Hon. Marc Gold (Government Representative in the Senate) moved second reading of Bill C-28, An Act to amend the Criminal Code (self-induced extreme intoxication).

He said: Honourable senators, I rise today to speak to Bill C-28, An Act to amend the Criminal Code (self-induced extreme intoxication).

This bill responds to the Supreme Court of Canada decisions in Brown, Sullivan and Chan, which address the rare yet serious situations when a person violently harms another while in a state of self-induced extreme intoxication. As you know, the court struck down a Criminal Code provision that had essentially barred the defence of self-induced intoxication.

The legislative response chosen by the government and endorsed by the other place is strictly aligned with the legislative road map provided by the Supreme Court of Canada in Brown. In a nutshell, it seeks to ensure that individuals who negligently consume intoxicants, lose control and harm others can be held criminally responsible for those violent acts.

Bill C-28 is a short but important bill. It addresses a pressing and substantial problem in an effective way that guarantees its constitutionality. It is founded on the most basic principles that underlie our criminal justice system in Canada, and it is a responsible contribution by Parliament to the ongoing evolution of Canadian law on criminal liability and intoxication.

In my remarks today, I hope to highlight the underlying role of foundational common-law principles of legal responsibility; the roles of Parliament and the courts and the interaction or dialogue between the two; the impact of the Canadian Charter of Rights and Freedoms; the roles of the criminal bar, prosecutors and defence lawyers; and, at the heart of the matter, those who are the victims of crimes and those who are accused of crimes.

I also hope to address several important concerns that we have heard about Bill C-28 — including questions surrounding effectiveness — and that committees in both the Senate and the other place will be able to delve into further upon Parliament’s return in the fall.

Allow me to begin by putting Bill C-28 in its immediate legal and political context.

Since the court’s decisions were released just over five weeks ago, many have worried that acts of violence committed while in a state of extreme intoxication may go unpunished.

[Translation]

Many 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.

[English]

Calls for a swift legislative response were heard and are being answered through Bill C-28 — legislation that the government believes will be not only constitutional but also effective.

[Translation]

Honourable senators, let me be clear: Being intoxicated is not a valid defence for a criminal act, such as sexual assault. That was the law before the Supreme Court decisions, it is still the law today, and it will remain the law if Bill C-28 is passed.

As the Supreme Court of Canada stated in R. v. Bouchard-Lebrun in 2011, the default in all criminal proceedings is that a person is criminally responsible for their behaviour even when intoxicated.

Extreme intoxication is a rare condition in which the person is unaware of or incapable of controlling their behaviour.

[English]

The Supreme Court described extreme intoxication as a state “akin to automatism.” In other words, the mind is simply not in control of the body’s actions. Generally, where the mind is not in control, an individual cannot be held morally responsible for their actions; and in law, in light of the Charter and relevant court decisions, that individual generally cannot be held legally responsible.

Our criminal law’s treatment of intoxication was initially inherited from the common law of England. The Majewski decision of the United Kingdom House of Lords determined that self-induced intoxication, no matter how extreme, is not a defence for crimes of general intent, such as assault causing bodily harm or sexual assault. The 1977 Leary decision of the Supreme Court of Canada confirmed that this was the state of the law in Canada, and that remained so until the 1994 decision of the Supreme Court of Canada in Daviault.

Daviault was a Charter case and it marked a turning point in Canadian law. In Daviault, the Supreme Court of Canada ruled that a defence of extreme intoxication for general intent offences was necessary to make the common law consistent with the Charter, including the right in section 7 not to be deprived of liberty except in accordance with the principles of fundamental justice and the section 11(d) right relating to the presumption of innocence. In particular, the court said that the Leary rule violated the Charter because it allowed for a conviction even where the accused acted involuntarily or without a culpable state of mind.

Following Daviault, in 1995 Parliament passed former Bill C-72, which enacted section 33.1 of the Criminal Code. Colleagues, this is an example of the interaction — or the dialogue, really — between courts and the legislature to which I alluded earlier.

