[Recorded by Electronic Apparatus]
Wednesday, June 7, 1995
.1532 
[English]
The Chair: I'd like to call the meeting to order. We're here to continue our consideration
[Translation]
Bill C-72, an Act to amend the Criminal Code (Self-induced Intoxication). This afternoon, we would like to welcome, from the Standing Committee on Criminal Law of the Barreau du Québec, Mr. Michel Denis, chairman, Mrs. Anne-Marie Boisvert, a committee member, and Mrs. Annie Chapados, secretary.
[English]
Now, in accordance with the rules, I'll have to ask the television cameras to leave the room.
[Translation]
Mrs. Venne (Saint-Hubert): I have a point of order, Mr. Chairman.
Since there are many rumours about your situation, can you tell us whether you will stay on as chairman of the committee, or will we have a new chairman?
The Chair: I don't know. For now, I'm still the chairman. But, for a while, I didn't think I would be. In any case, I'm the chairman of this committee for now, but I don't know if I will stay on or not.
Mrs. Venne: Thank you.
[English]
The Chair: I'm afraid I have to ask you to leave the room with cameras. It's not my rule.
Roger, would you see that these people leave the room?
I'm sorry. Obey the rules.
[Translation]
We have received your brief. You may read it or comment on it. You have the floor, Ms Chapados.
Ms Annie Chapados (secretary, Standing Committee on Criminal Law, Barreau du Québec): Mr. Chairman, members of the committee, we would like to thank you again for inviting us to speak on Bill C-72.
The Standing Committee on Criminal Law of the Barreau du Québec did not submit a lengthy brief to this committee, as it usually does. The barreau has outlined its position regarding this bill in a letter that we sent to Minister Rock last June lst.
.1535
Even before the Bill was tabled, we also submitted our position to Mr. Yvan Roy, General Counsel for the Department of Justice, in a letter dated January 17th, that is, at the beginning of the year.
We will not read the letter we sent to the Minister. The chairman of the Standing Committee on Criminal Law, Mr. Michel Denis, will outline our position and clarify certain issues. Afterwards, Mr. Denis and Mr. Boisvert will be available to answer any questions you may have.
The Chair: Thank you. Mr. Denis.
Mr. Michel Denis (Chair, Standing Committee on Criminal Law, Barreau du Québec): Mr. Chairman, ladies and gentlemen, I will give you a brief presentation in three parts. First, I will talk about the timing of the legislation, then I will talk about the preferred option of the Barreau du Québec and I will conclude by commenting on the Bill as currently drafted.
Regarding the timing of the legislation, the Barreau believes it might be better to wait before the government brings forth legislation on self-induced intoxication. We believe that the General Part of the Criminal Code, which has been under study for a while and the subject of several studies, reports and commentaries, should be dealt with and enacted first.
We don't think the time is right to set a standard defined in the Bill, because the definition of fault will at some point have to be included in the General Part, along with the degrees of responsibility and standards that would apply. The General Part will also have to include various defences and, in our view, we should wait for that to happen first. As well, the General Part will include a classification of offenses in terms of their structure and form.
Despite what the media has said about this issue, we don't believe there is a pressing need for legislation in response to the wording of the decision. As the honourable Mr. Justice Cory wrote in the Daviault case, other countries have adopted legislation similar to what was contained in the decision. I'm referring to page 32 of the brief where it says statistics have shown that in 510 cases where the defense made the same arguments as those in the Daviault decision, its success rate was 0.2%. In other words, the Daviault defense worked in only one case in 500. So, obviously, there is no crisis. It is better to study the General Part of the Criminal Code first, particularly since the conditions set by the Supreme Court for raising this kind of defence are very stringent. The degree and standard of proof the accused must provide to be acquitted in a case of self-induced intoxication must be extremely compelling.
To begin with, the accused bears the burden of proof and must provide persuasive evidence. The Supreme Court seems to have said there must also be expert testimony and the accused must also testify. Therefore, in our opinion, there is no crisis, given that the success rate of this type of defence is very low and given the very high standard of proof the accused must meet.
It might also be a good idea, and other witnesses may already have spoken to this, to know what kind of impact the state of drunkenness, even extreme drunkenness, has on the desire and awareness of the person who commits the act. Does it automatically follow, as we have almost always supposed that, if a person does not remember committing an act at the time he or she did it, the person acted knowingly and willfully?
.1540
An individual who is dead drunk and making his way home in the evening is undoubtedly aware of where he is going, and his act is undoubtedly voluntary. Maybe the next day, he will wonder how he ended up at home, but one thing is certain: he made it there. Is there necessarily a link between an advanced degree of drunkenness that can affect one's memory of events which occured the day before and the awareness and the desire to carry out the act? Maybe a scientific study of that issue would be useful before legislating.
At any rate, these are my preliminary remarks. The Barreau du Québec's préférence was expressed in a letter sent to Mr. Rock, as well as in an earlier letter to Yvan Roy. The Barreau du Québec would prefer to create special verdict of acquittal by reason of drunkenness. For the reasons we outlined earlier, we do not think it would be a good time to legislate too quickly in this area. It would be preferable to obtain studies on the impact of drunkenness, and this should not prejudice the work carried out as part of the reform of the General Part of the Criminal Code. It would also be possible not to impose sanctions, but to come up with a solution for a repeat offender in the same situation, bearing in mind that this defence is only successful in one case in 500.
