THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Wednesday, December 7, 2022
The Standing Senate Committee on Legal and Constitutional Affairs met with videoconference this day at 4:19 p.m. [ET] to study Bill S-205, An Act to amend the Criminal Code and to make consequential amendments to another Act (interim release and domestic violence recognizance orders), and to examine, and report on, the matter of self-induced intoxication, including self-induced extreme intoxication, in the context of criminal law, including in relation to section 33.1 of the Criminal Code.
Senator Mobina S. B. Jaffer (Chair) in the chair.
[Translation]
The Chair: Good afternoon and welcome to today’s meeting. I’m going to ask the senators to introduce themselves, starting with the senator to my right.
[English]
Senator Batters: Senator Denise Batters, Saskatchewan.
Senator Cardozo: Andrew Cardozo from Ontario.
[Translation]
Senator Clement: I am Bernadette Clement from Ontario.
Senator Dupuis: I am Renée Dupuis, an independent senator representing the senatorial division of The Laurentides, in Quebec.
[English]
Senator Pate: Kim Pate from Kitchissippi, the unceded, unsurrendered territory of the Algonquin Anishinaabe.
[Translation]
Senator Dalphond: I am Pierre Dalphond, an independent senator from Quebec.
[English]
The Chair: I am Mobina Jaffer, and I have the privilege to chair this committee.
I would like to welcome Senator Cardozo to this committee. It’s good to have you in the Senate and here in the committee.
Today, we are beginning by having a discussion on the observations on Bill S-205. You received observations from Senator Pate, in addition to those of Senator Dupuis and an observation from Senator Dalphond.
I just want to remind senators that observations can be whatever the committee decides they should be. I also want to remind you that the Minister of Justice is appearing in front of us at 5:15, so we have to make sure we are done before that.
I will go in the order in which we received the observations. I will begin with Senator Pate’s observation.
Senator Pate: I think everybody has it, if there’s any discussion.
The Chair: Perhaps you should generally give an idea of what the observation is.
Senator Pate: The point of this observation is to acknowledge that we’ve heard compelling testimony from witnesses that the issue of violence against women and intimate partner violence is a serious issue, and the importance of addressing this issue goes well beyond the matters raised within the bill.
Also, this committee has previously recommended a review of the Criminal Code to address the piecemeal manner in which reforms have happened, historically. That we had witnesses present that the information in this bill already exists in the Criminal Code underscores that.
That is the nature of the recommendation: It is to encourage the Government of Canada to work with provinces and territories to conduct the kind of review that’s required and to address the issues of violence against women.
We also heard evidence that electronic monitoring is not necessarily going to assist in all jurisdictions. This points out that we need to take this seriously if we want to address violence against women.
Senator Batters: Thank you. I appreciate the improvements that I think have been made to this particular observation since our meeting last week.
Senator Pate, I’m not a huge fan of the second paragraph that talks about the piecemeal approach, as there have been many senators and MPs who have brought forward private bills, in addition to the government bringing forward many bills in the last seven years, on Criminal Code matters. I personally think that, rather than sending such an important topic as violence against women off to the Law Reform Commission, I would prefer to see a situation where we didn’t pass bills that had a potentially significant effect on violence against women and instead passed bills that didn’t harm women further.
I gave a couple of fairly lengthy speeches in the Senate on Bill C-5 that this committee and the Senate recently passed about how I thought that particular bill had a number of provisions that potentially helped those abusers and harmed women further.
My preference is that rather than having observations that encourage a bill to get studied or sent off to another form of study, instead, we don’t keep passing those types of laws.
Having said that, this observation is certainly improved from last week.
[Translation]
Senator Dupuis: I have a procedural question for you. I agree with Senator Pate’s observation. The French version needs two small corrections, but I can come back to that. I would like to add a sentence at the end of the second paragraph. Should we do it now since it’s an amendment to the observation?
The Chair: Why not, if everyone agrees?
Senator Dupuis: I think everyone received the amendment. It reads as follows:
The committee requests that it be mandated by the Senate to undertake a review of applicable sanctions in cases involving violence against women, including the underlying values of such sanctions.
That is the amendment I am proposing to Senator Pate’s observation, at the end of the second paragraph.
[English]
Senator Pate: That’s fine with me.
Senator Dalphond: I have another amendment to propose.
The Chair: Yes, after — or do you have an amendment to the observation?
Senator Dalphond: Yes.
The Chair: I’m sorry. Proceed.
Senator Dalphond: I understand that Senator Dupuis’ amendment is meeting consensus. My suggestion would be — I am a bit like Senator Batters in that the second paragraph takes me a bit —
The Chair: It wasn’t meeting consensus; it was just meeting consensus that we add it.
Senator Dalphond: Yes, that’s what I thought.
For the second paragraph, I would propose to keep the first line and keep going on the second line. So, after “in a piecemeal manner for many decades,” it says “has become cumbersome, sometimes repetitive or inconsistent, and is in need of comprehensive reform.” That’s what we’ve said in the past: There is a need for comprehensive reform. However, I would remove the words “has become cumbersome, sometimes repetitive or inconsistent” because it could be read as a criticism of this bill as being repetitive, inconsistent or cumbersome. I don’t think that adds anything to the paragraph.
I support the idea, though. Overall, I support the observation, and I would even withdraw my observation — my draft — because I think we pursue the same goals.
My suggestion would be, therefore, to delete, on line 2, after “decades” the words up to “and is in need of comprehensive reform.” If Senator Pate agrees, I would be fine with that.
Senator Pate: We actually heard evidence that what this bill is trying to do is already permitted in criminal law; both as a bail condition and as a sentencing provision, you could impose both treatment and electronic monitoring. I think it’s important to indicate this. Part of the reason you have a review is because of some of these issues.
Senator Dalphond: The witness was the former manager at the Solicitor General’s office who said that. She said —
Senator Pate: And Scott Newark.
Senator Dalphond: Yes, but he added that it is necessary to have it — it’s better, it’s an improvement — because people tend to forget, and it will certainly focus the mind.
Your comment seems to be indicative not of a general comment but of a kind of criticism of the bill, so I would remove those words because [Technical difficulties] is that piecemeal amendments have been the practice since I’ve been here — six years. We have bills about amending some parts of the Criminal Code. The government has many bills; we’re just amending parts of it. If your message is that we should proceed in a comprehensive reform, I certainly agree with that, but after what you just said, if they are meant to be a criticism of Senator Boisvenu’s bill, I think I would delete the words. They’re unnecessary. They are even overly critical, maybe.
