[Recorded by Electronic Apparatus]
Tuesday, June 13, 1995
[English]
The Chair: Order. We will continue this morning with our examination of Bill C-72, An Act to amend the Criminal Code (self-induced intoxication).
This morning we have with us, from the Canadian Psychiatric Association, Dr. John Bradford, the head of forensic psychiatry at the Royal Ottawa Hospital and former chair of the Canadian Association of Psychiatry and the Law. We also have with us, from the Addiction Research Foundation, Sue Bondy and Dr. Perry Kendall. As well, we have Dr. Harold Kalant from the Department of Pharmacology, Faculty of Medicine, University of Toronto.
They have three submissions and I have asked them to limit the three to fifteen minutes each and then we'll have our questions.
I also want to advise the committee that these are the last witnesses we are having with respect to this bill. We had invited the association of transition houses for women, as well as the one from Quebec, but they were unable to appear.
So we will proceed to clause-by-clause consideration of the bill on Thursday afternoon.
I also want to remind the committee that on Thursday morning we will have the National Parole Board before us. We did not have time to invite them during the period for estimates because we were so occupied with the gun control legislation, but we're going to have them this week in any case under another provision of the Standing Orders, and we'll be able to examine them fully with respect to their administration and their budget.
The last witness we will have before the summer recess will be next week, when we have the correctional investigator under the same provisions of the Standing Orders. Again, we had agreed to invite the correctional investigator during the estimates and we were unable to do so. So we'll have a date next week for that.
The only other remaining meeting - and this is important - will be a steering committee meeting next week to plan next fall's business, in particular our hearings on the Young Offenders Act, which will require considerable planning. Consequently, if any of you have suggestions to make to me or to the clerk or to anybody on the steering committee before next week's steering committee meeting, please give us your suggestions and views.
You will recall that we have been asked to do a phase two study on young offenders, and we also made a commitment to visit different institutions and facilities in different parts of Canada, as well as to meet with experts and citizens' groups throughout the country. It will be a considerable undertaking and will take place next fall.
Now, I turn the floor over to our witnesses this morning and I would ask you to proceed in the order in which you are on the notice: first, the Canadian Psychiatric Association, Dr. John Bradford, then the Addiction Research Foundation. You may choose which one or both of you who would give the brief, either Ms Bondy or Dr. Kendall, and then we'll have Dr. Kalant.
Dr. John Bradford.
Dr. John Bradford (Head, Forensic Psychiatry, Royal Ottawa Hospital): Good morning.
The Canadian Psychiatric Association welcomes the opportunity to participate before the House committee. There is a six-page brief and I will read most of it. I will not follow it exactly but make sure I get the main points across.
In medical terms, automatism, by definition the automatism defence, is an acknowledgement that certain criminal acts can be committed involuntarily. Specifically, automatism is defined as having performed a certain act or behaviour in a state of unconsciousness. The idea behind this, in legal terms, is that the act was committed without the person having an operating mind and without free will or purpose. Somnambulism, or sleepwalking, fits this definition well and has been accepted by the Canadian courts.
There are clearly a number of medical conditions that create a situation of automatism as a result of a state of unconsciousness; for example, a concussion following a head injury, the effects of drugs and alcohol, various metabolic disorders, or epilepsy or somnambulism.
There are also certain psychiatric conditions that may lead to automatism. The Canadian Psychiatric Association clearly acknowledges that various states of automatism occur and these conditions could be part of the legal defence of automatism. The Canadian Psychiatric Association, however, would acknowledge that there have to be limitations to the automatism defence, and the principle here is that any responsible individual who is aware of a condition he has that may lead to a state of automatism has a responsibility to avoid those situations when it might occur and therefore avoid circumstances that may lead to physically causing harm to himself or to other people.
An example would be an individual who knows he is an epileptic and knows his epilepsy is poorly controlled. He would then be seen as responsible if he avoided operating a motor vehicle and thus avoided the risk of uncontrollable seizure activity occurring and, of course, injuries to other people.
The Canadian Psychiatric Association states clearly that voluntary intoxication is not and should not be a defence to criminal acts, except as already in place in the existing defence of drunkenness or as part of being not criminally responsible on the basis of mental disorder.
The principle behind this is the same in that a responsible individual, indeed most members of Canadian society, are fully aware of the effects of alcohol and how it may affect their behaviour in various ways, such as impairing the ability to operate a motor vehicle, and may be associated with various acts of violence. It's therefore incumbent on individuals to avoid a state of intoxication if they are concerned about these consequences and therefore responsible for any behaviour that may flow out of it.
It is also very important that intoxication in general terms not be accepted as an excuse for criminal activity. Although there are clearly situations where alcohol can directly cause severe mental disturbances, with unconsciousness and automatic behaviour and seriously problematic behaviour such as delirium tremens or other alcohol-induced organic disorders, there are adequate mechanisms for dealing with these through section 16 of the Criminal Code of Canada on the basis of a finding of not criminally responsible by reason of mental disorder.
Automatism should be considered as a defence when there are clearly defined underlying medical disorders, such as metabolic disorders, somnambulism - the types of disorders I've already mentioned. Similarly, in states of severe intoxication where there is - and I emphasize in addition - some underlying organic mental disorder, automatism related to alcohol intoxication in this organic mental disorder could be considered for the defence of automatism.
Outside of this and without the features of automatism, such as amnesia, if this impairment of mental functioning occurred at the material time of an offence, it could be dealt with under section 16 of the Criminal Code. In general terms, the mere fact an accused person was intoxicated on a voluntary basis should not support a finding of automatism under any circumstances, regardless of the level of intoxication.
In coming to our conclusions, we acknowledge there is a relationship between alcohol and other substance abuse and violent crime, but at the same time we point out this relationship is both complex and in individual cases is difficult to evaluate.
There's no question that alcohol causes amnesia in the form of alcoholic blackouts. During this period of amnesia an individual may commit a crime of violence such as outlined in the Daviault case. There's no way this should be seen as undermining an individual's knowledge that by drinking he may run the risk of being involved in violence and, at the same time, it does not mean that at the actual material time of the offence he was not able to form the intent or act under his own free will.
On the contrary, the amnesia often occurs in retrospect, meaning that the individual was aware of what they were doing at the time but simply, because of the effects of alcohol, at some later time was not able to remember what they did. This should therefore not in any way be used to diminish criminal responsibility based on intoxication alone.
The complex relationship between alcohol and crime varies dramatically with individuals in terms of their blood alcohol levels, their tolerance, making it very difficult to evaluate objectively.
The relationship between alcohol and substance abuse and violent crime is outlined in appendix A. Appendix A is a chapter I wrote with some other authors in terms of the relationship between alcohol and substance abuse and violent crime.
We do, however, believe that criminal law and the defences of drunkenness and the defences in relation to mental disorder already cope adequately with the problems presented by severe intoxication causing mental disorder and that automatism can be appropriately dealt with when it consists of severe drunkenness, but, in addition, an underlying organic mental disorder can be diagnosed specifically.
We acknowledge that memory loss and amnesia are clearly within the realms of a neuropsychiatric evaluation. The claim by an accused of amnesia requires a careful forensic psychiatric evaluation. Memory impairment, and specifically amnesia, occurs in many disorders. Transient short-lived episodes of amnesia lasting anywhere from a few minutes to hours can occur in a variety of conditions and is something that is frequently seen in forensic psychiatric evaluation.
The common cause of this type of amnesia is a failure of attention and concentration in relation to various levels of confusion. A typical situation would not involve the type of amnesia we believe is necessary to be present for automatism to be accepted as a defence. This would need lesions within the brain structure, particularly involving the limbic system and specific neuroanatomical areas in the brain. A neuropsychiatric work-up, including specialized testing, should be able to define this organic brain syndrome.
