THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Wednesday, March 22, 2023
The Standing Senate Committee on Legal and Constitutional Affairs met with videoconference this day at 4:17 p.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 Pierre-Hugues Boisvenu (Deputy Chair) in the chair.
[English]
The Deputy Chair: Senators, as this is a public hearing, I will ask each member to identify themselves.
[Translation]
Senator D. Patterson: Dennis Patterson from Nunavut.
[English]
Senator Pate: Kim Pate from here, the unceded, unsurrendered territory of the Algonquin Anishinaabeg.
[Translation]
Senator Clement: Bernadette Clement, senator from Ontario.
[English]
Senator Klyne: Good afternoon, Marty Klyne from Saskatchewan, Treaty 4 territory.
[Translation]
Senator Dalphond: Pierre Dalphond, senator from Quebec.
[English]
Senator Arnot: David Arnot, senator from Saskatchewan. I live in Saskatoon, which is in the heart of Treaty 6 territory.
[Translation]
The Deputy Chair: Thank you very much, esteemed colleagues. As you know, today we’re discussing the report on self-induced intoxication.
We’ve been holding all our committee meetings in public lately. I will ask you again today: Do you wish to continue to work in public, or would you prefer that the committee meet in camera?
It’s unanimous: The committee members have chosen to conduct the meeting in public. Thank you.
Honourable senators, we have before us a draft report prepared by our analysts, whom I’d like to thank kindly, by the way. In my opinion, it’s a very good report.
I suggest that we proceed page by page. If you have any grammar errors or typos you’d like to correct, you can pass them on to the clerk after the fact.
We will agree on the gist of the report.
[English]
Senator Arnot: If you would allow me to, I would like to make a statement. I came to some of the meetings, and I’m now representing Senator Dupuis. Today I looked at the report and it looks very comprehensive, and I would expect that.
I wanted to raise with the committee a couple of basic things, if I might. I am of the view that the recommendations made by Professor Coughlan to create a free-standing offence of criminal intoxication is something that should be given a high priority and maybe have much more prominence in the report. What he’s suggesting is something that’s novel. It’s an interesting perspective, and it does address the concerns of civil society because it’s talking about neutralizing a non-responsibility defence.
If the recommendation of this committee was that this section — his suggestion should be studied very carefully by the Ministry of Justice and actually enacted as soon as possible, it would change a couple of things, in my opinion.
What he’s saying is from a different perspective. I think that approach should be fully explored. My own view is it should be enacted in the Criminal Code as soon as possible and have some great urgency because the Government of Canada could enact such a Criminal Code section within the next week if they wanted to, but well before we see how some of these issues play out in the overall gist of the report and the reasoning for it.
I wanted to raise that with you, colleagues and chair, because I think that it is unique. It does address a number of those concerns because if someone becomes intoxicated of their own volition, to the extent that they are not able to control their body, that in itself is an indictable offence. I think that would have great effect on this and arrest any confusion around these issues which we heard so much about from civil society and the stakeholders.
The other comment, if I may, is that education, I believe, needs much more prominence. The power of education is quite important to recognize. I believe that there are a number of confusions missed in our society. And if you had a robust education plan, which the ministry says they will — something that’s clear and concise and erases confusion, uses plain language and strong messages to address deep-seated myths and stereotypes in our culture — that could help to eliminate the confusion that appears to exist. I think a strong message that is effective, measured, targeted and robust using modern communication platforms would be something that this Senate committee could strongly endorse. It would present an opportunity to address some of those issues that have gone unaddressed. The report could squarely address the concerns that, in fact, have been addressed by civil society and the stakeholders, which are very valid and we’ve heard so much about.
In terms of targeting the education, we should think about targeting youth between the ages of 12 and 18, roughly grades 8 to 12; the second target group would be younger adults between 18 and 28 and then the general public. Those are my comments on the report, late in the day, but this is my first opportunity to raise those concerns. I think it would be wise for the Senate committee to consider some of these issues.
[Translation]
The Deputy Chair: Do you have a recommendation to make, would you like to amend the report, or are you just speaking generally?
[English]
Senator Arnot: I’m speaking generally, chair, because the recommendations have been covered in the report on page 17 by Professor Coughlan and he’s provided documents which specify exactly the way the Criminal Code should read in his opinion, which I think is really wise. It sets the agenda in a different way and addresses the issues that I believe the members of civil society presenting at this committee have talked about.
[Translation]
The Deputy Chair: Senator, if I understand correctly, you’d like to add a new recommendation to the report?
[English]
Senator Arnot: Yes, I would, with the consent of the people.
[Translation]
The Deputy Chair: All right. The first thing we need to do is go through the report, and then we’ll work on the recommendations. Tell me if I understand correctly; we’ll adopt the report and then see if the recommendations are complete or not, and add recommendations as needed. That’s how I see the work we need to do.
Senator Dalphond: You said exactly what I was going to say. I’d like to tell Senator Arnot that I find his remarks very interesting; in terms of the recommendations on the type of advertising, training and educating the public, it should be targeted groups. What he said is germane to this and we should discuss it later when we get to the recommendations page.
[English]
Senator Batters: It’s more of a general comment. I was just wondering in the overall format of it, why are the paragraphs numbered? Is that just for ease of us going through it today? Right now it’s not that readable, just without space between each of those. I think that if the desire is, okay, just so are able to have a discussion about this today more easily, to pick each particular line that we might be talking about or each paragraph, I think that would be fine. If the desire is to actually keep the numbers in, I don’t find it very readable like that. I think there should be a space between each paragraph. Perhaps that was just done for the purpose of this report. That was more of a general question as we get started.
Julian Walker, Analyst, Library of Parliament: Certainly, this is a new system to allow for easier reading between the French and English versions, so now they all have the same paragraph numbers, whereas before you remember the lines were different in each version and we would be looking for the corresponding paragraphs. Now if it’s paragraph 100 in French, it’s paragraph 100 in English, but those numbers will come out.
