Honourable senators, the Senate is resolved into a Committee of the Whole on the subject matter of Bill C-28, An Act to amend the Criminal Code (self-induced extreme intoxication).

Honourable senators, in a Committee of the Whole senators shall address the chair but need not stand. Under the rules the speaking time is 10 minutes, including questions and answers, but, as ordered, if a senator does not use all of his or her time, the balance can be yielded to another senator. The committee will receive the Honourable David Lametti, P.C., M.P., Minister of Justice and Attorney General of Canada, and I would now invite him to join us, accompanied by his officials.

(Pursuant to the Order of the Senate, the Honourable David Lametti and his officials were escorted to seats in the Senate chamber.)

Minister, welcome to the Senate. I would ask you to introduce your officials and to make your opening remarks.

Madam Chair, thank you for inviting me to discuss Bill C-28. I am here with Carole Morency and Jay Potter. This is the last time Carole Morency will be joining me for a committee appearance, so I would like to take this opportunity to thank her for her lengthy career and her smarts.

On May 13, 2022, the Supreme Court of Canada ruled in Brown and Sullivan that section 33.1 of the Criminal Code was unconstitutional. That section prohibited accused persons from using the defence of self-induced intoxication for most violent offences, such as assault and sexual assault. The Supreme Court found it to be unconstitutional because it excluded the defence of extreme intoxication in all cases, even when the accused could not reasonably know that their consumption of an intoxicating substance could cause them to lose control of their actions and harm others.

Extreme intoxication is a rare state where a person is unaware of their actions and is incapable of forming a basic level of intent to ground criminal responsibility. In other words, the body is doing something, but the mind is not in control.

The vast majority of crimes committed by intoxicated persons do not involve extreme intoxication. To be clear, extreme intoxication is not simply being drunk or high. Being drunk or high is not a defence for committing criminal acts like sexual assault. That was the law before the Supreme Court decisions, and that remains the law today.

That said, the Supreme Court decisions have left a gap in the criminal law because individuals who commit violent crimes, like aggravated assault or even manslaughter, may not be held responsible for those crimes even when they knew or should have known that their intoxicant consumption could lead to a violent loss of control.

The decisions have led to a significant and disturbing misunderstanding and, at times, misinformation by some that it is okay to drink a few beers and commit sexual assault because now they can’t be held criminally liable. This further demonstrates the need to respond quickly. The law must provide that persons be held fully responsible for the harm they cause to others as a result of their negligent, voluntary consumption of intoxicants.

This is why we have introduced Bill C-28 just five weeks after the release of the Supreme Court decisions. Bill C-28 proposes a new section 33.1 that mirrors the public protection and accountability objectives of the old section 33.1, but is revised to address the concerns of the Supreme Court and ensure consistency with the Charter. The new provision would criminalize individuals who negligently self-intoxicate to an extreme degree and cause harm to others. The vital difference with the old law is that, under Bill C-28, individuals would not be held criminally liable where the risk of violent loss of control was not foreseeable, or, where it was foreseen, where reasonable efforts were made to avoid that kind of harm.

In all cases, courts would need to determine whether the accused’s perception of risk and any action taken to avoid it departed markedly from what a reasonable person would have done in the circumstances. So today being in a state of extreme intoxication can give rise to a defence but, if this bill is adopted, where a person negligently puts themselves in that state, there would be a new way of holding them accountable for any violent criminal acts that they commit.

In practice, the accused must first establish extreme intoxication akin to automatism by calling expert evidence in addition to other requirements. The prosecution can certainly challenge the claim that the accused was in a state of extreme intoxication and these claims are often, in fact, rejected on the facts.

If extreme intoxication akin to automatism is established under Bill C-28, the prosecution would also have the opportunity to prove that the accused’s use of the intoxicant prior to the violent act was negligent. The jury or court would consider all the evidence at the end of the trial in order to determine the appropriate verdict.

Criminal negligence is well known and understood by judges and criminal lawyers, who will be capable of applying the new legislation accordingly. I am confident that Bill C-28 will ensure accountability, protect victims and respect the Charter. Thank you.

Thank you, minister. I would like to thank and congratulate your official, Carole Morency. I have been in the Senate for 12 years, and I have seen her testify before the Standing Senate Committee on Legal and Constitutional Affairs, always with great accuracy. She is truly a highly qualified expert. I wish you a happy retirement, Ms. Morency.

Minister, the Leader of the Government in the Senate provided us with a list of various organizations that were consulted before Bill C-28 was introduced. There were about 30 of them, including a professor from the University of Montreal named Hugues Parent. In an article in this morning’s edition of La Presse, Mr. Parent expresses his concerns about the bill, and these are the same concerns that my team and I raised on Friday. We also sent this information to your office.