Amnesia based on alcohol, producing transient memory loss, can occur in a variety of psychiatric disorders that may be either alcohol abuse or alcoholism, but generally will not show the underlying brain structural abnormalities. Also, the mental status examination outside of the amnesia for the events that transpired during the intoxication would be normal other than personality disorder and other minor psychiatric or unrelated psychiatric conditions.
At the same time, we acknowledge that certain confusional states may produce severe subsequent memory loss for the period in time when the confusional state occurred, and during that time individuals may not be responsible for their behaviour. Such confusional states would not be driven by alcohol alone and the individual not aware of the possibility of such a confusional state occurring. For example, these confusional states could occur in relation to drug interaction, and would be unknown to the individual, or a variety of medical conditions such as a sudden withdrawal of drugs or other medications, and various medical conditions such as hypoglycemia, disturbances of cardiac rhythm, disturbances in cerebral blood flow, or a variety of other metabolic disorders.
Epileptic seizures may produce altered states of consciousness, including automatic behaviours and violence occurring both in the pre-ictal period - that is, prior to the convulsion - during the ictal period - meaning during the convulsion - or most commonly in the post-ictal confusional state. Such conditions could be diagnosed on the basis of history and a neuropsychiatric and specialized evaluation.
To sum up then, in essence the Canadian Psychiatric Association's position is that the existing defences that are presently recognized within the Criminal Code are more than adequate to deal with any of the special conditions that supposedly may occur out of drunkenness, and we don't believe anything new needs to occur.
The Chair: Clarify that. When you say the present defences in the Criminal Code, you mean the ones that were there prior to the Daviault judgment? Is that right?
Dr. Bradford: Yes. Exactly.
The Chair: Next we have the Addiction Research Foundation. Dr. Kendall, you will give the opening statement, I believe.
Dr. Perry Kendall (President and Chief Executive Officer, Addiction Research Foundation): With your permission, Mr. Chair, I'd like to defer to Dr. Kalant, whose brief, I think, precedes my own.
The Chair: That's fine. Dr. Kalant.
Dr. Harold Kalant (Director Emeritus, Addiction Research Foundation): Thank you, Mr. Chairman. I'd like to thank the committee for giving me the opportunity to present this brief in the hope that it will be of service to you in evaluating the scientific evidence that has been, in my view, misused in a number of the court cases in which the defence of intoxicated automatism has come up.
In the Daviault case, and in several related cases that flowed from it, automatism has been variously equated with amnesia. It's been considered to be an inevitable consequence of a high blood alcohol level. It has been described in another case as being a dissociative state. All of these are points that have been touched on in the previous brief, but I would like to expand a little on them.
For that purpose I would like to outline what the concept of automatism is, as used in medicine, what some of the known causes are, what the relationship between alcohol use and automatism is, and how these concepts apply to the cases that have given rise to the present legislation.
First of all, automatism itself does not appear in the internationally used diagnostic manuals, the DSM-IV, the Diagnostic and Statistical Manual, 4th Edition, American Psychiatric Association, or the World Health Organization's ICD-10, its equivalent. But the term is used in practice, and while there isn't a single agreed definition, the closest one can come to it, by putting together a number of definitions from standard textbooks, is something like this. Automatism is a behaviour of which the person performing it is unaware and over which he or she has no conscious control. It's usually inappropriate to the circumstances and may be out of character for the individual. It can be complex, coordinated and apparently purposeful and directed, though lacking in judgment. There's usually full or partial amnesia afterwards for the period in which this behaviour occurred.
As already mentioned, some types of epilepsy, particularly temporal lobe epilepsy - or, as it is now called, complex partial seizures - provides perhaps one of the clearest examples of a medical cause of true automatism and is characterized by a sudden onset of the attack, stereotyped repetitive behaviour, clouded consciousness, a short duration - it's a matter of minutes - followed by deep sleep, and then amnesia. The behaviour is bizarre. It's often endless repetition of whatever the person was doing just before the start of the attack. But it is usually inappropriate and usually simple in character. It can be confirmed by picking up a characteristic electroencephalogram. The brainwave pattern during the attack is characteristic and it can be reproduced.
Attacks of rage and violence are in fact very uncommon during temporal lobe epilepsy. They occasionally do occur, but usually the aggressive acts are simple, stereotyped - that is, repetitive - unsustained and practically never supported by a consecutive series of purposeful movements.
As already mentioned, organic or metabolic diseases of the brain of various kinds, such as oxygen deficiency, very low blood sugar, etc., can produce similar automatisms. But again, the cause is recognizable and identifiable by regular medical means.
Sleepwalking, as already mentioned, is another well-recognized instance of automatism. But the essential features, again for the present purposes, are that the person suddenly sits or stands up during the first part of the night, does not appear conscious, typically has a blank stare, is unresponsive to other people speaking or trying to communicate with them. If the person speaks, his speech is usually poorly articulated, sometimes unintelligible, and there's practically never any real dialogue between the person and others around him. The behaviour is again usually routine, repetitive behaviour of a very low level of complexity. Again, it is inappropriate, such as the child urinating in the bedroom closet or a person walking outside naked during the attack, and there's confusion and amnesia afterwards.
Hypnosis is another example that could be called automatism because, again, the person, while able to perform complex behaviour, does not meet the criteria of consciousness because the person is not responding to a true external reality but to perceptions of reality that have been, in a sense, evoked by hypnosis. So, while it is behaviour that is organized and complex, it's not something the person is doing in conscious response to the true external environment.
Dissociative disorders, things that used to be called in my student days hysteria, are essentially now called dissociation because there is a dissociation between the functions of the mind that are usually closely integrated - consciousness, memory, sense of identity - and accurate perception of the environment. These take various forms, what used to be called hysterical fugue or multiple personality disorders, things of this kind. But again, as already mentioned in the previous brief, they have usually been diagnosed; the person knows they happen and there's already a record of their occurrence.
In summary, automatism, for a variety of medical and psychiatric reasons, is a well-recognized behaviour that is usually characterized by a loss of true consciousness, inappropriate behaviour that is usually repetitive and of low complexity, lack of real communication with people during the period of those events, disorientation and amnesia afterwards, and very rarely violent behaviour.
The next important question is: does this happen in relation to alcohol intoxication? There is no scientific evidence whatever that it can be caused directly by alcohol intoxication in the absence of some other condition.
The typical action of alcohol on the brain is to suppress, or depress - progressively, as the blood alcohol level goes up - all functions of the nervous system, including those responsible for conscious mental activity as well as physical activity. As the person gets more and more intoxicated, mental and physical performance decrease more or less in parallel so that when the person is so drunk as to be for all practical purposes devoid of consciousness, that person also is unable to perform any complex physical behaviour and typically passes out, which is well known as being dead drunk.
Conversely, if the person does retain the ability to perform complex physical tasks, then some consciousness is also present. There are some instances in which intoxication can probably trigger automatism due to other factors. One known as pathological intoxication, or as it's now called alcohol idiosyncratic intoxication, does carry with it a behaviour that probably can properly be called automatism, a marked behavioural change including inappropriate belligerence or assaultiveness. But the important features are that it is triggered by a small quantity of alcohol that is not enough to produce the usual signs of intoxication. There's marked confusion, disorganization of thought, incoherent or deluded speech, and an explosive outburst of fury in which homicide or suicide is possible; it is followed by deep sleep and partial or total amnesia for the events in question.
Not all experts accept that this really happens, but the majority do. The important thing is that it is brought on by a small amount of alcohol, which does not produce the typical signs of intoxication. So if one looks at a case in which there is clearly a characteristic pattern of intoxication of the ordinary kind, that does not qualify as a case of pathological intoxication.
