THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Thursday, February 2, 2023
The Standing Senate Committee on Legal and Constitutional Affairs met with videoconference this day at 11:35 a.m. [ET] 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 Brent Cotter (Chair) in the chair.
[Translation]
The Chair: Welcome to our committee meeting.
I will start by asking the senators to introduce themselves, starting on my left.
Senator Boisvenu: Pierre-Hughes Boisvenu, from Quebec.
Senator Clement: Bernadette Clement, from Ontario.
Senator Dalphond: Pierre Dalphond, from Quebec.
[English]
Senator Klyne: Marty Klyne, Saskatchewan.
Senator Arnot: David Arnot, Saskatchewan.
Senator Pate: Kim Pate, from here, the unceded, unsurrendered territory of the Algonquin Anishinaabeg.
Senator Batters: Denise Batters, Saskatchewan.
The Chair: I’m Brent Cotter, chair of the committee and senator for Saskatchewan.
Today, we continue our study of extreme intoxication, flowing from Bill C-28. On our first panel this morning will be Benjamin Roebuck, Federal Ombudsperson for Victims of Crime. This is the new ombudsperson’s first appearance before this committee, and we would like to welcome you, sir. I’d ask you to speak for roughly five minutes, and then we will move to questions from senators.
[Translation]
Benjamin Roebuck, Federal Ombudsperson for Victims of Crime, Office of the Federal Ombudsperson for Victims of Crime: Thank you for inviting me.
Today, we are here on the traditional unceded, unsurrendered territory of the Algonquin Anishnabe people.
I acknowledge our shared responsibility, and my personal responsibility, to work to address historical and ongoing colonialism, racism, and oppression of Indigenous peoples. This includes working together to dismantle the criminalization of Indigenous peoples and learning from the resilience and vibrancy of diverse Indigenous cultures.
[English]
Three months ago, I was appointed Federal Ombudsperson for Victims of Crime. I am learning a lot, and I’m thankful for the opportunity to serve victims and survivors of crime in Canada. I’m grateful to meet the members of this committee, who are very impressive indeed with a strong history of legal advocacy, innovation, justice and compassion.
The Office of the Federal Ombudsperson for Victims of Crime is an independent resource for victims in Canada. Our office was created to help the federal government honour its commitments to victims of crime. Victims contact our office to learn more about their rights under federal laws, about federal services available to them or to make a complaint about federal agencies or legislation dealing with victims. We help to find solutions when victims’ rights have been violated, and we collaborate with stakeholders across the country to identify emerging trends that affect victims of crime. When appropriate, we offer recommendations to ensure victims’ concerns are considered in the legislative process.
When the Supreme Court of Canada ruled in R. v. Brown that section 33.1 of the Criminal Code was unconstitutional, it had immediate and adverse effects on survivors of violent crime. The wording of the law and the language used by the SCC are difficult to understand and contributed to widespread misinformation about highly traumatic and personal experiences in the lives of Canadians.
Organizations supporting women who have experienced gender-based violence and many young survivors of sexual assault, in particular, believed that the government had made space for intoxication to become an allowable defence for violence imposed on the bodies of women and girls. This belief caused considerable distress, resurfacing of traumatic memories and protests in high schools, where young survivors shared personal experiences, often without the resources to do that safely.
I believe there was an urgent need to act, and I’m thankful for the way the whole government moved quickly to respond to the SCC ruling. I appreciate the clear messaging from the Minister of Justice and Attorney General of Canada, the Honourable David Lametti, when he said repeatedly, “Being drunk or high is not a defence for committing criminal acts like sexual assault.” I think this showed empathy and that it reflects a hopeful posture to act on other concerns raised by victims of crime.
I also understand that the unconventional approach to passing this legislation before it could be fully considered and weighed in our parliamentary committees has created an obligation to meaningfully engage in that process now.
Intoxication caused by alcohol and other substances is common in many of the contexts that lead to criminal victimization. In the messy realities of these situations, people can slip in and out of their awareness of their behaviour and their impact on others, making it difficult to establish objective criteria about culpability. Other witnesses have already explained that the defence of extreme intoxication is predominantly advanced by men perpetrating violence against women. I think this is an important consideration in light of the National Action Plan to End Gender-Based Violence.
In November, I appeared before the Standing Committee on Justice and Human Rights to discuss Bill C-28, where I made three simple recommendations, which I’ll share here as well. Number one is clear language. Continued misinformation about the legislation will have consequences on women and girls. The wording of Bill C-28 is complicated, and we recommend continued and clear messaging to the public. I’m pleased to see that the House of Commons Standing Committee on Justice and Human Rights recommended a public awareness campaign to communicate about Bill C-28 in plain language.
Number two is meaningful consultation. The diverse perspectives of Canadians emerging throughout the study of Bill C-28 need to shape the legislation. We recommend revisions to the legislation as concerns are identified.
Number three is monitoring. Intoxication is very common in the context of violent crime, and women’s groups and survivors have shared significant concerns that this defence could be abused. I’m aware the Justice Committee has recommended a formal review after three years to ensure Bill C-28 fulfills Parliament’s objectives and to evaluate its impact on crime. I support that recommendation as well. Thank you.
The Chair: Thank you, Mr. Roebuck.
[Translation]
Senator Boisvenu: I would like to welcome our witness. I am looking forward to meeting you in person and I think we will get that chance over the next few weeks. I am looking forward to discussing with you your vision for victim support, especially in the context of the Canadian Victims Bill of Rights.
Yesterday, we heard testimony from female professors. Women’s groups also testified, and Dr. Chamberland spoke in very clear terms about the act, as we can no longer call it a “bill.” Many people are worried that in the near future, a greater number of offenders will be able to use the weakness in the act that has been highlighted by numerous stakeholders, in order to be found not criminally responsible and avoid heavier sentences. I would like to get your opinion on Dr. Chamberland’s and others’ point of view.
[English]
Mr. Roebuck: Thank you for the question. The threshold established in the law still is high, where it would be difficult to properly argue this as a defence. However, I’m concerned about the impression that it leaves with survivors of violent crime in the context of abuse and manipulation. Abusers who are conscious of this law could say, “Hey, this is no longer a clear violation.” It could be abused, you’re right.
Sorry, I’m coming from very complex training on ombudsing, and I’m just getting my head back in the game. I apologize.
[Translation]
Senator Boisvenu: Dr. Chamberland is an eminent psychiatrist in charge of psychiatric services at the Philippe-Pinel National Institute of Forensic Psychiatry. The Philippe-Pinel National Institute of Forensic Psychiatry takes in, on average, hundreds of people who are or could be found not criminally responsible for various reasons, such as mental illness and intoxication. He is an eminently qualified doctor who has seen numerous cases over the course of his career in psychiatry, which has spanned 25 years, I believe.
Contrary to yourself, he is convinced that after the bill is passed, many more offenders will use this defence. He also admitted, which was worrying to me, that the worse the crime or the charge will be, the more offenders will want to use this defence. I would like to get your take on this. As a person defending victims, you seem to be saying that the bill doesn’t present any risk for victims. Please explain this to me.