I will read you some passages from the article, so that you understand the meaning of my question. The article states, and I quote:

The bill defines extreme intoxication as “intoxication that renders a person unaware of, or incapable of consciously controlling, their behaviour,” a condition known as “automatism.”

The article goes on to clarify that:

The problem — and it is a serious problem — is that by limiting extreme intoxication to a state of automatism, the government is discounting states of intoxication that do not disrupt the individual’s awareness, but that affect their sense of reality, such as psychosis.

Obviously, extreme intoxication can lead to different types of behaviours, and I believe automatism happens in extremely rare cases. Experts have identified four or five cases in the past few years, whereas extreme intoxication can result in insanity and psychosis, which is much more frequent. In my opinion, the bill leaves the door wide open by not covering these situations. You consulted 30 or so organizations, but we don’t know what they told you.

Can you reassure me on this and tell me what you think about Professor Parent’s comments?

Thank you for your fine comments, senator. They are greatly appreciated.

I want to reassure you. We are in the process of responding to the recent Supreme Court decisions in R. v. Sullivan and R. v. Brown. I will give a two-part answer to respond to Professor Parent’s concerns.

First, the majority of cases are already covered. These recent Supreme Court rulings involve incidents that occur very rarely, as you mentioned. We are remedying the situation by following the Supreme Court’s suggestions, but the other cases are already covered by the Criminal Code, such as cases of psychosis, for example, because there are already ways to address them in criminal law. However, in very rare cases where psychosis is covered by section 33.1 of the Criminal Code, provisions were already included in the law 10 years ago by the Supreme Court following R. v. Bouchard-Lebrun. The court has already addressed this situation, and we assume that these cases are already covered for the most part, and also in the rare cases where a person is in a state of automatism. Therefore, psychosis is covered in both cases.

I don’t want to question your point of view, but Professor Parent, an expert on the Criminal Code who specializes in criminal defences in Canada and teaches at the University of Montreal’s Faculty of law, is one of the very few experts in this field and seems to disagree. He does not find this reassuring, and I am certain that he is familiar with all the case law in that regard. Don’t you think it would be more prudent to specify insanity rather than automatism?

With all due respect, and since I’m familiar with Professor Parent’s reputation, we believe that all of that is already included in the case law through Supreme Court decisions and that this could open the door to unintended consequences. We sincerely believe that Bill C-28 offers the most prudent approach. Obviously, you, as senators, have the authority and the right to study this matter. I know that my colleagues in the House of Commons will be studying it in the fall. We need an in-depth study to ensure that there are no unintended consequences.

Minister, in an effort to mitigate this risk, would you be prepared to commit to authorizing the Standing Senate Committee on Legal and Judicial Affairs, or another Senate committee, to study section 33.1 of the Criminal Code and to hear from experts and get other opinions on this matter in the fall? The committee could make recommendations. You are appearing as a witness today, but we haven’t heard other witnesses. A lot of individuals and organizations were contacted, but we don’t yet know what they think. We feel limited in what we can do, given the circumstances under which we are being asked to pass this bill. I’m sure you would agree that this is a rather peculiar approach.

Absolutely. I must be honest. It is very important to address the gaps noted by the Supreme Court. However, you are in charge of your work and I invite you to study the issue. I am always open to suggestions, particularly with respect to technical issues, which is the case here, where the issue really needs to be studied in depth.

Based on the expert testimony and everyone who was consulted, in conjunction with the Supreme Court ruling, which gave us two options, we made a decision with Bill C-28, and I believe it is a good option. However, when it comes to questions of interpretation in particular, it is better to take the time to study the bill more closely, which I invite you to do.

I understand that on the House of Commons side, that study is part of the motion to pass Bill C-28. It is therefore a condition to have it passed?

Yes, it is, but you can do your own study.

I think it would be wise for us to do a study as well.

Thank you, minister, for being here. I have the same concerns as Senator Carignan. This is an important issue and a difficult issue. It is an issue that needs a lot of studying because extreme intoxication can happen with many things. We need to have expert evidence, and not just the usual experts we have. We also have to have scientific experts.

I have a lot of questions, but my biggest anxiety is what negligence will look like. How will the prosecutors prove negligence and the standard of care?

I agree with everything Senator Carignan has said, but I also want to take this opportunity to ask how they will prove it. It is very difficult. The person doesn’t know. For instance, you may eat some food that you haven’t eaten before, then you have something to drink, and then you go into extreme intoxication. How is that negligent? I’m really struggling with this.

Thank you, senator. Let me reassure you if I can.