Accordingly, we would prefer to have the special verdict of acquittal by reason of drunkenness temporarily restored. As in cases of insanity, such a verdict would allow the judge to order an individual who had been acquitted to undergo treatment like someone acquitted by reason of insanity, if a problem of this nature were to arise.
In addition, we believe that the citizens of this country and Parliament want this Bill to go forward. We have two comments concerning a proposed reformulation of the first two paragraphs of section 33.1 of the Criminal Code. We propose adding a clause so that subsection 33.1(1) would read as follows:
- 33.1(1) It is not a defence to an offence referred to in subsection (3) that the accused, by
reason of self- induced intoxication, lacks the basic intent or the voluntariness required to
commit the offence, where the accused...
- and here is where we would make our addition having regard to the personal circumstances
of the accused.
.1545
Adding this provision would allow the judge to consider the alcohol consumption, but at the same time keep in mind the accused's personal characteristics. That is why we suggest adding this provision to section 33.1.
As for subsection section 33.1(2), we see a major problem with the actual validity of this definition. Although it has been skillfully drafted, we feel the clause deals with what is called a substituted mens rea or intent.
Rather than looking at the accused's intent regarding the acts that he committed, the courts will just look at his alcohol consumption and the bare fact that he consumed so much alcohol he became unaware of his behaviour.
The Supreme Court has already ruled on this kind of imputated or substituted mens rea or intent. Consequently, we doubt that subsection (2) as drafted, would meet the constitutional standard.
In his ruling, Mr. Justice Cory adopted a previous ruling by the Supreme Court. It's on page 22 of the French text. I'll read out the last sentence of the paragraph in question. I would just remind you that he is quoting the words of the Supreme Court, words that he adopted as his own. Mr. Justice Cory stated the following:
- A presumption of law will be constitutional only if the substitution of fact compels a finding
that the essential element does exist, without any other reasonable possibility.
We think there's a very serious problem with this under the Charter. The Quebec Bar thinks this provision violates the Charter. The only possible way of validating it would be under section 1 of the Charter, if the courts decided that, notwithstanding the illogical conclusion, this constitutes a reasonable limitation in a free and democratic society. At first glance, it appears to us that this is an obvious violation that could be saved only by section 1.
In conclusion, if you have the same concerns as we do, we think it would be desirable for Parliament to submit the Bill to the Supreme Court rather than placing the burden of verifying its constitutional validity on the citizens of Canada.
Given that Parliament has clearly expressed its views on this kind of provision, through the Charter, and given that subsection (2) seems to contravene the Charter, the only remaining issue is whether it can be saved under section 1.
.1550
In our view, Parliament should ask the Supreme Court for its opinion on this matter.
These are the two fundamental, major criticisms we have about this Bill.
The Chair: Mrs. Venne, you are entitled to an initial 10 minutes.
Mrs. Venne: Excuse me, but I had to make a telephone call and I missed part of your presentation. However, I do have some idea of your position and your opinion on this matter.
I had prepared a short question on this. I read your letter and, unless I misunderstood, you are telling us that this Bill is something political, something cosmetic. As you stated in your introduction, you think we should have examined the whole thing along with the General Part of the Criminal Code, rather than extracting one section, amending it, and discussing only self-induced intoxication.
Did I understand what you are telling us? Are you saying that this Bill is just cosmetic, and that the results would be insufficient?
Mr. Denis: I'll let others use the adjective ``cosmetic'' because I don't know whether it is cosmetic. All we are saying is that the logical way to proceed would have been to set out the basic rules of the Criminal Code and the definition of offences and what constitutes the essential elements of offences.
I suppose you have read about the Daviault case. One can see that a large part of the discussion dealt with general intent and specific intent, so that there was a significant modification of the essential elements of offences. The rules of law differ depending on whether the intent is general or specific, for instance when the defence of intoxication is raised.
For example, in the case of the intoxication defence, nothing has changed in respect of specific intent offences. Things remain as they were. But there are changes for offences with a general intent. In short, given that there's no urgency, from a practical point of view... I understand that people bristle when confronted with the findings or results of that particular trial, but I suppose that Mr. Justice Cory's statistics are accurate, although I haven't verified them. According to him, in one in every 500 trials, the accused was aquitted or found innocent.
I don't think it's particularly urgent to legislate on something so fundamental. Since what is at stake is a defence, we think it would have been better to wait.
Mrs. Venne: Would it have been better to have created the offence of criminal intoxication, as set out in Bill S-6, rather than strike down the defense founded on the Daviault case? I suppose that you're aware of that possibility. I believe it was Senator Gigantes who tabled that Bill. The Bill included that offense, but it was a less serious offense. What do you think about Bill S-6? Would it have been satisfactory to you at all?
.1555
Mr. Denis: Ms. Boisvert will answer your question if you don't mind.
Ms Anne-Marie Boisvert (member of the Standing Committee on criminal law, Barreau du Québec): I would like our answer to be the same. In the Daviault case, the defence of intoxication - if we can call that a defence - calls into question the principles of liability, the fundamental concept of negligence.