[English]
Mr. Roebuck: I do believe that there’s a risk, and I believe that misconceptions pose an additional risk. It’s not clear to survivors in that context. It becomes more difficult for people to understand their rights and the protections provided to them through the legislation.
I also believe, from my own research as a researcher around youth homelessness, that a lot of people are in situations that would qualify in the context of this legislation as a defence, knowing that young people may be having adverse reactions to medications mixed with substances, and that this happens in contexts where sexual violence happens in university parties or relationships. I do believe that there is a risk. That’s why I think it’s important to see what happens and to monitor and report on this. The exact use is a little difficult to predict right now. I think that it’s really important to be observing how it’s being used.
[Translation]
Senator Dalphond: Welcome, and congratulations on your appointment. I know that we are putting you in the hot seat, as you have just taken up your duties and we are asking difficult questions. You have testified before a House of Commons committee.
[English]
You made three recommendations at the other place. One was to have a formal review after two years. They opted for three years. You said you were in agreement with three years. Would you mind explaining a bit about that?
The first question is an easy one. The next question is more of substance. You recommended clearer language. What did you have in mind when you said that? What would you propose to do to section 33.1 to make it clearer?
Mr. Roebuck: Thank you for the questions. I think that the recommendation to monitor the bill and report back after three years has some validity, given how long it can take for cases to go through the criminal justice system. We want to make sure that we’re understanding how things are being applied. If we’re looking at it within two years, thinking the bill already has been enacted, I feel that might be too soon to see the full impact so that we can make an informed decision. So I do support that revision to three years in terms of a review process.
For clear language, when I read the bill out loud — for example:
. . . they departed markedly from the standard of care expected of a reasonable person in the circumstances with respect to the consumption of intoxicating substances.
This is really difficult to understand, particularly with the misconceptions that are out there. Not that many people are dipping into the Criminal Code to judge their behaviours and make a rational choice, but I do think that we have an obligation to the public to have some clarity around what this means.
So whether it’s in the legislative writing itself or in public awareness around the bill and what it means, I think it was helpful when the minister said that extreme intoxication is not a defence for sexual assault and other crimes. I think that’s clear messaging. I don’t have an immediate proposed language on this, but I think there are lots of ways that it could be further clarified.
Senator Dalphond: To follow up on that, previous witnesses have suggested that maybe one of the things to do would be to delete subsection 2 and to leave it more to the principles expressed in subsection 1, which relates to a standard of care that a reasonable person in similar circumstances would have. Would you be more comfortable with that, understanding that with or without subsection 2 clarity would only come in a few years through judgments?
Mr. Roebuck: Yes, that’s right. I think the foreseeability of risk is a difficult principle to adequately weigh, particularly when it comes to the impacts of substances. I think the Supreme Court was weighing in with some recognition that there can be circumstances where individuals have no concept that something could happen. Again, looking at my experience interviewing young people who are homeless, without protection or safety, often coming on and off mental health medication and interacting with substances on the streets, in situations of extreme trauma, I can see where this defence could provide an avenue out of a criminalized response and be a bit more trauma-informed.
I think that foreseeability of risk is a complex piece. Could it make the defence too widely applicable? Perhaps, but I think it needs to be weighed.
Senator Dalphond: Thank you.
Senator Klyne: Welcome to our guest and thank you for your remarks. Just to dovetail off Senator Dalphond’s question, indeed, the language is complex, and I appreciate the intervention to recommend clearer language.
On messaging to the public, what would you recommend or what have you seen that would be effective in terms of public awareness and education, specifically for victims to understand how to interpret this, but also that the threshold of being able to use this as a defence has diminished significantly? Is it general awareness that needs to happen here as opposed to something specific for victims? Should the general public be fully aware of the meaning and intent of this? If so, again, that underscores the idea that the complexity of this language needs to get somewhat dumbed down, if you will.
Mr. Roebuck: Yes, if we look at the impact of the Supreme Court decision, I think there was a disproportionate impact on young people in particular who had experienced sexual assault. We saw examples of high schoolers protesting. I think that there would be an ethical responsibility to reach out particularly to that younger, more vulnerable population, to clarify and explain what this looks like, what it means and how the act applies. I’d recommend, with whatever public awareness actions are taken, that there be a focus particularly on young people, which also lays a foundation for public awareness as people age.
Senator Klyne: Thank you.
Senator Batters: Thanks very much. Thank you, Mr. Roebuck, for being here. I’m glad to see you’re in this particular position now, and I’m sure we’ll have you before our committee many times over the next considerable time frame.
Going back to the issue of the two-year review, you’ve previously advocated for a two-year review; today, it sounds like you’re thinking that three years might be okay. Others have suggested a longer review period would be more appropriate in order to have more complete data.
Professor Isabel Grant, who testified here last night, responded to that issue, saying:
I have trouble with that reasoning, because we are basically saying to victims that they will have no recourse to the criminal justice system while we figure out if we have gotten it right or not. I would rather see us try to get it right approximately.
How would you respond to that, given that the study of Bill C-28 was so rushed? If the committee identifies problems here after we do this more fulsome study, shouldn’t we act quickly to make the appropriate legislative changes to ease the burden on victims? That, of course, would not preclude a later legislative review.
Mr. Roebuck: Yes, I agree with what you’re saying in terms of the importance of that data. As a researcher myself, if I think about reporting in three years on this, that implies to me that we would already be starting to set up the mechanisms to monitor it, to make sure intelligence is being gathered along the way and that we’re classifying how it’s being used so that in three years we have a strong picture. I think that opens up the possibility that, as we’re starting to see the picture evolving in the trajectory towards three years, if there’s anything particularly alarming, we can flag it and identify it for more conversation. We don’t know at this point if we’re talking about 30 cases in three years or hundreds, so I think that that kind of monitoring towards a report in three years would be important.
Senator Batters: We’ve just had brought to our attention by Elizabeth Sheehy, who testified at our committee yesterday — my colleague Senator Pate will be bringing this up in more detail; she’s had a chance to go through that case — that there is perhaps already the first reported acquittal based on extreme intoxication, which was delivered by a B.C. Superior Court judge. The report of that decision was just posted yesterday, right after our committee finished. That’s going to be quite alarming, and I’ll leave it to Senator Pate to ably discuss that with you. I guess that shows the need to have things in place where we can act a bit more quickly than three years.
Many witnesses, Mr. Roebuck, have advocated for lowering the threshold to simply foreseeability of loss of control rather than foreseeability of harm. For example, again, as Professor Isabel Grant stated:
Where it is foreseeable that you will lose control of your actions, then you should bear the risk that those actions are going to seriously harm another person. That burden should not be placed on the victims who are disproportionately women and girls.
As the ombudsperson for victims, how do you respond to that?
Mr. Roebuck: If I think about the impact on survivors of sexual assault, I agree that we already have circumstances where people are hesitant to report and hesitant to seek help because they’re afraid that they won’t be believed or that they’ll be shamed for what’s happened to them. I think that this does complicate that for people.
I think the much bigger picture beyond this legislation is how we are responding to survivors, how their rights are being respected and what work we are doing to ensure trauma-informed responses to victimization. This bill will be responsible likely for some abuses and some violation of victims who won’t end up with recourse. I think we also need to be focused on that larger picture. We sometimes miss the big piece to focus on the smaller component.