The legislative intent of section 33.1 was to limit the extreme intoxication defence in cases involving violent offences, with the objectives of protecting the public from extremely intoxicated violence and promoting accountability by ensuring that individuals could not escape criminal liability for violence committed while in a state of self-induced extreme intoxication.

First, section 33.1 sought to protect the public from extremely intoxicated violence, especially for those who are at higher risk of violence committed by intoxicated individuals.

[Translation]

Unfortunately, we know that there are clear links between gender-based violence, particularly sexual violence and intimate partner violence, and intoxication.

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 intimate partner violence.

[English]

The second objective of section 33.1 was to hold individuals accountable by ensuring that they could not escape criminal liability for crimes of violence committed while in a state of self‑induced extreme intoxication. Canadians expect our justice system to hold people accountable for criminally negligent behaviour.

This brings me to the Brown, Sullivan and Chan cases.

In all three cases, the Supreme Court had to decide upon the constitutionality of section 33.1 in light of, on the one hand, the principles of fundamental justice and the presumption of innocence guaranteed to the accused by sections 7 and 11(d) of the Canadian Charter of Rights and Freedoms and, on the other, Parliament’s aims to protect victims of intoxicated violence — in particular, women and children — and hold perpetrators to account.

With your indulgence, I will explain the reasoning in Brown at some length because that reasoning is key to understanding why the government took the policy direction that it did, and why other directions were not taken and should not be pursued because they would be at significant risk of being found unconstitutional.

Justice Kasirer, who wrote the opinion for the court, made clear that the court’s decision was restricted to cases of automatism and that its decision did not in any way open the door to a defence of drunkenness. He wrote:

To be plain: it is the law in Canada that intoxication short of automatism is not a defence to the kind of violent crime at issue here. The outcome of the constitutional questions in these appeals has no impact on the rule that intoxication short of automatism is not a defence to violent crimes of general intent in this country.

However, the court concluded that section 33.1 infringed the Charter because it risked convicting people who are not at fault for the violence that is central to the offences for which they would be convicted. In the words of the court:

. . . the accused risks conviction for the relevant general intent offence — in Mr. Brown’s case, for aggravated assault — based on conduct that occurred while they are incapable of committing the guilty act (the actus reus) or of having the guilty mind (mens rea) required to justify conviction and punishment. They are not being held to account for their conduct undertaken as free agents, including the choice to ingest an intoxicant undertaken when neither the risk of automatism nor the risk of harm was necessarily foreseeable. Instead, the accused is called to answer for the general intent crime that they cannot voluntarily or wilfully commit, an offence for which the whole weight of the criminal law and ss.7 and 11(d) say they may be morally innocent. To deprive a person of their liberty for that involuntary conduct committed in a state akin to automatism — conduct that cannot be criminal — violates the principles of fundamental justice in a system of criminal justice based on personal responsibility for one’s actions. On its face, not only does the text of s. 33.1 fail to provide a constitutionally compliant fault for the underlying offence set out in its third paragraph, it creates what amounts to a crime of absolute liability.

In so declaring section 33.1 unconstitutional and of no force or effect, the Supreme Court created a gap in the law and invited Parliament to fix it. By the same token, the court provided two clear road maps for Parliament to consider to achieve its legitimate aims connected to combatting extreme intoxicated violence, which the government has followed to the letter in Bill C-28.

Paragraphs 10 and 11 of the court’s decision in R. v. Brown provide that guidance. And I quote again from Justice Kasirer. He said:

. . . it was not impermissible for Parliament to enact legislation seeking to hold an extremely intoxicated person accountable for a violent crime when they chose to create the risk of harm by ingesting intoxicants.