In the Supreme Court decision on Daviault, we read about minimal mens rea, the voluntary aspect of the actus reus, of an aware frame of mind. The Supreme Court brings forward a number of principles or ideas; Canadian law is not perfectly clear on these questions.
It seems to us - and I'm also talking for my own point of view - that it becomes urgent to codify liability and to create a lesser and inclusive offence which is dangerous intoxication. By doing that, we would have a position on minimal mens rea and principles of that nature.
It doesn't seem to us necessary to make decisions that will have an impact on the whole theory of criminal responsibility in order to settle the apparent problem of extreme intoxication as a defence. The legal problems associated with the defence of intoxication or dangerous intoxication are exactly the same.
Mrs. Venne: Thank you Mr. Chairman. It is all for now.
[English]
The Chair: Mr. Thompson, for 10 minutes.
Mr. Thompson (Wild Rose): Yes, I probably won't be 10 minutes. Thank you, folks. I'm not a lawyer and I don't understand a lot of the legal garble, unless I have my right arm sitting beside me and he's gone.
When I ask these questions, I hope you understand that I'm trying to get some clarification as to what it is you're actually trying to say.
In the beginning, when this legislation came out, I talked to Mr. MacLellan and to some members from the Bloc party. My whole idea was we need a piece of legislation that comes into play, that says if you're drunk and you commit a crime of violence, the drunkenness cannot be used as an excuse, period, over and out. When this was put together, that was the purpose of this document. It appears to me that if you get that kind of agreement in the House of Commons, if you have 100% of the MPs who vote in favour of that kind of legislation, such as this, that means that 100% of the Canadian people now know and support that it's the law.
Why is there any confusion? It bothers me that even though 100% of the people of Canada, because of what the MPs have done, are now supporting that measure - we want it to stop - we're now told to check with the Supreme Court of Canada to see if it's all right with them. Who cares if 100% of Canadians.... That's what counts on behalf of the victims. I think it's all part of clause 7 and sections 7, 15 and 28 of the charter, which are supposed to provide the kind of protection to everybody, especially the victims of crime. We always have to run around in some kind of a circle and make sure the Supreme Court says it's okay, make sure this word is right.
I heard you say Canadian law is not clear about minimal mens rea. To me, it's clear. Why can't it be clear to all Canadians? Why is there so much confusion? Why is it that a short paragraph or two, with a preamble that might be a little longer, trying to get a message out there that, mister, you get drunk and you commit a crime, you're not going to be able to get off the hook because you were drunk...get that in your mind and get it in there right now. What's the difficulty? Can you explain it to me a little better?
[Translation]
Mr. Denis: The problem is due to this.
.1600
When we talk about self-induced intoxication in law, we are not talking about the desire of an individual to become impaired. We are simply talking about the fact that ingestion was self-induced. This distinction between something that is self-induced and something that is not is determined by whether or not the person knew. For example, if I were to slip a capsule of one thing or another into a colleague's glass, without her knowing it, and if she were to ingest it, she would become intoxicated, but not on a self-induced basis.
Self-induced intoxication does not mean that the person wants to become drunk. This is where the problem lies. For example, the Supreme Court has, on several occasions, referred to the concept of foreseeability, namely, a crime that was subjectively or objectively foreseeable. It is a question of a crime's objective foreseeability and its subjective foreseeability.
Using the example I gave earlier, would Canadian citizens be in complete agreement that a person should have no defence if he were to decide to have one glass of liquor and, for reasons that I cannot explain, found himself in Daviault's state? It is the word ``self-induced'' that we must understand. It is not a question of deciding to become drunk; rather, it is a question of deciding to ingest alcohol, regardless of the quantity.
Given that the Supreme Court has already spoken on this issue and unless it says vox populi - vox Dei, it should say there was no objective foreseeability. In the light of what was said earlier and in the light of what has been said in other decisions, the legal presumption would not be constitutional unless the existence of the substituted fact led inexorably to the conclusion that the element existed without any reasonable possibility.
In the example that I gave you, it is clear, in my opinion, that this requirement has not been met. Obviously, if the Supreme Court does not follow the earlier decisions, there will be no problems, but we are surmising that the Court will follow them.
Ms Chapados: If I may, I would like to add something pertaining to our recommendation that everything be referred to the Supreme Court for their assessment. Earlier, you said: Who cares? We care! The role of the Barreau du Québec is to protect the public. Accordingly, on the basis of the legal analysis of the proposed provision and in the light of earlier decisions by the Supreme Court and given the reservations we have expressed, we feel that citizens should not have to take it upon themselves to take this step. Given what Mr. Denis has said, it is obvious that this issue will be raised.
For these reasons, we are recommending that the issue first be referred to the Supreme Court.
[English]
Mr. Thompson: At the present time, anywhere in Canada, if you get behind the wheel of a car and you're drunk, you're not going to use that as an excuse, are you? It isn't going to work, is it?
Mr. Denis: No.
Mr. Thompson: Do you know anywhere in Canada where it works that if you're behind the wheel and you're drunk, you're not guilty of drunken driving? Then why should it be any different?