Senator Clement: There’s always room for criticism, so I want to thank Senator Pate for the observation.
It’s important to start by recognizing the testimony of the witnesses. I appreciate you did that in the first paragraph. I think that was the most compelling piece in terms of this process around Senator Boisvenu’s bill. Thank you for that.
I am still a new senator here, and when we’re studying the Criminal Code in pieces and modifying it, it certainly doesn’t feel comfortable to me. I don’t know if I will get comfortable in time, but it certainly feels that way. I agree that that’s how I heard the testimony from Mr. Newark, in particular. I understand that it’s critical, Senator Dalphond, but I think part of the observation is that it is critical, or it is trying to say that we need to move to this reform. We need to get there. It’s something that is becoming more and more pressing.
[Translation]
Senator Dupuis: I’m not sure whether it’s the difference in language, but in response to the concern Senator Dalphond raised, I would say that, when I read the observation in French, it was clear that the first paragraph states the following:
The amendments made in Bill S-205 aim to provide additional tools to help survivors feel safer . . . .
In other words, I think there’s an attempt to be neutral and render the purpose of Bill S-205. I don’t see anything in the observation that puts the bill in a negative light or comes across as critical of the bill.
When I read it in French, the first sentence in the second paragraph is clear to me, but I’m not sure about the English. The committee has reported in the past about how the Criminal Code had been amended in a piecemeal manner for many decades and had become cumbersome, sometimes repetitive or inconsistent, and was in need of comprehensive reform. The sentence clearly refers to the amendments that have been made thus far. It’s not referring to the present, and the senator took care to say that at the beginning of the sentence: “the committee has reported in the past.” It refers to the piecemeal changes that have been made for decades up to this point. That is what has become cumbersome and sometimes repetitive or inconsistent.
The committee is repeating what it has already said. This is an assessment the committee has previously made and wants to reiterate. The observation says that the committee is repeating its past recommendation, because, in its view, the recommendation is still appropriate. It’s an assessment the committee made in the past, so I don’t necessarily see the connection. What’s more, they are two separate paragraphs. I’m having a hard time understanding your concern.
Senator Dalphond: Given what Senator Dupuis just said, I think that the French version is in keeping with what the committee has said in previous reports.
What I was more worried about was Senator Pate’s answer to my question. She said that only the witnesses who appeared before the committee had said that the bill was repetitive and unnecessary, that it was already one of the available options in the code. The words she used in English seemed to have a connotation that I hadn’t picked up on.
The French version is very much in line with my understanding of the matter, and I can live with the observation in its current form. The French version reflects a comprehensive set of criticisms, not a criticism of Senator Boisvenu’s bill.
Senator Dupuis: Those of us who are lawyers realize that words are lasting. Anything Senator Pate may say today will not remain, but what will is the language in the observation.
Senator Dalphond: That’s me.
[English]
Senator Cotter: I had the opportunity to have dialogue with Senator Pate on this. While I had initially thought we could leave this phrasing out, I indicated that I would be supportive if we had to make a decision on it. Senator Dupuis has convinced me of the wisdom of just staying the course. This is a general observation. If anything, it’s a criticism of how Parliament has functioned vis-à-vis the Criminal Code. I think that’s just fine. My impression is that was the message Senator Clement took from this as well and hence the argument for a more comprehensive piece of work.
I think I would support the language in this sentence or two as it’s presently written.
Senator Batters: I want to point out this is sometimes the problem with having such lengthy observations that deal with these types of issues that probably are better the product of debate and speeches in the chamber when we’re into this kind of parsing. This is already our third clause-by-clause meeting on this bill. A large component of that has been this observation.
I would feel more comfortable about it if those certain words were out because, yes, given Senator Pate’s comments today, it does seem like a criticism of the bill. I thought part of the goal was to take out criticism of the bill in an observation. Instead, it’s supposed to be more directing the committee, or the government, or a department, or something like that, to do something.
Senator Cotter: I say this with the greatest amount of respect for Senator Pate. In some respects, it’s Senator Pate’s interpretation of the words she wrote but not the words themselves. We’re just approving the observation, not Senator Pate’s interpretation.
The Chair: So you’re withdrawing your amendment?
Senator Dalphond: Yes.
The Chair: Senators, if you agree, we’ll proceed with Senator Pate’s and Senator Dupuis’ amendment together. All those in favour?
Senator Batters: On division.
The Chair: Anyone against? Senator Pate, your observation passes.
Senator Dalphond, you withdrew, right?
Senator Dalphond: Yes, I did. As I said before I made my proposal to amend, I think this pursues the same goals, and I am comfortable with it.
The Chair: Senators, it rarely happens at this committee that we have time. While we do have time, I want to bring to your attention that I told you last time that the analysts had prepared three papers: one on delay; one on the review that Parliament is supposed to do, which we haven’t done; and one on criminal law. The clerk is going to forward those papers to all of you. This is for your information. Hopefully, if there is time, we can look at this in the future.
Senators, do I have your permission to report this bill to the Senate with amendments?
Hon. Senators: Agreed.
The Chair: Senators, we have some time. Are there any issues you would like to discuss?
[Translation]
Senator Dupuis: Can we go back to the Senate’s motion on Bill C-28, the one the Senate adopted in June 2022?
The motion had four points, and I was hoping to get clarification on the second point.
I understand that the committee was authorized to examine, and report on, the matter of self-induced intoxication, including self-induced extreme intoxication, in the context of criminal law, including in relation to section 33.1 of the Criminal Code. That’s the first point.
The second point says that the committee is authorized to take into consideration any report relating to this matter and to the subject matter of Bill C-28 made by the House of Commons’ Standing Committee on Justice and Human Rights.
That is the first time in six years I have seen that type of thing on the Standing Senate Committee on Legal and Constitutional Affairs. On a practical level, how do we take into consideration a report by a House of Commons committee?
[English]
The Chair: Senator Dupuis, steering decided that was our plan. We were going to wait for the House to send us the report. However, the challenge is that we have to report back on March 10. The word out there is we’ll probably come back the first or second week of February; I’m not sure. I was concerned that will not give us enough time to study the bill.