First of all, these cases are extremely rare. What we are doing with this piece of legislation is filling a gap that has been created by the Supreme Court in a very rare set of cases where it is not just extreme intoxication, but it is extreme intoxication leading to a case of automatism. All the other cases of extreme intoxication are already covered by the criminal law and by criminal law principles. It is the general intent defence, and prosecutors, judges and participants in the criminal law system are used to those standards. We’re closing a small gap based on the guidance the Supreme Court has given us.

With respect to criminal negligence, it is a known standard. We use criminal negligence as a standard in a variety of different defences. There is a reasonableness standard, which is: What would a reasonable person do or what ought a reasonable person to have done? So it is an objective standard. Again, it is something that is known to prosecutors. It is something that is known to judges and participants in the system.

The question becomes: Was there a marked departure from that standard by the person in question in ingesting intoxicants?

Minister, I don’t mean to be rude, but I just have a minute.

I want to say that that’s the challenge for me — what a reasonable person would do. This is outside of what a reasonable person would do if you don’t even know you are doing something wrong. We have the “reasonable” test on driving, and you don’t drink and drive. But when you’ve eaten something and then you drink something, and go into extreme addiction or intoxication, that’s the challenge. It is not a reasonable person test. That’s why I think we have to study this further.

I think the answer, senator, is that it is in the act of ingesting intoxicants that the criminal negligence or the reasonableness standard is applied. If there were something that ought to have triggered that this could have led to violent behaviour in a person’s past, or with respect to what’s being ingested — and that’s in the vast majority of this small fraction of cases — then that person will be found to be negligent.

If it was completely innocent — and there have been examples — for instance, taking prescription drugs and there was a reaction that could not have been predicted, that’s what the court found unconstitutional about the previous law. That’s the only part that we are excluding here.

I have so many questions, minister, but I must respect Senator Miville-Dechêne’s time.

Good afternoon, minister, and welcome to the Senate. Bill C-28 limits the defence of extreme intoxication, as you explained, while allowing it to be raised under certain circumstances. As you know, that worries women’s groups, such as the National Association of Women and the Law, which says there was not enough consultation.

Here is my question: Under Bill C-28, if a man voluntarily consumes alcohol, possibly along with other intoxicating substances, and then commits a crime, can he raise the defence of extreme intoxication? In other words, is this defence once again available to someone who gets drunk, smokes one or more joints, and assaults a woman?

Thank you for the question, senator. As Senator Carignan just pointed out, we consulted about 30 groups, and the vast majority of them said this is the best way to go given the guidance of the Supreme Court. They were almost unanimous.

The former section was clearly unconstitutional. We worked within the parameters provided. In answer to your question, the Supreme Court noted that such a thing is rare, very rare even, and that only alcohol consumption results in that state, a state of intoxication that resembles automatism. That is rarer still. Other cases are already covered by criminal law, and the individual would be found guilty in such cases and when the consumption of intoxicating substances was negligent.

The fact remains that this defence is coming up again and could be used. This in itself is not a trivial matter in the eyes of women’s groups, who believe it will have an influence on the justice system, since some individuals will use extreme intoxication as their defence.

First of all, once again, these are very rare cases. Second, this defence must be raised by the accused, and the accused must prove, with evidence and with the help of experts, that it was a case of automatism, which is also extremely rare. Third, the accused must show that his or her actions were not negligent. Obviously, it will be up to the Crown to prove that it was not a state of automatism or that the behaviour was negligent. The chances of this defence being available are very slim, and we have explicitly provided for it. Other groups, such as the Women’s Legal Education and Action Fund, have had a significant influence over the development of Canada’s legal framework over the past 40 years and support us in our efforts because they understand that this is a moderate, thoughtful and constitutional response.

Thank you.

Welcome to the Senate, Mr. Lametti.

Any learnings from global jurisdictions? To what extent does the defence of extreme intoxication akin to automatism exist in the laws of our G7 allies or other Organisation for Economic Co‑operation and Development countries? Is it unique in Canada?

First, thank you for the question. It is good to be here and to take your question.

It is not unique. I have to get back to you with specific countries, but we form part of the general English tradition of English criminal law, but codified. It was codified in the colonies long before it was codified in the U.K. We’re part of that general common law tradition. The defence would exist in other forms in other places. It is a defence towards general intent offences, which is one of the categories of offences in criminal law, including assault, sexual assault and manslaughter. There is a different set of defences for specific offences. It would fall within that general tradition.

I could come back to you with a more specific answer, but generally we would fall within the jurisdiction of English criminal law jurisdictions.

Thank you.