Senator Batters: Okay.
Mr. Walker: You’re right. There are some spots where that formatting got a little bit difficult to follow. But we will fix that for the final report.
[Translation]
The Deputy Chair: When the report is finalized, we’ll get it in a line-by-line format, right?
Mr. Walker: It will look the same as our previous reports.
[English]
Senator Batters: Also I would suggest that in the version that’s final, when the paragraph numbers are taken out, that there is also a space between each of those paragraphs for readability.
[Translation]
The Deputy Chair: No problem. For now, we’ll go with the report in its current form. We’ll go paragraph by paragraph, if that’s all right. Paragraph 1. Paragraph 2. In the French text, the word “le” should be removed in paragraph 2, which refers to section 33.1. Paragraph 3. Paragraph 4. Paragraph 5. Paragraph 6.
Senator Dalphond: In the French version, two lines before the end, it says:
Le comité fait remarquer que plusieurs organismes invités à comparaître ne se sont pas présentés, au prétexte par certains que le projet de loi C-28 avait déjà été adopté.
I would replace the expression “au prétexte” with “au motif”; a pretext feels like an excuse for not showing up, while the other expression feels like a reason for not showing up. I don’t know what it says in the English. In French, “au motif” would be better.
The Deputy Chair: Perfect.
[English]
Senator Batters: I suggest in paragraph 6 where we’re talking about that we heard from 15 witnesses, I understand the witnesses are listed in appendix B, but for the purpose of this, because it’s a study about this particular piece of legislation, I know that we talked about how obviously the Justice Minister introduced this bill in June 2022, but I think paragraph 6 should indicate in the first sentence that we heard from 15 witnesses, including Minister Lametti. That should be specifically drawn out because he’s not just any other witness. He’s the government minister responsible for the bill.
The Deputy Chair: Agreed?
Some Hon. Senators: Agreed.
[Translation]
The Deputy Chair: So that’s it for paragraph 6.
We’re now at paragraph 7, main issues and key messages.
[English]
Number 8. Number 9?
Senator Clement: Looking at the English version in paragraph 9. It starts off by saying, generally speaking, that the witnesses’ main concerns were not about the constitutionality, but before the last sentence, it says otherwise — that some thought that it was vulnerable to constitutional challenges. Maybe just some clarity there.
Mr. Walker: Certainly, yes, I agree that to the reader who didn’t participate in our hearings, that might sound confusing. We certainly had some witnesses who said they were not concerned so much about whether it was constitutional, but still thought that people would bring the challenges. I think that was the point that some witnesses made. I know at the end of this, there will be a direction to the steering committee to make minor changes, but if that is the point you wish to clarify, we can make a change.
Senator Clement: It’s just a —
Mr. Walker: I take your point.
[Translation]
The Deputy Chair: Is that all right, senator?
Senator Clement: It is, thank you.
Senator Dalphond: What are we doing? Should we remove it?
Senator Clement: No.
[English]
Mr. Walker: We can make a change there to clarify that and review it with the steering committee, if that’s how you wish to proceed, as long as the substance of the change is noted, that’s not going to be hard to change.
[Translation]
The Deputy Chair: Based on your comments, the steering committee will review the report and you will get a copy. If you still have an issue with the wording, let us know.
Senator Clement: It’s a minor thing; that’s all right. Thank you.
[English]
The Deputy Chair: Number 9. Number 10.
[Translation]
Senator Dalphond: I have a comment about paragraph 9. The French version says “Certains pensent que sa constitutionnalité serait remise en cause...” It uses the conditional, and I feel that we should use the future tense, so “sera” rather than “serait.” This is something that will happen in the future.
The Deputy Chair: Are you keeping “en cause” or changing it to “en question”?
Mr. Walker: Yes; it’s okay.
The Deputy Chair: It’s okay, it’s one or the other. Perfect. Paragraph 10.
[English]
Number 11.
Senator Batters: The fifth line the sentence says, “We must create a justice system in Canada that is fair and respects the rights of the accused but also provides women with access to justice.” The issue of this particular part, I think, is not access to justice. I think the point is that it also protects women. That was my take away from this particular part — not dealing with access to justice. I don’t think that this is correctly stated there.
The other question I have is at the end of that particular paragraph where it suggests that men who consume alcohol and other drugs are not criminally responsible for the violence done by their hands. That’s just kind of an awkward phrase; maybe in French it’s better. I don’t know. But I would suggest instead of violence done by their hands, “violence perpetuated by them.”
[Translation]
The Deputy Chair: In French, I think the wording is fine as I understand it. For those reading the French and the English, does the English version align with the French version? Senator Pate?
[English]
Senator Pate: I think both of those changes I’m fine with, they would be good. Maybe to simplify that last one is just that men who consume alcohol and drugs are not criminally responsible for their violence.
[Translation]
The Deputy Chair: Perfect. All good?
We are now at paragraphs 12 and 13. Paragraphs 15, 16, 17 and 18. Paragraph 19?
Senator Dalphond: I have a comment about paragraph 18. In the French version, in the last sentence at the end of the paragraph, it says: “Ces violations ne pouvaient être défendues en vertu de l’article 1...” Rather than “défendues” — saved — I would use “justifiées” — justified: “Ces violations ne pouvaient être justifiées en vertu de l’article 1 de la Charte...” Section 1 allows for rights protected under the Charter to be overridden on an exceptional basis.
So I’d say “Ces violations ne pouvaient être justifiées...” rather than “défendues.” I feel it’s unclear what “défendues” — saved — means.
The Deputy Chair: So, “justifiées,” then?
Senator Dalphond: Yes.
The Deputy Chair: Is it the right word in the English version?
Senator Dalphond: Yes, “saved” is fine.
[English]
Senator Batters: It’s very commonly used, yes.
[Translation]
The Deputy Chair: Okay, that’s it for paragraph 18.
[English]
Number 19? Number 20?