Senator Batters: Thank you.
Senator Clement: Welcome and congratulations to you, sir.
I’d like to come back to the questions asked by Senators Dalphond and Klyne and speak about a question that came from Senator Arnot last night in terms of the importance of education and public awareness.
There’s a growing problem around trust in our institutions and in our government for vulnerable Black, racialized Canadians, women. Who should be speaking to those populations? We are going to be making recommendations, and we’re still grappling with what that’s going to look like. I understand about clarity of messages. I understand that lawyers, with all due respect, we’re not good with clear messaging — clear for ourselves but not necessarily clear for the public.
That being said, who is to communicate? Who is to deal with the very real trust issues?
Mr. Roebuck: Those are some deep questions. In the coming year, our office will be forming a working group looking at the impact of collective violence on Black Canadians, and in particular the same dynamics that lead to the criminalization of particular populations often are also involved in the under-representation of people in services and in gaining supports and access to their rights. There are a lot of conversations that need to happen in Canada, particularly around how specific communities and racialized communities are affected by violence and that collective impact of the trauma.
Our office is aiming to collaborate with a number of people to learn more about those very specific impacts. So I think as we do that, hopefully that will create more of a network across the country that’s talking about these things, which will create more awareness of people’s rights and how they can access them and will bring forward some unique challenges that are different for racialized communities in terms of their access to victims’ rights and support.
Senator Clement: Thank you.
Senator Arnot: Thank you, Mr. Roebuck. I notice that your mandate is fairly narrow in some ways in respecting the role the federal government has to play. My question is about education. I see in your mandate that you have a mandate to enhance awareness among criminal justice personnel and policy-makers. You have a piece in the mandate to identify emerging issues and systemic issues. There is a real intersection, I think, between your mandate and some of the issues that the committee is working on here today with this particular Bill C-28.
You work with directly with victims of crime, so I think you are in a position to really understand the concerns victims of crime would have, the confusion and misconception and perhaps the general public’s misconception on certain issues, and I think you would be well placed to provide clarity on public awareness campaigns.
I’m wondering, have you been consulted about the public awareness campaign that’s to be built surrounding this particular act and the issues related to it that have been raised? Would it be helpful to you for this committee to recommend that you, in fact, be consulted as communication messages are created and methods of communication to the public are identified since you do have a unique position to be able to provide very critical data concerning how messages should be created and what the concerns are?
Mr. Roebuck: Thank you for the question. I do think our office could play a valuable role in providing feedback on a communications plan. We have a number of advisory circles with stakeholders across the country. So we have an academic advisory circle, an Indigenous advisory circle and a service provider advisory that also includes survivors of crime, and I think those groups can also help us with really grounded feedback on what a communications plan could look like.
I’ll take the opportunity, if I can, to highlight that information is one of the big gaps for victims of crime. The Canadian Victims Bill of Rights doesn’t guarantee information for victims of crime; it’s only upon request. So there is this imbalance in the way that we respond to victimization. In the Charter, if someone’s rights are violated, the person who is accused of violating those rights is guaranteed the right to information and legal representation and to challenge things in court, but for victims of crime, even in the CVBR there is no guarantee to receive information or legal representation or to be able to challenge things in court. So I think that this issue of information is actually a large structural piece that we have to do better.
Senator Pate: Thank you very much. Welcome to you and congratulations on your appointment as the ombudsperson. We look forward to your work over the years and thank you for this.
You started out by saying that if there is anything alarming, that should be taken into account. I’m going to get to that in a minute. You also talked about the complexity — and some of our colleagues did as well — of the law. I spent a lot of time teaching, trying to encourage law students and lawyers to uncomplicate things. Oftentimes, we complicate that which is not very complicated. And I would suggest that this has happened in this area of the law. It is very clear that often the position of men, who are particularly well off and are not racialized, is often privileged over those of, let’s say, women who are victimized, particularly if they are poor or racialized and have histories of past trauma.
The response of women across the country to the Brown decision was robust and immediate, and I would suggest to you that’s not because it was a complicated message; it was because it issued a very clear message to many in an ongoing issue of how seriously violence against women and children would be taken and, as has already been raised, created considerable concern from some of those sectors about faith in the system.
So given what you have said about if anything alarming arises, well, last night, I received a judgment, as did a number of us, that raises significant alarm. It’s a decision that was made in British Columbia last week. Because of the Brown decision, a man was acquitted in a situation where it was very clear his wife and his three female children understood the risk that he posed, because immediately after this, they no longer have anything to do with this man. Even though his reports to the police and his interrogation throughout the process was inconsistent, his credibility was seen as valid, and his assessment — and some of the medical professional assessments — that it is a possibility that he could have been sufficiently intoxicated not to remember what he did or to have been in a state of automatism was accepted by the courts.
I’m curious whether you think one case already, as we are just studying this, is sufficient for us to pause and consider the long‑term implications of this. And I would suggest that the education is not so much required for the public or women or those who experience violence, but perhaps we need to ensure that somehow judges are aware of these contexts. I’m curious what your views are on that. Are you aware of the decision? It’s the Perignon decision of the B.C. Supreme Court.
Mr. Roebuck: Thank you for bringing that to my attention. I do appreciate how you brought privilege into the conversation as well. I think that’s a really important concept. I think when it comes to the principle of bringing the law into disrepute, often women’s concerns are dismissed when they are out in the open, as the law is in disrepute. I think that you are right, that women and girls have spoken very clearly about their concerns about this bill, and I think that that needs to be considered as disrepute.
A case that involves partner violence — I think we’re weak in Canada on recognizing indicators of coercive and controlling behaviour in partner violence. I don’t think that there would ever be a case where this defence should be allowed with partner violence where there is any history of violence or abuse or coercion or controlling behaviours. I think if we’re only looking at assaults and physical violence as an indicator of partner violence, then we’ll miss it sometimes in all its forms. I do think it’s valuable to train judges on these issues. I think it’s important for us to have conversations about the dynamics of violence and how that affects people’s lives.
To your point, I do believe that it’s important to listen to the voices of women and girls and consider their concerns in legislation, which is often believed to be quite male-centric.
Senator Pate: Knowing that this case was already here, would it change your position in terms of the recommendations we heard from three experts yesterday on repealing subsection 2?
Mr. Roebuck: It’s difficult without having the full knowledge of the case and the details. I think there should be a higher threshold for the foreseeability of risk in intimate relationships. I think that’s an area where I would be very careful in applying that part of the legislation. I don’t know if it should be allowed.
The Chair: Mr. Roebuck, just a couple of questions from me, if I might.
One of the things that has happened around this amendment has been considerable thoughtful concern about the quality of the amendment and its likely effectiveness. In some respects, I worry even in those conversations that we feed the message that this law won’t be effective, that it will allow some people to act highly inappropriately, take licence, et cetera.
Setting that aside and assuming that this law is able to be effective, I would have thought and hoped that the Department of Justice and, perhaps, in partnership with organizations and roles that you might have, that we would have been out there immediately in high schools and wherever the parties are going to be taking place, not just communicating to, say, young women who might be the most vulnerable here, but also young men, that this is not a licence to misbehave in the ways that you might think. The best way to protect victims is to make sure that the unknown potential perpetrators are aware that this is not a licence to misbehave and take advantage of people sexually and the like.