This is just the beginning. Then, when the report comes out, we will have an opportunity for our final considerations. They have said that they will have the report ready by December 16, so when we come in the new year, steering will be able to add the new witnesses. Is that acceptable?
[Translation]
Senator Dupuis: Am I to understand that the report we are supposed to take into consideration is the standing committee’s report on its own examination of Bill C-28, after the House of Commons passed Bill C-28?
Mark Palmer, Clerk of the Committee: That is correct.
Senator Dupuis: Thank you. That wasn’t clear to me.
The Chair: We are going to start, and we will be examining the report of the House of Commons.
Senator Dupuis: Do I understand correctly that, for practical reasons, you can propose a motion to postpone the deadline? March 10, 2023, isn’t that far away.
The Chair: That’s the challenge. That’s why we are going to get started. Luckily, the minister was available today, which works to our advantage. He agreed to appear in just a moment, so we will get started, and, then, we’ll see.
[English]
Senators, we will now begin our study to examine the matter of self-induced intoxication in the context of criminal law, including in relation to section 33.1 of the Criminal Code which stems from Bill C-28.
We have here today to kick off our study the Honourable David Lametti, P.C., M.P., Minister of Justice and Attorney General of Canada, Department of Justice Canada. He’s joined by members of the Department of Justice Canada, Criminal Law Policy Section: Chelsea Moore, Counsel; Matthew Taylor, General Counsel and Director; and Joanne Klineberg, Acting General Counsel.
Minister, I want to thank you. We sent out a message to you from here and, before our meeting was finished last Thursday, you said yes. Thank you very much. You now have the floor, minister.
[Translation]
Hon. David Lametti, P.C., M.P., Minister of Justice and Attorney General of Canada: Thank you again for inviting me to take part in your study on self-induced intoxication, including self-induced extreme intoxication, in the context of criminal law and section 33.1 of the Criminal Code.
As you know, the bill came into force on June 23, 2022, less than six weeks after the Supreme Court of Canada’s decisions in R. v. Brown and R. v. Sullivan and Chan. In those cases, the Supreme Court determined that the previous version of section 33.1 of the Criminal Code was unconstitutional because it prevented an accused from invoking extreme intoxication as a defence in all cases, whether or not they were negligent in their consumption of the intoxicating substances.
[English]
The Supreme Court in these decisions reinstated the defence of extreme intoxication as a full defence for violent crimes. This would have allowed accused persons to escape liability, even when they negligently consumed drugs or other intoxicants and hurt people.
The quick passage of Bill C-28 reflected the desire of all parliamentarians in both houses to close the gap in the law left by these decisions. The law now provides that those who are criminally negligent in their voluntary consumption of intoxicants can be liable for the harm they cause to others while in a state of extreme intoxication.
Former Bill C-28 was described by the Women’s Legal Education and Action Fund as “thoughtful, nuanced, and constitutional,” as a solution to the small but important gap left in the law by the Supreme Court of Canada decisions. The objectives of former Bill C-28 are the same as in the previous version of section 33.1 adopted in 1996, namely, to protect victims of intoxicated violence by holding accountable those who negligently self-intoxicate and cause harm to others.
The Supreme Court in the Brown case recognized these objectives as legitimate and pressing and suggested two constitutionally viable pathways that Parliament could adopt to achieve them. On the advice of experts, we took the approach that would still see the offender convicted of the underlying crime of violence, such as manslaughter or sexual assault, but through a different path of liability. This approach will hold offenders accountable, as victims rightly expect, while also respecting the Charter.
Under new section 33.1, the Crown may seek a conviction for violent crimes by proving that a person was criminally negligent in their consumption of intoxicants if they then enter a state of extreme intoxication and cause harm.
[Translation]
As you will recall, extreme intoxication is a rare mental state akin to automatism. The accused has lost control of their behaviour but is still capable of causing harm. Let me say, once again, that this state is extremely rare and that intoxication, even an advanced degree of intoxication, does not satisfy the definition of “extreme intoxication.” I repeat, intoxication alone never constitutes a defence to sexual assault and other such crimes.
[English]
Let me break it down to make things clear. First and foremost, this issue does not arise in a criminal prosecution unless the accused can prove that they were in a state of extreme intoxication akin to automatism when they committed the offence. That is a high bar and it is rarely met. If the accused proves they were in a state of extreme intoxication, the burden then returns to the Crown. If the Crown proves that the person departed markedly from the standard of care we expect from a reasonable person in how intoxicants were consumed, the person could be convicted and sentenced accordingly. A “marked departure” means a person’s conduct fell far below what a reasonable person would have done in those circumstances to avoid foreseeable risk — in this case, the risk of a violent loss of control.
The defence of extreme intoxication is difficult to prove. The accused must meet a higher evidentiary threshold than normally applies. The accused must convince a judge, on the balance of probabilities and with expert evidence, that they were extremely intoxicated, meaning they had no voluntary control over their actions at the time of the violence. Drunkenness and intoxication on their own are not defences and extreme intoxication is rare and is an extreme state. The Supreme Court has made it clear that it is nearly impossible to end up in a state of extreme intoxication through the consumption of alcohol alone. Bill C-28 closed a narrow but important gap in the law to ensure that the use of this defence remains exceptionally rare.
In my view, this new law is enforceable. Those who self-intoxicate in circumstances showing gross disregard for the safety of others will be held accountable if they go on to commit violence. This view was confirmed by two witnesses who work as prosecutors who testified before the Justice Committee in October.
In particular, Michele Jules, Executive Director, Manitoba Prosecution Service, testified that she would expect Crowns to be able to prove criminal negligence under the newly enacted section 33.1 where someone harms another after consuming dangerous intoxicants in excessive amounts or over a prolonged period or in combination with other unknown substances.
I note specifically that the law only requires a risk of violent loss of control. Properly interpreted, this is a lower threshold than we would find in other provisions of the Criminal Code, which require that a particular outcome be “likely.” An example of that is section 215, where a person is likely to cause permanent health injuries to another and therefore may be liable for failing to provide the necessities of life.
Crowns successfully prove that offence despite the “likely” higher standard, so I’m confident that they will be able to prove that there was a risk of violent loss of control here as well.
Let me repeat: The Crown does not need to prove any of this unless the accused has already met the very high bar of proving they were in a state of extreme intoxication. If the accused cannot prove that, then they will be guilty of an offence like anyone else.
