3 Questions and Answers

Qs & As

Minister’s Appearance before Senate
Bill C-28, An Act to Amend the Criminal Code (self-induced extreme intoxication)

Q 1 What are the objectives of the proposed amendments, given that there is no preamble?

Preambles are one way that courts can learn the purpose of a bill; the Parliamentary record is another way. We have been clear that Bill C-28 maintains the same objectives as old section 33.1 and that were reflected in the preamble to former Bill C-72: to protect the public and to hold individuals accountable who harm others while in a state of extreme intoxication.

Former Bill C-72’s preamble explicitly referenced the “disadvantaging impact [of violence] on the equal participation of women and children in society and on the rights of women and children to security of the person and to the equal protection and benefit of the law as guaranteed by sections 7, 15 and 28 of the Canadian Charter of Rights and Freedoms” and the connection between intoxication and violence.

Q 2 Does Bill C-28’s addition of the word “extreme” in the law limit its application compared to the previous version of section 33.1?

No. The previous version of section 33.1 was concerned only with extreme intoxication even if the word “extreme” was not there. This is clear from the words of the previous version that required the person to be “unaware of, or incapable of consciously controlling, their behaviour”. Under the proposed amended section 33.1, these words would now form part of the definition of extreme intoxication (subsection 33.1(4)), and the word “extreme” is added in several places to make the scope of the law explicitly clear.

Q 3 Bill C-28’s proposed section 33.1 is very similar to the old version. What is the main difference?

The previous version, as interpreted by the Court, presumed the existence of criminal negligence in all cases where extreme intoxication led to violence. It could have led to conviction for someone who was not proven to be criminally negligent.

The new version makes clear that the prosecution must prove that negligence beyond a reasonable doubt (para. 33.1(1)(b)). This means that where the risk of violent loss of control was not foreseeable, or where it was foreseen but reasonable efforts were made to avoid that kind of harm, even if it should occur, the person who took reasonable care would not be guilty of a crime.

Q 4 Does the requirement for criminal negligence mean that the person would be convicted of criminal negligence causing bodily harm or death?

No. The concept of criminal negligence is used in two ways in the criminal law. First, it is used to name a specific crime where negligence in any kind of conduct – such as manufacture of consumer goods – results in bodily harm or death. Secondly, criminal negligence is also a kind of fault, or mental state, which can be included in offences targeting specific behaviour, such as dangerous driving and failing to provide necessary care to young children under one’s care.

The proposed amendments reflect the second way criminal negligence is used. They make criminal negligence in relation to the consumption of intoxicants – where that leads to an extreme state of intoxication and violence – the fault standard for crimes of violence like assault.

Q 5 What is a “reasonable person” and how can someone know what a “reasonable person” would do?

The courts are very familiar with the concept of a reasonable person. A reasonable person is someone who is prudent and shows care for those around them. They think before they act, and where they see a risk of harm to others, they try to prevent it.

In the case of intoxication, for example, a court could find that a reasonable person planning to take intoxicating substances would want to know what the potential effects are – both good and bad - and would also take steps to minimize risk where they see it.

The legal duty of the accused is not based on his or her personal characteristics, but rather by the nature of the activity and the circumstances surrounding the accused’s failure to take the requisite care. These circumstances do not personalize the objective standard; they contextualize it.

Q 6 What is a “marked departure”?

A “marked departure” is the legal term used to convey the standard of criminal negligence. It means the accused person’s conduct fell far below the conduct expected of a reasonable person in those circumstances. That standard is required for a criminal conviction.

Q 7 What is meant by “objective foreseeability”?

“Objective foreseeability” reinforces that the standard set out in proposed section 33.1 is one of criminal negligence. “Objective” refers to what a reasonable person would foresee, even if that is not what the person in question foresees (what the accused foresees is referred to as “subjective” foreseeability). As part of determining if the accused was criminally negligent, the court must consider if a reasonable person would have been aware of the risk of extreme intoxication that could lead to harm. It is another way of saying that the accused should have known, even if they did not actually know.

Q 8 What is meant by the words “all the other elements of the offence are present” (in para. 33.1(1)(a))?