Is much of that happening? Minister Lametti is not here for us to ask, “What have you done on public awareness right out of the gate so that those September parties at high schools and elsewhere don’t lead to tragedies, or other kinds of events at bars?”
Admittedly, you’re three months into the job, but do you see an opportunity for you to partner with high schools and other organizations, universities, places where these vulnerabilities often present themselves, to get that message out?
Mr. Roebuck: The specifics of how to communicate and how to educate are quite important. I’m learning more about the jurisdictional challenges on some of these issues in terms of the administration of justice and education both being within the provincial domain, but I do think that we have some mechanisms within the federal purview, such as Victims and Survivors of Crime Week, which mobilizes and provides funding to organizations across the country to provide education and awareness. I think that would be an excellent opportunity at the upcoming event in the spring to act on that. Certainly, our office will look at what engagement we can have and if we’re able to consult on what a plan will look like.
I do want to respond as well to that idea of perception. I think perception is very powerful in shaping people’s actions. When people believe something about the law or about the way that changes have happened, then that belief is powerful in how they act.
The Chair: Thank you very much.
Senator Dalphond: To follow up on previous questions, the message here — you referred to it before. You said the minister says that getting drunk doesn’t provide you an excuse for an armed social assault or sexual assault or whatever. There is no licence here. You said that that’s the powerful message that you heard and the one you would like to spread around.
The report from the House of Commons came out in December, before Christmas, and we are a month and a few weeks later. Have you been working on a program, on a strategy, a plan to inform? Were you also contacted by the Department of Justice to be part of that? I think you have a very special status. You are the Ombudsman for Victims.
I assume that the best thing the government and yourself could do is to be ombudsmen for no victims, because what we want is not to have an Ombudsman for Victims. We want to prevent people from being victims.
What is your strategy on that? If you have none, do you intend to go and knock on the Department of Justice’s door and say, “Please, let’s do something”?
Mr. Roebuck: To some extent, as much as I would love to act on everything, I’m conscious as well of what our mandate is. As an ombudsman’s office, we bring things to the public’s attention and try to resolve issues for survivors who contact us, and we bring attention to emerging issues like this. I think if there is mobilization within Justice and government to act on this issue, we can consult, but I don’t think that our office would be a driver on the implementation of what that plan would look like.
Certainly, it’s an issue that we can continue to bring attention to in our communications across the country and with stakeholders, but I would see our role slightly differently from being the driver of that type of action.
Senator Dalphond: Thank you.
The Chair: I don’t know what Senator Boisvenu was going to ask, and he had to leave briefly. Unless there are questions from other senators, this will bring us to the end of this panel.
Thank you, Mr. Roebuck, for joining us. I hope it has not been too traumatic. I hope it has not been traumatic at all. It has been much appreciated that you made yourself available on relatively short notice for consideration of this bill, and we look forward to various opportunities to invite you back on a range of topics relevant to your work and ours.
Thank you very much. Have a good day.
Mr. Roebuck: Thank you to everyone.
The Chair: Continuing with our deliberations on Bill C-28, we have on our second panel Steven Coughlan, Professor, Schulich School of Law, Dalhousie University. Welcome, Professor Coughlan, and take it away.
Steve Coughlan, Professor, Schulich School of Law, Dalhousie University, as an individual: I would like to thank all senators for your flexibility around scheduling. I know that you are on a tight timeline and all busy, so I do appreciate this.
I want to start with the observation that I think there is a fair amount of skepticism in the general public about notions like “automatism” and “intoxication akin to automatism,” about their existence at all and, of course, misunderstanding about them. I’m not a neurologist or a psychiatrist or anyone with expertise in the fields about whether these genuinely are real phenomena as opposed to ruses or deceptions used by people. However, our experts say they are real and the courts have accepted that they are, and I think that that obliges us to act appropriately. Although it might be legitimate for an individual court to be skeptical about a particular accused’s claim to be in a state of intoxication akin to automatism, our legislation about how to proceed when such claims are established shouldn’t be tainted by any skepticism. We have to treat that seriously.
The comments that I want to make about this issue will certainly be coming from a legalistic perspective, but, I hope, one informed by sensible policy considerations. Some of these things might be fairly basic and things you already know, and I apologize for that, but I think it’s good to start with rehearsing basic principles to get to where I want to go on this.
The version of section 33.1 which was enacted in June of last year says that a person can be convicted despite the lack of two things: general intent and voluntariness. It was a response to the Supreme Court decision in Brown, which found problems with the way the former section 33.1 dealt with general intent and voluntariness.
I want to deal with each of those two issues in turn. Essentially, my argument is that the changed version solves the first problem but doesn’t solve the second problem.
Let’s talk about general intent, and this is the one that I think has been solved. To say that a person didn’t have general intent is to say something like they didn’t intend to apply force, or they didn’t intend for the building to burn down or the window to break, or they didn’t intend to take someone’s property. Allowing a person to be convicted without general intent is actually not necessarily a big deal. We do that quite a lot. Most offences are based on subjective fault, where the person isn’t guilty unless they actually knew that the goods were stolen, but we depart from that. We have crimes based on objective fault, like dangerous operation of a conveyance or criminal negligence. Most of the time there is really no fundamental problem with that approach.
Where there is a problem is when an offence doesn’t have any fault elements — not only no subjective fault but also no objective fault, what the case law calls “absolute liability.” That’s, of course, where the system says: “Well, you did it, we don’t care whether you intended to do it, we don’t even care whether you took reasonable precautions not to do it. All we care is that you did it.” It’s not that our system never does that. Speeding is the most straightforward example. We don’t care whether somebody intended to speed or even knew that they were speeding; we just care that they were. Now, the court certainly has said that that’s a problem because it’s fundamentally unfair, but nonetheless we do still allow it, though only in a very limited range of situations. Getting a ticket for speeding is not really a big deal. It has no long-term consequences for someone or major impact. So although it might be a little unfair to that individual, that concern is outweighed by the general societal interest that we have in reducing speeding.
On the other hand, when it’s not just a ticket, when it’s not just paying a fine, where the penalty could include going to jail, well, that’s when the court has said that it’s not okay to have absolute liability. I think that makes sense. I think the law should intuitively make sense, correspond to our feelings about what’s fair and what’s not, and I think all of that does. It’s saying: “When the stakes are low, the system can be a little bit more relaxed, but when the stakes are high, we have to be rigorous about being fair.” Perhaps more importantly, it’s saying: “Don’t use the low-stakes approach when you are in a high-stakes situation.”
Now, that, of course, was one of the problems with the version of section 33.1 struck down in Brown. It said that a person could be convicted of the offence simply if their behaviour interfered or threatened to interfere with the bodily integrity of another person. It took out any requirement for a fault element, took out any requirement for a blameworthy state of mind and said the person was still guilty. So it treated the offence as absolute liability even in the case of serious offences like sexual assault. It used a low-stakes approach in a high-stakes situation, and that was properly seen as a problem.