Clearly understand that what I'm saying is you may not have intended to drive before you had your first drink, but after fifteen, to hell with what your first intent was.
[Translation]
Mr. Denis: Obviously, this is different. If a person drank 15 glasses, it would not be surprising if he were found guilty.
[English]
Mr. Thompson: It only used to take me two.
[Translation]
Mr. Denis: You have to think about this person as well. That is our opinion.
Ms Boisvert: We could add that, when we talk about intoxication, the big difficulty is that more often than not, we...
[English]
And you say so: somebody who gets drunk. We think of the action.
[Translation]
But intoxication is a state as well. What happens if the state is accidental or not the result of a guilty mind?
.1605
[English]
What if you get drunk and it's not your fault? We try to introduce a fault element.
[Translation]
If this is the first time ever you have a drink, and you have no experience, or you have an illness you are not aware of and you really don't know what effect alcohol is going to have on you, there is not a sufficient personal fault element to base a guilty verdict on.
We simply say we have to make sure we introduce a minimum personal fault element. You must remember that, when someone is in that condition, any act is not a conscious act. There is no volition. When the individual consciously became intoxicated, then it's perfectly legitimate for him to have to assume the consequences of his act, but one must make sure that there is in the Act a minimum personal fault element. Otherwise, temperence leagues will pop up all over the place and we'll have to prohibit the use of alcohol in Canada.
[English]
Mr. Thompson: That's all.
Ms Cohen (Windsor - St. Clair): Speaking on behalf of a community where prohibition was very profitable, the City of Windsor, I think maybe we should look at that. It might help us at our casino.
In any event, I have to say to you that after 15 years of practising criminal law as a prosecutor and a defence lawyer and of making a not too bad living defending impaired driving charges, I think I have some facility with the concept of intoxication as it is seen in the law and also with the kind of evidence that you would get if you had, for instance, a forensic toxicologist testifying, as frequently happens and, as I look at this, would happen if I were defending someone and trying to come to grips with this section.
I think, Mr. Chair, we will have some forensic evidence or some toxicology evidence.
The Chair: We are having some psychologists as witnesses next Tuesday who are supposed to be experts in this field.
Ms Cohen: So we're going to hear about that, but I think it's helpful to the committee. I don't know that I agree with you, but you've raised an issue that maybe we could talk a little bit more about now.
Either on purpose or inadvertently, Mr. Thompson raised another issue that maybe we should address. In the law now with respect to impaired driving, if a person were to go to a court and say ``I'm not guilty because I was so drunk that I couldn't form the intention of driving a car or of being in care and control of a motor vehicle'', you would agree with me that the courts have held that is not a defence to impaired driving or care and control? Is that correct?
[Translation]
Mr. Denis: Yes, that's quite clear.
[English]
Ms Cohen: But there is a line of cases that allows a person to deal with the issue that you've raised. I am mindful of two cases in the City of Windsor - on both I was part of the defence team - where the courts held, and it was upheld on appeal, that a person who became intoxicated because it wasn't knowledgeably self-induced or self-induced purposefully was acquitted. Those were two cases where the person's blood alcohol exceeded the allowable limits. They were not impaired cases; they were exceeding cases.
In one case, the person was taking a drug that caused the body to absorb alcohol more quickly than one would normally expect. In another case, the person was tanning sheepskins and had parts of his body in alcohol for long periods of time and was absorbing alcohol through his skin not knowing that it could cause intoxication.
So it is possible, twice in 15 years of practice, to come across cases like that, but I would suggest that those cases are very rare and that it's very rare to find a case where somebody has one drink and is so blasted that they don't know what they're doing.
In your years of practice, or in the experiences of the cases you've researched -
The Chair: Would the member explain what ``so blasted'' means? Is that a local Windsor expression?
Mr. Thompson: It comes under C-68.
Ms Cohen: This person is so....
The Chair: Intoxicated.
Ms Cohen: I was going to say ``tight''.
.1610
I think you're talking about extreme cases here, but then again so is this statute.
[Translation]
Mr. Denis: We are talking about extreme cases. When you look at the validity of the Act, you look at its overall application, even if the case is extreme. It is extremely rare for an individual to become so intoxicated that he no longer knows what he is doing, is no longer able to reason and is no longer aware of his actions.
It should be pointed out, however, that in the Daviault case the trial judge cast doubt on the accused's guilt. Given the critera or the requirements laid out by the Supreme Court in the Daviault case, if the trial judge had had these guidelines, he would have probably found him guilty notwithstanding his very advanced degree of intoxication because the burden of proof on a balance of probabilities was never met. We will never know because the Daviault case has now been concluded and there were no further actions.
Moreover, you talked earlier about a person who took a drug or some type of substance. I don't know if this is a banned drug or a medication. We on the Criminal Law Committee of the Barreau du Québec discussed whether we could make a distinction between a person who ingested an illegal substance and someone who ingested a legal substance but we were unable to arrive at a consensus.
A person who ingests a legal substance whose effect is unanticipated is not in the same position as somebody who ingests an illegal substance. If a substance has an unexpected effect, at least there is a degree of fault, namely, the fact that the person ingested a banned substance. A person who takes heroin and says: «I did not know it would have this effect» is ingesting an illegal substance, whereas someone who drinks a glass of liquor - and I would agree that I am using an extreme case - cannot foresee that.