Senator Batters: I just wanted to point out that in paragraph 20, it talks about to establish a stand-alone offence and then reads, “or.” It is a little confusing because of the numbering system of the paragraphs here, but I think the word “or” should probably have a colon after it. Also, shouldn’t paragraph 21 be indented because that’s what it’s referring to? The way it’s set out in this particular version is kind of confusing. I’m not really sure what it’s — .
Mr. Walker: Paragraphs 20 and 21 should both be indented as the two. When we were transferred to this format —
Senator Batters: Right.
Mr. Walker: — some of the formatting didn’t quite transfer to what we have in this version.
Senator Batters: Yes, both of those paragraphs, 20 and 21, should be indented.
Senator Dalphond: What does it mean when it’s the letter (a) before something else? Does it mean it’s going to be a quotation? But then it’s not going to be aligned with the rest of the paragraph.
Mr. Walker: Oh, I think so. I noticed that some had the (a) there and I think those were going to be indented paragraphs.
Senator Dalphond: Okay. Because I know there is (a) and it should be a (b) or a (c).
Mr. Walker: I noticed that paragraph 28 has an (a) — but that’s an indent.
Senator Dalphond: Thank you.
[Translation]
The Deputy Chair: Paragraphs 20 and 21 will therefore be put together. We’re now at paragraphs 22, 24, 25, 27 and 28.
Senator Dalphond: I’m looking carefully at the French version, so I haven’t seen the English version, but the quote says:
a. In roughly 15 cases, the constitutionality of section 33.1 was challenged (excluding R v Brown, and R v Sullivan and Chan), enabling the defence to be raised approximately 7 times.
I’m not sure I understand the sentence, but —
[English]
If it is a direct quote, I will live with it. In English it looks like it would be a direct quote.
Mr. Walker: It is a direct quote. It is taken from, if I’m not mistaken, from the submissions from Justice Canada’s submissions to the committee.
Senator Dalphond: It says in roughly 15 cases the constitutionality of the section was challenged, enabling the defence to be raised approximately seven times. I don’t know why it was raised 15 times, but it was used only 7 times. Maybe there is an explanation?
Mr. Walker: So in that section, what’s being described there is what we had from the Department of Justice’s submissions to the committee, where they explained how difficult it was to know for sure how many times this has been raised, probably because we can only look at the case law. If there were no written decision that followed, then we wouldn’t know.
That section is discussing the rarity of these instances and this is the information that we received from the Department of Justice that helped them explain. They basically said, “This is how many times we found it.” But again, sometimes in the jurisprudence it was referring to that particular case for another reason. Ultimately, what they’re trying to say was, “We found it in this number of cases, but our research has shown that there were approximately seven times when the defence was effectively put forward.” The other cases didn’t explain in their submissions why, but the point being that there were more references to this having occurred than how many times the defence was raised. If that is confusing, we could add a footnote and explain.
Senator Dalphond: I was just wondering if there was something missing in the explanation.
Mr. Walker: No. I think it’s just that they’re trying to explain why it’s confusing that they were able to ultimately land on that final number of seven cases.
Senator Dalphond: Thank you. I can live with that.
[Translation]
The Deputy Chair: We’re now at paragraphs 31 and 32.
[English]
Senator Batters: The second-last line of that paragraph is talking about Minister Lametti. It reads as follows:
. . . though he recognized that the National Association of Women and the Law (NAWL) and Professor Kerri Froc were “amongst the very few critics of the bill.”
I think the proper word there, given what he’s doing, is not “recognized” but “claimed.” Because then in the next paragraph it’s talking about Professor Kerri Froc questioning that particular part of it.
Senator Dalphond: Agreed.
The Deputy Chair: Agreed. Paragraph 33.
Senator Batters: On this one, there’s just a typo. Kerri Froc’s first name is misspelled there. It should have two R’s.
Regarding this paragraph, I just wanted to make the point that in my questioning of Minister Lametti about this issue I asked him when this consultation was done. Given my previous experience in provincial governments with ministers of justice, I was noting that by the time of this consultation, it was very likely that the bill had already been approved by cabinet, because it was getting introduced in the House very soon after that. Minister Lametti did not deny that.
I just wanted to make that point. I recognize that you may not be able to incorporate that, but just for the record I wanted to note that the consultation, to me, was not robust, in particular because of the timeline that the consultation was done and the way the consultation was done.
[Translation]
The Deputy Chair: We’re now at paragraphs 34, 35, 36, 38, 39, 40, 41, 42 and 43.
[English]
Senator Batters: On this one, I think you were saying before that if there’s the small “a,” that’s actually a quote. That’s a Minister Lametti quote there.
Mr. Walker: Right. It’s indented.
Senator Batters: Right. Just how the formatting goes on some of those things. Okay, thank you.
[Translation]
The Deputy Chair: We’re now at paragraphs 44, 45, 46 and 48.
[English]
Senator Batters: Just a typo on the third line. It says “when they voluntary consumed” and it should be “voluntarily consumed.”
[Translation]
The Deputy Chair: We’re now at paragraphs 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 66, 67, 68, 69, 70, 71, 72, 74, 75, 76 and 77.
[English]
Senator Batters: On this one, I’m not sure about the use of the word “asked,” as in “Professor Grant asked,” because this is such a poignant and critical question. As she said:
How many victims are too many before we say this is a problem? If we have 5, 10 or 20 beaten, raped or even dead women each year, is that too many?
Maybe the steering committee could think of another word instead of “asked.” Because it is such a dramatic and very correct statement, I wanted to emphasize that a bit more. I’m not thinking of a good synonym right off the top of my head, but I just wanted to ask if that could be underlined a bit.
Mr. Walker: We could say “stressed an important question,” or “stressed the question,” or “stressed certain questions,” or something to that effect.
Senator Batters: Yes, that’s a good word, sure. Thank you.
[Translation]
We’re now at paragraphs 79, 81, 82, 84, 85, 86, 87, 88, 90, 91, 92, 93, 95, 96 and 97.