The new section 33.1 requires that the accused departed markedly from the standard of care expected of a reasonable person in the circumstances, so that’s to insist on the presence of some fault element, which would be objective fault, and that would be okay. That’s created a fault element which will be constitutionally sufficient to solve the fault element problem identified in Brown.
But that wasn’t the only problem identified in Brown, or, for that matter, earlier in Daviault. The other problem relates to involuntariness. To go back to my point about the law making sense, I think the term “involuntariness” is distracting and often misleading; it gets in the way of people understanding. If somebody forced a gun into my hand and forced my finger to pull back the trigger and shoot my neighbour, if someone asks me, “Why did you shoot your neighbour?” I don’t reply, “It was involuntary.” I reply, “Well, I didn’t. He did.” If someone ties me up and throws me out a window, I don’t answer the question, “Why did you jump out the window?” with, “Because I lacked voluntariness.” I just say, “I didn’t do it.” We’re all very clear on the distinction between my body doing something and me doing that thing.
When section 33.1 says, as the new version does, that a person can be convicted despite a lack of voluntariness, what it’s saying is that they can be convicted of the offence even though they didn’t do it — literally, physically didn’t do it. Their body was involved, sure, but it’s an accurate statement to say they didn’t do it. That should be seen as a problem.
The Chair: I apologize for interrupting. I’m going to stop you there in your presentation. I think we’ll have a chance to draw out these points in the conversation that follows.
Mr. Coughlan: The last thing I’ll say is that section 33.1 does nothing about that problem.
The Chair: Thank you.
Senator Dalphond: Maybe I will give Professor Coughlan an opportunity to complete his comments on the involuntary aspect that is not addressed in section 33.1 as drafted now. It is referred to, but you think it’s improperly tackled.
The Chair: A question for you to complete your presentation, Professor Coughlan.
Mr. Coughlan: It’s a very kind question, Senator Dalphond, thank you. Let me go to an analogy that I want to make here. If I lose my office keys and someone takes them, locks me out of my office and commits an offence while in my office, or they get my login information, they log into my computer and while using my account they commit an offence, it’s legitimate to say to me, you should have been more careful with your keys or you should have been more careful with your login information. But it’s not legitimate to say to me, while they were in your office, they committed a murder, so you’re guilty of murder, or while they used your login information, they uttered threats, so you’re guilty of uttering threats.
That’s what section 33.1 does. It doesn’t simply hold the person guilty of the offence related to the thing they did — not being careful — it holds them guilty of the other offence. So if somebody uses my laptop, whether they pirated a movie or downloaded child pornography, we’re saying I’m going to be guilty of that. That’s the thing I’m saying doesn’t make sense.
Senator Dalphond: Previously, other witnesses have suggested that to avoid disputes about the proper interpretation of subsection 2, it should be deleted. Professor Roach, when he testified before us — I think it was yesterday; I don’t know if you watched it — concluded that option would lead to, most likely, a decision from the courts, including the Supreme Court, that this is not constitutional as drafted now. Do you agree with this? From what you said, I think it would become a high-stakes thing without any finding of fault.
Mr. Coughlan: I think that’s right, yes. The part that introduces any level of fault at all is in subsection 2 in the point about departing markedly. There would still be a reference to departing markedly from a standard of care in subsection 1, but without subsection 2, it wouldn’t be clear enough that the departure is a departure related to fault elements. In the old version, it was a departure simply in the person’s behaviour and the result it caused with no reference to frame of mind. If we don’t have the subsection 2 here, it won’t be clear that we are now talking about a state of mind. In fact, we wouldn’t solve the general intent Charter problem either.
Senator Dalphond: I will address the other point, the involuntariness. What you’re saying there is that, in fact, by having this part in the provisions, we are more or less saying that being in a state of extreme state of intoxication is a crime, but you’re punished not for being in that situation of extreme intoxication but what happened because of it, after you were in that state. The example you gave about the key and the door being locked and something happening inside and you being found not liable for improperly handling your keys but for what is happening in the office.
Mr. Coughlan: Yes, exactly. That’s the issue for me that not only makes this disproportionate, but it also means that we don’t solve the voluntariness problem. There was still no voluntariness around what happened in the office; there was voluntariness around losing the keys. I’m suggesting that it would make far more sense to penalize the thing we see as the blameworthy behaviour — not taking adequate care not to fall into that state. But the language of the new section 33.1, not in saying they are guilty of some offence but that they still commit the offence, means we have a disconnect there.
Senator Klyne: Welcome. Section 33.1 of the Criminal Code, as amended by Bill C-28, provides that to determine whether the person departed markedly from the standard of care, the court must consider the objective foreseeability — which is what we’ve just been talking about — of the risk that the consumption of the intoxicating substances could cause extreme intoxication and lead the person to harm another person.
How could a court likely interpret objective foreseeability of the risk that the consumption of the intoxicating substances could cause extreme intoxication? For example, how do you demonstrate that a prudent person or a young adult should have been familiar with the intoxicating substance consumed, and it’s likely effects according to the precise amount taken and the amount required to cause extreme intoxication? Must a person have previously consumed an intoxicating substance and recall experiencing a sense of wanting to harm someone come over them in order to foresee the risk of consuming it?
Mr. Coughlan: I don’t see that there would be any need for that kind of subjective requirement or any need that the particular accused has used intoxicants before or is familiar with the use of intoxicants. I have a second thing I want to say about this, but on the actual answer of what the law requires, the law is only requiring a marked departure from the standard of a reasonable person, which simply means we look at what that person should have known.
Indeed, the case law from the Supreme Court of Canada has said that is a pretty uniform standard. We don’t think, what would a young person know or what would an experienced person know? We are allowed to set the same standard for everybody and say, look, here’s what everybody ought to know. It has to be in the criminal context of marked departure, but it’s not a subjective standard.
As I understand the likelihood of this happening — and I don’t want to make light of this, but most people who drink the amount that would be required to fall into this state might well die of alcohol poisoning rather than enter into a state of automatism. In the original case of Daviault, which struck this down, his level of intoxication was such that most people would actually die rather than enter a state of intoxication. So I do think that a factual background worth taking into account here is the extreme unlikelihood of this happening.
Senator Klyne: Thank you.
Senator Pate: Thank you, Professor Coughlan. I want to go back to something you said when you were before us when we were looking at Bill C-51, sexual assault provisions and criminal law reform. You quoted Senator Jacques Flynn when he was Minister of Justice in 1979, and you said the time had come to do a fundamental review of the Criminal Code. In that context, of course, you were talking about the fundamental flaws and the piecemeal reform that has made the situation worse with respect to sexual assault law.
As you may be aware, yesterday a decision came to light that was actually delivered orally last week; it’s the Perignon decision from the B.C. Court of Appeal. You’ve given a number of hypotheticals that are very interesting around absolute liability and involuntariness. I’m curious how you would square that, in light of what you’ve said previously around sexual assault law, with the fact that in this case — it’s the Perignon case, if you’re looking for it — despite the fact that the judge indicates and accepts as legitimate that the 9-1-1 call made by the man who stabbed his wife, in it he indicated he did not intend to cause meaningful harm, that he didn’t intend to murder, he intended only to hurt her and that the wound was not a killing wound, he just did something stupid. Then he was shown to incorrectly state that he removed the knife from the wound and threw it on the floor when, in fact, the wife herself did. The fact that at the time of this case going to court neither the wife nor the three adult children were living with him would show some fairly evident context, I think.