Alcohol can also trigger temporal lobe epilepsy. This has been verified experimentally, and in the course of such attacks one can show the characteristic changes in the brainwave pattern that demonstrates that it is indeed temporal lobe epilepsy.
Perhaps the most vexing question of all is the matter of blackout. In the Daviault case automatism was in effect equated with blackout, and this is a very serious error of concept. Blackout means nothing more than a subsequent failure to remember some events that occurred previously during the period of intoxication. It does not imply that the person was not conscious of what was being done at the time.
The proof that consciousness can co-exist with blackout is that some years ago it was shown experimentally that a person, given enough alcohol to have a blackout, could remember the events when again intoxicated. I couldn't resist providing a supplement to the brief, which I hope you've all received, because yesterday in the rare book collection at the university library I ran across two books, one from 1893 and one from 1832, both of which contained this as a well-known fact. The 1893 one says:
- This is brought out by an observation, verified by many authorities, that a man may forget the
things he has done when intoxicated, and only be able to recollect them when intoxication has
again restored the conditions favourable for reproduction.
- That is of the memory.
- Dr. Clum mentions an illustrative case. ``An Irish porter in a warehouse delivered a package at
the wrong house during one of his drunken sprees, and, when sober, could not recollect what he
had done with it; but the next time he got drunk he recollected where he had left it, and went and
recovered it.''
- Drunkenness has sometimes a curious effect upon the memory. Actions committed during
intoxication may be forgotten on a recovery from this state, and remembered distinctly when
the person becomes again intoxicated.
The significance of this is that you cannot form a memory if you are not conscious. Therefore, the fact that the memory can be re-evoked by intoxication means that the person was conscious at the time.
Can intoxication impair consciousness without producing automatism? The answer has to be a qualified yes, because, as has been pointed out, drunkenness does impair judgment. It reduces self-control over behaviour and it can produce a paranoid misrepresentation of the environment that can result in rage and violence. However, the points to remember are that the person is not unconscious and is not behaving in a state of automatism, and the intoxicated state is self-provoked in that the person has drunk knowing that the consequences of being drunk can include misrepresentation or misunderstanding of the environment and violent behaviour.
Another important point to remember is that tolerance to alcohol can sometimes reach extremely high levels in regular, very heavy drinkers. There are a number of reports in the recent literature describing drinkers who appeared sober in the judgment of experienced clinical observers despite having blood alcohol levels as high as 400 milligrams per 100 millilitres, which would put most people out unconscious, if not kill them.
In the interests of brevity, I will not refer to the effects of other drugs. There are a few other drugs that can produce true automatism by their pharmacological actions. The only thing to mention about them is that they do not always do so. It depends on the dose, on the user, on the circumstances, and therefore, in a particular case, the onus is on the defence to show that at that time, in that person, that amount of the drug did in fact produce automatism as demonstrated by eyewitnesses who can describe the behaviour of the person involved.
Finally, I would like to refer briefly to the evidence in the court cases that have given rise to the present legislation. In the Daviault case the majority decision was based on testimony that linked automatism to a blackout. As already noted, this is an incorrect linkage because blackout does not prove automatism.
In R. v. Sullivan, great importance was attached to a blood alcohol level of 160 to 200 milligrams per 100 millilitres, and it was stated that this would almost certainly produce automatism. There is no evidence whatever for this. A great many alcoholics and/or heavy drinkers reach such levels and are impaired but are by no means unconscious. Moreover, in that particular case, it's quite clear from the testimony of the accused that there was not automatism. The witness himself engaged in a true dialogue with his wife, whom he killed. He engaged in true dialogue with his wife and their friend throughout the events in question. During his own testimony he recalled accurately what he discussed with her. After shooting his wife, he acknowledged to his friend that he had ``fucked up''. He was aware that he had done something wrong. Therefore, there is no evidence whatever in that case that there was a suspension of consciousness or moral judgment.
Finally, in R. v. Blair, the conclusion that Blair was acting automatically was apparently based entirely on an estimated blood alcohol concentration of 550 to 750 milligrams per 100 millilitres and the statement of an expert that this would inevitably produce automatism. On the basis of the testimony of the witness, who spent two days with the accused, concerning the amount he drank, I calculated his probable blood alcohol level. If that testimony had been true, the blood alcohol level would much more likely have been over 1,000, not 550 to 750. At such a level it's virtually certain that he would have been totally unconscious or dead. Therefore, the validity of the testimony is very much in question.
In all of these cases there are reasons to doubt the scientific validity of the testimony on which the court's decisions on automatism were based. In conclusion, then, the following points can be sustained.
Automatism can occur as a consequence of various physical and psychiatric disorders affecting brain function, and in a few probably rare cases alcohol may act to trigger that automatism caused by these disorders, but it should be possible in such cases to provide medical evidence proving the existence of those disorders.
Secondly, alcohol-induced blackout or amnesia does not constitute evidence that the person so affected was unconscious or in a state of automatism at the time of the events that have been blacked out, because those blacked-out events can usually be recovered, which means that there must have been consciousness present at the time. A few drugs known as dissociative anesthetics can, in high doses, produce true automatism by their direct chemical actions on the brain, but it is necessary to prove in any given case that this in fact did happen.
Finally, severe intoxication with alcohol does impair the ability to respond rationally to external events by interfering with judgment, perception of external reality and self-control, but this is more accurately regarded as a self-provoked, temporary, chemically induced brain malfunction, but not automatism.
Finally, if I may, I could not resist the temptation to point out that the principle of the proposed legislation would represent a return to a principle that was well-accepted in British jurisprudence centuries ago, because if you look at the supplementary sheets that were distributed just now, on the third page you will see a note from the 1832 book, which states that:
- ``A drunkard,'' says Sir Edward Coke, ``who is voluntarius demon, hath no privilege thereby;
but what hurt or ill soever he doth, his drunkenness doth aggravate it.'' In the case of the King
versus Maclauchlin, March, 1737, the plea of drunkenness, set up in mitigation of punishment,
was not allowed by the court.
Thank you.
The Chair: Thank you, Dr. Kalant. It's interesting to note that in your reference to the 1893 textbook, this English author uses an Irish porter as an example of a drunken person. This is the sort of campaign put on by the English to stereotype the Irish as drunks. As the chair, I'll officially enter an objection. Mr. Gallaway might want to assist me on that one and Ms Torsney as well.
Dr. Kalant: An Irish text might give an English example.
The Chair: I hope so.
Next we have Dr. Kendall from the Addiction Research Foundation.
Dr. Kendall.
Dr. Kendall: Thank you, Mr. Chair. I too would like to thank you for inviting us to be here today.
The Addiction Research Foundation of Ontario was extremely concerned with the apparent success of a defence of extreme intoxication against charges arising from acts of violence and sexual aggression.
As leaders in the field of alcohol and other drugs, our mandate is essentially to develop research-based knowledge and make that knowledge available to our society in a usable way. Our overriding goal is to help relieve the burden created by substance abuse.
We have more than 45 years' experience in the field and I believe considerable expertise in the pharmacological and behavioural aspects of alcohol. Our experience in treating alcohol problems as well as our public and policy background, I believe, will be useful to this discussion. Although our expertise covers a wide range of drugs, we did confine ourselves to discussing the issues of alcohol, as it causes significant harm to society and its abuse pertaining directly to the Daviault decision.
I'm not going to read the brief, but perhaps I could just summarize some of the points in the brief that you have before you.
First of all, we are supportive of the essence of Bill C-72. The bill would send an appropriate message that one should be held accountable for behaviour that occurs following self-induced intoxication. The bill puts the public on notice that an individual must take responsibility for actions that result from the consumption of alcohol.
