2 Opening Remarks

Senate

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

Standing Senate Committee on Legal and Constitutional Affairs

Minister of Justice’s Opening Remarks

June 2022

Thank you for the invitation to appear before you to discuss Bill C-28.

On May 13, 2022, in its decisions in Brown, Sullivan and Chan, the Supreme Court of Canada held that section 33.1 of the Criminal Code was unconstitutional. Section 33.1 prevented the use of the defence of self-induced extreme intoxication as a defence for most violent offences such as, for example, assault, sexual assault.

The Supreme Court found it unconstitutional because it took away the defence of extreme intoxication in all cases, even where the accused could not have reasonably known that their consumption of intoxicants could lead them to lose control of their actions and harm others.

Extreme intoxication is a rare state where a person is unaware of their actions and is incapable of forming a basic level of intent to ground criminal responsibility. The vast majority of crimes committed by intoxicated persons do not involve extreme intoxication.

These decisions have left a gap in the criminal law because individuals who commit violent crimes like aggravated assault, or even manslaughter, may not be held responsible for those crimes even where they knew or should have known that their intoxicant consumption could lead to uncontrolled violence.

The decisions have led to a significant and disturbing misunderstanding by some that it is ok to drink a few beers and commit sexual assault because now they cannot be held criminally liable. This further demonstrates the need to quickly respond: the law must provide that persons be held fully responsible for the harm they cause to others as a result of their negligent voluntary consumption of intoxicants.

And this is why we introduced Bill C-28, just five weeks after the release of the Supreme Court’s decisions.

For example, under Bill C-28, an individual who violently harms another after having negligently put themselves into a state of extreme intoxication would be subject to the same conviction, penalties and criminal record as a person who does so while sober. There would be no discount for their extreme intoxication.

Bill C-28 proposes a new section 33.1 that mirrors the public protection and accountability objectives of the old section 33.1, but it is revised to address the concerns of the Supreme Court and ensure consistency with the Charter.

The new provision would criminalize individuals who negligently self-intoxicate to an extreme degree, and cause harm to others. The vital difference with the old law is that under Bill C-28, individuals would not be held criminally liable where the risk of violent loss of control was not foreseeable or, where it was foreseen, where reasonable efforts were made to avoid that kind of harm.

In all cases, courts would need to determine whether the accused’s perception of risk and any action taken to avoid it departed markedly from what a reasonable person would have done in the circumstances.

So today, being in a state of extreme intoxication can give rise to a defence, but if this Bill is adopted, where a person negligently puts themselves in that state, that will be a new way of proving a crime of violence.

In practice, the accused would have to raise the defence of extreme intoxication by calling expert evidence in addition to other requirements. The prosecution could certainly challenge the claim that the accused was in a state of extreme intoxication, and these claims are often, in fact, rejected on the facts.

But with Bill C-28, the prosecution would also have the opportunity to prove that the accused’s consumption of intoxicants, prior to the act of violence, was negligent. The jury or court would consider all of the evidence at the close of the trial to determine the appropriate verdict. Criminal negligence is well known and understood by criminal law judges and practitioners, who will be able to apply the new law accordingly.

I am confident that Bill C-28 will ensure accountability, protect victims and respect the Charter.

Thank you.