What would your view be on the implications of this, particularly given that we’ve been encouraged by three experts in the area of violence against women just last night on the panel to take seriously the concern that exactly what has happened in this case would occur?
Mr. Coughlan: So a couple of things I guess I would say in response to that, Senator Pate. One is that the Supreme Court has said — and entirely appropriately, I think — on many occasions that in assessing the factual claim from someone that they were an automaton, we should absolutely be taking into account issues about whether they have a motive to lie about that, whether the person whom they attacked is somehow the person they’re claiming is responsible for their state of automatism, and that that should legitimately lead us to, simply on a factual basis, conclude that something like section 33.1 is irrelevant to them, that that person does not fall within section 33.1.
So if the issue is whether people will put forward defences that are not true. Well, yes, sometimes people will put forward defences that are not true. I don’t want to suggest that section 33.1 couldn’t be among that. But on the few occasions that it has been available in our law, after Daviault struck it down and before the original section 33.1 was put in the code, or for a brief period of time in Ontario, despite the theoretical availability of the defence, it has been pleaded very infrequently because the factual circumstances in which it could even be relevant are unusual. That’s why it took 30 years for Daviault to get back to the Supreme Court of Canada. On those very few occasions where it has been pleaded at all, it has not succeeded.
So there are two concerns that I think we can distinguish here. If the concern is that there are genuinely people who are escaping liability who ought not to escape liability, well, I would suggest that there aren’t. Very few people do, in fact, fall under this defence because not only is it unlikely to arise, but even if it does arise, it’s difficult to prove. So its actual impact in terms of the number of people who would otherwise not be found guilty would be very small, but those few — this is exactly my point about skepticism. If it is genuinely the case that people are acting involuntarily, then it is like being locked out of your office. We should respect that analogy.
If we don’t think that there ever is such a thing as a state of intoxication akin to automatism, we should attack the science. We shouldn’t worry about section 33.1 at all. If we don’t accept that it’s a genuine condition, we shouldn’t be worried about how to accommodate the condition; we should just be ridding the law of anything that pretends it’s a condition. If we don’t think it’s just a pretence, then we should have a law that accurately reflects it.
I said a second thing because I wonder whether your concern is that people will be falsely led to think they have a defence and somehow engage in behaviour because of that. I’m not sure whether that’s your question, but that would be an entirely different issue.
Senator Arnot: Professor Coughlan, you’ve stated that the law in its current state has solved one component, the general intent, but not the second component.
I’m wondering, can you proffer to the committee here the exact statutory language that would cure the general and also cure the second aspect, the voluntariness problem? How would you construct the legal language in the Criminal Code to do that? If you have an answer to that, I’d really like to hear it. Thank you.
Mr. Coughlan: Sure. I can’t draft it immediately, but I can point you to exactly the things that need to be done.
The thing that doesn’t solve the involuntariness is that the current section 33.1 in its opening words says “commits the offence,” that it still creates liability for the underlying offence rather than for the thing we actually see as blameworthy, which is the negligent intoxication. The solution would be to create a free-standing negligent criminal intoxication offence, and, indeed, it wouldn’t even have to be a single offence of criminal intoxication.
A very common approach in the law is seen in the example of dangerous operation of a conveyance. That’s an offence. But dangerous operation of a conveyance causing bodily harm is a more serious offence with a harsher punishment, and dangerous operation of a conveyance causing death is yet a more serious offence with yet a higher penalty. There’s no reason that a criminal intoxication offence in that same kind of three-level pattern couldn’t also be created, which would then address both the general intent issue — because the intent would have been satisfied by the intoxication — and the voluntariness, because it would go to the choice to at least do the things that led to intoxication. Also, it wouldn’t create the “drunkenness discount” that the Minister of Justice at the time of Daviault had been concerned about, because we could recognize that the consequences themselves could justify a harsher penalty.
Senator Arnot: I want to follow up on that. Quite frankly, you come to this committee with a lot of credibility. I think you’ve identified and articulated a solution to this issue, which needs to be really well considered.
I believe a memorandum with the points you’ve just made, including the exact statutory language you would recommend as a solution to this issue, would be very persuasive. I’m inviting you to do that, if you can commit to that. I think it would be very helpful.
Mr. Coughlan: Thank you, senator. I think I likely can do that.
The Chair: Thank you, Senator Arnot. Thank you, Professor Coughlan. The question I had intended to ask on my own behalf Senator Arnot just asked, so we’ll go to the second round now. Senator Pate, carry on your conversation.
Senator Pate: Thank you very much. Yes, to pick up on your last point when we were speaking, one of the issues that has certainly been raised, and that I have a concern about, is the access for those who are economically and racially marginalized. To actually mount the type of case and to bring the evidence that’s required requires a fair degree of resources.
Have you any comments about the availability of this for individuals who might otherwise — it’s not even a case of knowing about it. Even if you know about it, how do you get access to mount it?
Mr. Coughlan: Yes. In part, the answer to that — and I am thinking this through as I say it. I want to be up front about that. That said, I wonder whether this notion of a three-level offence of criminal intoxication, at least in part, goes to that issue, because when we’re thinking about something as a defence, we aren’t strictly putting the onus on the accused but, in practical terms, we are saying, “You’re the person who has to come up with all the evidence here.”
If, rather than thinking of this as a defence — and it’s not clear that the current section 33.1 does that — but rather than thinking of it as a defence, we are thinking of it in terms of “here’s an offence.” Then we’re just back in the level of the Crown having the burden of proof, the Crown being the one having to demonstrate that there was a level of intoxication, that there was a risk arising, that a reasonable person would very clearly have seen that and, therefore, this particular accused’s failure to avoid the risk is not only a departure from a reasonable person’s standard but a marked departure from it.
Treating it as an offence might do something to ameliorate that simply because it shifts the onus back to the Crown. I’m not certain, but it might.
Senator Pate: My concern would be that that would disproportionately be used against racialized folks and the myths and stereotypes about alcohol and substance abuse would abound, which it has, in fact.
Mr. Coughlan: Yes. I don’t see that as a misplaced concern in the least, Senator Pate; I think you’re quite right to have that worry. It’s a much broader worry than just this offence. As the Barton decision demonstrates, at least the Supreme Court of Canada is aware of that issue and is trying to sensitize courts to avoid stereotyping, specifically around Indigenous Canadians.
Decisions recently, such as Chouhan, which talked about jury selection, have tried to sensitize courts to those issues. You are 100% correct to have that concern. It is a much broader concern than just this issue. You’re right, though, that it does apply to this, and I think the remedies to it have to be broader as well.
The Chair: Professor Coughlan, could I ask a question following up on that dialogue with Senator Pate? If there were a provision that amounted to criminally negligent extreme intoxication causing A, B or C, as I think you have described, would that effectively, then, eliminate the defences that swirl around extreme intoxication leading to automatism? Does that make that an irrelevant point in court consideration?