Research does tell us that people are influenced by the culture they inhabit. If it is socially unacceptable to behave in a certain way, fewer people will tend to adopt that behaviour and vice versa.
I believe that laws generally are designed to reflect the morals and opinions of the general population. A law that holds individuals responsible for the adverse consequences of their actions is one that will be supported by the general public and likely will encourage more responsible behaviours.
We are not going to comment directly on the bill from a legal standpoint, as we do not profess to have that legal expertise. We've confined the comments in our brief to the areas where we think we have a legitimate expertise.
We concur with what you have heard from the Canadian Psychiatric Association and fromDr. Kalant: alcohol in and of itself cannot induce a state akin to automatism. The so-called Daviault decision would de facto seem to have created the legal defence of alcohol-induced intoxication akin to automatism, which is indefensible in scientific terms.
Some other points may be raised here as well. Apparently neither the blackouts, nor the amount consumed, nor the blood alcohol level, nor the presence of an expert witness are sufficient to establish a defence of automatism relating to alcohol as a whole. One of the points we raise in our brief is the difficulty this then places before the court in relying on the testimony of an expert witness and how an expert witness can in fact be deemed to be expert. We do not have any suggestions for you today as to how this can be built into the judicial procedure, but we would suggest it is an area deserving of some further attention.
There obviously are cases of unconscious behaviour akin to automatism that can be caused by alcohol, but there would clearly be a pre-existing disease or physiological imbalance - organic brain disorder, hypoxia or low blood sugar - evidence of which should be apparent and could be produced. There are also some other drugs that may be able to produce such a state if taken in sufficient quantity.
We would like to comment a little on the relationship of alcohol to violence. Research shows that while alcohol is neither a sufficient nor a necessary cause for violence, alcohol and violence do co-exist. They do go together. The consumption of alcohol at the societal level does contribute to the incidence and prevalence of violence among certain individuals. We do not believe, however, that the consumption of alcohol should be used to excuse or ameliorate the effects of that violence.
This leads us to the conclusion that there is an individual and a societal responsibility to attempt to diminish alcohol- and drug-related harm. We believe social controls and laws are very potent mechanisms for society to effect those controls.
To summarize, then, it is not the Addiction Research Foundation's position that we should abolish alcohol. Alcohol is a legal product and is enjoyed by many without any problems. We would not be trying to take the glass of wine off your dinner table, but we are suggesting that the risks associated with the use of alcohol be reflected in the laws and policies of our country. Individuals must take responsibility for their drinking behaviour, and the federal government must send that message with clarity and conviction. Bill C-72 is the vehicle for that today.
While we would perhaps differ from our colleagues from the Canadian Psychiatric Association as to whether the existing laws are de facto adequate to deal with that, having led to the Daviault decision and the tabling of Bill C-72, we thank you for the opportunity to speak today in support of the intent of that bill and we wish you success in your task.
The Chair: Thank you very much, Dr. Kendall.
We will now proceed to the questioning. We will follow the usual procedure, which is ten minutes for each of the three parties as an opening round and then rounds of five minutes, alternating between the government and the opposition.
[Translation]
Mr. Caron of the Bloc québécois.
Mr. Caron (Jonquière): Gentlemen, thank you for your presentation. This was very enlightening and demonstrates rather clearly our dilemma concerning this bill. One of you said that laws should reflect what society thinks.
After the Daviault case, we have seen that in the population in general, there was a kind of return to the 1830's. As you stated, we went back to the saying which we used to hear in our childhood accord to which drinking was no excuse.
The general population has not accepted that self-induced intoxication be a defense and that an accused could avoid a conviction, though deserved, because he was intoxicated.
On the other hand, the two briefs you have read to us show that the situation is much more complex than the population or lay people might think. In the end, we would have to bring a lot of caution to the statement that somebody who is intoxicated with alcohol may commit an offense under automatism.
It is much more complex, taking into account the new developments in science, medecine and psychiatry. We have to be very cautious in that area because in a lot of those situations, a person may seem guilty even though we can explain some aspects of their behaviour.
Someone mentioned the credibility of expert witnesses. The courts are trying to assess the credibility of witnesses because it influences their decisions. In any case, I'd like to hear your comments about my interpretation.
Isn't it true that in the end those cases are decided according to how the defense presented its case and who were the witnesess which have been called, by the defense or by the Crown? This becomes a question of interpretation.
The first witness told us that the existing laws were sufficient. Nevertheless, after the Daviault case and a number of other contested cases, why is it that the existing law no longer seems appropriate and that some people who should have been convicted a few years ago are declared innocent? Has there been changes in your area of expertise? How do you explain the fact that judges have given recognition to such a defense?
[English]
Dr. Bradford: I'll answer in English, if that's okay.
The situation of the Canadian Psychiatric Association is, first, that the sub-specialty of forensic psychiatry is well developed and soon will be recognized as a sub-specialty by the Royal College of Physicians and Surgeons. That process is in place.
I would agree with you that in some court cases certain expertise put forward may not be true expertise, and this may influence the court. That is not a process that occurred only in the Daviault case; it occurs across this country every day, for various reasons.
I'm not sure that can easily be rectified. People have to be qualified as an expert. Sometimes the qualifications put forward are perhaps not as good as they should be, but I don't think there's an easy remedy to that. Various levels of courts reviewing what occurred at a lower court hopefully will rectify it.
The not criminally responsible changes and the mental disorder changes to the Criminal Code for the first time in a hundred years, as well as the many committees I've been on in the last ten years that have rectified some things that had really gotten out of hand, have made a difference. They cover this area quite adequately if there are going to be defences. Automatism, if it does exist, is dealt with in a very narrow sense by the courts at the moment. Generally the process is adequate.
In the university setting that I work in, we assess many people; with alcohol intoxication being so common, we work with it all the time. We do various tests where we give people alcohol and measure their sexual arousal and do alcohol-loaded EEGs. We can measure quite accurately or replicate, if you like, what is alleged to be their level of intoxication and observe it.
That's a better way of approaching it than simply having somebody go before the courts and, as I think was pointed out here, state that a person has amnesia and had a certain level of alcohol in their blood, and this therefore means it was automatic behaviour. It's much more complex than that. In the proper scientific settings, that evidence can be dealt with, and when put before the courts, I don't think it will be misinterpreted.
Mr. Thompson (Wild Rose): I appreciate your comments this morning. I find this topic really interesting. I'll just give you a little bit of background as to why I say that.
About twenty years ago I recovered from alcoholism through an AA program. During the last twenty years I've done a lot of volunteer work in assisting others who are having problems with this particular thing. So I'm fairly familiar with this situation.
From my visits to prisons, for example, I think you would find that if it were not for the substance of alcohol alone, there would probably be a lot fewer people occupying space in these places. I would think the hospitals and a few other areas of medical need would have a lot fewer people as well. It is a problem.
Getting back to the topic of trying to determine the responsibility level, I think of a couple of cases where schizophrenia was involved. One person was in his thirties and another was in his forties, and both were determined to have some level of schizophrenia. They were required to take medication to control it, but were seriously warned by all physicians that they must not partake of alcohol because of their condition. In both cases they did partake of alcohol and in both cases the consequences required court action.
Do you feel that individuals who have an additional problem to deal with, of which alcohol will increase the intensity if they use it, should be held accountable and responsible, the same as someone who does not have any other impairments?
Dr. Bradford: We addressed that in our brief with the example of the person with uncontrolled epilepsy. They are aware of their condition. They know they shouldn't drive a motor vehicle.
Most people who are schizophrenic and have recovered from the illness have the capacity to know they shouldn't mix alcohol and their medication. It was given to them, as you pointed out in that example, at a time when they were responsible, with a fully operating mind. Therefore I think the same thing applies.