Minister, thank you for dealing with the Supreme Court of Canada decision in R v. Brown and R v. Sullivan in such an expeditious manner. I’m not a lawyer, but I believe this legislation is extremely important to protect victims, so thank you very much.

In the Brown case, the Supreme Court mentioned a couple of legislative paths that Parliament could take on extreme intoxication. You are proposing to take one of those paths with this bill. Can you explain why you decided not to go with a stand-alone offence of self-induced extreme intoxication?

Thank you, senator, for the question. It is a good one and it brings me back to a discussion that I had with my team only a few days after the decision. Ms. Morency was also there presenting us with options.

Two options were given by the Supreme Court, as you said. One was a stand-alone offence of criminal intoxication. The other is the path we chose, which is to build a criminal negligence standard into the act itself but still charge the person with the same offence.

First, we heard from a number of groups, women’s advocacy groups in particular, that they wanted it to be the same offence, and that it had to carry the same gravitas or — I don’t want to say “stigma” — be in the same order of events with the same terminology. The person will be found guilty of sexual assault, say, or assault, and the criminal negligence part will be wrapped up in that.

Second, we are hoping that this will really help frame and reduce litigation down the road because they are known standards. We’re still working effectively within the same parameters as the original piece of legislation brought in by Minister Rock 20-odd years ago.

If we went to a different standard, a stand-alone offence, it would take the courts another 10 or 15 years to work out the parameters of that particular new provision. We hope to be able to eliminate that. That helps victims. That helps everybody, frankly, in the criminal justice system because it adds clarity. We’re working with known standards.

Thank you very much for that, minister. For those of us who are not lawyers, can you explain succinctly why the current law as now written was open to a constitutional challenge, and why you believe this new legislation will stand up to any possible constitutional challenges in the future?

The original law as written was open to a constitutional challenge, again, because someone might have innocently entered into a state of intoxication leading to automatism and could still be found guilty of a very serious offence even though they — and I will put this in air quotes — “did nothing wrong.” A person following, for example, for the first time, a course of prescription medications and not knowing that his or her particular body would react in the way that it did.

That’s very different from states where someone knows they have done this before. They have mixed this and that before and it has led to a violent outcome that, perhaps, did not lead to a criminal offence. That is a different situation. The court wanted to hive that off.

I will be honest, that is the way that our lawyers were interpreting the previous decision in front of the Supreme Court, and the Supreme Court said, “No, not good enough, you have to tighten it up.”

That is a part of the answer to your question — they wanted to take out that case of innocent intoxication, I suppose, that led to tragic consequences.

We feel this is constitutional in part because of that, but also in part because we’re actually following the guidance that the Supreme Court gave us. We have stuck to one of the two lanes that they gave us and we think that, therefore, this will withstand a constitutional challenge.

Thank you, minister, for being here. I want to follow-up on that question from Senator Cordy, if I may.

There is obviously a lot to do to build sexual assault victims’ confidence in the criminal justice system. Bill C-28 will certainly help, but won’t be enough. What else is the government willing to do to support victims?

Thank you for that question, senator. It is an important one.

I would say quite a bit. You will recall just over a year ago we amended the Judges Act in order to better train our judges. Obviously, the principle of judicial independence is important to us. But we are requiring that all applicants at the Superior Court level and Federal Court level agree, as a precondition to their application to becoming a judge, to take training with respect, in particular, to sexual assault and social context training to make them better judges and to help understand cases.

We have also amended the Criminal Code to strengthen and address sexual assault laws in order to make them more fair, in order to make them, I think, more sensitive to victims but also lead to good results.

We are also investing a great deal of money as a government — free access to legal advice for sexual assault. We are working in programming to reduce intimate partner violence, prevent gender-based violence and help support survivors. There are significant investments there. In 2022, we invested almost $540 million to help prevent gender-based violence and to support survivors.

This piece of legislation is a small part of a larger effort to really work at education, society, judges and participants in the legal system, but also support people who need that support within our system, survivors in particular.

Thank you for that.

It is obvious that the Supreme Court decisions have captured the attention of Canadians and raised many questions, especially for young women and girls.

Last Friday, Minister Ien spoke about some of the false information floating around. You have talked about misunderstandings turning into misinformation. I wonder if you could elaborate a little more on some of the misinformation that you have seen and how this bill will address it.

Thank you, senator. I was very moved by Minister Ien in that press conference. I can also say that it touched me as well. I have a 21-year-old. I have three. My youngest is a 21-year-old. She had a long discussion with her mother — also a law professor — based upon this provision as a result of this Supreme Court case.

