Justice committee  From what I can say, it appears to me that you tried to follow the road map that the Supreme Court had laid out for you, and of course whether there are ways in which the legislation could be improved.... Now that you have more time to think about it, I expect it is what you're looking at now.

Justice committee  Yes.

Justice committee  I don't think the question is a legal question. It's a scientific question.

Justice committee  How would it work before Brown? Well, it was a pretty short analysis. The Crown would analyze the evidence to see whether we could make out mens rea and actus reus to the extent that an accused wanted to argue that because of intoxication, they lacked the mens rea.... I'm sorry for using technical lawyer language, but mens rea just means the fault component of the events.

Justice committee  Okay. Very good. I was saying, to the extent that the accused wanted to raise intoxication as a way of showing that they lacked one of the elements of the events. Then, if it was what the law calls a specific intent defence, that would be fine. So, if you were charged with murder because of intoxication and you didn't have the capacity to form a sufficient degree of intent, then it could reduce it to manslaughter, which is a general intent defence.

Justice committee  Right. So, what the Supreme Court said was that the problem with that approach is that you have to have a degree of fault to convict somebody. You can't convict somebody who, for example, went to see a doctor, got a prescription, took their medication, had a completely unforeseen result and ended up doing something that they didn't even have any control over.

Justice committee  Thank you for the question. I think, in determining where you want to go, you probably need to start with the Supreme Court's decision, which makes it abundantly clear that, absent negligence.... Sorry, let me back up. The court has taken a strong position that, absent fault, we will not be able to enter convictions for criminal offences.

Justice committee  Thank you for the question. As Ms. Jules indicated earlier, you can never guarantee a result in a criminal case. It's important to always remain conscious of the burden of proof beyond a reasonable doubt that rests upon the Crown in every prosecution. That said, there are a number of reasons for optimism in the application of this legislation.

Justice committee  Thank you, Mr. Chair. As you know, the Daviault decision, some 30 years ago, already placed the burden to raise the defence on the accused. I should note that it did so in relation to all general-intent defences, not just violent ones. I think what proposed subsection 33.1(2) does in this case is provide some useful guidance to trial judges in terms of what sorts of things you have in mind that they should be looking at.

Justice committee  Sure. First of all, the legislation refers to both. You will see that it says, in subsection 33.1(2), that in “determining whether the person departed markedly from the standard of care, the court must consider the objective foreseeability of the risk that the consumption of the intoxicating substances could cause extreme intoxication and lead the person to harm another person.”