It would be different if, for example, they had an illness for which they took a medication and the drug interaction was not common knowledge to them. That might be a different situation. But in the situation you've given, their responsibility is clear.
Mr. Thompson: Okay.
I'm also curious as to your feelings about the actions taken by victims. In the last two years, since being in Parliament, I have done a lot of ride-alongs with police departments throughout the country, in Toronto, Calgary, Edmonton and a lot of rural areas in my own riding. We attended many domestic disputes.
In every instance - and I kept track of this - alcohol was involved, and there was a lot of them. There were eleven in one night. In all the cases I'm thinking of, the wife of the alcoholic had every reason in the world to lay charges and would not do so.
Do you find this to be a widespread thing, or was it just unfortunate that I came across those in that length of time?
Ms Sue Bondy (Research Scientist, Addiction Research Foundation): I'll address that.
A number of studies have looked at the prevalence of alcohol use among people who are offenders in violent crimes, and that includes domestic violence. They would agree with you that the prevalence of alcohol use in incidents of violence is very high. How high it is depends on the background rate of drinking in the country, but certainly in Canada it's more than half of the cases.
It's also clear that usually it's not alcohol alone that is acting and there is some history of aggressive behaviour. Also, the person often has consumed alcohol at the time of the offence, but may have taken in fact more alcohol at previous times without becoming violent.
It is clear that alcohol is one of a number of factors that come together to cause violence in human populations. There are some interesting studies of Scandinavian countries, where the per capita consumption of alcohol has increased or decreased and rates of domestic violence have followed suit. So your observations are certainly confirmed.
Dr. Kendall: Your further point about the unwillingness of victims of violence in spousal relationships to press charges or to leave the home may in fact be a reflection of what they see as their inability to have other choices once they've done that. They feel they have to come back into that relationship, they know nothing else and they have no financial resources. There are indeed few shelters where they can go and receive the help they need.
Mr. Thompson: That's the thing I was looking for. We do need alternatives to offer these people other than just court charges. That's something that needs to be looked at by somebody.
Dr. Kalant: I just want to add one further consideration. There is also the matter of the prevalent culture.
Despite all of the work that has been done in efforts to educate the public about the importance of accepting the reality of alcoholism and treating it or taking steps to prevent it, there still is a large element of shame on the part of many family members, which prevents them from taking action of that kind. They feel somehow that they and their families will be tarred with the same brush as the person who has committed the violence. I think we still have a large job to do in education in that respect.
Ms Bondy: Recently the Addiction Research Foundation launched a program entitled LINK, which seeks to address the issue of families that have problems with alcohol and other drug abuse and violence, looking at the two as a package problem. It's a very recently released program and it won't be clear for some time whether it's having an impact, but we certainly saw those two problems together as things that needed to be addressed.
Mr. Thompson: Dr. Kendall, I believe it was you who stated you are quite satisfied with Bill C-72 as it sits. It didn't appear to come across that you would identify anything in here as a possible problem in the future, in terms of legal status.
Dr. Kendall: To qualify that response, we did not do a legal analysis of the bill because that isn't our background. Therefore I cannot comment on whether the bill would stand as written or whether it is well written.
What we did support was the intent of the bill to set a due standard of care to address this issue of whether or not there should be diminished capacity or even exculpation as a result of conscious substance usage. That we felt strongly supportive of.
So I would just have to qualify my response by saying my support is for the intent of the bill, but I cannot say whether it is well written or whether it will sustain a legal challenge. In that respect I can't offer any assistance to you.
Mr. Thompson: You probably won't be able to answer this, but I'm going to ask it anyway.
I find it difficult to understand this. When you look at the Charter of Rights, there are certain sections throughout where it is quite obvious that the protection of Canadians, including victims of crime, is supposed to be the case. I'm thinking of sections 6 and 7 in particular and a couple or three others. Do you find it unusual that we have to include preambles to some of these bills to reassure that kind of thing?
I said you probably wouldn't want to answer this.
Dr. Kendall: Would anybody else on the panel like to comment?
Dr. Kalant: Just in principle, I find a considerable potential educational value in including the preamble to a bill of this type, to set out the philosophy on which it's based. I'm convinced that the law has a very important educational value as well as an enforcement value. In a way, it would be a pity to not take advantage of the opportunity to state the principles of society that this bill corresponds to.
Mr. Thompson: Thank you.
Mrs. Barnes (London West): Thank you very much for your testimony and for the well-written briefs from all the parties here today. I think if the people in the Daviault decision had that testimony before them, maybe we wouldn't be here today. I want to point that out.
Dr. Kalant, the most important thing that I pulled out of your text was that blackout does not in itself constitute evidence of automatism. This is an incorrect linkage. Do you confirm that?
Dr. Kalant: Yes, I'd agree with that.
Mrs. Barnes: The Daviault majority decision was based on testimony that linked automatism to blackout, so clearly that decision was based on evidence that was not scientifically grounded as we know it. Is that a correct statement?
Dr. Kalant: Yes, I would agree with that. I think there was considerable reason to reject the testimony in all three of the cases that I referred to. The problem, though, as raised in the previous question, is how one can ensure the scientific competence of the people who act as expert witnesses. It is not an easy matter.
One suggestion that perhaps might be of some help is to require that when either the Crown or the defence intends to call an expert witness in a scientific area, the credentials of the expert be submitted to the judge well in advance of the trial itself. The judge then has an opportunity to look at, evaluate, and perhaps even get an outside opinion on the qualifications. That might permit a higher uniformity of standards in the quality of expert testimony.
Mrs. Barnes: It is my understanding that we have the experts available right here in Canada who know the most up-to-date lines of scientific thought in these areas. Is that correct?
Dr. Kalant: I believe that is true. The difficulty is that, as has already been pointed out, there are many trials going on all over Canada at all levels of the court system every day in which experts are involved. The ones who are recognized nationally and internationally as experts in a particular area could spend many lifetimes acting as expert witnesses in court. It clearly is impossible.
Mrs. Barnes: I tend to agree with you. I don't know the backgrounds of some of you, but I certainly know the background of Dr. Bradford, whom I served with for a number of years on the Lieutenant-Governor's Board of Review, now the Ontario Criminal Code Review Board. I've seen him as an expert witness before that board and also as a panel member.
I know that the level of research is going on in Canada. I know that we do have experts who can address these matters satisfactorily.
In the long run, though, what we're here for is to come up with a bill that will end up satisfying Canadians, who I think for the most part believe that if you are extremely drunk, you still have a level of criminal responsibility. I just want you, right now, to go down on record with your expert opinion. Would you agree with that fact, that you should have some level of criminal liability?
Dr. Bradford: Yes. That's the Canadian Psychiatric Association's position.
Mrs. Barnes: May I have your opinion, sir?
Dr. Kalant: I am sorry.
Mrs. Barnes: Do you agree with the statement that I just posed, that there should be some level of criminal responsibility for those who are extremely drunk in Canada?
Dr. Kalant: Yes. I can think of no circumstances in which a person became so drunk without a conscious act to get that way.
Mrs. Barnes: Do you agree, Dr. Kendall?
Dr. Kendall: Yes.
Mrs. Barnes: Does the Addiction Research Foundation agree?
Ms Bondy: Yes.
Mrs. Barnes: Dr. Bradford, earlier on you talked about the law as it stood before bringing either the Daviault decision or this bill. The chair clarified something to you. I think he was referring to the common-law defences that differentiated between specific and general intent. I also want to know whether you had in your mind section 16 of the Criminal Code as a defence.
Dr. Bradford: Yes. I think the fact that the Daviault case reduced general intent to a defence of drunkenness is a big error. I think the specific intent defences in section 16 of the Criminal Code prior to Daviault dealt with the rare cases where this may be an issue. If a person was properly evaluated in a forensic psychiatric evaluation, I don't think it would be a problem.