[English]
Senator Pate: I think this was circulated to everybody.
Mr. Palmer: It didn’t get to all of the committee.
Senator Pate: My apologies, then. Here, Professor Grant noted that she was already aware of a guilty plea in a case. That case was R. v. Duck. We have confirmed with Professor Grant that’s the one she was referring to. We thought that, for specificity, it would be helpful to have that and the footnote there, so we’ve provided it.
[Translation]
The Deputy Chair: We will now go to paragraphs 98 and 99. We’ve now reached the recommendations.
Senator Dalphond: I have two comments to make.
Four of the recommendations in the final recommendations seem to me... I’m having a little trouble with them. We want data collection, monitoring and research. At the same time, we want to refer to the Supreme Court without the benefit of data collection and research.
We also say “refer the above-noted topics” to the Law Commission Canada. There is no point in referring to the Law Commission of Canada if we are referring to the Supreme Court, because the Supreme Court will rule. I think we should be more focused on what message we want to convey.
The second thing is I don’t understand why we don’t take up the House of Commons recommendations and say that we agree with the House of Commons on these four recommendations.
The first was that the Department of Justice undertake a “public awareness campaign in plain language.” I would follow that up with “and in particular,” then refer to what Senator Arnot said earlier when we talked about an advertising campaign specifically targeting youth, young adults and others. As he pointed out, I believe that educating young people is an important thing. So we need to target young adults, particularly men, and then others.
The Deputy Chair: The communities.
Senator Dalphond: I think he had a great idea and that’s where I would include it, after we say that we concur with House recommendation 1.
[English]
The Deputy Chair: Does everyone agree?
[Translation]
Senator Dalphond: Also, in paragraph 11 of our brief, we talk about the need to provide information. I found that —
[English]
Senator Pate: I have another point, but on the point that —
The Deputy Chair: We’re going to close.
[Translation]
Do we agree with what the senator is proposing?
[English]
Senator Arnot: I agree with Senator Dalphond — the education piece being robust, plain language, concise. I would have to go through it, but I stated — I guess I would have to ask the analysts — I could help draft in that regard.
But I have another issue I want to raise as a recommendation.
Senator Pate: On the point that Senator Dalphond raised on the Law Commission of Canada and the reference to the Supreme Court of Canada, I would suggest that we say “reference to the Supreme Court of Canada and in the alternative to the Law Commission of Canada” — something like that. I do think there’s some value in the Law Commission looking at this overall, in addition to the reference of the Supreme Court of Canada. The Supreme Court would look at the fine point of law, and the Law Commission would look at the broader issue in terms of violence against women and education that we talked about. I would be happy to leave it as is — leave it as is, okay?
Okay, then I have another one.
The Deputy Chair: Senator Batters, on the same issue?
Senator Batters: Yes, on that Supreme Court of Canada reference. I note that all that this recommendation says is that, “The committee recommends that the Government of Canada consider the merits of sending the reference to the Supreme Court of Canada.” That is obviously all we can do, but it doesn’t go that far. Obviously, they can consider the timing — because it also says “The Government of Canada should refer the topics for study and comments to the Law Commission of Canada.” So they will determine the timing of that, of course.
[Translation]
The Deputy Chair: Do you agree with Senator Batters’ nuance?
Senator Dalphond: I agree with what Senator Pate was saying. I think Senator Batters may be saying the same thing, but to me they’re both options. It’s one or the other. If we need a reference to the Supreme Court, it should be done sooner rather than later — like in three years when they have the information.
Those may be two options to explore; they will choose the option they like best.
[English]
Senator Batters: Yes, I agree with that. I was just pointing out that as it’s drafted right now, it leaves the timing to the government. So if we want to actually suggest —. I agree that we should decide. To me, the Law Commission of Canada is fine and dandy, but it’s certainly not a quick solution. Their study of it — and I agree with Senator Pate that it should be done. It is necessary research to have done, but the Supreme Court of Canada reference would certainly get the ball rolling on that more quickly.
The Deputy Chair: Does everyone agree? Okay.
Mr. Walker: I just want to understand that. I get the point that is being made. Senator Pate also mentioned how the Law Commission could also look at some of the other topics — since it’s just referencing the above-noted topics and we have a longer list of issues that unfold in the study.
I wasn’t quite clear. I get what the concern there is, but one option — if I’ve heard what you’re saying correctly — would be to prioritize the Supreme Court of Canada reference. The Law Commission reference could still continue, but we could say “on all the other points,” if that’s what you would like. But that would be like hearing a message from the committee that you want the Supreme Court reference to be prioritized but that these other issues could be studied by the Law Commission while that was happening, because they could look at violence against women, intoxication offences and all those other things.
So we would draft this to have that kind of priority in there. We can certainly do that, and share that with the steering committee.
Senator Pate: I have another one.
Regarding paragraph 102, we talked about the need for disaggregated data, not just data. I would suggest a bit of a rewording there. Instead of how it currently reads — “The committee recommends that the Government of Canada establish an action plan and commit the necessary resources to conduct research” — I would then suggest adding, “collect disaggregated data, including the data for which there are currently gaps, as discussed in the section on research and monitoring of the report.” That way it refers back to that section. Then just continue on with the rest. That would mean we would also have to change paragraph 107 to include disaggregated data.
It would just be putting disaggregated data in the collection — in point (b) — “disaggregate data collection” just before that word.
Senator Dalphond: I agree with this. I think that paragraph 102 should start with the words “Like the House of Commons, we agree that the Justice Department should collect more information and data” et cetera, which was recommendation 3 of the House of Commons. Then we elaborate on what we have in mind, because there are two lines and we have here 20 lines to explain what type of data we are looking for.
I think I would tag it to the House of Commons — something like this. We are not making a dissenting report or a different one — we build on our agreement with the other place about that need, but we are more specific.
The Deputy Chair: Are there other comments?
Senator Arnot: Can I introduce this one?