What happened was — they were mistakes. Mistaken tweets, mistaken postings on social media that said, “Oh, this decision gives people a free pass to have drinks and then go out and assault people or sexually assault people.” Of course that was wrong. But it was hard to counter that trend with, frankly, the correct answer, which is, “No, this is a very small group of cases.” It is a handful of cases, as Senator Carignan said a moment ago, over the course of 20 years.

Acting as we are doing helps us, in a sense, put the genie back in the bottle because we can now say, “Look, we fixed that part, and the rest of it wasn’t touched and it is still intact.” We can clearly say, in social media and other kinds of media, that the whole spectrum has been covered. You do not have a free pass, depending upon whom you are speaking to, or you are protected, depending upon whom you are speaking to. It helps us better educate everybody.

But it is, frankly, scary, I have to admit. We are using this opportunity — in fact, we used the press conference with Minister Ien — as a way to get that message out, that not only are we acting to fill this gap, but people need to know that getting drunk or getting high is not a defence to assault or sexual assault, period.

Thank you.

Madam Chair, through you to the minister, thank you for your attendance here today.

This legislation is important. It’s equally important that we get it right. I understand that consultation was identified as having been completed by the government when the bill was introduced in the other place. I have not seen the dates indicating when these consultations were conducted. I also note that the National Association of Women and the Law was listed. However, they advised that the meetings occurred days prior to the bill being tabled, and they are concerned about the consultation process.

Before you answer, I have to leave as I have a committee to go to, so I will go quickly. Can you walk us through how this short timeline can allow for meaningful consultation, when the consultation took place and whether or not any changes were made in the original draft of the bill as a result of those consultations?

Thank you, senator. That is a good question. We did the consultations we could do in the time that we had from the date of the Supreme Court decision. We reached out. I can tell you that my team has probably been doing nothing else. Certain people have been doing nothing else but reaching out to organizations. As I have said, the vast majority of organizations, including women’s organizations, were supportive of this particular approach. They, too, had read the Supreme Court decision. They had seen the two proposed ways forward.

I can also say — and I look back at my Justice Department officials with a smile — that we were not unready for this kind of decision. In fact, some of my old colleagues at McGill — like now-Justice Patrick Healy — who have been teaching for 20 years that the original 33.1 was unconstitutional as a response to the original Daviault decision. We had an inkling that we would have to move on this at some point, so there had been a lot of preliminary work done.

I can tell you that we took those consultations seriously. We do feel that we have taken the best step given the framework the Supreme Court has given us in these last decisions.

Thank you, Madam Chair. I will cede my time to Senator Patterson.

Madam Chair, through you, minister, I would like to ask you, I note that despite your government’s — may I say — barrelling ahead today with the unanimous consent motion to pass this bill through all stages in the other place without hearing witnesses, you have also endorsed referring the subject matter of the bill to the Justice Committee in the fall. That indicates to me that there is a problem and, as you said, to make sure there are no unintended consequences. So there is a possible problem and merits to the concerns being raised.

My question is: Why are we then rushing to pass this bill ahead of the committee’s report? I know you have said that no one wants to be held responsible for any acquittal that may result from not passing this bill, but what about bearing the responsibility of acquittals resulting from the expedited passage of what may well turn out to be a flawed bill?

Thank you, senator. With all due respect, I disagree with the general gist — I think this is the way forward. I do not think, quite frankly, that — let me frame it the other way. We simply cannot wait. You may have been aware of the reaction to the Supreme Court decision. It was pretty much universal across Canada. Women’s groups, criminal law experts and other victims’ and survivors’ groups said, “You need to act quickly.”

“Minister Rock acted quickly the last time; you need to act quickly this time.” And we did. We think, frankly, that we have threaded the needle. What we are doing is reassuring ourselves with the studies in the other place — and it is a political compromise with a study in this place should you choose to do it — that other questions that have been raised, such as the question of conditions akin to what we used to say was insanity or toxic psychosis, we’re just making sure that we have got it right given these other questions that have been raised.

My legal understanding is actually that I think that we did get it right. The Supreme Court has already ruled on this 10 years ago in the Bouchard-Lebrun case, and we will be fine moving forward. I do not think, on the other hand, that we should leave this. There is a confused message out there, as Minister Ien pointed out, in particular to young people on social media, that somehow there is a free pass given by this decision. We need to correct that. We need to close this gap. It is what all of the survivors’ groups and what all of the leading experts are saying that we ought to do, and it is what the Supreme Court told us we ought to do.

A question, from one lawyer to another. In the bill before us, we have a requirement that a person be able to reasonably foresee that extreme intoxication would lead to harming another person. Without there also being a component of reasonably foreseeing the loss of control, the bill could create an unfortunate loophole in the opinion of several lawyers — including the National Association of Women and the Law and Kent Roach, another name on your consultation list — namely the inability to prove the essential elements of crime, the mens rea or even the actus reus of the defendant. Is the evidentiary burden too high for the Crown to prove that an individual could have objectively foreseen the risk?