The few words we suggest you add, namely «considering the personal circumstances of the accused», will not open a Pendora's Box and let loose all kinds of acquittals. Indeed, we are pointing this out because we want to allow for the exception, a very good exception, something that would not be provided for and that would not be possible as the Act is now worded. In our opinion, this would not lead to anything very extraordinary.
[English]
Ms Cohen: I would disagree with you on that. I would suggest to you that what the bill says in black and white is that it's not a defence to an offence, that the accused by reason of self-induced intoxication lacks basic intent.
I would suggest to you, for instance, that the person who is tanning sheepskins and who absorbs alcohol through his skin may in fact have a defence to that and that's why we have the Supreme Court and the trial courts.
This is the same as with any other legislation. This legislation is a statement, we believe, of the will of the people. If it's a statement of the will of the people, the court will refine that to deal with the exceptions, will it not? Isn't that the role of the court?
[Translation]
Ms Boisvert: As far as self-induced intoxication is concerned, when you're talking about a true case of self-induced intoxication, the defence already exists and the Bill has nothing to do with that.
[English]
Ms Cohen: Yes.
[Translation]
Ms Boisvert: What concerns us somewhat more is that when you talk about self-induced intoxication, we can foresee cases where somebody is in a state of advanced intoxication without personal fault being truly involved.
Normally, when we talk about intoxication, we're talking about someone like Mr. Daviault who downed 40 oz. of something. That makes for a heck of a lot of drinks. In such a case, the person's conduct is reprehensible as well. There are cases, where, for health reasons or other reasons, the state of intoxication is not foreseeable, although, technically speaking, in the light of the Supreme Court has said, no one forced the individual to drink a glass of alcohol.
.1615
So intoxication is self-induced in the technical sense, but the state the person is then is is not. We think some sort of way out is needed because otherwise there is no element of personal fault; the punishment is for the state the person is in.
[English]
Ms Cohen: I don't want to argue specific fact situations. I think this points out two problems. It's not up to us but it's up to the Minister of Justice whether we go to the Supreme Court in advance with this thing. If he makes a reference to the Supreme Court or asks a question of the Supreme Court, it would suggest to me there may be a problem without a factual basis. You can't go to the Supreme Court on hypothetical facts. I think that's one problem on which the minister's going to have to make up his mind.
The other problem is that we're trying to argue here what the court's function is. I would suggest, just to respond to you and to put on my Crown's hat for a minute, that if a person is in a state of ill health or in such a state of health that the consumption of alcohol is unpredictable and he or she consumes alcohol and becomes intoxicated and assaults someone, maybe we do want to catch that kind of activity.
It would be hard for me to imagine a situation where a person, not knowing that there could be a problem, consumed one glass of alcohol and got that drunk. I think we'll hear about that from the forensic toxicologists or psychologists, or whoever comes.
The Chair: Have you finished your questions?
Ms Cohen: Yes, thanks.
[Translation]
Mrs. Venne: I have two brief questions. I hope no one has asked them before; you'll have to tell me because I'm unfortunately being interrupted all over the place today because of what's going on with C-68 and I can't give this all the attention it deserves. If my question has already been answered, please tell me.
I'd like to know if this Bill should resort to the notwithstanding provision in section 33 of the Charter to avoid any challenges under the Charter for five years. What do you think?
Ms Boisvert: I've given some thought to that and I don't think it will be necessary to use section 33 although there are constitutional problems concerning that provision because there are definite problems aside from those that have already been raised. What you have here, to use our jargon, is a substitution manifestly contrary to the Charter. The Supreme Court, basically, even with the Daviault judgement, is opening doors. It's saying that if Parliament does something...maybe there is some room to manoeuvre. Basically, if you're told that by the Supreme Court, maybe it's not up to the ordinary citizen to pay for the litigation; maybe the legislation should be validated beforehand by the Supreme Court.
Mr. Denis: Of course, these are far more political questions, in the broadest sense of the term, but it seems to me that the notwithstanding provision should be used, if it is to be used, in cases where there is really a crisis situation or a major problem to solve.
If I go by the statistics, I have problems in concluding that a situation could be such a crisis that a notwithstanding provision should be used to set aside a provision of the Canadian Charter of Rights and Freedoms. That said, the problem you have put is more political than legal. What Mr. Boisvert and I are giving you are totally personal opinions.
Mrs. Venne: My last question might be a bit technical, but it could perhaps enlighten the minister and ourselves in future. In a piece of legislation like the one we have before us, do you think it's essential to have the kind of preamble we have? What's the usefulness of that kind of preamble in a bill like this one? I mean, it is rather long. Perhaps it might give guidance to the Minister of Justice on how to proceed in future. That's not the way to go.
.1620
Ms Boisvert: That is a political question as well. It is not part of the Act. An ordinary citizen who might look at a copy of the Criminal Code would never see the preamble.
Mrs. Venne: It is very political; it has nothing to do...