The Deputy Chair: Go ahead.
Senator Batters: It’s a general point.
The Deputy Chair: Go ahead.
Senator Batters: I wanted to point out that for a few of these — again, it is because of this paragraph numbering — but I think it would be clearer — and perhaps this is how it looks later — for example, after paragraph 102, there is a colon and then I believe that it’s supposed to be — paragraphs 103, 104, and 105 are supposed to be (a), (b) and (c) indented. That would need to be done, but there aren’t (a), (b) and (c) right now. The same thing after paragraph 107 where, I think, there are a number of different subparagraphs that all need to be set off and enumerated accordingly so that it makes sense, which it doesn’t — it’s not as clear right now.
Mr. Palmer: It will all be changed back to that formatting. When this paragraph formatting gets put on it, it takes some of the other formatting, unfortunately, but when we take it off, that formatting will come back. It will be clearer.
Senator Arnot: I would introduce a new recommendation. I think it would be that:
The committee recommends that the Government of Canada create an indictable offence of self-induced intoxication.
Just to go back here — there is a two-page memo that Professor Coughlan created that outlines this in a very succinct and understandable form. Currently, we heard that someone who is in a self-induced state of extreme intoxication would have a defence to murder because he is extremely intoxicated — a defence to attempted murder and sexual assault. But if there is a section of the code that says — and it is number 4 on the second page — “a person, who while in a state of criminal intoxication, commits what would, except for that state of intoxication, be murder, attempted murder, sexual assault” — then you’re guilty of a criminal offence. You’re taking away the defence of non-responsibility. You can’t say, “I was extremely intoxicated; therefore, I’m not guilty,” as your defence, which you currently can allege.
But if you’re, at the same time, guilty of an indictable offence because you’re in a state of self-induced extreme intoxication, you’ve committed a Criminal Code offence. You present yourself to the public as a danger to the public if you do that, and that’s the evil that needs to be addressed.
I was really enamoured by Professor Coughlan’s approach, and I thought, “Well, that makes a lot of common sense.” It would take away a lot of the expectation that we may need another 1, 2, 3, 4,5 or 10 years to figure out what the new section 33.1 of the Criminal Code, which they have just enacted, means. If you take away the non-responsibility defence by making it an indictable offence, self-induced intoxication as an indictable offence, then you’re going to face a penalty of 10 or 15 years. This is what civil society said. Women are completely vulnerable. There is this myth in society that if you’re drunk, intoxicated, you’ve got a defence.
I guess I may be the only one that sees it this way, but I thought Professor Coughlan had it nailed and think that we should be telling the ministry of justice that tomorrow morning they should be creating an offence of self-induced extreme intoxication as an indictable offence. The evidence for that is here before us in his memo and in what he said to us. You’ve got the transcripts.
To me this would be wise, because it’s going to protect people, and it is going to take away, I hope, the myth that somehow self-induced extreme intoxication is a defence or even that intoxication is a defence to a sexual assault. That’s why education is so important, because I believe there are many deep-seated myths and stereotypes. One of them being that if someone is drunk, and commits a sexual assault or a criminal offence, that they’re off because they were drunk, and it’s not their fault.
Anyway, I may be going a little too far here, because I wasn’t here for all of the discussions, but I think Professor Coughlan’s idea deserves a lot of consideration. I would make a motion that we recommend that the Government of Canada, as soon as possible or with great urgency, enact the Criminal Code offence of being in a state of self-induced extreme intoxication.
I can’t say any more. I don’t know if this was discussed prior to drafting this or why it didn’t get the prominence that I thought it might.
The Deputy Chair: We have your point.
Senator Dalphond, do you want to react?
Senator Dalphond: Yes. I’ll say it in English.
I agree with the proposal of Senator Arnot on the first recommendation, on the communications strategy and the need to do that. But I am quite hesitant to go as far as he wants to go, because our recommendations, which are at paragraph 106, is a thorough consultation process. What I understand is that paragraphs 107, 108, 109, 110 and 111 are topics for the consultation that would be conducted. One of the points is the current wording of section 33.1 of the Criminal Code, as well as alternative options such as the proposal for intoxication-based offences outlined by Professor Coughlan.
We invite a consultation to discuss that issue, and if we follow your suggestions, we are saying, “Well, we have concluded the consultations; we believe it should be that way.”
So I’m not so sure I’m ready to go that far to say this is the answer. I think I prefer that there be consultations about it. That is an option that should be further explored, but I must say, myself, I don’t feel confident enough, based on the evidence we have so far that this is the option to prefer. I would rather leave it there.
If we follow what Senator Arnot said, at least we should remove the references to the need for a thorough consultation on that topic, because we are, more or less, saying, “Do it.”
I don’t know if I’m clear enough.
Senator Pate: I was trying to look for it, but those of you who know me know what a “techno twit” I am. I could not find the exact wording. Can you read out the exact wording?
Senator Arnot: Well, it’s complicated.
There is the two-page memo that Professor Coughlan gave us. It is on page 2, and it is number 4. It says:
A person who, while in a state of criminal intoxication, commits what would, except for that state, be an offence under section 271, 272, and 273, is guilty of an indictable offence and liable to imprisonment for . . . .
— ten or fifteen years.
Senator Pate: And then “criminal intoxication” is defined as self-induced?
[Translation]
The Deputy Chair: I have a point of order: Should the report contain what we heard during our hearings, or should the report contain the conclusions we draw from them? In my view, we’re going further than our hearings.
Senator Clement: I would use the word “considère” rather than “enact.”
[English]
If you took “enact,” that the Government of Canada consider, as articulated by Professor Coughlan, an offence grounded in negligence, I would rather use “consider” there.
Senator Arnot: If you propose that the Government of Canada create the offence of self-induced intoxication, they may, or they may not. But if you look at the background of what Professor Coughlan is saying, it gives them a real opportunity to do something now and not wait for more consultation, another trip to the Supreme Court of Canada over the course of ten years. How much damage is going to occur in those 10 years?