The mental disorder sections and the specific intent sections of the Criminal Code dealt with the situation adequately, and I don't believe we need changes.
Mrs. Barnes: What I want to refer to now is the preamble section, which is a little bit unusual. I'm going to refer you to paragraphs three and four, approximately lines 13 to 26.
With those two paragraphs in the preamble, one links the close association between violence and intoxication with concern about self-induced intoxication being used to excuse violence. The next paragraph deals with the potential effects of alcohol and certain drugs on human behaviour. It concludes that even with a level of intoxicants in the body, it does not cause a person to act involuntarily.
First of all, I know, Dr. Bradford, that you have done studies linking violence and alcohol. Because this preamble deals in large part with violence against women and children, I'd like you to talk about the disinhibiting effects of alcohol and the effects that alcohol would have in increasing levels of violence while intoxicated. What studies done on a scientific basis have you undertaken in this area?
Dr. Bradford: I think there are a number of issues. I'll try to summarize them.
As has already been said, there is an association between alcohol consumption and violence. There are a number of studies that could be quoted. One that is perhaps the most important is the epidemiological catchment area survey that was done in the United States on 10,000 people. What it made clear was that violence and mental disorder were associated, but at a lower level than violence and alcohol, and violence and other drugs other than alcohol were the factors that were most associated with violence.
The second issue would be that the effects appear to be cumulative. In other words, if you have a mental disorder and drink or take drugs, that would also be important.
If I could just shift across to the sexually violent area for a moment, it's clear that there is an association between the consumption of alcohol, alcoholism in various degrees, and sexual violence. Also, if you look at the effects of alcohol and the sexual arousal of rapists, there's no question that alcohol increases their arousal and their propensity in a rape direction. Even with that, however, I don't believe that should reduce their responsibility.
I think the broad general knowledge that alcohol, violence and aberrational behaviour is well known and is well described in, for example, the sections of the Criminal Code that you alluded to is the important message to give Canadians.
I don't think there is any excuse, regardless of what the scientific evidence shows. These are of interest and there may be treatment possibilities and other ways of dealing with them, but it certainly doesn't excuse behaviour, which is really the reason why we are here.
Mrs. Barnes: Mr. Chairman, can I ask at this point that all these, in their entirety, be read into the record so I don't have to pursue some of the other questions that would be drawing out the testimony from these briefs?
The Chair: Two of the briefs were read completely and I believe the last one, Dr. Kendall's, was not. We could ask permission.
Does the committee agree that Dr. Kendall's brief be made part of the record, attached to today's record of the meeting?
Some hon. members: Agreed.
The Chair: It is agreed.
Mrs. Barnes: Thank you.
The Chair: I have a few questions myself.
In Daviault, he was accused of committing rape. Is it possible that someone could be so drunk that they would not know what they were doing, but still be able to commit rape? I am thinking of rape under its previous definition, where there was intercourse. Is that possible? Could an individual commit intercourse and still be so drunk that they do not know what they're doing, especially a man of that age? I understand Mr. Daviault was in his late sixties. It seems like a phenomenal accomplishment if he could.
Dr. Bradford: I think I alluded to this already. On the rape issue, I think there is an association, but if you take rapists and non-rapists and give them alcohol, the rapist's arousal to rape goes in the rape direction and the non-rapist doesn't go in the rape direction. That is stated very simply.
The Chair: Wouldn't they know what they were doing?
Dr. Bradford: That's a different issue, of course. I think the person who drinks alcohol knows they are running some risks with regard to judgment, and I think this is the important message here. That may include rape or other sorts of aberrant sexual behaviour. I think that's clear.
I suppose the one question I would have, if I referred directly to the Daviault case, is how well he was evaluated, as it is not clear in my mind. He was an older person. There may have been another factor there. In what I've read, that wasn't pulled out of it.
What was stated here earlier is that there's the issue of state-dependent learning, where the person can often remember after the event what they did, particularly if you give them alcohol again. That is a very strong message that at the time their judgment and their operating mind were such that they knew what they were doing to the degree that it should not be excused by the law.
Dr. Kalant: If I might add to that, committing rape is not a simple, repetitive, automatic act. There are many different actions involved, all of which require a composite of behaviours that the person has not practised repeatedly and therefore is not able to do in almost an automatic fashion while intoxicated. I think the complexity of the act itself makes it extremely improbable that there can be a true state of unconsciousness or unawareness of what one is doing while doing it.
The Chair: Could I put to you some other mythical scenarios? For example, could someone in a drunken state believe that they were being attacked and therefore kill in self-defence when that wasn't really the case? I'm not talking about having a mental disorder, but just simply being drunk.
I can remember when I was in law school, a man was accused of rape and his defence was that he thought the victim was his wife. Does this seem reasonable to you, as scientists, that somebody could be so drunk to think that somebody was their wife and have intercourse with them and still carry on the intercourse?
It always seems strange to me that those sorts of things could be accepted. Of course, in those days they didn't have the scientific evidence they have today.
Dr. Bradford: I think alcohol can make mental disorder worse if it's present, and certain types of alcohol-induced psychotic or organic conditions that can occur.
Again, I would say that with the proper evaluation in an individual case, in its complex relationships with all these things, I think it could be teased out. There may be individual cases where it may apply in terms of defence in section 16 or a specific intent-type defence. I think as a general issue we have to be very careful; that's the important one.
Dr. Kalant: In my brief I did include a quotation from Dr. Sidney Cohen that addressed that point directly. He did state that alcohol impairs judgment and self-restraint. It also may create a misperception of external events and therefore give rise to a paranoia that reflects misinterpretation. That clearly can happen.
One must be very demanding to prove what that misinterpretation might have consisted of, but again, it isn't automatism. It is a part of the intoxicated behaviour with which all our society is acquainted, either by direct experience or common knowledge.
The point is that it is a potential consequence of intoxication that is so well known that it's difficult to see it as being something that can be used as a defence on the grounds that you did something you were totally unaware of or unable to predict.
The Chair: With respect to a person who had been brought up and had had a rather well-defined moral code, could that person, when drunk, not distinguish what was right or wrong? Even when they were under the influence of alcohol, while they might be less inhibited, would they still know that what they were doing was wrong? Would the moral upbringing or moral code that had been part of their life for a long time still be in their consciousness despite the fact that they were drinking? Could they perform acts completely forgetting their moral code or with that code having no impact on their behaviour?
Dr. Bradford: The odd disturbances of judgment can occur. But at least from the Canadian Psychiatric Association's point of view, all of us as Canadians understand that if we drink, these disturbances of judgment and behaviour can occur.
We have an individual responsibility, and yes, it may affect our judgment at the time, which may appear to impair our moral judgment in some way. However, in general terms, that's not automatism. In general terms, that should not be seen as an excuse for criminal behaviour.
If it goes beyond a degree where there clearly is a disturbance in the operating mind to the extent that there is a mental disorder, it can be dealt with elsewhere if it's properly evaluated.
So what we're really talking about here is the large area short of that. The Canadian Psychiatric Association's position is that there's no excuse for that type of behaviour.
Dr. Kalant: Just to add to that a bit, there is evidence that pre-existing personality, experience and training do influence the behaviour while someone is intoxicated. For example, a very interesting study was done about 30 years ago in the U.K.. It had subjects in a simulator.
With respect to drinking drivers, it showed that people who were extroverted tended to respond to intoxication by driving rapidly with wide swings of the wheel, lack of attention to cars coming in from side streets, to pedestrians and so on. People who were introverted tend to consciously compensate for their intoxication by driving very slowly, monitoring very carefully and doing their damnedest to make sure that they didn't do any of the things they knew they might do while they were intoxicated.