Mr. Denis: It is there to affirm that, according to what is done in Canada, in the public's mind, people have to be responsible for their actions even if they are intoxicated.
What is said in the preamble defines what Parliament and the legislators consider as being the standard.
Mrs. Venne: So, according to you, that is not really useful.
Mr. Denis: That is why we suggest taking this out of the Bill. I'm suggesting taking out the part that says «generally accepted in Canadian society» since the standard is already defined in the preamble. That is what is generally accepted.
I do not think that this technical feature would have very much influence on interpretation.
[English]
Mr. Wappel (Scarborough West): Good afternoon. I always enjoy reading the opinions of the Barreau du Québec and I always find the recommendations thought-provoking. I don't always agree.
I'm interested in a phrase in the letter to the Minister of Justice. In the English version it is the fourth paragraph. It talks about your view that the bill is a legislative measure ``designed to amend the rule established recently by the Supreme Court in its decision in Daviault''.
I'm interested in that phrase because I can only assume from it the following. There was a rule that self-induced intoxication was a defence to specific intent offences. That was the rule. I can only assume then that your reading of the Supreme Court decision was that the Supreme Court changed the rule and amended it in effect to include general intent offences. Is that right?
[Translation]
Ms Boisvert: The Daviault decision
[English]
was an addendum to the rule. This just repeals the addendum and restores the rule as it was.
Mr. Wappel: I'm interested in knowing the Barreau's view on the addendum. Is it your view that the Supreme Court changed the rule and expanded it in Daviault to include general intent offences?
[Translation]
Ms Boisvert: This is a technical and very complexe matter.
The Supreme Court did not touch the traditional rule, the compromise, but recognized that even in general intent offences, when intoxication reaches an extreme level, when the evidence has been established and there is an expert, the accused can be acquitted.
If that is not the case, the fact still remains that when there is reasonable doubt the accused can still be acquitted.
[English]
Mr. Wappel: I'm not talking now about what the bill is going to do. I'm talking about the Barreau du Québec's view of the Daviault decision, in view of your comment to the Minister of Justice that there was a rule established by the Supreme Court decision.
.1625
So in your view the rule that was established by the Supreme Court decision was an expansion of the defence of self-induced intoxication to include general intent offences as well as specific intent offences, depending on the circumstances of the individual case. Is that right?
[Translation]
Mr. Denis: Let's talk about before Daviault. In Canada, there was a drunkenness defence that applied to specific intent offences. In those cases, all the accused had to do was raise a reasonable doubt as to whether he intended to commit the crime, had the specific intent to kill, for example. It was not enough to show that he had discharged the firearm; you had to prove that he intended to kill. That applied only to specific intent offences.
In the Daviault case, the Supreme Court said that in general intent offences, an accused could be acquitted not simply because a doubt was raised, but if he shows on a balance of probabilities because he has better evidence than the Crown has, not that he had the intent to do what was done, but that he was not aware of the material act he was committing.
Let's use murder as an example. Hypothetically, the court would reason as follows and would tell the jury: ``If the accused was so intoxicated that you can entertain some doubt about the intent to cause death, but the accused was aware of the illegal act he was committing, he must be found guilty of involuntarily manslaughter. If, on the other hand, he was so intoxicated that he was not aware and he did not voluntarily commit the material act causing death, that is, firing the shot, then he must be simply acquitted.''
So it's not an expansion. The answer to your question is yes and no. It's an expansion of the defense of intoxication, but with far stricter requirements than the classic intoxication defence.
[English]
The Chair: This is your last question.
Mr. Wappel: On this round what I'm really asking you is what you mean by your own words ``the rule established by the Supreme Court''. What is the rule that was established by the Supreme Court in Daviault?
[Translation]
Ms Boisvert: It's the possibility of henceforth, in certain cases, relying on the defence of intoxication in general intent offences. That's new since the Daviault judgement.
[English]
Mr. Wappel: And it was established by the Supreme Court decision?
[Translation]
Ms Boisvert: Yes.
[English]
Mr. Wappel: Thank you.
Ms Meredith (Surrey - White Rock - South Langley): I gather from your comments that you accept automatism being used as a defence.
[Translation]
Ms Boisvert: Yes.
[English]
Ms Meredith: Yesterday we heard from two different parties and both of them brought into question the lack of scientific evidence that would support automatism. There is as much that refutes it as would support it. With that in mind, I want to go back to the clause and to your comments that if it's the first drink or if a person unknowingly ends up with what you would consider to be automatism, you are concerned they would get drawn into this.
But in this legislation it also refers to a marked departure, where the accused departed markedly from the standard of care as described in proposed subsection 33.1(2). Would that not protect the person you're concerned about, who takes the first drink and reacts in this manner, which others would say doesn't exist? Would this not protect them because they had not deliberately left the standard of care that society has established?
[Translation]
Ms Boisvert: The answer is no because departing from the standard of care exercised by any reasonable person is an offence.
.1630
According to the act, being in a given state is equivalent to behaving unreasonably. Therefore, the legislation is saying that a person who is at fault only because he or she is in a given state, regardless of the reason for that state, is unreasonable.
[English]
So we put the label on the person, but we have no proof that the person departed from the norm.