Anyway, I think I made my point. I’m coming to the game late, as it were; however, I was here for a couple of the meetings. To me it seemed that this would be a strong statement by the Senate. Maybe it’s too strong — I don’t know — but it would dovetail into public education that could go around it. It would be a very strong statement.
[Translation]
The Deputy Chair: Clearly, based on the testimony of Dr. Chamberland and the other expert from Université de Montréal, Mr. Parent... These two experts confirmed to the committee that there will likely be an explosion of cases. Dr. Chamberland said there would be an explosion of cases. What you’re saying is that we shouldn’t wait for that, but rather immediately call on the government to act swiftly so there are no more victims.
I will let our clerk suggest something.
[English]
Mr. Walker: I was just going to bring some background to your discussions to maybe help with the deliberations and pinpoint where in the report some of these things are already discussed, and then that might help you focus in on where you would like to propose some of those changes.
I was going to mention that starting at paragraph 65 through to paragraph 72 is where we included all the testimony that we had on the intoxication-based offences, and essentially the narrative that we put in there was — we originally heard from some of the professors —
Senator Arnot: Professor Coughlan’s right there at paragraphs 67, 68 and 71.
Mr. Walker: Anyway, so we put in that there were some witnesses who were very strongly opposed to creating an intoxication-based offence, including we had a quote there from Professor Roach, who originally said that he thought it was a good idea, but then he changed his mind and concurred with an approach that looked more at gender-based violence and how that offence might devalue or make those crimes seem not as much of a serious offence.
Then we get to Professor Coughlan’s written proposal. We do include his proposal, and in the report there is a paragraph where he summarizes it. We don’t put in the exact wording, which could be added in. His written brief is included, but it could be included as an appendix if there were a wish to make it more prominent in the report. Based on that, we had the narrative that some witnesses were opposed to the idea and then we had Professor Coughlan, who had a proposal and there was some discussion there. That’s in the background section.
As was just pointed out, you mentioned in the drafting instructions that you wanted to make sure that his proposal was reflected. But you’re right, the wording is very much to consider the proposal of Professor Coughlan, but it doesn’t specifically state that other than it should be specifically considered. It doesn’t say that should be given more weight. I wanted to frame that. If there is something you wanted to change, adding something to the background or to that recommendation might focus in on that conversation.
Senator Batters: This is what I was going to point out. We have the evidentiary basis for this particular recommendation in the report already. It doesn’t sound like it would be very lengthy at all to include this little bit of wording about what the recommended offence should be.
Senator Arnot: I’m sorry to interrupt. We asked Professor Coughlan to draft it as if it was legislation in the code, so he chose those words very specifically. He’s very succinct.
Senator Batters: I think that could be a good addition to this part of it. I would suggest rather than just “consider” we should put “strongly consider.” I would be in favour of that. I think that could be a good part of that recommendation. Perhaps it does not go quite as far as Senator Arnot would like, but maybe “strongly consider” would be acceptable.
Senator Dalphond: Again, I wouldn’t be comfortable supporting even “strongly suggest,” because if you read his memo, which is two pages, the first page is not only paragraph 4. Paragraph 4 is the whole revised section 33.1 of the Criminal Code. He has a first option, which is on the first page of his memo. On the second page, it says another option would be to change subparagraph 4 with this new subparagraph 4 that Senator Arnot looked at. He said another option could also be to have three things — if it leads to assault, assault with bodily injuries, if it leads to murder, killing, that would be another. He has three options that he discusses in his notes.
Why would we favour one option more than three options? I think that needs to be well thought out and well listened to. We got this document after we concluded our hearings. We never discussed the content of the proposals. It’s just that he was asked to volunteer to propose something in writing and he volunteered with this memo to present three options. I don’t feel comfortable endorsing any of these options without further discussions and further witnesses.
The second point I want to make — and he made it himself — is that in one of the paragraphs on the last page he says that we have to be mindful of what it might mean. People will say, well, I was so intoxicated that I did not commit these things, it was involuntary. Then they will try to get out, asking to plea bargain on this lesser offence. He asked in the memo that if this offence were created, what would be the penalty attached to it? He said, obviously, it would be a penalty less than the real thing. If you commit murder, you are exposed to that much, but if you are so intoxicated you no longer have mens rea, then you get something else that could be modelled to represent the gravity of the result, but he said it would be less than the real thing. He said that could offer other options for plea bargaining, to plea bargain for something that comes with a lesser penalty than the real thing.
There is a risk associated with that option. That is why so many people are not favourable to it. I would not feel favourable to endorse it. I would certainly say it should be part of the discussions and thoroughly reviewed. There should be people being asked to do it, the law commission could look at it, but I don’t think — with great respect to all of us — that we are properly informed to make such a decision or even to make a strong or simple suggestion.
[Translation]
The Deputy Chair: My understanding is that we have two positions at the table, Senator Dalphond’s position to be more general, and Senator Arnot’s to be more specific with respect to the intoxication offence. Have I understood correctly?
[English]
Senator Pate: Maybe you were lumping it together in the first one, but I’m thinking we have this recommendation, and we have recommendations from Professor Roach, Professor Sheehy and Professor Froc. If we’re going to make a reference to the Supreme Court of Canada and a study by the Law Commission of Canada, we could say with particular focus on the types of legislative recommendations we heard about, including Professor Coughlan’s but also the others. I don’t know whom the Department of Justice Canada spoke to, but they usually get advice from lawyers they consult with.
[Translation]
The Deputy Chair: We just need to address Senator Arnot’s position, which is that we need to be more explicit with respect to self-induced intoxication rather than considering creating the offence. What’s your position? Senator Dalphond’s is that we must keep it general, as the House of Commons has no doubt done. I’d like to hear your opinion on this rather than discussing the form. We’ll work that out later. The question is whether we take an explicit position, as Senator Arnot has done, or keep the language general, as Senator Dalphond has suggested. I’d like to hear your comments on that.