[Translation]
Reasonable Canadians want to know the risks, even the rare risks associated with intoxicating substances they intend to consume and the risks associated with how they intend to consume them. All reasonable Canadians are concerned about the safety of others when their actions could put others at risk.
[English]
My team and I will be following closely your study on this important issue, and I look forward to reading your final report. In the meantime, we will continue to work closely with our federal, provincial and territorial partners to ensure that effective enforcement and implementation of the legislation is accomplished. Thank you.
The Chair: Thank you very much, minister. We will now go on to questions. I have a few questions of you, minister.
We’ve had lots of hesitancy from witnesses to appear in front of us on this because they say that the bill has already passed and they do not see what the study will do. My question to you, minister, is: If we have recommendations, once we have forwarded the study to you, are you going to introduce a new bill? How are you going to deal with what we suggest?
Mr. Lametti: Thank you, Madam Chair. I think it depends on what you say, in the sense that your recommendations will be evaluated carefully. I have said often, and I’ll say it again, that I’m never closed to a good idea if it will help us improve the Criminal Code.
We acted quickly in this particular case because a number of leaders in Canadian society asked us to act quickly, including many senators and a number around this table who wrote a letter to me saying we needed to act quickly. This was also true of parliamentarians and stakeholders. A number of stakeholder groups asked us to act quickly, so we acted quickly. The Supreme Court gave us guidance and we moved.
Now we have more time. If you feel that there is something that could or ought to be improved in the legislation as we have passed it, then I certainly will look at this study carefully and evaluate how to best move forward in collaboration with you — certainly I’ll have a few questions — and with the work that you’ve done.
The Chair: Thank you, minister.
Professor Parent raised a concern before the House of Commons Justice Committee that Bill C-28’s amendment “. . . only focuses on states of extreme intoxication at the threshold of automatism.” It ignores situations when someone is “in a state of extreme intoxication at the threshold of insanity,” where they may no longer recognize whether their actions are right or wrong. He predicts that new section 33.1 will also be held unconstitutional by the courts.
Minister, in your view, how will the courts — you can’t say how the courts will handle it, I get that. But, how do you expect them to deal with extreme intoxication at the threshold of insanity? Will section 33.1 be relevant in such cases?
Mr. Lametti: If I’ve understood Professor Parent’s concerns, it’s that the medical evidence as it relates to delusion-driven conduct doesn’t match the legal concept of automatism and better matches that of insanity. That in and of itself is a relevant point.
Let me say two things. First of all, I obviously won’t speculate on how the Supreme Court will rule, other than to say we’re following one of the two paths that the Supreme Court recommended to us in the Brown case. They did that quite explicitly and we’re following in what we believe is the better path as between the two paths that they recommended.
I would add with respect to insanity that we’re also following the Supreme Court jurisprudence there as well. In the last number of years, there’s been a marked departure from the Supreme Court using the terminology of “akin to insanity” in its extreme intoxication decisions. It has gone towards the extreme automatism standard and treats insanity effectively on different grounds, not criminally liable grounds. There is a whole body of jurisprudence that takes care of the insanity questions, if you will. The path that the court has chosen, referring to automatism, goes to the voluntariness of intent, the general idea that it negates voluntariness. That’s where the court has gone, and that’s what we’re following in using this terminology and using this conceptual structure of automatism. The insanity part is well taken care of by other jurisprudence.
The Chair: Thank you, minister.
[Translation]
Senator Dalphond: Welcome to the Senate, minister. It’s always a pleasure to have you here.
I’d like to follow up on the chair’s question. Is it realistic to expect the Senate committee to submit a report so soon after the bill’s passage? Do we have any data to show that the defence of self-induced extreme intoxication has been used more often since the bill came into force than it was before, or that it hasn’t been used at all? I know provinces are the ones that handle prosecutions, but is there a way to get that information? The bill came into force in June, and this is only December.
Mr. Lametti: To answer your question, I would say that these cases are rare in any circumstance. As far as I know, the defence has been raised only once, and it wasn’t successful. That is not to say that what you are doing right now will not be helpful, especially in light of the chair’s question about insanity. What the committee hears from prosecutors and other stakeholders will inform your analysis of the standards that have been used in the bill, so your examination could be helpful.
What I’m saying is that, if you’re waiting for data, you will be waiting a long time because these cases are rare.
Senator Dalphond: If I understand correctly, there have been no challenges. No one has raised the defence, arguing that the provision was unconstitutional, because the bar was too high.
Mr. Lametti: For the time being, there have been none, as far as I know. It’s a possibility, but as of now, no.
Senator Dalphond: This is a rare occasion when the Senate is being asked to undertake a more academic examination. It’s a bit like asking students to write an essay on which of the two options they prefer and why.
Mr. Lametti: With so many former academics around the table, it’s not something that would be new to you or me.
[English]
Senator Batters: Minister Lametti, we know that you had a timeline of six weeks to present a bill. However, meaningful consultation could have been done in that time. Some witnesses who testified at the House of Commons Justice Committee stated that the process was rushed, that decisions about the content of the bill had already been made prior to consultation. And Professor Kerri Froc of the National Association of Women and the Law even called the consultation process, “a sham.” She outlined the process in detail at the Justice Committee stating:
. . . we were consulted by a junior member of the Department of Justice on June 14. We provided a very detailed proposal to them by 5 p.m. that day, but of course the first reading of Bill C-28 happened on June 17. The horse was already out of the barn, at that point. It was “thank you for your input”, but it was obvious it wasn’t taken into account in any way whatsoever.
How far, minister, into the drafting process was your department when you asked for input three days before tabling the bill? I’m guessing that by that time, by that late date, the bill was already drafted and you may have even taken it to cabinet by that particular point. If that is the case, what confidence should those witnesses have that their input was taken into account at all?
Mr. Lametti: Thank you for the question. It’s an important question. I note that NAWL and Professor Froc are amongst the very few critics of the bill, and that’s fine. They had a different opinion. Not necessarily Professor Froc, but NAWL was part of the drafting of the previous section 33.1 in 1996, and they were disappointed with the Supreme Court’s decision.
Let me point out a couple of things. First of all, I can read into the record a list of everybody we did consult on this.
Senator Batters: I’d like to know at what point the drafting was, please.
Mr. Lametti: Consultation and thought about this bill began to happen in a variety of legal circles after the Daviault decision. It has been widely speculated for many years that this particular provision was unconstitutional. I can think of a colleague back at McGill who now sits on the Quebec Court of Appeal who was teaching from day one that Daviault was unconstitutional.
