Madam Speaker, I am pleased to rise today to speak to Bill C-28. This bill responds to the Supreme Court decisions in Brown and Sullivan and Chan, which address rare yet serious situations in which a person harms someone else while in a state of self-induced extreme intoxication.
I would like to thank, first of all, the Minister for Women and Gender Equality and Youth. As well, I thank my critics, including the member for Fundy Royal, the member for Esquimalt—Saanich—Sooke, et le député deRivière-du-Nord for their collaboration and co-operation from the day that this Supreme Court decision was rendered, just over five weeks ago.
We have moved with alacrity, but also with precision, in order to fill a gap. I really want to thank my colleagues for the level of co-operation that we have received with respect to this matter, and colleagues on all sides of the House as well as the Senate who expressed an interest in us moving quickly.
Since the Court's decisions were released, many Canadians, including members in the House and the other place, have expressed concerns that acts of violence committed while in a state of extreme intoxication might very well go unpunished. Parliamentarians from all parties have urged action, as have some of my provincial and territorial counterparts. I am pleased that earlier this week there was an all-party agreement to move this forward swiftly. There are times when it is our duty as parliamentarians to move quickly to solve problems, and this is one of those times.
Women's rights organizations have expressed concerns about rulings that could change our way of seeing intoxication and criminal liability. They are concerned about the message that sends to survivors of sexual assault and other violent crimes.
We have heard that young women are nervous to return to university and college campuses this fall for fear that they could be assaulted and see intoxicated perpetrators escape liability. That is why we have acted quickly to introduce Bill C-28.
It is also tangible proof of our commitment to a justice system that keeps communities safe and holds offenders accountable while respecting the charter.
There has been a lot of inaccurate and misleading information online about the court's decisions.
Let me be clear: being intoxicated is not a defence for a criminal act such as sexual assault. That was the law before the Supreme Court decision, and it is still the law today. Extreme intoxication is a serious condition in which the person is unaware of or incapable of controlling their behaviour.
Parliament previously considered this issue in response to the 1994 decision of the Supreme Court in Daviault. In that case, the court found that a defence of extreme intoxication could be used for general intent crimes. Parliament responded by enacting section 33.1 of the Criminal Code, which limited the extreme intoxication defence in cases involving violent offences.
In the recent Brown decision, five weeks ago, the Supreme Court found that Parliament had two legitimate and pressing objectives in section 33.1. First, section 33.1 sought to protect the public from extremely intoxicated violence, especially women and children who are at a higher risk of experiencing violence, including violence committed by individuals who are intoxicated.
We know that there are clear links between intoxication and gender-based violence, particularly sexual violence and intimate partner violence, or IPV. According to a 2018 Statistics Canada survey, 63% of women and girls who were killed were killed by an intoxicated attacker.
Last year, the World Health Organization identified the harmful use of alcohol as a risk factor for sexual violence and IPV. Fighting violence committed by intoxicated people while protecting the public is clearly still a pressing objective.
The second objective was to hold individuals accountable by ensuring that they could not escape liability for crimes of violence committed while in a state of self-induced extreme intoxication. The Supreme Court recognized that these two objectives remain pressing and substantial today.
However, because section 33.1 also captured cases where extreme intoxication and violence were not reasonably foreseeable, the court concluded that the law risked convicting people who might not be to blame for ending up in a state of extreme intoxication. This, therefore, infringed the charter.
Bill C-28 addresses this gap in the law created by the court's decisions and introduces a new section 33.1 with the same public protection and accountability objectives. With this bill, we are standing up for victims and survivors of crime. This bill reaffirms that it is fair and just to hold individuals responsible for crimes of violence like assault, sexual assault and manslaughter committed in a state of extreme intoxication if they were criminally negligent in their consumption of intoxicating substances.
It is simply unacceptable for people to negligently put themselves in a dangerous state in which they cannot control their actions and then escape the consequences if someone gets hurt. The Supreme Court has described extreme intoxication as “a state akin to automatism”. In other words, the body is doing something but the mind is not in control.
Legally, extreme intoxication is very rare. An accused cannot just assert that they were in a state of extreme intoxication when they harmed someone and be absolved of liability; they need to prove that they were in that rare mental state by using expert evidence.
Bill C-28 leaves this important requirement for establishing the defence in place. What changes is what happens next.
If a person establishes that they were in a state of extreme intoxication under Bill C-28, they would still be held criminally liable if they departed markedly from the standard of care expected of a reasonable person in those circumstances.
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.
Determining criminal negligence—and this is a standard known to law—involves a two-step process. First, would a reasonable person, in those circumstances, have foreseen the risk and taken steps to avoid it? This is an objective test. Second, did the person's failure to do so amount to a marked departure from the standard of care expected of a reasonable person in the circumstances?
The risk here is whether consumption of intoxicants could cause extreme intoxication and lead the person to harm someone. By requiring proof of negligence, Bill C-28 corrects the constitutional deficiency found in the former section.
Bill C-28 also requires courts to assess whether the person's conduct amounted to a marked departure and requires courts to consider all relevant circumstances, including anything the person did to avoid the risk. Courts routinely conduct this type of assessment in other areas of criminal law, notably in relation to offences of criminal negligence. The bill makes clear that all relevant circumstances must be taken into account. While these circumstances will vary from case to case, certain factors can be expected to arise, including the nature of the substance and the setting where they were consumed.
To help illustrate the bill's intention, let us consider a couple examples. Someone who attends a crowded gathering and quickly consumes a large amount of a substance known to cause psychosis and agitation, without taking any precautions, could likely be proved to be criminally negligent and thus convicted.
By contrast, let us say someone takes a prescription drug, triggering an unanticipated state of extreme intoxication and hurts someone. However, because they could not have anticipated a violent loss of control when they took the medication, in this case they might very well be acquitted. Each case will turn on the unique facts before the court.
Bill C‑28 responds to the Supreme Court of Canada's Brown, Sullivan and Chan decisions. As LEAF said last week, Bill C‑28 is a thoughtful, nuanced and constitutional piece of legislation to address the narrow but significant gap resulting from the Supreme Court of Canada decisions. This bill recognizes that all members of society have a responsibility to protect each other from the foreseeable risks of their behaviour, and it holds people accountable for the harm they cause when they fail to meet that responsibility.
I firmly believe that Bill C-28 serves to complete the work that Parliament began in 1995 when it first enacted section 33.1. It protects the public and holds people accountable for their actions in a way that is fair and constitutional.
I once again repeat the thanks that I offered at the beginning to my critics, who worked diligently with all of us to help advance this quickly.