[English]
Senator D. Patterson: I’m a new member of this committee, as you know, and didn’t hear all the evidence, so I’m hesitant to jump in. It seems to me that one of the main thrusts of the report’s recommendations is that consultation should take place that did not take place adequately in the rush to bring this legislation forward. If we are really recommending thorough consultation as our main thrust and not presupposing the results of that consultation, then — with all respect to Senator Arnot — I’m fine with strengthening paragraph 108, the creation of a new indictable offence. You might want to say, as Senator Pate recommends, the proposals for intoxication-based offences outlined not just by Professor Coughlan, but by others. He was not the only one. It seems to me that the problem with Professor Coughlan is that you didn’t have a chance to question him. His recommendation came in the form of a memo, right?
Senator Arnot: He gave evidence and we asked him. This is incredible evidence. We wanted to do this.
Senator D. Patterson: I think we should strengthen paragraph 108 and give weight to the idea of creating a new indictable offence, as was suggested. As Senator Dalphond has said, Professor Coughlan made three different proposals. Maybe it’s going a bit too far to endorse the one that you found compelling, Senator Arnot.
Senator Arnot: I think he says a different option. But, on which I reflect, I personally prefer this option, which is the one that I — so he prefers that.
Senator D. Patterson: Thank you.
[Translation]
The Deputy Chair: Still on the same topic.
[English]
Senator Pate: I prefer to keep it general for the reasons I mentioned. From what I was reading, he does say that the concerns that not just me but I think Senator Clement and others have raised about the use of this as a counter to benefit folks. As Senator Dalphond said, in plea bargaining it would be an issue.
I think many of us share the need to see something happen that you’ve expressed, Senator Arnot. I would want to see what some of those others who have done work in this area for years, like Professor Sheehy, would say about that. She’s written on this. This is her area of expertise. I didn’t have the wit to send it to her to ask her that beforehand. That is my main hesitation.
[Translation]
The Deputy Chair: As a compromise, could we choose the general option, but use stronger language? It must be said, though, that if we keep it general but the words have little significance, it will all be watered down. I’ll try to find a compromise.
[English]
Senator Clement: Could it be its own recommendation that we want the government to look at this, at what Professor Coughlan is saying, and take a look so that you’re making it a recommendation? You’re not enacting anything, and you’re not preferring one option or the other, but you’re saying in a stand-alone recommendation that you might want to — that the government should take a look.
Senator Arnot: We recommend that the Government of Canada create — or examine the creation of a self-induced extreme intoxication indictable offence.
Senator Dalphond: It is already in paragraph 108. I think we could strengthen paragraph 108, and I think it’s all right. But if we say we recommend already something, we are bypassing the consultation we’re asking for. So I don’t want to bypass — I don’t want to be contradictory and say that there was not enough consultations, and we decide — when we acknowledged there was not enough consultations and we make a strong recommendation. I think it should be part of the consultation, that’s what paragraph 108 says. But it could be strengthened to say, “Especially having due regard for the proposals submitted to the committee by Professor Coughlan attached to this report.” You could attach the report if you wanted to, as an appendix.
Senator Batters: I don’t think having this examined in any way precludes a consultation process. Obviously, the Government of Canada will, hopefully, do a proper consultation process in examining this option. So I don’t think that it takes away, and if we just have this as a subparagraph of a subparagraph of a recommendation, it is not as strong as what Senator Arnot is proposing. I would prefer to have something stronger, as well as consideration of this option. Obviously, the consultation process has to happen, but I think that would be done as part of the government’s examination of this option.
[Translation]
The Deputy Chair: I’ll try to come up with a win-win: What if we go with Senator Dalphond’s proposal, but suggest that the government consider an immediate consultation on Senator Arnot’s proposal? Creating an offence as opposed to what you’re proposing... No, there was no broad consultation on this aspect during the hearings. A few witnesses brought it up, that’s true, but we could ask the government to hold consultations immediately on creating this offence.
[English]
Senator Dalphond: Sometimes it is in writing that you see the light. So if we have it removed from 108 and made it separate, that’s what you’re proposing?
The Deputy Chair: Yes.
Senator Dalphond: Maybe it’s something that — as long as it does not exclude consultation, it is premised that this is an option that would be part of the consultation, because I don’t want to bypass the consultation. The government did bypass the consultation. They came up with the bill, and, three days later, Parliament at both houses have done it, and they said, “You consult later.” That was not the proper way to do it, and I don’t want to repeat the same mistake.
[Translation]
The Deputy Chair: What I mean is some witnesses alerted us to this issue. Basically, we’re wondering if the government can go further to ensure that the consultation is done properly. Could other partners have clear positions?
[English]
Senator Dalphond: We know from the ministers that it was an option that was considered. The Supreme Court referred to it in a judgment in the R. v. Brown decision said that there are two options, either you have a new 33.1 that does not avoid the issue of mens rea, or you have a separate infraction, which is a new infraction, which is making yourself in a state of self-induced intoxication. And the minister said, “We have excluded that option.” We have witnesses like Professor Roach that said, “I was leaning towards that, and I’ve changed my mind because I think there are negative aspects associated with it.” That’s why I say it is a more complex issue than we may think around this table in 15 or 20 minutes. That’s why I’m reluctant to send a message and say, “We have, in our wisdom, come to the conclusion this is the answer.”
[Translation]
The Deputy Chair: The day after the Supreme Court decision, the minister’s statement... He suggested that he was thinking of creating an intoxication-based offence. That was the first avenue the minister was considering. It faded somewhat after that. I agree with Senator Arnot that we need to go full steam ahead with this suggestion. Would that be a good compromise?
Senator Dalphond: Fully explore.
[English]
Senator Arnot: Immediately, with urgency, because —
The Deputy Chair: Yes. It won’t be long if the minister wants to do it.
Senator Arnot: Yes.
The Deputy Chair: If he says no, he will say no. The report is not an obligation for him.