And further in paragraph 11:

I am mindful that it is not the role of the courts to set social policy, much less draft legislation for Parliament, as courts are not institutionally designed for these tasks. But it is relevant to the analysis that follows that, as noted by the majority in Daviault itself (p. 100) and by the majority of the Court of Appeal in Sullivan (para. 132), it would likely be open to Parliament to establish a stand-alone offence of criminal intoxication. Others, including the voir dire judge in this very case (2019 ABQB 770, at para. 80 (CanLII)), have suggested liability for the underlying offence would be possible if the legal standard of criminal negligence required proof that both of the risks of a loss of control and of the harm that follows were reasonably foreseeable. In either of these ways, Parliament would be enacting a law rooted in a “moral instinct” that says a person who chooses to become extremely intoxicated may fairly be held responsible for creating a situation where they threaten the physical integrity of others . . . .

Honourable senators, Bill C-28 essentially enacts the second pathway proposed by the Supreme Court — that is, to use the standards of criminal negligence — in order to realize the objectives of the former section 33.1, but in a manner that addresses the Supreme Court’s decisions and complies with the Charter.

In addition, Bill C-28 retains as much as possible of the language previously used in the provision and in the body of settled case law, thereby reducing the uncertainty and the litigation risk associated with legislation that modifies existing settled law. For over 25 years, these words have described states akin to automatism or akin to insanity that undermine criminal responsibility for one’s actions.

We have heard concerns raised as to whether the definition of “extreme intoxication” proposed in Bill C-28 is under-inclusive, that is, that those in states akin to insanity would escape liability. Colleagues, with respect, this issue has been settled by the Supreme Court of Canada itself in 2011.

The court in the case of R. v. Bouchard-Lebrun collapsed the distinction between “akin to automatism” and “akin to insanity” by repeatedly characterizing the words used in the former provision, section 33.1, as including states where the person is acting in what appears to be a voluntary capacity that is influenced by drug-induced delusions. There is no reason to believe that courts would limit the scope of Bill C-28 or frustrate its clear purpose by narrowly interpreting the definition where that definition provides sufficient flexibility to adapt to the evolving jurisprudence relating to automatism.

With respect to the automatism defence considered in the R. v. Brown case, it only applies in rare and specific situations and almost never involves intoxication by alcohol alone. This is a function of the different ways that alcohol affects the motor and cognitive capacities as compared to other drugs such as psilocybin or LSD. This was much discussed 20 years ago, when Parliament enacted former section 33.1, and figures in the decisions of the Supreme Court in the Brown case, upon which the government is relying for guidance.

Colleagues, Bill C-28 affirms that it is fair and just to hold those responsible for crimes of violence committed in a state of extreme intoxication if they were criminally negligent in their consumption of intoxicating substances. We can all agree that it is unacceptable for people to negligently put themselves into a state where they can’t control their actions and then escape the consequences of the harm they caused others. So how would this work in practice, and how does Bill C-28 respond to the concerns we’ve heard about its effectiveness?

It is the Crown’s burden to prove the essential elements of the crime beyond a reasonable doubt, and any reasonable doubt about guilt must result in an acquittal. This is the presumption of innocence, which was firmly recognized under the common law in 1935 in the House of Lords decision in Woolmington v. DPP and was constitutionalized in Canada by its incorporation into the Canadian Charter of Rights and Freedoms in 1982.

In addition, under centuries-old common law, to be convicted, the prosecution must prove both a prohibited voluntary act, actus reus, and an associated guilty mind, mens rea. Under the current section 33.1, before the defence of extreme intoxication can be considered by the trier of fact, the accused must introduce evidence to satisfy the judge that there is an air of reality to the defence. This is a question of law for the judge to decide. Following the parameters set out in the Daviault and Brown decisions, this will require the accused to lead expert evidence. And the Crown will respond with its expert evidence.

Colleagues, from a legal point of view, extreme intoxication is a rarely used defence, notably, because of the initial evidentiary threshold required — that I just described — but also because of the legal burden that the accused must ultimately discharge. To avail himself of this defence, the accused must ultimately prove through expert evidence and on a balance of probabilities that it is more likely than not that they were in a state of extreme intoxication akin to automatism as opposed to simply being highly intoxicated.