Mr. Coughlan: I think it does, because either in Daviault or Brown, the problem is — essentially, the one I’ve alluded to on the voluntariness one — that the system is trying to convict the person of the underlying defence. The person is putting forward a defence saying, “Here’s why you can’t convict me on that underlying offence,” and then provisions are being put in the Criminal Code to say, “We won’t let you say that thing to try to prevent us from convicting you of the underlying offence.” Instead, if we do something that’s just focused on the negligent intoxication, not on the underlying offence, all of those things just become side issues — irrelevancies.
The Chair: Thank you for that.
Senator Clement: Thank you, professor, for being here.
I note in your bio that you’ve taught non-lawyers. I just wonder if you can comment on how trusted organizations could speak to communities. I really think that organizations need to feel more empowered around this in how they speak to the communities they serve and the vulnerable communities that need their assistance and that vulnerable communities trust. How do we speak about this to regular folks?
Mr. Coughlan: I agree that’s certainly a challenge. I happened to join toward the end of the previous speaker, and it reminded me there is a lot of outreach with universities and high schools, at least here in Nova Scotia, specifically around issues around sexual relations, consent and intoxication, done in a proactive way. They’re dealing specifically with young people at stages where they’re just becoming sexually active in some cases, so it is to try to make sure there are no misunderstandings.
They are something of a captive audience, and it’s not necessarily a broad cross-section if we’re talking about universities. It’s more of a cross-section if we’re talking about high schools, but that’s only a way of reaching young people.
It strikes me that the challenge, as always, is reaching the people who aren’t looking to be reached. People who want information can find it, but unfortunately, there’s a lot of misinformation out there also, and it’s easy for people to get into an echo chamber where they’re just hearing the things they want to hear. Certainly, incel-motivated violence, which we’re seeing, is a danger.
I wish I had a good answer as to how to reach those kinds of people — the people who aren’t actually looking to be reached.
Senator Clement: I heard your exchange with Senators Arnot and Cotter about certain things being irrelevant if we go down a negligence route. I’m looking forward to whatever you can provide as a brief there.
But do you have thoughts on how “extreme intoxication” is defined here in subsection 33.1(4)? I understand it might be irrelevant, but do you have any comment on how that’s specifically defined in that subsection?
Mr. Coughlan: Sorry, I’m looking at a different thing than you are, I think. All I have is the section 33.1 currently in the code, which has no subsection 4.
Senator Clement: I’m looking at subsection 33.1(4). After marked departure and after offences, there is the definition of “extreme intoxication.”
Mr. Coughlan: I’m sorry. I don’t have that in front of me.
Senator Clement: Let me read it to you:
In this section, extreme intoxication means intoxication that renders a person unaware of, or incapable of consciously controlling, their behaviour.
Mr. Coughlan: I don’t immediately have concerns with that language. That seems to capture what the courts have had in mind when they deal with this issue.
Senator Clement: I was just checking in. Thank you for that.
Mr. Coughlan: I also have the practical difficulty in that I have glasses specifically for looking at a screen for meetings, and they make it very difficult to read anything, unless it’s exactly the right distance away.
Senator Pate: Thank you very much for agreeing to send us more information about what you’re suggesting. I’d like you to please include with that what the implications are in terms of the concerns that have been raised about the manner in which violence against women is treated right now and the implications particularly for racialized accused and those who are economically disadvantaged. Thank you.
Mr. Coughlan: Thank you, Senator Pate.
The Chair: That almost concludes things. I had just one question, which was raised in our dialogue with Professor Roach yesterday. That was the idea that it would be helpful to consider a reference with respect to this to the Supreme Court of Canada. I think you have identified what would amount to a degree of unconstitutionality with respect to the new provision. Do you have thoughts on whether that would be a helpful initiative?
Mr. Coughlan: My answer to that is a little complex, which is why I’m struggling with it.
The Supreme Court in Brown identified the general intent and the involuntariness problems. They found them both to be section 7 violations. They then went to look at section 1 and found neither of them to be justified, but they said some things about what they thought might be saved under section 1. I think that the bill that has been passed already is largely compliant with that, which leads me to think that the Supreme Court might well simply say, “Yes, this is fine. This is what we said in Brown.” My concern is that when they said that in Brown and did the section 1 analysis in Brown, they themselves seemed to be only thinking about the general intent issue and not about the involuntariness issue.
Personally, I would have preferred a more complete section 1 analysis that looked at both of the section 7 violations in Brown. So I suppose that if a reference were specifically on that point, there would be value. Realistically, the bill that was passed in June maps pretty closely what Brown suggested would probably be okay.
The Chair: Thank you for that.
I think that brings to an end the round of questioning. Professor Coughlan, thank you very much for attending and benefiting the committee from your insights. It’s been an enjoyable and, in some respects, enlightening dialogue. So thanks again.
Mr. Coughlan: Thank you very much for the invitation.
The Chair: We are going to now turn to discussions about what might be the shape of a report, and the question for you, first, is whether you would like to do that in camera or in open session, as we have tended to do of late. Your preferences in that regard? Carry on in this format? I see nods of the heads, so I think we will be guided by that.
We can turn to that question about what we think a draft report might look like and have some conversation that can give advice to the people who would help us draft the report. Professor — Senator Dalphond.
Senator Dalphond: I was a lecturer for a while, but I think in my next life I will be that.
We have the report from the House of Commons, which I think is a good starter about some of these issues. Some of the witnesses were the same. I think there is no need to rewrite the same story. So I guess we have that to be a good starter. But I suspect we have other elements that we are digging into that were not covered — at least I didn’t see in the report — I didn’t read the whole transcript of the House of Commons — but, for example, the aspects that we just discussed with Professor Coughlan about the involuntariness issue is something I think is new.
There was also that debate about the removing of subsection 33.1(2) or keeping it, and there are two clear positions there. Some advocate for removing it, but Professor Roach and I think also Professor Coughlan this morning are of the view that if you remove this aspect of fault in cases where we have assault, maybe sexual assault — high-stake offences during a high affair — if you are found guilty, we may have problems.
These are the type of things I haven’t seen in the report that I would like to have seen addressed, but it’s on the suggestion so far. I wish to read again the transcript because a lot was said in these last two days.
Senator Arnot: I have got a quick comment, chair. I haven’t been here, so I don’t know much about it, but there are two things that I wanted to ask you and your advice on in committee. One is the education piece around the rollout of this new section. We have heard some good intentions. I’m not sure the Ministry of Justice has a great track record on programs or communication of this nature, and I’m just wondering — you raised the issue of perhaps having the ministry or the minister respond to what seems to be a really clear need in this situation. They are talking about — or I hope they are — a robust education program with clear language to address those issues. I don’t know if the committee’s work is finished, really, is what I’m saying.
Secondly, with the comments of Professor Coughlan — and his comments were very circumspect about the section 1 analysis done by the Supreme Court of Canada creating perhaps a problem, in effect — I wonder if the committee should really wait for Professor Coughlan’s memorandum that he hopes to provide. I think it brings a different aspect and maybe one that this committee should really consider carefully. I’m sure you will. So I make those two comments because it seems to me that the committee could benefit from what he said and digest it in a way that might be very informative.