I do not think so, with respect. It is interesting that we’re not far from what Professor Roach had suggested in our consultations with him, and he is a leading expert.

We do not think that it is too high a standard. We think that these standards are well known. The criminal negligence standard is a standard that we use in other areas of the criminal law, as is reasonable foreseeability. Again, it is an objective standard of reasonable foreseeability. It is what a person ought to have known across a wide swath of society. It is something that prosecutors are used to. It is something that the police are used to in terms of laying charges, and it’s something that the judges are used to dealing with.

We do not think that it is too high. It is up to the accused to prove at the outset a state of automatism. Already that puts a fair bit of weight on the side in favour of the prosecution. I think, quite frankly, that we are working with a provision that is not new. This is an amendment to 33.1; we are replacing it, but there is a provision that was there before. So I think that in terms of the evolution of it, we are working with known standards, and I think that the balances will be fine.

Thank you.

Thank you.

Mr. Lametti, congratulations on taking just five weeks to react to the intoxication defence with Bill C-28.

However, I would point out that the courts gave the government 12 months to address the issue of searches of electronic devices by customs officers. You took 18. Now you’re telling us that you managed to consult 30 or so organizations since the Supreme Court ruling. What I want to know is quite simple: Why were the reaction times so different? This leads me to believe that sometimes, the government can act more quickly on some files than on others. Are there priorities that may be more political than legal?

The circumstances were different, especially because of the Supreme Court rulings. In the other case, we were given 12 months. In this case, the court set aside the existing legislation and made a section of the criminal law unconstitutional. We needed to react quickly, and we did.

Obviously, as I just said, it was a problem that I would not describe as known, but foreseeable. Some experts had said from the start that former section 33.1 was unconstitutional, so some of the work had already been done.

The groups that reacted in the wake of the ruling were obviously very open to our consultations. We were able to proceed very effectively because of these circumstances.

Nevertheless, it took your government 18 months in the case of digital devices when the court had granted 12 months. That means you took an additional six months.

I can tell you that the other case was fairly complex. In this case, we could focus on just one section of the Criminal Code. That made it a much more circumscribed study.

Thank you, minister.

Welcome, minister. First, like my other colleagues, I want to highlight how quickly you reacted to the Supreme Court decision.

However, my understanding is that what you’re proposing doesn’t entirely respond to the Supreme Court’s decision and recommendations.

Over the past two years, 333 women have been murdered in Canada. That represents an increase of 30% in three years. We know that intoxication is the most common element in intimate partner violence. Many women’s groups clearly stated that this Supreme Court decision will increase the vulnerability of women who are living with intimate partner violence and who don’t dare report their abuser for fear of being killed.

I read your bill carefully and tried to identify which parts would give women more protection from intoxicated abusers. I saw nothing about prevention and victim protection. In the event that I misread it, can you tell me which provisions of the bill deal with victim protection?

Thank you, senator. I always appreciate your collaboration.

With this bill, we are simply responding to a loophole created by a Supreme Court decision that struck down a single section as unconstitutional. The response is really focused on a single section, framed by the Supreme Court’s analysis. Yes, the bill strengthens protections, and admittedly, women are the majority of victims in this case. We are doing other things as well, senator.

You agree that the Supreme Court referred to intimate partner violence as a “pressing” and “substantial” issue.

Yes.

If the pressing issue was to better protect women, why didn’t you wait until fall to introduce this bill? In my opinion, the pressing issue is to protect women. There may be four cases of extreme intoxication between now and next fall, while 20 women may be murdered in Canada during that same period. Don’t you think you should have waited until the fall to ask the Legal Affairs Committee to study the issue of intimate partner violence and self-induced intoxication in order to come up with a solid bill that would further define self-induced intoxication and better protect women? This bill does not affect the vulnerability of women, and that is what the Supreme Court has asked us to change.

We are taking a number of steps to address the issue of intimate violence.

Are you going to introduce electronic monitoring devices, as Quebec has done?

First of all, we just passed a private member’s bill along the same lines. We are in the process of supporting the provinces in this regard, and this issue is set out in my mandate letter.

Will you force —

May I finish my answer? There are measures in place. There is also a bill, senator, about firearms and handguns that also contains measures to better respond to red flags and yellow flags in intimate partner violence cases.

We’re supporting programs, both our own and those we created with the provinces, that fight intimate partner violence. We are taking a number of steps. There is also criminal law, and if you want to do a study on that, you’re welcome to.