This approach is consistent with other defences based on one’s lack of ability to know or control one’s actions, such as the defence of being not criminally responsible by reason of mental disorder or automatism caused by a blow to the head. Whether the specific expert evidence put forward is sufficient to raise the defence, as I said, is a question that the judge must assess. If there is not enough evidence to meet this air-of-reality threshold, the trier of fact — the jury if it is a jury trial — will not allow the defence to be considered at all. However, if there is sufficient evidence to pass this evidential burden, the jury will be instructed to consider it.

However, that’s only the first step. For the defence to be successful, the accused must establish that it is more likely than not that they were in a state of extreme intoxication at the time of the assault. This is sometimes called a “reverse onus” because normally the accused does not need to prove a defence. Also, this must be demonstrated on a balance of probabilities, which is the law’s way of setting a higher standard that means more likely than not. Why? This is because the accused is best placed to lead this type of evidence, and the courts have found this to be constitutionally acceptable in such cases. Bill C-28 leaves in place this important requirement for establishing the defence, and the defence will continue to bear this heavy burden.

Under Bill C-28, if one establishes that they were in a state of extreme intoxication, they would still be held criminally liable if they acted negligently, that is, departed markedly from the standard of care expected of a reasonable person under the circumstances with respect to the consumption of intoxicating substances. The court may then lead evidence to establish liability for the crime of violence charged through the criminal negligence pathway of section 33.1 as proposed in Bill C-28.

It is about this issue that concerns have been raised. From my point of view, the state of the law as it currently is — settled law, well-established law, law that is well understood by judges and by lawyers, prosecutors and defence alike — already provides an answer to these concerns and, respectfully, supports the proposition that Bill C-28 is an effective response to cases where the defence of extreme intoxication may be raised.

Let me elaborate. The first question is: What is the standard of care to which we would hold the accused? The answer is whether it would be foreseeable to a reasonable person in the same circumstances that consumption of the intoxicating substances could cause extreme intoxication and lead to the harm of another person. This is an objective test. It is independent of what the accused actually foresaw or actually intended.

The second question involves measuring the accused’s conduct against that objective standard of care. And Bill C-28 provides guidance to the courts in how to conduct that analysis, requiring that they take into account all relevant circumstances, including what was done or not done to avoid this risk.

“All relevant circumstances” recognizes that determining negligence is informed by context and driven by the evidence. The court would assess the conduct against what a reasonable person would have done and determine if the accused fell below that standard based upon the specific core facts of the case. This is nothing new. Courts regularly and routinely conduct this type of assessment in other areas of criminal law, notably in relation to offences of criminal negligence.

By definition, “all relevant circumstances” will vary from case to case, and includes factors such as the nature of the substance consumed and the physical or social setting within which the consumption or actions took place.

In one of the passages I cited from Brown earlier, Justice Kasirer referred to the voir dire judge in the lower court. In that case, it was Justice deWit of the Court of Queen’s Bench of Alberta who had this to say on this particular point. I’m quoting, starting at paragraph 82, from the lower court decision speaking of the evidence relevant to this point:

Examples of such evidence would be an accused’s experience and knowledge with respect to the effects of certain drugs or alcohol. . . .

And here’s the point:

. . . An accused would have to do more than assert that they believed they could consume the drug or alcohol without undue risk. Evidence would have to be provided that such a belief was reasonable. Such a requirement would ensure that the morally innocent are not convicted and important Charter rights not unduly impaired.

If the conduct of the individual, whatever he may have thought, assumed, foresaw or intended, was not reasonable — that is to say, did not conform to the standard of what we would assume a reasonable person should and ought to do and ought to know about the impact of drugs on the body and one’s ability to control oneself — then that person would be guilty of the offence charged. This is an objective test. Courts will not look at this from the accused’s perspective, but from the perspective of a reasonable Canadian, and it will also consider what information is publicly available. Personal characteristics — short of incapacity — such as an accused’s background or an accused’s IQ level are not relevant, and the Supreme Court confirmed this in a 2022 case called R. v. Goforth.