There has been a great deal of thinking, interaction and consultation in academic circles, as well as between the Department of Justice and others, from the beginning with Daviault. So we weren’t starting at zero in terms of having thought and consulted about this. The Supreme Court gave us two clear paths, and I can go through the list.
My political team, which is composed of lawyers and experts in criminal law, as well as the Justice Department, did reach out at a national and provincial level to sectoral groups, to work with them to come to what we felt was the best conclusion in the shortest period of time. I’m quite proud of the result. The vast majority of groups, including victims’ groups, are in favour of the path we chose. We think, as between the two, we did it right. We think we have an improvement on Daviault, which many of us thought was unconstitutional for a long time.
We weren’t starting from zero. We had a lot of prior input; we got a lot of input quickly, and we moved quickly, because that’s what a number of you around the table and a number of my colleagues in the House of Commons, as well as stakeholder groups, were asking us to do.
Senator Batters: I would like an answer to the question of how far along in the process the drafting was with three days to go, which is when consultation was done. Maybe you can answer that.
Minister, I’ll go on to deal with the consultation issues. You said:
. . . we did consult with a wide variety of groups — women’s groups, victims’ groups — and this was the way that most of the groups said we ought to go forward.
My colleague Senator Carignan asked you in June to provide a full list of stakeholders you had consulted with for Bill C-28 and what advice they had given you. You sent him just the already-public list of stakeholder names and nothing else. At the Senate Committee of the Whole in June, you stated this:
. . . we consulted about 30 groups, and the vast majority of them said this is the best way to go given the guidance of the Supreme Court. They were almost unanimous.
Minister, I’m wondering what groups in the consultation did not agree with the government’s approach to this bill, and what were their chief concerns?
Mr. Lametti: To my knowledge, only NAWL was against the path we chose. I don’t know that they provided a way forward that was constitutional, that would not have fallen into the same kind of analysis that Daviault fell under, so that’s about it.
As I’ve said, there was widespread support from victims’ services groups, women’s rights advocates, defence counsel, Indigenous, youth, academics who study criminal law, members of the bar, racialized bar, general legal defence bar, lawyers’ associations and that sort of thing and particular academics working from a feminist lens. I thought — and I still think — we nailed this one correctly, quite frankly. To my knowledge, only NAWL thought that perhaps we chose the wrong path.
Senator Batters: Minister, was a gender-based analysis done on this legislation? If so, where is it? I’m also wondering if it’s any more reflective of the gender part of the GBA Plus analysis than that of Bill C-5, as the GBA analysis done on Bill C-5 hardly mentioned women at all. Yet Bill C-5 potentially releases abusers with conditional sentences back into the neighbourhoods of their female domestic assault victims.
Mr. Lametti: With respect to Bill C-5, I’m very proud of that piece of legislation. A gender-based analysis was done.
It is critically important to underline that conditional sentence orders are only allowed where public safety is not at risk. That’s been a point of real misinformation, I think, on the part of critics of the bill. People cite, for example, sexual violence and say these offenders are going to be out on the street. It is only where public safety is not at risk that a conditional sentence order is possible and where the sentence would have been less than two years.
With respect to this bill, a GBA Plus analysis was done. We’re happy to provide it to you. I note that women and girls are the primary victims of crimes of sexual assault that are committed while intoxicated.
Senator Batters: A GBA Plus analysis, then, would deal with women and girls in considerable detail, unlike Bill C-5.
Mr. Lametti: We will give you that.
Senator Batters: Thank you.
The Chair: Minister, if you can kindly send it to the clerk and he will distribute it to all of us.
Senator Cotter: Minister, welcome back. To Ms. Moore and Mr. Taylor, welcome.
When I heard that you would be available on such short notice, I felt I had to cram for this, like the professor giving the talk and me hoping to ask intelligent questions. I’m going to do my best to live up to my role. It’s a role that I think Senator Dalphond assigned to us.
I have three questions. The first builds, in a certain way, on the point you made about how rare these circumstances are, thank goodness. But in some ways, the rarity, I think, kind of gets thrown back in your face in terms of the effectiveness of this particular bill. Let me try to describe why I think that is the case.
I read your testimony in the other place and saw that you used exactly the same language here. I’m grateful. I was feeling a bit guilty throwing it back in your face, so to speak.
You said, and you said again today:
Parliament has sent a clear signal that anyone who voluntarily consumes intoxicants in circumstances showing gross disregard for the safety of others will be held accountable if they go on to commit violence.
That’s actually not the whole point. It’s that if they go on to commit violence, provided that objectively the risk of harm — and here I’m quoting Ms. Moore’s testimony — “’could’ lead to violent loss of control.” There is a bit more than you described.
The problem — and we discussed this in June — is that the rarity of these occurrences from the perspective of almost everybody — experts, victims, perpetrators — makes the objective assessment of that highly unlikely, so unlikely that one of the most distinguished — you suggested, I think, consultees were all supportive. But one of the most distinguished criminal academics in the country said to the other place’s committee that this legislation will be unenforceable.
I think it’s a question. Can you reflect a bit on that?
Mr. Lametti: We certainly heard that comment. It is a high standard, and it is a rare set of cases. There is no question about that.
The concepts we’re using are known concepts. Criminal negligence is a known concept. The standard of the reasonable person is a known concept. Prosecutors to whom we spoke — I cited one in my text — thought they could handle that, again in a rare set of cases. The standard wasn’t as high as others. It’s not as high as the “likely” standard. They felt they could work with the standard.
In the vast majority of cases where intoxication might be at play, it doesn’t stand as a defence for any kind of general intent offence, like sexual assault. In the vast majority of cases, the law has adapted reasonably well and doesn’t afford that defence simply by virtue of the fact of intoxication.
The Supreme Court was asking us to carve out a small exception where there was extreme intoxication and where the person entered into that state in a way that wasn’t blameworthy; they couldn’t have predicted it. The example I often use is the first time you take a prescription drug and it has an adverse impact, or you knew the impacts — maybe you’ve used those kinds of toxicants before — so you planned, but somehow the planning broke down.
In those cases, there isn’t a moral blameworthiness that can be attributed to the person. The court wanted us to exempt that. We’ve caught the rest.
