BILL C-28: Letter to Senators

The Senate of Canada 
Ottawa, Ontario 
Canada 
K1A 0A4 
 
June 21, 2022  
 

Dear Honourable Senators: 
 
Re: Bill C-28 – Self-Induced Extreme Intoxication 
 
I write on behalf of the National Association of Women and the Law (NAWL). Founded in 1974, NAWL is a feminist organization that promotes the equality rights of women through legal education, research, and law reform advocacy. While NAWL agrees that Parliament should act expeditiously to respond to the Supreme Court decision in Brown, it is deeply concerned with the seeming rush to pass Bill C-28, amending s.33.1 of the Criminal Code, before Parliament recesses for the summer. There was a lack of meaningful consultation prior to the bill being introduced and with the substance of the bill.  In the best traditions of the Senate as the house of sober second thought, NAWL asks that Senators take the time to carefully examine the bill and refer it to its Legal and Constitutional Affairs Committee with sufficient time to hear from relevant stakeholders, including women’s groups, Crown prosecutors, and medical experts. This is necessary in order for the Committee to consider revisions to problematic aspects of the bill, which we fear will pose nearly impossible hurdles for prosecution of intoxicated perpetrators of violence against women. 
 
I attach our press release that provides some further details of our concerns, particularly with the requirement that prosecutors prove beyond a reasonable doubt both that the loss of control after the consumption of intoxicants was reasonable foreseeability and the foreseeability of harm.  We also provide a chart of two alternatives to amend s.33.1, which our criminal and constitutional experts have developed in order to avoid the current weaknesses of Bill C-28. We presented these alternatives to the Department of Justice, in a meeting organized by DOJ lawyers only mere days before the Bill was tabled. As a result, these alternatives did not receive meaningful consideration and we cannot discern that they are reflected in Bill C-28 in any way. This is in stark contrast to the early consultation with NAWL before the introduction of the bill inserting section 33.1 into the Criminal Code. NAWL also testified before Parliament suggesting a number of amendments to what became the final text of s.33.1. 
 
The defence of extreme intoxication is one that is almost always advanced by men perpetrating violence against women. Further, men responsible for violence against women are usually intoxicated. Even if it is a high evidentiary bar for a successful defence of extreme intoxication, the real-life impacts of the availability of the defence on charging and prosecution decisions cannot be underestimated.  Parliament should act quickly to ensure that accused men who voluntarily become extremely intoxicated before committing gendered violence are held accountable. However, it should not act hastily and entrench a flawed bill into law. NAWL respectfully asks you to take the time to ensure that Bill C-28 will serve justice. 
 
Yours sincerely, 
 
 
Dr. Kerri A. Froc 
Chair, National Steering Committee 
National Association of Women and the Law 
 
 
On behalf of:  
Pamela Cross, Legal Director, 
Luke’s Place Support and Resource Centre 
 
Lise Martin, Executive Director 
Women’s Shelters Canada 

Erin Whitmore, Executive Director  
Ending Violence Association of Canada  
 
Myrna Dawson, Director  
Canadian Femicide Observatory for Justice and Accountability  

Jan Reimer, Executive Director  
Alberta Council of Women’s Shelter 

Mary Jane James, Chief Executive Officer  
Sexual Assault Centre of Edmonton  

Deepa Mattoo, Executive Director 
Barbra Schlifer Commermorative Clinic 

Linda MacDonald, Co-Founder 
Persons Against Non-State Torture 

Jeanne Sarson, Co-Founder 
Persons Against Non-State Torture 

Jennifer Dunn, Executive Director 
London Abused Women’s Centre 

Sheila MacDonald, Director
Ontario Network of Sexual Assault/Domestic Violence Treatment Centres 

Megan Walker, Former Executive Director  
London Abused Women’s Centre 

Maïra Martin, Executive Director 
Action ontarienne contre la violence faite aux femmes 

Nneka MacGregor, Executive Director 
WomenatthecentrE 

Maureen McLeod, Program Coordinator
Lanark County Sexual Assault & Domestic Violence Program

Cheryl Milne, Executive Director,
The David Asper Centre for Constitutional Rights

Linda Baker, Learning Director,
Center for Research & Education on Violence Against Women & Children

Barb MacQuarrie, Community Director,
Center for Research & Education on Violence Against Women & Children

Katreena Scott, Academic Director,
Center for Research & Education on Violence Against Women & Children
 

Preamble  Whereas intoxicated violence is a practice of sex inequality and women have an equal right to liberty, personal security and fundamental justice under sections 7 and 28 of the Charter. 
  Self-induced Intoxication [unconstitutional]  Self-induced Intoxication  

[alternative 1 – evidentiary presumption] 

Self-induced Intoxication  

[alternative 2 – legal presumption] 

When defence not available 

 

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, lacked the general intent or the voluntariness required to commit the offence, where the accused departed markedly from the standard of care as described in subsection (2). 

 

33.1 (1)(a) It is not a defence to an offence referred to in subsection (3) where the accused proves that, by reason of self-induced intoxication, he lacked the general intent or the voluntariness required to commit the offence, where the accused departed markedly from the standard of a reasonable person. 

 (b) “Departed markedly from the standard of a reasonable person” in clause (a) means that the accused voluntarily ingested substances which a reasonable person ought to have known could create a risk that he would lose control over his actions 

(c) For the purposes of this subsection, where alcohol was the only intoxicant consumed by the accused, it shall be presumed that the accused acts voluntarily in committing the offence.  

33.1 (1)(a) It is not a defence to an offence referred to in subsection (3) where the accused proves that, by reason of self-induced intoxication, he lacked the general intent or the voluntariness required to commit the offence, where the accused departed markedly from the standard of a reasonable person. 

 (b) “Departed markedly from the standard of a reasonable person” in clause (a) means that the accused voluntarily ingested substances which a reasonable person ought to have known could create a risk that he would lose control over his actions 

(c) For the purposes of this subsection, where alcohol was the only intoxicant consumed by the accused, it shall be presumed that the accused acts voluntarily in committing the offence.  

Criminal fault by reason of intoxication 

 

(2) For the purposes of this section, a person departs markedly from the standard of reasonable care generally recognized in Canadian society and is thereby criminally at fault where the person, while in a state of self-induced intoxication that renders the person unaware of, or incapable of consciously controlling, their behaviour, voluntarily or involuntarily interferes or threatens to interfere with the bodily integrity of another person.  (2) For the purposes of subsection (1), evidence that an accused’s intoxication was self-induced and that he interfered with the bodily integrity of another person is, in the absence of evidence to the contrary, proof that the accused ought to have foreseen a risk that he could lose control over his actions.  (2) No accused shall be convicted where he establishes that a risk of loss of control of his actions was not reasonably foreseeable at the time he became so intoxicated. 
Application 

 

(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.  (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.  (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.