Ms Meredith: But isn't that the protection, that you would have to prove that the person did not take the reasonable steps or the standard care to prevent that from happening?
Ms Boisvert: The way it's drafted you don't have to prove it. That's what we call the substitution. The person is presumed to have departed from it -
Ms Meredith: Presumed to have departed from it.
Ms Boisvert: - because of the state she or he is in.
Ms Meredith: So you're saying the proof then is on the accused to prove that they had taken reasonable care, rather than.... So we're assuming they're guilty rather than assuming they're innocent. Is this your concern?
Ms Boisvert: More than that, because there's no room to prove anything contrary to the presumption.
Ms Meredith: Is there not room for them to prove that they did take reasonable care, that there's no way they departed from it?
Ms Boisvert: No, and that's what we call the presumption or the substitution. It's legally the conclusion you do have to draw in every case.
Ms Meredith: I want to go to your letter on page 2, the second paragraph. In it you're saying that you want to reiterate your preference for the creation of a special verdict that would be combined with particular orders.
You go on to say that in fact such a verdict would both satisfy the legal requirements preventing us from finding an intoxicated person liable and meet the public demand that individuals who commit an offence, even when intoxicated, should not be given an unconditional discharge. You say that then they could take treatment and what not.
What verdict? Where do you see this happening? How would you impose this verdict? By adding another charge, an offence under the Criminal Code, or...?
[Translation]
Mr. Denis: In our view, this would be a way of adapting the verdict of acquittal by reason of insanity. The person would be acquitted. In our opinion, this could be a temporary measure until the General Part of the Criminal Code is revised. The person is acquitted, but it is not a clear-cut acquittal. The accused is acquitted by reason of intoxication, and the judge may impose an order requiring the person to undergo treatment if the person has a serious alcohol problem. The judge will not just ignore the problem, and he will insure that treatment is given in a secure environment.
As you know, there have been recent amendments in the area of insanity. In the past, when a person was acquitted, he was automatically committed to an institution, but this is no longer the case. A person may be intoxicated for a particular reason, and the judge, notwithstanding the verdict to acquit, which in no way alters prior principles of criminal law, will order an acquittal but require that the accused follow a treatment program which may or may not be secure and voluntary. In the case of someone who cannot absorb alcohol because his or her metabolic system does not work properly, the judge will strictly forbid them to consume any alcohol at all. Obviously, any breach of such an order would give rise to punishment. Otherwise, the order would serve no purpose.
[English]
Mr. Gallaway (Sarnia - Lambton): Thank you for coming today. I'm trying to really comprehend what you're saying here. One of the things you mentioned earlier was a minimum of fault.
You're suggesting that there should be introduced into this law some sort of requirement that there be proof of fault on the part of the individual who appears before the court.
.1635
Is that not included in the term self-induced, that if in fact a person drinks to the extent that they're very drunk or extremely intoxicated, there is that degree of minimum of fault already built in? There's no requirement upon the Crown then to show that this person embarked on a day of drinking without realizing what they were doing.
[Translation]
Ms Boisvert: That would be alright if the law was as you describe it.
Traditionally, and we are working on the basis of what the law has traditionally been, it is self-induced unless you were tied to a post with a funnel placed in your mouth or someone slipped something into your drink.
Once you have swallowed something voluntarily, it is presumed that the state in which you find yourself is self-induced.
Perhaps a distinction should be made between voluntarily absorbing alcohol and voluntarily finding oneself in a state like that of an animal.
[English]
Mr. Gallaway: What is it then that you are suggesting? If I could put it this way, are you suggesting the Crown must establish some basic degree of fault?
[Translation]
Ms Boisvert: Yes, a basic degree which would take into account the personal circumstances of the accused causing him to be in a state of extreme intoxication.
We always have images in our mind. We always equate extreme intoxication with having drunk 40 oz. or 24 beers one after the other. But such a state of extreme intoxication may result from behaviour where the person was not at fault.
Before saying that a person in a particular state was necessarily at fault, we should at least look at the circumstances leading to that state.
[English]
Mr. Gallaway: If there's someone, for example, before the court who is 18 years old and became extremely intoxicated the first time they encountered alcohol, are you saying this person, due to lack of experience, should perhaps be excused, found not guilty as a result?
[Translation]
Ms Boisvert: It all depends on the circumstances. If this young person, who has no previous experience of alcohol, drinks 24 bottles of beer, no.
We can make a distinction between boys and girls. Some people have a greater tolerance of alcohol than others. There is a learning process here. As alcohol is not illegal in Canada, a reasonable person will learn what his or her tolerance to alcohol is. I believe that there is fault involved when the individual does not learn or remember what he has learned. If that is not the case, then alcohol should be prohibited because it is the problem. If alcohol is not prohibited, we have to identify where the fault lies.
Mr. Denis: I would like to come back to what we said earlier. Some of you seem to be afraid that the amendment we are proposing will allow some people to get through the net being held out.
In fact, it will probably never be possible to use the amendment we are proposing, because it is unlikely that anyone drinking half a bottle of beer would find himself in such a state that -
In any case, that is not the type of case courts generally see.