It’s a high standard in a rare set of cases. I appreciate that there’s a concern, but I think we’ve met it in practice for the number of times that we’ll actually see it.
Senator Cotter: I won’t repeat the question, although it is essentially this: Given it is so rare, who could objectively ever predict this would happen to them? That’s the tension that exists. That’s why I say that the rarity of it, not just for the criminal justice system but for people, suggests that, objectively, nobody would ever anticipate this. That’s the tragedy of it all. I’m just repeating myself.
Mr. Lametti: It’s the risk of loss of violent control, which is the triggering element and the reasonable foreseeability of that loss of violent control.
I have a list of factors that might be taken into account: a setting where substances are consumed, the individual’s state of mind at the time, the nature of the substance, the quantity taken, whether there was a mixing of substances, known effects, the time period over which the substances are consumed, the presence or absence of hazards and efforts made to minimize the risk.
It’s about the risk of losing control and that loss of control being violent.
It’s not an impossible standard. It’s a rare series of circumstances, but I do think there’s enough here — our expert advice told us there was enough there — that there was a workable area.
Senator Cotter: Thanks for that.
This is not, then, a discussion around the constitutionality of it, because I think you’ve worked hard to stay within the boundaries required, but more about its applicability and effectiveness.
Thankfully, these cases don’t come along very often. However, is it possible to monitor cases — and would you be willing to do so — not so much the ones that make it to the trial level but that appear in courts where we actually make it all the way to the full defence, let’s say, to see what happens in those cases, whether the cases have been proven or not? If it turns out that Professor Grant and Professor Sheehy, some of the other critics and a little person like me who has concerns — if it turns out that the pattern is you’re not getting convictions, it seems to me that would be a wise thing to discover. We might discover it in two or three years rather than waiting for a case that goes all the way to the Supreme Court. Then, if necessary, we could rethink this. That’s one aspect of it.
The other is a question about why you didn’t choose, let me call it, Justice Kasirer’s door number one and instead chose door number two.
Mr. Lametti: First of all, yes, we will monitor. I know that you’ve mentioned a couple of our former professorial colleagues, and I’m sure they will monitor it as well.
I suspect it will take about 10 years to generate more than a case or two, but I agree completely with the analysis and the sentiment of what you just said. It would be very useful. Certainly, if it is the case that the standard is in some way unworkable, we would have to come back and revise it.
As to door number one versus door number two, door number one was just to create a general offence of extreme intoxication. We heard, in particular from victims’ groups, that they wanted to have the label of whatever action happened — sexual assault, say — attached to it, because it was important to them that the person be charged with that, so the defence had to be to that specific charge and not to a crime of general intoxication. To them, the crime wasn’t that the person became extremely intoxicated; the crime was sexual assault. So this was strongly presented to us by victims’ groups, and that was one of the main reasons that we chose the option we did.
The other is that we have a known concept. Through door number two, if you will, we were working within the parameters of what was done in 1996, with some modifications. That means fewer judicial challenges and less need for judicial evolution. Creating a new standard and offence will necessarily mean there will be cases, test cases and cases where you have to explore even the definition of “extreme intoxication.” So we feel we’ve avoided much, if not most of it, by staying in the known path.
[Translation]
Senator Dupuis: Once again, welcome to the Senate of Canada, minister. I must tell you how much I appreciate your making yourself available to us. I gather that you are open to constructive ideas, and I have no doubt we will have some for you.
I have a question about Bill C-28. We haven’t had much time to examine it closely, but I’m curious as to why you opted against including a preamble. It could have tied together what you said about the data you collected through your gender-based analysis plus, and the links and the direct relationship between intoxication and violence against women and certain populations in particular. In 1995, the preamble was nine paragraphs long. Providing that context and explaining the rationale was felt to be necessary.
It just happens to be December 7. Yesterday was December 6, the day we commemorate a massacre of women, femicides. I appreciate that you are trying to be efficient and to respond to the Supreme Court’s decision. Why weren’t you more explicit about the fact that all of this is tied to violence against women, no matter the degree of intoxication or the degree to which it was voluntary — whether extreme, mild, moderate, voluntary or involuntary, whether akin to insanity or automatism? Can you tell us why you chose not to state that clearly in your bill? There’s a line or two, not nine paragraphs — just a line or two.
Mr. Lametti: The reason is pretty simple. What we did was update what was done in 1996, so the same preamble applies. The rationale is the same as it was in 1996. In our view, the preamble still stands to explain why the bill is warranted. It fits into the same context as before. In its decision, the Supreme Court said that the bill was warranted, referring to the rationale for the bill, even though it stated that adjustments were needed. The framework is the same. We opted not to have a preamble because it wasn’t necessary, and the rationale for the bill had already been accepted. The rationale is the same as it was for the bill in 1996.
Senator Dupuis: Perhaps the rationale was the same — there’s no way for us to know that, since we aren’t in your head — but 1995-96 was nearly 30 years ago. Hasn’t the context changed? We have a clearer understanding of the context of violence; it has spread.
There may be a bigger concern, here. We heard from many witnesses representing survivors. They are urging governments to take a clear stand against this situation, and to root legislation in the recognition that this phenomenon is unacceptable and does not appear to be going away. You seem to be going with the rationale that was set out 1995, but I’m sure your reasoning has changed.
Mr. Lametti: The response has changed. The Supreme Court has obviously compelled us to make adjustments.
Nevertheless, the rationale for adopting legislation in 1996 was the same as it is in this case: to prevent extreme intoxication from being raised as a defence and used as a way to escape culpability. The court accepted the rationale. Even the attempt that was made in 1996 was accepted, despite proving to be inadequate two decades later.
We really want to keep going in that direction. I am part of a government that has done a lot to address the issue, in my view. We have already amended the Criminal Code to provide victims of sexual assault with more support and to prevent victims from being further traumatized during the trial. We are making significant efforts to address sexual violence through education and support for victims.
I think all of that has already been rolled into the approach, although it wasn’t perfect. This bill contains the changes called for by the Supreme Court but is a continuation of the 1996 bill.
Senator Dupuis: Minister, in no way am I questioning your beliefs on the matter.
My question is a bit different. You weren’t in the same boat 30 years ago. You said that you were part of a government, but this isn’t about getting you to say that the government hasn’t done anything. The government has done a lot. However, last week or two weeks ago, we heard from survivors, as part of our study of Bill C-5, and they were very clear about what they want. They are calling on the Prime Minister and the Minister of Justice, as well as governments and people like us, to ensure that the context is laid out clearly. You can be sure, and I can be sure, but if we don’t indicate clearly that we understand the situation and the various ways it impacts different populations, people can’t know that our intentions are good.