In the recent Supreme Court decisions in Brown, Sullivan and Chan, psilocybin — commonly called magic mushrooms — was found to have contributed to extreme intoxication and violent behaviour, either consumed alone in one case or in combination with alcohol in the Sullivan and Chan cases, leading to tragic results.

These findings are now in the public domain, which means that reasonable Canadians should be aware of the risks of taking these substances. If Bill C-28 passes, we would expect that courts would take this into account in assessing what an accused ought to have known about ingesting psilocybin in determining whether an accused is criminally negligent in a future case on similar facts to those that were before the court in Brown and Chan. The takeaway here is that certain kinds of drugs may have the potential to lead to uncontrolled violence more than others, while others present a very low risk.

By contrast, consider a person who consumes a prescription drug, triggering an unanticipated and extreme reaction that results in a state of extreme intoxication. While in that state, the person harms a family member who resides in their home. On facts like these, a reasonable person would have had no way of anticipating that violent loss of control when they chose to consume the drug. Under Bill C-28, unlike under the former provision, the intent of proposed section 33.1 is that such a person could be acquitted. Cases will turn on the unique facts before the court.

Senators, I appreciate that there are concerns raised by some that the new test requiring foreseeability of harm would be unduly burdensome to prove. The key takeaway of this legislation is that courts would be able to hold a person accountable for committing a violent crime, such as sexual assault, even when the defence of extreme intoxication has been raised. Courts would do this by finding that an accused was criminally negligent in their consumption of the intoxicating substance.

The proposed amendments, Bill C-28, do not require the level of risk to be probable or even more likely than not. The question for the Crown to prove is not whether an accused ought to have known that a particular drug would lead to loss of control and violence, but whether that drug could lead to loss of control and violence. The question is whether the risk is foreseeable to a reasonable person — the objective test to which I referred.

Risk assessments like this are a balancing act. It’s not a hard science. The standard being proposed is flexible, and it enables the court to focus on the critical question, which is, again, and I repeat, whether the person fell far below the behaviour expected of a reasonable person to avoid putting others at risk. The prosecution can argue that a reasonable Canadian learns about the positive and negative effects of an intoxicant before taking it, that they also care about the harm they might do to others, how certain drugs may affect the mind and behaviour and about incidents of violence following ingestion of certain types of drugs. Prosecutors can point to other cases where a violent loss of control has occurred to substantiate their arguments that such a risk was foreseeable in the case before the court.

Sullivan and Chan are perfect examples. The prosecution can also argue that a risk of violence can be inferred from the possible loss of self-control. A person who can’t control their actions cannot stop themselves from harming others, and the risk of loss of control also gives a pathway to demonstrating a risk of uncontrolled violence. The jury can use the evidence to draw conclusions about whether the reasonable person would foresee the risk and try to avoid it, and whether the accused’s actual behaviour met or departed significantly from that.

Some may still argue that Bill C-28 makes it too difficult to convict a severely intoxicated offender, that there should be a legal presumption that alcohol alone cannot produce a state of extreme intoxication or that there should be a reverse onus requiring the accused to prove that violence was not foreseeable. I understand, and the government understood, the motivations — important motivations — behind these suggestions and concerns because the government and the law, Bill C-28, share the same dual objectives of protecting vulnerable women and girls from violence and of holding perpetrators to account.

Colleagues, we have a Charter of Rights and Freedoms, and those suggestions would likely be deemed unconstitutional by the courts for reasons that were set out at great length by Justice Kasirer in Brown, and they would certainly invite a renewed round of Charter litigation with all the attendant resulting uncertainty and instability. Respectfully, colleagues, it would be irresponsible for Parliament to adopt measures that increase litigation risk rather than follow the clear pathway laid out by the Supreme Court of Canada. Bill C-28 offers a safer and more responsible response that is consistent and in line with the Brown and Sullivan and Chan decisions of the Supreme Court of Canada.