Senator Arnot: I think the general idea is that it goes to the heart of the complaint of civil society about the vulnerability and the fear that exists.
The Deputy Chair: It is a strong message for women.
Senator Arnot: Exactly. This is why I think it has gravitas, but I’m a new senator, and I know you work in different ways.
Senator Pate: That’s not my issue. I’m thinking more of, especially in your province, the number of Indigenous women who might get captured by it, who are resisting violence first perpetrated against them and who may be under the influence. That’s the issue that I was raising when — so that’s —
Senator Arnot: If this goes to the Minister of Justice and he decides he wants to do it, there will be a lot of eyes on this. It’s going to be awhile before it comes out. All of these issues will be further discussed, I am sure. Anyway, I’ve said enough.
[Translation]
The Deputy Chair: I believe we’ve covered everything. The analyst will prepare a document that will be submitted to you at the same time as the report, and you can react to it then. The steering committee will have time to review the text beforehand.
[English]
Senator D. Patterson: It will take paragraph 108 out of the consultation process and make it a new recommendation?
[Translation]
The Deputy Chair: Yes, it would be included. Is that all right? Are there any further comments or interventions on the recommendations?
[English]
Senator Dalphond: The last one I have: When I look at the report of the House of Commons, the fourth recommendation was that Parliament proceeds to a formal exam of these provisions three years from now. I think we should support that too, because we are asking the government to do a few things — to refer it to maybe the Supreme Court, refer it to the Law Commission. They might do nothing. They may try to do something and we will have to abort because there’s an election, or something else. I think we should revisit this issue in three years, as the House of Commons recommended.
[Translation]
The Deputy Chair: Timelines are a concern, because our recommendations do not include a suggested timeline. When we heard the last few witnesses, I said that we should always include a suggested date and timeframe for the legislative review. This is generally acknowledged. I also suggested that, in terms of the evolving number of cases, there should be some sort of monitoring, to ensure that there is an immediate legislative response should there be an avalanche of cases in a year. So there are aspects that involve data collection.
We shouldn’t wait three years for data. Perhaps some information should be available in real time. If you agree with that, the steering committee could put a little asterisk somewhere stating that some data should be available in real time. We can’t wait three years from now to see if there’s been an increase in cases and then say we should have reacted earlier. I think that we won’t have done our job, because there’s a doubt in my mind and certain witnesses raised it with us. If there is an avalanche of cases, how do we respond as legislators?
If you agree with that principle, perhaps we could nuance our recommendations on this, especially on the evolving number of cases that will arise because of the new law and the new definition. Does that sound good to you?
Senator Dalphond: That the Minister of Justice provide information on an annual basis.
The Deputy Chair: Precisely. The other item—
[English]
Senator Arnot: I’d like to support what our chair, Senator Boisvenu, is saying in terms of the timelines. I think the fear in the community is alive and time is of the essence. We can’t drag our feet or support that. I think everyone is concerned about how this may play out over the course of the next while. Time is of the essence and we should have that timeline shortened or at least access to data as it comes out.
[Translation]
The Deputy Chair: I completely agree.
There’s another item, because I’ve made you work and now it’s my turn to do so. The phrase “victims of crime” is too general, in my opinion. It’s item (a) in paragraph 107. It states: “This review should begin as soon as possible and include consultations with relevant legal. . . experts. . . .”
We should not be talking about victims of crime, but about victims of sexual assault and intimate partner violence. The victims most affected by self-intoxication are victims of sexual crimes or intimate partner violence. I would like to see the text really reflect that and qualify it. “Victims of crime” is quite broad. Would you agree? I’d like to specify that.
The other point I wanted to make concerns the notion presented to us by Dr. Chamberland, which is self-induced intoxication based on automatism. Dr. Chamberland also referred to insanity. This is a concept that should be addressed in our recommendations. . . I don’t know how to take it, but the doctor told us that automatism makes the definition of self-intoxication quite broad. He said that if we also included insanity, we would somewhat narrow the concept of self-intoxication. I feel that this is an important principle presented by Dr. Chamberland, but I don’t know how to incorporate it into our recommendations.
Senator Dalphond: In paragraph 110, a clarification could be made by adding “concerning intoxication and mental disorder under the Criminal Code.”
The Deputy Chair: Yes, we could insert the word “insanity” there. That’s perfect.
That concludes what I had to say. Are there any further comments to add to the report?
[English]
Senator D. Patterson: This is a small comment. Again, I’m probably wanting to get some advice from maybe Senator Pate or Senator Batters, but paragraph 107 talks about, “the consulting process should include consultations with relevant legal, medical and psychological experts.” Then it says “women’s organizations.” When I read that, I thought, my goodness, there are multiple women’s organizations. There are gender-equality organizations and Indigenous women’s organizations, like the Native Women of Canada and Pauktuutit Inuit Women of Canada.
Since the legal women’s organizations were left out, and since one of those organizations talked about women’s rights organizations being left out — I think one witness said there were 19 organizations who had concerns — should we modify “women’s organizations,” to say, “including women’s, legal and rights organizations”? Does that make sense to you, Senator Pate?
Senator Pate: I think you could talk about women’s organizations that work on Charter protection and violence against women issues. That would cover it.
Senator D. Patterson: You know what I’m getting at?
Senator Pate: Yes.
[Translation]
The Deputy Chair: I will read the paragraph. We reached agreement on the proposal by Senators Arnot and Dalphond. We came to the following consensus:
We will ask the analysts to review our analysis of the new criminal offence and draft a recommendation that we will resubmit to the commission along with the other changes we made to the report.
Are there any other comments on the report? Are you ready to adopt the report as amended?
The steering committee will receive the report. It will be fine-tuned and accepted, and then it will be sent back to you for final edits and a final draft. Does that suit everyone?
I want to thank you very much because you made my job easier. This was my first time working on producing a report. I normally work on evidence, but you made my job much easier. Thank you for that. See you tomorrow.
(The committee adjourned.)