Mr. Lametti: Thank you. As you know, I used to be an academic, and this examination is very important, not just from an academic standpoint.
Bill C-5 is the overturning of a policy that was a failure across the board. It was important to underscore that change in direction, especially given the available data and research and the fact that countries around the world had abandoned similar policies, even the United States, a country that inspired the movement 30 years ago.
We are talking about a tiny piece of the universe, here, a very specific and very rare case. This is in line with a previous bill that made sense but may have missed the mark a bit. All we are doing is making the necessary adjustments.
Although it moves in the same direction, Bill C-5 reflects a cultural shift, so it needs to stand out in a different way. I have to tell you, I find your question quite compelling. It’s a fascinating issue, one that I will continue to ponder.
[English]
Senator Pate: Thank you to the witnesses, the minister, Ms. Moore and Mr. Taylor, for being with us.
My question is similar to something you were asked earlier. Also, I’m interested in some data, if it’s possible to obtain that.
I was part of the mid-1990s consultations post-Daviault, as were 65 of us, I think, representing women’s groups. You’re nodding, so you’ve obviously looked at the record. One of the issues that came up then and that I think persists — I tried to speak to it when this bill was before the Senate — is that the individuals who usually claim this tend to be very well resourced in terms of lawyers. They “lawyer up,” as we say. They are also well resourced in terms of psychiatric or medical opinions that they can obtain to verify their claims.
I think you’ll likely agree that that’s not the majority of people who end up charged with sexual assaults. It’s certainly not the majority who end up criminalized and imprisoned.
I’m interested in the statistics that you’ve looked at. My understanding, from my experience and the bit of research that exists, is that intoxication is often a facet in not just sexual assault cases but in many cases. Do you have disaggregated data on the number of people who come before the court where intoxication, either drugs or alcohol, is a feature? If you do, it would be very helpful to receive it.
Secondly, in situations where extreme intoxication has been used, not just now since the bill, but previously, how many of those individuals did not have those kinds of resources, if it’s possible to discern that? I think you probably can check by who was involved in the cases.
Finally, regarding the type of preamble that Senator Dupuis talked about, was there any consideration of further contextualizing this, and what the plan is, if, in fact, nobody uses this defence? Does that mean there should be a Criminal Code review, there should be some other measures taken? I’m curious as to what your thinking is there as it evolves. I notice this was one of the issues that the Native Women’s Association of Canada was trying to get at when asking some of the questions of the justice committee.
Mr. Lametti: We can certainly try to get you the data. There would be some data, I would think, on the general use of intoxication defences. How disaggregated the data would be, I’m going to leave that open because honestly I have no idea. I know that we’re trying to get more and more disaggregated data as a government, particularly in fighting systemic discrimination and other structural deficiencies.
You have raised means. Poverty, resources or wealth, I suppose, at the other end of the spectrum, is an interesting factor to look at. I take that on board and can undertake to use best efforts to see what we have and get it back to you.
I do think we need to monitor, not just for all the reasons that you have raised with that question but also for all the reasons you’ve implied with the second part of your statement, which is: If it’s that rare, is it worthwhile?
I think in terms of acting, we heard that it was worthwhile because a number of stakeholder groups came out and said, “You’ve got to do something quickly.” Admittedly, a lot of those groups came out and said you’ve got to do something quickly to correct a great deal of misinformation about that decision that almost immediately came out on social media, saying, “Well, if you get drunk or high, you can get off sexual assault,” which is not what the Supreme Court said, and which is not legally true. But even my young adult children seem to have gotten that impression, and I had to correct that quickly.
I do think we have a responsibility to monitor, see and do Criminal Code reform if, in fact, there’s a better way to do it or if, in fact, this turns out to be not necessary and there is a better way to do it. Your study will be useful, and we’ll try to get the data. Certainly, we’ve noticed the haphazard way in which data has been accumulated thus far, and we’re trying to correct that.
Senator Cardozo: Thank you, minister, for coming before us to talk about this bill. I want to take this bill and just go up a few thousand feet and talk about the debate about the justice system. You’ve talked a bit about that with my colleagues.
There is a view among some Canadians that the justice system is stacked in favour of the perpetrator and not the victim. If you look at what we’re talking about here, it came about because the Supreme Court found that section 33 breached the rights of the accused persons under sections 7 and 11(d) of the Charter. So the starting point of this is helping the bad guys and not the good guys.
This is more a general question to you as justice minister, and I’m also thinking about the justice system. People see the justice system as not for them — not for the victims. How do you deal with that issue? Because you do have to deal with this issue.
Mr. Lametti: That perception is in part there because of the structure of the way the Canadian Criminal Code and the Charter inter-operate, right? In our system, you are innocent until proven guilty, and you have a number of different Charter rights. That translates into a variety of different procedural and Charter rights that protect a person from being wrongfully convicted. It does happen, and hopefully you’ll see something about that from me soon.
I see how that impression is generated. We have an obligation to work with victims and communities in order for them to feel part of the process and, in certain cases — especially sexual assault and sexual violence — to make sure they not be re-traumatized or re-victimized by the process. We’re trying to do that, and we’re trying to do that through structural changes or investments for support mechanisms.
Two examples I would give is investing in the Child Advocacy Centres, which help children and their families who are victims of sexual violence in particular. As a 360-degree wraparound, it helps. Evidence is taken once — it’s taken and it’s taped — and, particularly with a child, it’s taken in a place and in a manner that it is not re-traumatizing, in a context that’s not harsh. Then that evidence is preserved and can be used and reused in different courts. More and more of that’s happening with adults too. We’re working with the Government of British Columbia to have community justice centres in the Indigenous context, and we’re funding a number of them. Again, there’s a wraparound service there for victims as well as for people who have come into contact with the justice system as accused and also to help whole communities.
Taking a more holistic and supportive approach, there is so much more to be done. I’m certainly working on education and funding education programs to help people understand what their rights are and what supports are there for them as a victim. There is a lot happening. It doesn’t always make the front page of The Globe and Mail, but it is there. It’s getting better, and we’re much more attuned to it.