The Chair: Can I just make a small intervention in relation to that, Senator Arnot?
One of the things that came out of the report in the other place is this reference to a public awareness campaign and, at the end of the report, a request for a government response — “requests the government to table a comprehensive response to this report,” which I presume would include their commitment to public awareness. We could reiterate the importance of that and make the same request. Whether we should be in a position to call justice ministry people back to respond in a way to this strikes me as a bit awkward, but I would myself endorse the suggestion that the message on public awareness be reinforced. I may be overreaching. I’m relatively new in terms of what we can carry on doing.
The one other dilemma here is that we are working presently to a deadline of March 10. So we have only a limited amount of time to continue our deliberations. Unless we were to seek an extension.
[Translation]
Senator Boisvenu: I also read the report produced by the House of Commons. I have to say, however, that I found it rather generic. I am worried by the testimony we are hearing, especially what we heard yesterday and what Dr. Chamberland is predicting. This is a practitioner working in the field. He makes decisions regarding criminal responsibility and lack of thereof every day.
The other place has told us that the Justice Department is gathering data. More needs to be done, however. The Justice Department should be continuously monitoring the number of cases in which the defence pleads a lack of criminal responsibility in order to have up-to-date data in real time. In this way, if ever there are unintended effects, we will be able to react quickly without having to wait for three years, and in doing so avoid the suffering of victims.
I would like to see a monitoring system that would allow the Justice Department to keep track of the number of cases in real time. If ever the number of cases increases in less than three years, we would be able to react quickly as legislators to amend the act and provide the necessary framework.
[English]
Senator Pate: I’m not against that suggestion; I just think, as we heard last night, the challenge is how many cases get withdrawn because of this, and I don’t know that there is any cogent way to collect that.
I’m very interested to see what Professor Coughlan produces. Given that approach was one of the approaches considered post‑Daviault, I’m concerned that the professors who spoke to us last night also have an opportunity to look at that and provide commentary because those were some of the considerations taken into account more than 20 years ago now. What’s changed now?
In the report from the other place, there was a discussion about the particular impact on Indigenous and racialized women, but then nothing — no recommendations. This whole process seems a bit short on public education. Yes, all of us are in favour of public education. In this area, though, I think that’s often used as a way to divert attention away from the fact that we are not getting at the real crux of the issue, which is the system is not very good at taking seriously violence against women and other marginalized folks. These types of defences tend to privilege those who are already the most privileged. I think our report needs to address that fundamental truism, if I can put it that way. It’s not just a theory. It’s the reality of how laws have been developed. We continue to call it complexity when it’s really intersections of discrimination that are impacting and making us try to do legal cartwheels. That is part of what we have to identify.
I’m not sure what a reference to the Supreme Court of Canada would look like. I am also interested in what that could mean, but there are many questions. I understand we have a time constraint, and I understand this is already law. I know a number of you read this and were equally perplexed by what has already emerged in the very first case that we know of that’s come forward since the Brown case. Every concern raised and then some is borne out by this Perignon decision. I’m concerned that we need to do something meaningful but that we also need to be cognizant of what we’re capable of doing in this context.
Senator Batters: That’s the exact point that I wanted to make. Given that this case that deals with exactly these issues just came out, I haven’t yet had time to review it. I would feel in a better position once I have had a chance to review it.
Yesterday, because of the time, we had to switch around Professor Roach and three female professors. In some ways, it might have worked better if we could have kept the original order, but I certainly understand why we didn’t. I’m also curious to hear their reaction to some of the things that he said in his testimony.
We have three full sitting weeks, in addition to break weeks, before that deadline happens, so I think that gives us some time to be able to assess this before we move forward and know exactly what our report should look like.
Senator Dalphond: I tend to agree with everything that has been said so far. I think it should be a work in progress in the sense that we are almost making the report in real time because things are coming up, like the judgment yesterday that was brought to our attention by Professor Sheehy. Incidentally, it was rendered in an interim period, after the Supreme Court judgment struck down the previous section 33.1 but before the new 33.1 came into force. So there was a period of time when there was nothing. That is, there was no longer a section 33.1. There was a short time frame there that was exploited.
That being said, I agree with Senator Boisvenu that the three‑year period is meant to be a normal re-evaluation of the situation, but there should be a permanent watch of the evolution of this situation. If problems are popping up fast, we should be advising the government to monitor it closely and to be ready to respond quickly. We need some time to read the transcript, to read Professor Coughlan’s proposals and to read the judgment from B.C.
Maybe we could start the report with an outline of main ideas but with the idea that we will remain open-minded about adding other things to it.
Regarding information, which you referred to, Senator Arnot, I certainly support you. That was the first two proposals from the other place, namely that there should be a campaign and a lot of publicity and information about what this new provision means. I support that we say that. It’s imperative.
The Chair: If I could make a suggestion about what I think is sort of the pattern here, first, this is a frustrating way for us and even the government to have moved forward in the construction of a responsive piece of legislation. In a way, there are two tracks going on here. One track is we need to monitor this law with a significant degree of discipline in terms of what’s happening in cases that pop up and the way in which it might treat certain people in problematic ways. The other track is that it’s not a very good law and we should make suggestions about how there should be a different one. I think we can speak about both, but we might want to try and think about those two parts of what our recommendations might be.
I’m respectful of both the observations that Senate Pate made about having the chance to look at other ideas and Senator Batters’ point that these things are bubbling up almost immediately for us and we need time to reflect. It doesn’t strike me necessarily that we should feel absolutely bound by March 10 if this is something we want to reflect on and produce something meaningful. I would invite us to think, as Senate Dalphond suggested, about some work that starts to frame out what a report might look like, particularly the basics of some references to the work that the House of Commons has done in laying the groundwork for this, which I think was good work. Then maybe we need to decide if we will set aside an hour, two weeks from now, after we have had a chance to look at this, to see what we might want to say in terms of a consensus, subject to your availability, Senator Arnot — I know you are a visiting member of the committee today — to carve out that opportunity to come back and help us build this package in, say, two weeks’ time.
Senator Pate: The only other thing I would add — and I raised this with Professor Coughlan — is that we have made recommendations many times over about the law commission and the need to review the Criminal Code. I can’t think of a clearer example than this one of the need to do that posthaste. Whatever we put in, we must have that as a reiterated recommendation.
The Chair: This is an example of that. Obviously, time constraints were on the horizon for at least the government, but this one needed a good deal more reflection than it got. We are now struggling to provide that reflection after the fact while, at the same time, thinking about what this law might actually do.
Does that seem like a comfortable way to proceed? Are you comfortable setting aside an hour in two weeks’ time, after we have had a chance to see what we might see from Professor Coughlan and maybe invite some other soundings on it, if he is comfortable with that? We can have a chance to look at the material that we are receiving and see if we can finalize meaningful pieces of the report that can lead us to recommendations. The pressure will build in two weeks, but at least we can think for that period of time. Are you comfortable with that way of proceeding?
Were there any other matters that we need to address today while we’re in public session? If not, I will declare the meeting concluded.
(The committee adjourned.)