Let me cite the June 17 press release of the Women’s Legal Education & Action Fund, also known as LEAF, where they describe Bill C-28 as, “. . . thoughtful, nuanced and constitutional legislation to address the narrow gap resulting from the [Supreme Court of Canada] decisions.”

Bill C-28 recognizes that all members of society have a responsibility to protect each other from the foreseeable risks of their behaviour, and holds people accountable for the harm they cause when they fail to meet that responsibility.

Colleagues, I will conclude by stating that I firmly believe Bill C-28 serves to complete the work Parliament began in 1995 when it first enacted section 33.1. It is a small but significant change designed to keep the law intact while allowing for the rare, narrow exceptions that the Supreme Court says are constitutionally required. Adopting this legislation is in the interest of protecting victims and would-be victims of violence and holding perpetrators to account.

I am proud to be the sponsor of this bill, and I urge you to join your colleagues from all parties in the other place who voted unanimously in supporting this bill. Thank you for your very kind attention.

Some Hon. Senators: Question.

The Hon. the Speaker pro tempore: I see two senators standing. Are you calling a vote?

Senator Plett: Yes, we are.

The Hon. the Speaker pro tempore: In my opinion, the “yeas” have it.

And two honourable senators having risen:

Hon. Dennis Glen Patterson: Would you take a question, Senator Saint-Germain?

Senator Gold: I’m sorry. You were talking about the “notwithstanding” clause?

Senator Batters: Yes.

The Hon. the Speaker: Is leave granted, honourable senators?

The Hon. the Speaker: Is leave granted, honourable senators?

Hon. Raymonde Gagné (Legislative Deputy to the Government Representative in the Senate): Honourable senators, with leave of the Senate and notwithstanding rule 5-5(g), I move:

That, when the Senate next adjourns after the adoption of this motion, it do stand adjourned until Tuesday, September 20, 2022, at 2 p.m.

The Hon. the Speaker: Honourable senators, I wish to draw your attention to the presence in the gallery of Michael Spavor, who was imprisoned in China for over 1,000 days. He is the guest of the Honourable Senator Woo.

On behalf of all honourable senators, I welcome you to the Senate of Canada.

Hon. Pat Duncan: Honourable senators, with leave of the Senate and notwithstanding rule 5-5(j), I move:

That the reports of committees dealt with by orders no. 11, 12, 13, 14, 15, 16 and 17 under the rubric Reports of Committees – Other, under Other Business, all be adopted now.

The Hon. the Speaker: Honourable senators, I wish to draw your attention to the presence in the gallery of Gina Nagano, Founder and CEO, House of Wolf & Associates Inc. She is the guest of the Honourable Senator Audette.

On behalf of all honourable senators, I welcome you to the Senate of Canada.

The Hon. the Speaker: If you do not give leave, you must say nay. The sitting is therefore suspended to await receipt of a message from the Crown concerning Royal Assent.

[English]

The bells will start ringing five minutes before the sitting resumes.

(The sitting of the Senate was suspended.)

[Translation]

(The sitting of the Senate was resumed.)

(2250)

The Hon. the Speaker: Honourable senators, I have the honour to table, in both official languages, the 2021-22 Annual Report of the Senate Ethics Officer, pursuant to the Parliament of Canada Act, R.S.C. 1985, c. P-1,s. 20.7.

Senator Plett: I wonder whether the senator would take a question.

Senator Gold: I’ll add that question to my inquiries.

Senator Martin: Leader, as I have raised with you before, this is a significant discrepancy between what your government says this program will cost versus the Parliamentary Budget Officer’s estimate. The PBO’s cost estimate was $5.94 billion: That is almost twice the amount the government put forward in 2019 of $3.16 billion. Yesterday’s program update from Minister Wilkinson used the figure $3.2 billion.

Leader, has your government revised its cost estimate for this program? If so, what is it?