We do now have — it was something the previous government did, and they did well to create it — an ombudsperson for victims, and I’m in constant interaction with that person and that office. That office provides good support.
So there are initiatives. We do try, particularly with sexual assault, to fund programs to help victims of sexual assault and to support them. However, it is an ongoing responsibility.
Senator Cardozo: Certainly in terms of the media, bad news will always make the front page more than the good news.
Since we have you here, I want to get your thoughts on a couple of other issues in your portfolio. One is the diversity of judicial appointees. I noticed that you’ve made —
The Chair: I’m sure you’ll have many opportunities to ask the minister. I would prefer at this point that we just look at —
Minister, you were talking about women’s advocacy. I just want to follow up on what Senator Cardozo said. I was a member of the Canadian Panel on Violence Against Women, and it was recommended to me many times to look at the Minnesota model of having a women’s advocate from the time the person is charged. I would respectfully ask you to look at the Minnesota model of how to help the victims.
My other question really is more specifically to do with this bill, and that is about the fact that you are going to provide us with a gender-based analysis. Unfortunately, because it’s a study, we won’t even be able to question the officials at the end. Therefore, I’m going to ask, and the officials can also answer if you can: With Gender-based Analysis Plus, or GBA Plus, have you looked at all the other groups like LGBTQ2+, racialized groups and Indigenous groups?
Mr. Lametti: The answer is that we have. We’ve certainly looked at Indigenous peoples and at-risk or marginalized groups, including people with a mental illness and people facing problematic substance abuse. We have looked at statistics on gay, lesbian and bisexual individuals who are at a higher risk of problematic substance abuse.
It has been done. I’m going to say once again that those are the generalized statistics for society. The number of cases here is actually very small, but we will provide you with this.
The Chair: You also spoke about the aggregate collection of data. I thought that we developed a good modelling with Medical Assistance in Dying where groups were considered. Are you following that model for other bills? Because when I read what you just said, it wasn’t quite followed.
Mr. Lametti: I can’t answer that. I don’t know if Matthew or Chelsea can. Otherwise, we’ll undertake to get back to you.
Matthew Taylor, General Counsel and Director, Department of Justice Canada: If I understand your question, one of the challenges in collecting data in this context is the way the issue is raised. It can be raised in a lot of different ways. It can be put in issue as Senator Pate was alluding to.
We don’t have the data reference points in the same way as we would in terms of charging data or prosecutions data, for example. It really requires a qualitative analysis of cases — looking at the cases and trying to collect that information — so it’s harder. As Minister Lametti has already spoken to, we have some of that information. However, there are more challenges than in other contexts.
The Chair: Mr. Taylor, thank you for that answer. If I could quickly ask you: Is an effort being made to look at aggregated data and not at just one group? There are many other groups as well. Canada is very diverse. I don’t need to say that. Is there an effort being made to look at the other groups’ challenges?
Mr. Taylor: Absolutely, and I think Minister Lametti has spoken to that in terms of the Gender-based Analysis Plus that is always done with any government initiative. We look at that full range of data points. I think you know, Madam Chair, about the work the department is doing to support data collection with the provinces and territories. I think we provided disaggregated data information to your committee in the context of your study on Bill C-5. So, yes it is.
[Translation]
Senator Dupuis: Minister, I have a question about the data. One witness told us that Crown prosecutors had collected a lot of data after 30 or so years, but were under no obligation to report those data — I’m not quite sure to who, but I imagine there is some sort of reporting relationship. Since we are studying the bill, can you give us assurance that people in your department will be able to help us build that base of data, if only to understand how the department collects the information? What types of information does it collect?
Every time we study a bill, it always seems to contain a very general sentence, and we come to the regrettable realization that there’s a data problem.
I think our examination of Bill C-28 is a good opportunity to gain an understanding of how the data are collected, who reports them to who and where — if any — the barriers are. That would give us a better sense of what information is missing and why.
Are you prepared to ask the people in your department to help us better understand that data context?
Mr. Lametti: I would be happy to. That would be very helpful to me, especially to figure out where the gaps are and how we can do a better job of collecting data.
The Public Prosecution Service may have an interesting role to play. The service has its own data and is independent of my department, but we may be able to find a way to leverage the data of the Public Prosecution Service without infringing on its independence.
Senator Dupuis: What struck me about what we heard is that we are missing out on a lot of data that we need. People are very disappointed that the data are missing.
You’re a veteran of academia, but a more general level of education would also help people understand how all this works, how the data are collected, what is missing and why it’s missing. I think that’s a general education piece.
Mr. Lametti: It’s very helpful. I’ve made a point of saying that we are increasingly aware of the important role data play. Disaggregated data are also very important, especially as far as information and public policy are concerned.
You’re right to say that, as a government, we realize that we must do better. We are in the process of introducing policies and procedures to help us get there. Again, you’ve raised a very compelling point.
[English]
Senator Cotter: You and your colleagues will know that Professor Kent Roach, while you were doing the work on this, wrote and supported an almost identical proposal that was adopted in this bill, and Professor Roach is a very well-respected person in this area. One of the things he said — and now I come to the constitutional question — was that the effect of this provision will be that it does violate the presumption of innocence — he uses language that I could quote you, but I think you might accept that point — and, therefore, it will require you to justify it under section 1 of the Charter.
I’m interested in knowing whether, since this is someone who is clearly a proponent of what you’ve written, you accept the totality of his analysis that you have work to do with respect to section 11(d) of the Charter and section 1, as these cases rarely present themselves.
Mr. Lametti: I certainly respect Professor Roach’s opinion on this and many other matters. I do have the Charter statement that we tabled, and we certainly did raise that possibility. Adding the burden that we’ve added, the evidentiary burden to the person having to show that they were in that extreme state of intoxication, raises the possibility that Professor Roach has evoked. Certainly, section 1 does exist as a possibility for helping us justify the provision. We can make sure you have the Charter statement that we have tabled, if that would be useful.
The Chair: Minister, thank you very much for attending today. I think we’ve all had a very good discussion on this issue. Now we have our work cut out for us to study this bill.
I want to take this opportunity to also thank Ms. Moore and Mr. Taylor, who regularly come to our meetings on bills that you are responsible for when they are discussed and who are always helpful in the follow-ups as well. I thank all three of you, and I wish you happy holidays. See you next year. Thank you very much.
Mr. Lametti: Thank you, and same to all of you.
(The committee adjourned.)