.1640
In my view, individuals alleging intoxication as a defence have clearly ingested too much alcohol in 100% of the cases. The only thing we would suggest be retained is the extremely rare case - which would probably never happen in 100 years, but which would at least maintain some kind of fault in the legislation. In this way the behaviour of the accused could be looked at subjectively, so that someone who had clearly drunk a 40 ounce bottle of alcohol would not get off despite what we are proposing.
The suggestion covers a case that is so hypothetical that it will probably never happen.
Ms Boisvert: Let me give you an example that will respond to both of your questions. The case happened in Canada - I'm changing the facts very little, but I will give them to you from memory. Let's say you go to the dentist, who gives you some type of injection. Your gums don't freeze quickly, so the dentist gives you another injection without telling you. You go home and have a beer. The combination of the two substances makes you quite drunk.
Under our proposal it would be said that your intoxication if self-induced, because even if you did not know what the dentist did, you did drink a beer. But perhaps your resulting state does not deserve criminal punishment. I think that answers your first question. on va dire que l'intoxication est volontaire because you did something that helped to make you intoxicated.
[English]
The Chair: I have a short question. The Canadian Bar Association, when they were here yesterday, in answer to some questions and also in their brief, suggested that in the proposed subsection 33.1(3) there be a list of offences rather than what I consider to be vague wording that is there now.
In English it says:
- (3) This section applies in respect of an offence under this Act or any other Act of Parliament
that includes as an element an assault or any other interference or threat of interference by a
person with the bodily integrity of another person.
The French version provides:
In my view, this wording is not very clear. It is difficult to understand what is included under this wording. The Canadian Bar Association suggested instead that this subsection of the Criminal Code include a list of offences.
[English]
It's obvious that this section does not apply to all. Whereas the Daviault judgment applies generally to all crimes, this would limit this exception only to certain crimes of violence. The limitations section, proposed subsection 33.1(3), to me seems rather vague and general. I wanted to ask whether you would agree or not that it's better to have a list of offences, such as some other sections have.
The Young Offenders Act, for example, has lists of offences whereby you are transferred to adult court. What's your view, first of all, on these words? Do you think these words are very clear or not? If they're not clear, would you prefer a list?
[Translation]
Mr. Denis: Our committee really did not look at this matter. That would be my personal impression, and one that Ms Boisvert seems to share.
It might not be a bad idea to have a list of offences. However, I personally could live with the present wording. I don't find it very ambiguous. In my opinion, the wording indicates what type of offence is covered. I do agree that the somewhat general nature of the wording could include present and perhaps future crimes, which we could forget to include.
.1645
Let's say a provision is introduced that creates a new crime, but someone forgets to include it in 33.1. A broad definition of the type we have here, which nevertheless sets out certain specific parameters, could cover such an offence. I think this was a deliberate choice, and that both approaches can be defended. However, as you say, the Young Offenders Act and the Corrections and Conditional Release Act include lists of offences. That approach is quite acceptable.
The Chair: Thank you.
[English]
Mr. Wappel: I just have a couple of brief questions. Do I understand it that the only amendment you're suggesting on page 3 is the addition of the words underlined in the French text?
The Canadian Bar Association had some difficulty with wording.
[Translation]
Mr. Denis: Yes.
Mr. Wappel: Is there a difference in French between the expressions ``basic intent'' and ``general intent''? What is the difference between the two?
Ms Boisvert: That is complicated as well. I will try to explain it quickly. Let's take the offence committed by Mr. Daviault - sexual assault. To summarize very quickly, we can say that he had sexual relations with someone without their consent.
General intent covers both the awareness of acting and the awareness of the context in which one acts. The fact that the victim does not consent is an important circumstance. That's what distinguishes between a crime and socially acceptable behaviour. The reference to basic intent in the Daviault case covered only the awareness of action. There was no reference to an awareness of the circumstances in which the person acted.
It is rather strange to note that the Daviault case allows the defence of intoxication to say that a person is not aware of acting, but does not allow the defence of intoxication to explain errors made regarding the circumstances or context in which the person acted.
To come back to your question, general intent covers all these concepts, both basic intent and knowledge of the context in which one has acted. So it is a broader term.
Mr. Wappel: On page 2 of the Bill, line 9 of the English version, we find the words ``general intent offences''. On page 3, line 6, we find the expression ``basic intent''. So we have two different expressions, one in the bill itself, and one in the preamble. Is there a problem there? No? Why not?
Ms Boisvert: No, because I described what general intent covers. It is not a legal concept. General intent offences are described as being all those which are not specific intent offences. This is not a legal concept that is used. It simply said that all offences were general intent offences if they were not specific intent offences, i.e. offences for which the defence of intoxication could be used.
Within these general intent offences, since Daviault, the defence of intoxication can be used only if the intoxication makes it impossible to form a basic intent.
It takes me three hours to teach that in the classroom.
[English]
Mr. Wappel: I think I'm a quick study.
[Translation]
The Chair: If there are no other questions, I would like to thank you for your help and for your recommendations.
.1650
[English]
The committee is adjourned until next Tuesday morning when we will have a panel made up of the Canadian Psychiatric Association, the Research Addiction Group and Dr. Kalant. Other meetings will be scheduled, hopefully.
The meeting is adjourned.