2. Opening Remarks

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

Study by the Standing Senate Committee on Legal and Constitutional Affairs

Opening Remarks

Minister of Justice

December 2022

Thank you for inviting me to your study on self-induced intoxication, where you will be looking at extreme intoxication in the context of the criminal law and section 33.1 of the Criminal Code.

As you know, this Bill came into force on June 23, 2022, less than two months after the Supreme Court of Canada (SCC) 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 prevented an accused person from using the defence of extreme intoxication in all cases, regardless of whether they were negligent in how they consumed the intoxicants.

The effect of the SCC decisions was to once again allow the defence of extreme intoxication to be used as a full defence for crimes of violence and, if successful, allow accused persons to escape liability. Former Bill C-28 passed quickly, which in my view reflects the desire of all Parliamentarians to close the gap in the law created by these decisions without delay. The law now provides that persons who are criminally negligent in the manner that they consume intoxicants, and put themselves in a state of self-induced extreme intoxication, can be held liable for the harm they cause to others.

Former Bill C-28 has been described as a “thoughtful, nuanced and constitutional” solution by the Women’s Legal Education and Action Fund. 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. We took the only approach that would allow a conviction for the underlying crime of violence that was charged, such as manslaughter or sexual assault.

Under new section 33.1, the Crown may seek a conviction for violent crimes 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. If the Crown proves that the person departed markedly from the standard of care expected of a reasonable person in the circumstances with respect to the manner in which they consumed intoxicants, which is the minimum standard for negligence in the criminal law, the person could be found guilty and sentenced accordingly. A “marked departure” means that a person’s conduct fell far below what a reasonable person would have done in those circumstances to identify a danger in their proposed course of action and to avoid putting others at risk. Courts must ask whether there was a foreseeable risk of a violent loss of control at the time the intoxicants were consumed, from the perspective of a reasonable person in those same circumstances. Of course, as the new section 33.1 makes clear, any efforts made by the accused personally to minimize the risk of uncontrolled 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.

It is very difficult to successfully use the defence of extreme intoxication. The accused has to meet a higher evidentiary threshold than normally applies. The accused must convince a judge, on a balance of probabilities and with expert evidence, that they were extremely intoxicated – meaning that they had no voluntary control over their actions – at the time of the violence.

Some have suggested that the new provision is unenforceable because it would be too difficult for the Crown to prove. 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. This view was confirmed by the two prosecution witnesses who testified before the JUST Committee during their review of former Bill C-28 in October. In particular, the Executive Director of the Manitoba Prosecution Service, Michele Jules, testified that she would expect courts to be able to find criminal negligence under the newly enacted section 33.1 where someone harms another after consuming dangerous intoxicants, in excessive amounts or over a prolonged period, or in combination with other unknown substances.

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 that set a specific threshold at a higher level. Some provisions in the Code require that a particular outcome be “likely”, such as under section 215, where a person who is “likely to cause” permanent health injuries 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.

My officials and I 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 monitor any new cases and ensure the effective enforcement and implementation of the legislation.

Thank you.