In the same way ``moral training'' also carries over. Someone who has strict standards built in through family and society influences over many years is highly unlikely to do something totally at odds with that while intoxicated. Such a person is less likely to permit the kind of free expression of emotions that might give rise to such incidents.
As Dr. Bradford has stated, the general principle is that all of this is common knowledge and therefore it cannot be seen as a totally unpredicted and unfamiliar type of response to alcohol.
[Translation]
The Chair: Do you have any other questions, Mr. Caron?
Mr. Caron: In fact, what you are telling us is somewhat similar to conventional wisdom. In cases of alcohol-related intoxication, the consequences are well-known and the behaviour is often predictable, which means that a person who drinks is liable to display an unacceptable or even criminal behaviour. Such people couldn't build their defence strictly on the fact that they were in such a state that they didn't know what they were doing. First, you told us that it was very rare and that the person would have forgotten but that at the time the crime was committed, they were probably conscious of what they were doing to a certain extent.
Many people ask for this legislation because some parts of the Daviault decision may have been misinterpreted. However, I find your testimony enlightening and we'll see what the members of the committee will do with the information you have given us.
[English]
Mr. Bodnar (Saskatoon - Dundurn): I have very little to ask, except I'd like to refer to the proposed bill and one particular matter of concern to me. Proposed subsection 33.1(2) of the bill refers to criminality. I'll skip the irrelevant parts.
It says:
- and is thereby criminally at fault where the person, while in a state of self-induced intoxication
that renders the person unaware of,
- - and that's fine; that's been dealt with -
- or incapable of consciously controlling, their behaviour,
- - excuse the bad English there -
- voluntarily or involuntarily interferes...with the bodily integrity of another person.
In other words, Dr. Bradford, when we're dealing with such phrases as ``involuntarily interferes'' or ``incapable of consciously controlling'', does that section go too far?
Dr. Bradford: I'm not a legal expert. I have testified -
Mr. Bodnar: But you'll be asked this.
Dr. Bradford: I've certainly testified in a number of cases where automatism has been a defence. I think there is a slight risk. Your point's well taken.
Automatism is used very rarely. The kinds of cases I've been involved in have been cases where there's been either sleepwalking or epilepsy; generally speaking, something outside of intoxication in its own right.
So I'm less concerned about it, but you're right, there may be an encroachment and I'll leave that to legal scholars to look at.
Mr. Bodnar: Would it perhaps be better to just cut off that section? Could we say ``while in a state of self-induced intoxication, interfere with the bodily integrity of another person'' and leave out those three lines or so in there?
Dr. Bradford: Yes, I agree. I could see, for example, all the words, ``incapable of consciously controlling'' getting into some difficulty. I still think legal scholars need to look at it.
Dr. Kendall: One could perhaps attach as a codicil the scientific research that's been done that absolutely narrows the number of areas or conditions under which that could actually be used credibly and scientifically.
Mr. Bodnar: I was hoping you could help the committee in drafting this, in determining whether that could be left out. I don't want to rely completely on the legal scholars at the Department of Justice with respect to this matter.
But other than that, I guess I'll leave it. I understand the difficulties you have and I think you see the difficulties I have.
Dr. Bradford: Yes, I do.
The Vice-Chair (Mrs. Barnes): There's actually one minute left of your time. If somebody has a one-minute.... No?
Did you want to add something?
Dr. Kendall: After a brief consultation with Dr. Kalant, I just had one point, and it may be relevant to that.
The final part of the fourth preambular paragraph of the bill reads:
- and is aware of scientific evidence that many intoxicants, including alcohol, may not cause a
person to act involuntarily;
Dr. Kalant: The gist of testimony here today is that in fact only rarely does the intoxicant itself produce automatism. That is what is being described in the paragraph you object to with reason.
So if one states in the preamble that it refers to the claim of automatism as resulting exclusively from the action of the drug, it should not be available as a defence. The possibility of automatism being due to drug-provoked automatism due to other underlying and pre-existing causes presumably would still be retained in that case.
The Vice-Chair (Mrs. Barnes): Mr. Thompson, I understand you have another round.
Mr. Thompson: Yes, I just have one quick question and probably for the witness with the addiction foundation; that's you.
I think this government and most of us here on this committee have expressed an opinion that prevention is a key word in all problems dealing with justice. I certainly agree with that.
I was just wondering if you have any evidence or statistical evidence.... I can only talk about Alberta, because I don't know for sure what was going on across the nation. I recall 25 years ago, or maybe even later, the bars closed at 11 p.m.; they were not open on Sundays; you had to shut down for supper hour; 21 was the drinking age.
There were some fairly strict regulations in place throughout Alberta that changed overnight. Now it's 3 in the morning, 7 days a week and no closures for supper. It's wide open.
Do you have any evidence to indicate that from the time those changes took place it's become more of a problem than it was in the past? And if so, do you have an opinion about addressing some of the issues regarding regulations?
Dr. Kendall: If I can hazard an attempt to respond to that one...we don't have any data. I'm not aware of any data specifically from Alberta that is looking at harmful outcomes versus availability.
If we look at data from Europe, Finland, Australia and a number of other countries, there is a general consensus among people who study alcohol and the epidemiology of public health policy that increased availability of alcohol leads to increased consumption, which then leads to increased problems, whether they're workplace problems, domestic violence, crimes associated with domestic violence, or impaired driving charges. There's a general ecological association that probably has some roots in causality as well.
Interestingly in Canada over the last decade there has been an overall decrease in per capita consumption on the part of the population as a whole. This is despite the fact that the real price of alcohol has dropped and alcohol has become somewhat more available in many provinces at different rates.
One rationale for this may be that there's an aging population that has tended to drink less and we've passed the peak of the baby boom. Another factor might be that some controls are much more effective on others, and the impetus and focus on reducing impaired driving and driving while intoxicated may have been much more of a brake on alcohol consumption on a per capita basis than was compensated for by the increases in privatization, the decreases in sales, the decrease in advertising, etc.
Nonetheless, from a public health perspective our position has been that if one wishes to reduce the overall problems resulting from alcohol consumption, measures should be taken to reduce alcohol consumption. That would include controls on access, availability of bars or licence sales, restriction of points of sale and attention to matters of price.
The Vice-Chair (Mrs. Barnes): Ms Torsney, you have the floor.
Ms Torsney (Burlington): Actually my comment follows on your comment. It refers to something that was in your brief, Dr. Bradford, the point that Canadians are fully aware of the effects of alcohol and the relationship to violence. I wondered if we in fact need more education about that linkage. This follows the comment about drinking and driving, which was also part of the sentence. I don't think a lot of people in Canada do know the linkage that is so clear between alcohol and violence.
Dr. Bradford: You may be right. If that's the case, then obviously there should be a program. I think the people from the ARF perhaps have better comments about that. I certainly think it's an important issue, however.
Ms Torsney: And people should be made more aware of the issues? Is that part of your present campaigns or other activities?
Dr. Kendall: Yes, very much so. There was one recent Ontario survey, for example. When directly questioned, 82% of the adult sample we questioned believed that alcohol was the source of aggression. So there's a fairly high level of knowledge from that survey.
Ms Torsney: There is the knowledge.
Dr. Kendall: It probably differs, depending on regions of the country, whether they're rural or urban, and the degree of awareness of social and domestic issues in particular. Much of the violence is in fact male on male, notwithstanding our concerns for the violence in the hidden majority.
Ms Torsney: People may have made the linkage between drinking and driving too. Yes, it's harder to drive home, but they still proceeded to do it. Maybe we need to go that next step on the violence issue.
I just wanted you to clarify something again, Dr. Kalant. I think you said that if in fact there was alcohol-inducing automatism, there would be a small amount, not a large amount, of alcohol needed. Was that...?