What we tried to do with this bill is close a loophole, and that is what we did. Of course we are also taking other steps to address this scourge.

Minister, you are well aware that we are faced with the prospect of a trial in which the experts will face off and argue, just as they did with mental health issues, where two experts will often clash. One says the accused is not criminally responsible, and the other says the accused is. The door has just been opened to that kind of debate among experts. As you know, the Criminal Code places the burden of proof on the Crown, while the balance of probabilities is enough for the defence.

How are victims supposed to come out on top with this bill when all the defence has to do is raise reasonable doubt? The Crown’s standard is proof beyond a reasonable doubt, and we know that voluntary intoxication is the hardest thing to have admitted as evidence.

With all due respect, this will not change anything in the vast majority of cases of self-induced intoxication. Rules already exist. What we’re dealing with here are cases of extreme self-induced intoxication that are akin to a state of automatism. These cases are very rare. In such cases, it is up to the accused to provide evidence of such a condition at first instance. Thus, a much higher level of protection is provided for the victim.

We believe that we did the right thing in this case. As I just explained to Senator Carignan, there is the issue of toxic psychosis, but the Supreme Court, in our view, has already settled the matter. I believe that, after careful consideration, others will come to the same conclusion.

So, no, we are not opening doors here, we are closing them.

Minister, I consulted the same groups that your department consulted. I am thinking in particular of Luke’s Place, the National Association of Women and the Law, and Women’s Shelters Canada. These groups told me that the consultation was rushed and that the bill did not go far enough in protecting vulnerable women. How do you respond to that?

We held every possible consultation in the time we were given. As far as the other issues are concerned, we are not trying to resolve everything, we are doing something else. Here we are trying to respond to the Supreme Court in a rather specific case. Yes, we would like to eradicate intimate partner violence. Obviously, we want to better protect the victims, and we are in the process of doing that in other cases, such as with Bill C-21, as you already know, which deals with handguns.

We will continue our efforts. In this case, the goal was to reach an agreement as soon as possible because it was very important. However, that does not mean that we are not open to the idea of introducing other bills. We will work with the National Association of Women and the Law, Luke’s Place and other organizations to find solutions.

I have one last question, minister. Why didn’t you use section 33 of the Canadian Charter of Rights and Freedoms and wait until fall to introduce a comprehensive bill on women’s safety? Again, in the case of crimes committed in a state of self-induced intoxication, the primary victims are women. Why didn’t you use section 33 of the Canadian Charter of Rights and Freedoms and introduce a bill next fall that would have covered the entire theme of intimate partner violence and self-induced intoxication, which would have helped to achieve the objectives of the groups that were consulted?

Self-induced intoxication is already a crime and is not a defence. As I just repeated to you today, self-induced intoxication is not a defence.

There was a loophole, and it was important to shut the door immediately and fix it.

That’s not what I asked.

When presenting a bill like this, we have to start by identifying all the gaps. This bill will take years.

Why not use a notwithstanding clause in the Charter of Rights and Freedoms to temporarily suspend the Supreme Court decision and introduce a bill in the fall that would address the concerns of the organizations that I myself consulted, which said that the bill was drafted too quickly, does not go far enough and leaves women even more vulnerable than they were before the Supreme Court decision?

We must now move on to the next group.

Minister, I’m worried that we could get caught in an ex post facto logic loop, because somebody who consumes an intoxicant in an irresponsible way is not guilty of the crime of doing that until and unless they commit an act of violence.

I am worried about the predicate of this. I look back at the cases of R. v. Brown, R. v. Sullivan and R. v. Chan, and I think in every case you would be hard-pressed to say that they could have reasonably foreseen the consequences of their actions.

Mr. Sullivan was attempting to commit suicide when he took Wellbutrin, a prescription drug, that put him into a psychotic state, and he stabbed and injured his mother. Mr. Chan, a rugby star who had suffered a head injury, used magic mushrooms, went into a psychotic state and stabbed and killed his father. Mr. Brown was the captain of his hockey team. He used magic mushrooms, and the next thing he knew he had ripped off all of his clothes and attacked a woman he did not know with a broomstick.

In each of those cases, I am hard-pressed to see where the act of specific negligence lay in the sense that any of those three men could have had an objective foreseeability that the risk of consuming what they did could cause them to act in this way.

Senator, thank you for the question. I would turn it around it. It’s not ex post facto logic. I think, with all due respect, you have reversed the analysis.

The analysis is that you are responsible for your actions when you become intoxicated for these general intent offences in all cases, except in this rare exception where you became intoxicated and it wasn’t negligent.