Like the former section, the proposed new section 33.1 would apply to a number of different violent offences, set out in proposed 33.1(3). Because these offences have different elements, paragraph 33.1(1)(a) makes clear that the prosecution continues to have the burden to prove those distinct elements, in addition to proving negligent intoxication. For instance, in the case of assault causing bodily harm, bodily harm has to be proved, and in a case of sexual assault, the sexual nature of the touching would have to be proved.

Q 9 How can the risk of violent loss of control, or negligence itself, be proved? Is the burden too high?

Criminal negligence is always very dependent on the unique facts and circumstances of each case. In this context it involves a two-step process: First, would a reasonable person have foreseen a risk of loss of control and violence? Second, was the accused’s failure to appreciate or prevent the risk a marked departure from the behaviour expected of a reasonable person?

Importantly, the accused must first put in issue that they were in a state of extreme intoxication, and must support that assertion with expert evidence. That same evidence would open avenues for the prosecution to prove that extreme intoxication was foreseeable in those circumstances. For instance, evidence that people have been reported to have lost control and harmed others from high quantities of certain types of drugs could be used to help prove that loss of control and violence were also foreseeable.

The proposed amendments do not require the level of risk to be probable or even more likely than not. Risk assessment involves balancing the likelihood of the harm, and its gravity if it does materialize. The standard is flexible and enables the court to focus on the critical question, which is whether the person fell far below the behaviour expected of a reasonable person to avoid harming others in the circumstances of the case.

Q 10 How would the law apply to specific drugs or where the person has an addiction? (Note: This Q&A sets out a formula for answering any question about how a specific fact or circumstance would influence the verdict.)

I won’t speculate about how any one factor would influence the outcome of a prosecution. Numerous factors will be relevant in these cases.

However, certain types of factors are expected to be relevant to the question of foreseeability of violent loss of control and negligence such as:

Q 11 What is the impact of the legislation on persons who have an addiction?

Bill C-28 neither promotes nor criminalizes consumption of drugs, nor does it say anything about particular drugs or their legality.

This is consistent with criminal law generally – having an addiction is neither a thing that makes someone guilty nor not guilty of a crime. It’s also how the law treats all forms of intoxication that fall short of this rare, extreme state.

While a court in a particular case could potentially find addiction to be relevant to negligence, depending on the evidence, this would not, by itself, be determinative of the outcome.

Q 12 What is the relationship between the defence of extreme intoxication and the new version of section 33.1?

The amended section 33.1 would not deal directly with the defence of extreme intoxication, which remains a matter of common law. The reversal of the burden of proof and the requirement for expert evidence continue to be governed by the Supreme Court of Canada’s 1994 Daviault ruling.

The new version of section 33.1 would not remove or limit the defence; it would operate alongside it. Practically, being in a state of extreme intoxication would not be a defence where that state was created by the accused’s own criminal negligence.

Q 13 How will the new law work in practice in terms of how the accused proves the defence and the Crown proves negligence?

For section 33.1 to come into play in a given case, the accused person would have first raised the common law defence of extreme intoxication in accordance with its requirements under the Daviault test established by the Supreme Court of Canada, including by having expert evidence.

The prosecution could try to prove that the person was not extremely intoxicated, in which case they could be convicted in the normal way, for having voluntarily and intentionally harmed the victim. If Bill C-28 is enacted, the prosecution would also have the opportunity to prove that the accused person’s consumption of intoxicants was criminally negligent. The jury or court would consider all the evidence and apply the law in the usual way to determine the appropriate verdict.

Q 14 How does Bill C-28 address the Charter breaches set out in Brown?

The Supreme Court expressly noted that it would be open to Parliament to provide liability for general intent offences of violence based on criminal negligence in consuming intoxicants prior to a violent loss of control. That is exactly what the Bill does.

Bill C-28 is consistent with the Charter. The consumption of intoxicants must be both, voluntary and criminally negligent, and this must be proved beyond a reasonable doubt by the prosecution. The Bill also follows the guidance of the Court on the nature of the risk that must be foreseeable, which is a critical aspect of criminal negligence; there must be an objectively foreseeable risk of extreme intoxication which could lead to violence.

Individuals who could not reasonably have perceived a risk of harming others, or who take reasonable measures to prevent that harm, cannot be held responsible under the proposed amendments. This was the heart of the Court’s concern with the old law.