Dr. Kalant: No. I said that one particular type of automatism -
Ms Torsney: Okay.
Dr. Kalant: - has been called pathological intoxication. This is characterized by a totally abnormal reaction to alcohol in which a small amount of alcohol does not produce the typical signs of intoxication. There's no slurred speech, staggering, flushing of the face, increased heart rate or the other things that are typical of ordinary intoxication.
That does not occur, but instead there is a sudden explosive outburst of violence that is senseless, irrelevant to what's been going on in the environment, and leaves the person totally confused and amnesiac, but it is of very brief duration. It's like a sudden triggering, as if the person's conscious brain has simply been cut off.
But that's a very unusual pattern, and where it does happen, usually the person has a history of that. So it would be among the few instances of alcohol-triggered automatism in which the person would be aware of the risk and would know that with good sense and good judgment, alcohol should be avoided.
Ms Torsney: Thank you. I thought your presentations were excellent, and hopefully we'll move on this quickly.
Mr. Wappel (Scarborough West): I have two points.
First, it's entirely possible and maybe even probable that the courts will look at some or all of the testimony before this committee when interpreting this particular section. So I think it's important that you came today, and I thank you for that.
In that spirit I'd like to follow up first on what Mr. Bodnar asked you and, in particular, your admittedly quick but excellent suggestion with respect to the preamble. I just want to be clear on that.
Because the preamble talks about scientific evidence, you're suggesting that the wording should be that Canadian society in effect is aware of scientific evidence that most intoxicants, including alcohol, will not cause a person to act involuntarily. I believe that's what you said.
If that is so, are you are giving that as scientific evidence to this committee today? If that's in fact correct, I need a yes from everybody so that we have it on the record.
Dr. Kendall: I think it was said that most intoxicants, including alcohol, in and of themselves, will not cause a person to act involuntarily. I would say yes.
Dr. Bradford: I think that would be better wording.
Mr. Wappel: In and of themselves?
Dr. Kendall: Yes.
Dr. Bradford: Yes.
Mr. Wappel: And that would be the generally accepted scientific evidence in Canada today?
Dr. Bradford: Yes.
Dr. Kendall: Yes.
Ms Bondy: Yes.
Mr. Wappel: Thank you. In point 2 of page 2 of the Addiction Research Foundation's paper, I realize you're talking about the revised Criminal Code; I understand that. You're making a point that:
- The transfer of a defence of intoxication (in the absence of automatism) from case law to the
Criminal Code should be conducted in such a way that there is no opportunity for an expansion
of its applicability to situations in which it does not currently apply. There are good public
policy reasons for the Criminal Code to be more restrictive in its applicability.
The law we're dealing with in proposed subsection 33.1(3) of the bill specifically states the application of what I would call the retrenchment from the majority in Daviault. It limits the applicability in effect to matters involving bodily harm.
So, in other words, we had specific intent, limited defence. Now we have it wide open to all general intent offences.
Then we have Bill C-72 saying, hold on, that's too broad. So we're going to retrench from Daviault but only insofar as bodily injury crimes are concerned. That would therefore still leave the defence of intoxication for general intent offences that are not of the bodily injury type.
I would presume - and I'm addressing my question to the Addiction Research Foundation - that would contravene your recommendation 2 in the sense that Bill C-72 doesn't go far enough then. Is that right?
Ms Bondy: Well, I'm by no means a legal expert, but what is left over after the retrenchment of Bill C-72 then would primarily consist of property crimes and crimes of that nature. Although there is some expansion, this is not the area where there has been a public outcry.
Acts of violence seem to have been the spillover from Daviault and are certainly the ones that cause the most concern in terms of public health and well-being. So from that perspective the Addiction Research Foundation is more concerned about things that directly pertain to public health and well-being.
Mr. Wappel: So then we should read your recommendation 2 on page 2 as limiting itself to personal injury matters?
Ms Bondy: Recommendation 2, as written, was intended, if possible, to restore it to specific intent offences only.
Mr. Wappel: Exactly. And this bill does not do that.
Ms Bondy: No. At the time this was written we had not yet seen Bill C-72; as far as we knew, it wasn't drafted.
Mr. Wappel: So that's my point. This bill does not bring back the law exactly to where it was before Daviault. It brings it to a point somewhere between what it was before and Daviault.
So there has been an expansion of the defence of intoxication. That's what I'm getting at. Would you agree with that? I know you're not legal experts.
Ms Bondy: We would agree that appears to be the case, yes.
Mr. Wappel: Shall we live with that?
The Vice-Chair (Mrs. Barnes): Mr. Wappel, you're over time. If you want to add another round, I'll add your name.
Mr. Lee, do you want to go now?
Mr. Lee (Scarborough - Rouge River): Madam Chairman, Mr. Wappel is covering the identical territory I wanted to cover.
The Vice-Chair (Mrs. Barnes): Well, do you want to give him your time then?
Mr. Lee: Well, I don't want to give any time, but if there's a consensus around the -
The Vice-Chair (Mrs. Barnes): We're two minutes over Mr. Wappel's time right now. I don't mind adding him back on.
Mr. Lee: It might be useful to let him continue, because I think he's zeroing in on his target.
The Vice-Chair (Mrs. Barnes): That's fine. Mr. Wappel, would you like a second round then?
Mr. Wappel: No. I would just like an answer to my final question. Would you agree with my characterization?
Dr. Kendall: It would be hard to construct a logic track that would include one kind of offence and not another, given that the scientific evidence would apply to both in terms of voluntary or unconscious behaviour.
Dr. Bradford: I'll just re-emphasize the Canadian Psychiatric Association's position; I've stated, it but I'll just restate it. We do recognize that is an expansion. We don't support that expansion. We prefer to go back only to specific intent offences.
Mr. Lee: Given that Mr. Wappel has covered most of the issue, I think there's only one item left. I just wanted to confirm that the consensus of your testimony today, which was extremely helpful to me and, I'm sure, to my colleagues, is that there has apparently been an overutilization in the recent past. Presumably that was judicially commenced by defence counsel. This has perhaps been an inappropriate overutilization of the automatism/intoxication-type defence.
The courts have bought that. Daviault confirmed that they had bought it. Your professional perspective is that the courts had bought it inappropriately, the product was oversold and the intoxication/automatism defence was technically ill-founded, but nevertheless sold as a product and bought by the courts. Have I got that right in terms of your view?
Dr. Bradford: First, I don't think there's necessarily an overutilization. What I would say is that it opened the door for the potential of overutilization in the future; that's where the concern is. In the area I work in I don't think it's been overutilized, but certainly the door was opened for it to become that way.
Dr. Kalant: From my own experience I can say that the Daviault decision prompted a number of defence attorneys to look for ways to use the concept. I myself was asked to act as an expert witness on that basis. I said I could not because I didn't believe it was valid. That was very disappointing for the lawyers.
The Daviault case probably codified a concept that existed very vaguely and was very seldom used, but the fact that it was handed down as a judgment then prompted others to see if they could use it in their own cases.
I see an important role for this legislation in correcting the error I believe was made, that is, a scientific error made by the Daviault decision.
Mr. Lee: Therefore, if all the judges, all the defence counsel and all the prosecutors in all the courts were aware of and agreed with what you have told us today, there still would be less room for putting forward that type of a defence, the intoxication/automatism defence?
Dr. Kalant: Yes.
Mr. Lee: All right. I think that covers it. Thank you, Madam Chairman.
The Vice-Chair (Mrs. Barnes): I don't have anybody else listed.
Thank you very much to our expert panel today. Your testimony is very useful and be assured that the whole of the testimony you gave today is in the record, with your written report also. Thank you very much for coming.
We are adjourned until Thursday morning.