2 Opening Remarks

House of Commons

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

Study by the Standing Committee on Justice and Human Rights

Opening Remarks

Minister of Justice

October 2022

Thank you for inviting me to your study of former Bill C-28, An Act to amend the Criminal Code (self-induced extreme intoxication). As you know, this Bill became law on June 23, 2022, less than six weeks after the Supreme Court of Canada released its decisions in R. v. Brown, and R. v. Sullivan and Chan. Those decisions found that the former version of section 33.1 was unconstitutional because it barred the defence of extreme intoxication in all cases, regardless of whether the person was negligent or otherwise at fault in their consumption. The effect of the decisions was to reinstate the defence of extreme intoxication as a full defence for crimes of violence and allow accused persons to escape liability. The quick passage of this law reflected, in my view, all Parliamentarians’ desire that the gap in the law created by these decisions be closed quickly. The law now provides that those who are criminally negligent in their voluntary consumption of intoxicants can be held liable for the harm they cause to others while in a state of extreme intoxication.

Former Bill C-28 was described by the Women’s Legal Education and Action Fund as a “thoughtful, nuanced and constitutional” solution to the small but important gap in the law left by the SCC decisions. The objectives of former Bill C-28 are the same as the objectives of former Bill C-72, which enacted the previous version of section 33.1 in 1996: to protect victims of intoxicated violence by holding accountable those who negligently self-intoxicate and cause harm to others. The Court in Brown recognized these objectives as legitimate and pressing, and suggested two constitutionally viable pathways that Parliament could adopt to ensure liability in appropriate cases. The approach we took was the only one that would allow a conviction for the crime of violence that was charged, such as manslaughter or sexual assault.

Under new section 33.1, the Crown may seek a conviction for a crime of violence by proving that a person was criminally negligent in the manner in which they consumed intoxicants prior to entering a state of extreme intoxication and causing harm. The person would be held criminally liable if they were proved to have departed markedly from the standard of care expected of a reasonable person in those circumstances with respect to the consumption of intoxicating substances. A “marked departure” means that a person’s conduct fell far below what a reasonable person would have done in those circumstances to avoid foreseeable risk; in this case, the risk of a violent loss of control. Of course, as the new section 33.1 makes clear, any efforts made by the accused personally to minimize the risk of violence are also taken into account.

You will recall that extreme intoxication is a rare mental state, akin to automatism, where an accused has lost the ability to control their actions, yet is still capable of action. Let me be clear once again that this state is exceptionally rare, and being intoxicated even to an advanced degree does not meet this definition. And again, intoxication is never a defence to crimes like sexual assault.

Using extreme intoxication as a defence is very difficult. In order to succeed, the accused has to meet a higher evidentiary threshold than normally applies by convincing the judge, on a balance of probabilities and with expert evidence, that they were extremely intoxicated at the time of the violence.

There have been suggestions the new provision is unenforceable because it would be too difficult for the Crown to prove, in particular because it requires proof that the risk of violence was foreseeable. In my view, this new law is enforceable and those who self-intoxicate in circumstances showing gross disregard for the safety of others will be held accountable if they go on to commit violence. I note specifically that the law only requires a risk of violent loss of control. I believe that, properly interpreted, this is a low threshold compared to other provisions in the Criminal Code which require that a particular outcome be “likely”, such as under section 215, where a person who is “likely to cause” permanent health injuries to another may be liable for failing to provide the necessaries of life.

Reasonable Canadians want to know the risks — even the rare ones — associated with the intoxicants that they plan to take and how they plan to take them. And reasonable Canadians show concern for the safety of others when their actions pose a risk. There is a lot of information in the public domain and within particular communities about these risks. Prosecutors may argue that certain substances are so dangerous, and their harms so well-known, that it would be reasonable for courts to infer that individuals who consume them are placing others at risk. These are the sorts of evidence and arguments that can be relied on to show criminal negligence under new section 33.1 on the facts of each case.

I and my officials will be closely following your study on this important issue, and I look forward to reading your final report. In the meantime, we will continue to work closely with our federal, provincial and territorial partners to ensure the effective implementation of the legislation.

Thank you.