Forgive me for not commenting on the specific cases. I believe that Chan has been sent back to the Ontario Superior Court, so I will not pronounce on any of them. What I will say is that it is precisely in cases where somebody became intoxicated in a way that was non-negligent that that person will be exculpated, but only those cases.

Otherwise, it is the case in the rest of the criminal law that you are responsible for your actions, your violent actions, if you become intoxicated. In this particular case, this will also be true even where you reach a state of automatism, because we’ve criminalized the negligence with which you enter into that state. Other places you don’t need to get to that state; you’re still responsible.

I guess the question is: Are you deemed negligent simply for taking a drug for an off-label use or for taking a drug that doesn’t put any of the rest of your friends into a state of excited delirium or automatism?

This is my question: At what level are you negligent? Are we to say that anybody who takes an illegal drug is responsible because they’ve committed an illegal act in taking an illegal drug? Or are you supposed to have some foresight that says you’re uniquely vulnerable to this, which you may not know in advance?

Each case will be decided according to its own context. My own view is that it would approach the latter of what you’ve just said, which is that there has to be something uniquely present in a case to exculpate you. But again, there’s a large body of law on criminal negligence; there’s a large body of law on intoxication and criminal negligence. We use it in other places — for example, in drunk driving cases. Again, these are standards that are known to police. They’re standards that are known to prosecutors and judges. I think this is a workable standard and in fact a standard suggested by the Supreme Court in the Sullivan, Chan and Brown cases.

I’ll try to be brief, Minister Lametti. This is a conversation that in a previous life we might have had academically, but it is pretty darn serious here.

I want to follow up on Senator Simons’ point. The language of the legislation calls for this objective measure of the criminal negligence in ingesting the intoxicating substance that could cause extreme intoxication but also lead to harm to another person. It seems to me what Senator Simons was saying is that in the cases that were before the Supreme Court — I’m not asking you to judge them — these were first instances for these people and nobody, including a judge, could say objectively that they could have anticipated that taking all these substances would lead not only to extreme intoxication but a risk of harm to the people who were harmed. The only way you would know that is if somebody, having taken these drugs before, actually had those experiences and chose to do it again.

Minister Lametti, what I worry about here is that the proposal, as heartfelt as it is, will miss the mark and almost nobody will be able to be convicted under this provision.

Thank you, senator. You hearken me back to the old days when I could call you Brent and Paula — but there we are.

I disagree with the interpretation or the critique that you’ve presented in the sense that there is a known body of law with respect to criminal negligence, and there is a known body of scientific knowledge with respect to drugs and the potential impact of certain drugs — you know that it might do this or that to you based on what it’s done to other people. Then there are the person’s own experiences as well that will get factored into the contextual analysis of whether a person departed markedly from the reasonable standard and reached that level of criminal negligence. Again, it is, I believe, a series of known standards. I believe it is a workable standard, given other parts of the criminal law and given the state of medical knowledge.

It is also, as I have mentioned on a number of occasions already this afternoon, a standard that was suggested to us by the Supreme Court under the pen of Justice Kasirer, who has taught criminal law in parts of his past.

I’m confident that we have threaded this needle. I understand the critique, but I’m not persuaded by it.

I don’t disagree with the point that it meets the constitutional standard. It seems to me that it does; it’s just that it’s not going to achieve convictions. Thanks.

Thank you, senator. Let me flip it back first and say that we did consult with a wide variety of groups — women’s groups, victims’ groups — and this was the way that most of the groups said we ought to go forward. So I do think there’s a real sense that we wanted to protect. Nobody should throw our sincerity into doubt on that. I think we’ve done our best on this.

There is that initial burden on the part of the accused, in a sense, to show proof that they reached that state of extreme intoxication leading to automatism. They have to show evidence for that, and then the Crown comes back and attacks, saying either that state didn’t exist or the person was criminally negligent in reaching that state.

With respect to criminal negligence, there are enough objective indicia out there about what drugs might do to you that I think a court will say a reasonable person ought to have known that this could happen. Then if there are particular circumstances or conditions in that person’s past — even a history of head injuries or that sort of thing — that might lead to this, again, there’s enough objective evidence out there.

I think this is a workable standard.

Honourable senators, the committee has been sitting for 65 minutes. In conformity with the order of the Senate, I am obliged to interrupt proceedings so that the committee can report to the Senate.

Minister, on behalf of all senators, thank you for joining us today to assist us with our work on the bill. I would also like to thank your officials.

Hon. Senators: Hear, hear!

The Chair: Honourable senators, is it agreed that I report to the Senate that the witness has been heard?

Hon. Senators: Agreed.

Honourable senators, the sitting of the Senate is resumed.