolving Supreme Court of Canada jurisprudence relating to automatism. It is not intended to be a rigid classification that would exclude certain mental states that could arise from extreme intoxication.

Q 16 Would the Government consider adding a presumption that alcohol alone would never result in a state of extreme intoxication?

• I do not believe a presumption is required at this time and I am not concerned about how the courts will approach the issue of extreme intoxication. Although the Supreme Court has not closed the door to alcohol alone resulting in such a state, any accused who wishes to raise the defence is required to prove that they had no voluntary control over their actions when they committed the violent act. Such a test is unlikely to be met by alcohol alone.
• Unlike many other intoxicating substances, alcohol’s impact on the brain depresses cognitive and motor functions simultaneously. A person who is significantly impaired by alcohol to an extent that they lack the ability to choose how to act (i.e., to act voluntarily), will likely be incapable of performing complex actions like those involved in perpetrating acts of violence.
• This issue is best left to judges who will decide if such a defence could ever be made out given the existing science, the steep evidentiary burden required to establish extreme intoxication and the recognition by the Supreme Court of Canada that the defence of extreme intoxication will generally not be relevant in cases involving alcohol alone.

Q 17 How will the Bill better protect victims?

• The decision by the Supreme Court Canada in Brown left a gap in the law that would have allowed accused persons to escape any form of criminal responsibility if they could prove they were extremely intoxicated when they committed an offence, regardless of the circumstances. Bill C-28 was enacted rapidly to close this gap.
• Bill C-28 brought much-needed clarity for victims, by ensuring that an accused person can be held responsible for violent offences committed while extremely intoxicated.

Q 18 How would the Supreme Court of Canada decisions in Brown, Sullivan and Chan be decided under the new section 33.1?

• It would be unwise for me to speculate on how a judge might decide a given case.
• That said, the new section 33.1 requires courts to ask what a reasonable person would do in the circumstances of an accused. A court would ask what a reasonable Canadian would know about the risks of consuming certain substances, and decide whether or not an accused’s conduct departed markedly from what a reasonable person would have done in the circumstances.
• We now have two high profile Supreme Court of Canada cases involving violence by accused persons who have consumed psilocybin, also known as “magic mushrooms”. Reasonable people ought to know that psilocybin, if taken in large quantities or if mixed with other intoxicants, can lead to violent loss of control based on these cases, in addition to publicly available information. Depending on the facts, it may be open to courts to infer that a violent loss of control was reasonably foreseeable in future cases of extreme intoxication where the evidence suggests that psilocybin was the cause of the extreme intoxication.
• Of course, the court must also take into account any mitigating steps taken by the accused, in addition to all of the circumstances, before making a final assessment of whether the accused departed markedly from the standard of care.

Q 19 What work has the Government been doing to support implementation since the Bill passed?

• As Minister of Justice, I will continue to work with my provincial and territorial counterparts to address any remaining concerns with the Supreme Court of Canada decisions in Brown, Sullivan and Chan, and to strengthen support for victims of crime, including victims of intoxicated violence.
• My officials at the Department of Justice continue to have on-going discussions with provincial and territorial stakeholders to monitor any new cases that are in the system and to ensure the effective enforcement and implementation of the new provision.

Q 20 Have there been any new cases of extreme intoxication since the provision came into force?

• Since the release of the Supreme Court’s decision in Brown, there have been cases where an accused has raised the defence of extreme intoxication, though the facts of each pre-date the coming-into-force of former Bill C-28. In each case, the court found that the accused had not proven extreme intoxication.
• There have been no reported cases that have required the use of section 33.1 since it has been amended. Our officials are closely monitoring any developments in the law.

Q 21 How do you respond to groups like the National Association of Women and the Law (NAWL) who suggest that the test which requires reasonable foreseeability of harm will be nearly impossible for the Crown to prove?

• I am aware of the proposals put forward by groups like NAWL, but am confident that the approach adopted in Bill C-28 is both constitutionally sound and necessary to protect victims of crime, as well as enforceable.
• Recall that section 33.1 will only come into play if the accused successfully establishes, on a balance of probabilities, that they lacked the voluntariness or general intent required to commit the offence for which they are charged – in other words, they were so intoxicated that they had no voluntary control over their actions.
• Factually, this has been shown to be very difficult for an accused to prove and requires significant expert evidence beyond the accused’s own testimony. The likelihood of an accused establishing that they were extremely intoxicated akin to automatism is very low, because it is a rare state where a person is simultaneously unaware of or unable to control their actions yet still capable of doing the prohibited act.
• Under the new section 33.1, the question is not whether an accused ought to have known that a particular drug would lead to violent loss of control, but whether the drug could lead to violent loss of control. The legislative text does not require that a violent loss of control be probable or even more likely than not. I believe that, properly interpreted, this is a fairly low threshold that reflects the seriousness of the threat to public safety caused by those who misperceive reality and cannot control their actions.

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