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The Senate

Motion Pertaining to the Proceedings of Bill C-28 Adopted

June 23, 2022

Hon. Marc Gold (Government Representative in the Senate) [ + ]

Pursuant to notice of June 22, 2022, moved:

That, notwithstanding any provision of the Rules, previous order or usual practice:

1.if the Senate receives a message from the House of Commons with Bill C-28, An Act to amend the Criminal Code (self-induced extreme intoxication), the bill be placed on the Orders of the Day for second reading on June 23, 2022;

2.if, before this order is adopted, the message on the bill had been received and the bill placed on the Orders of the Day for second reading at a date later than June 23, 2022, it be brought forward to June 23, 2022, and dealt with on that day;

3.all proceedings on the bill be completed on June 23, 2022, and, for greater certainty:

(i)if the bill is adopted at second reading on that day it be taken up at third reading forthwith;

(ii)the Senate not adjourn until the bill has been disposed of; and

(iii)no debate on the bill be adjourned;

4.a senator may only speak once to the bill, whether this is at second or third reading, or on another proceeding, and during this speech all senators have a maximum of 10 minutes to speak, except for the leaders and facilitators, who have a maximum of 30 minutes each, and the sponsor and critic, who have a maximum of 45 minutes each; 9 p.m. on Thursday, June 23, 2022, if the bill has not been disposed of at third reading, the Speaker interrupt any proceedings then before the Senate to put all questions necessary to dispose of the bill at all remaining stages, without further debate or amendment, only recognizing, if necessary, the sponsor to move the motion for second or third reading, as the case may be; and

6.if a standing vote is requested in relation to any question necessary to dispose of the bill under this order, the vote not be deferred, and the bells ring for only 15 minutes; and


1.the Standing Senate Committee on Legal and Constitutional Affairs be authorized to examine and report on the matter of self-induced intoxication, including self-induced extreme intoxication, in the context of criminal law, including in relation to section 33.1 of the Criminal Code;

2.the committee be authorized to take into consideration any report relating to this matter and to the subject matter of Bill C-28 made by the House of Commons’ Standing Committee on Justice and Human Rights;

3.the committee submit its final report to the Senate no later than March 10, 2023; and

4.when the final report is submitted to the Senate, the Senate request that the government provide a complete and detailed response within 120 calendar days, with the response, or failure to provide a response, being dealt with pursuant to the provisions of rules 12-24(3) to (5).

He said: Honourable senators, I do not intend to participate in the debate. Thank you.

Hon. Donald Neil Plett (Leader of the Opposition)

Honourable senators, I was hoping that I wouldn’t be the first one because my notes are set up for debate. Nevertheless, I will try to make some assumptions on what certain people would have said and debate them.

Honourable senators, quite frankly, I was unsure. Senator Gold decided not to take part in the debate, and I was wondering whether I wanted to. I really think both sides of this issue and the motion raised will be presented fairly in our debate today. There are, clearly, a couple of different opinions on whether we should be bringing forward a motion that looks a lot like a programming motion. I’m certainly happy that it doesn’t say that it’s a programming motion, but I do feel that it is important that some facts be put on the record.

I stress that I do not believe we are creating a precedent with this motion, that we are not changing in any way how the Senate works and what the powers of the opposition as a group and individual senators may be.

Let me start by saying that the motion to limit debate and pass Bill C-28 quickly was adopted in the House unanimously, which is one of the reasons why we also support the motion and will, later today, support Bill C-28.

There was no time allocation in the other place, just an agreement on how to do things properly and quickly, and it was a negotiated agreement accepted by all sides. And that is what I want to stress: This is an agreement that was accepted by all sides.

There may be senators here who have an issue with this agreement and who have an issue with what we are doing, and I have an issue with the way the government has operated on some things, including Bill C-28 and the government not getting it to us in a timely fashion so it could be debated a little bit more thoroughly here and sent to a committee for study. Instead, we had to accept second best, and that was Committee of the Whole with a justice minister who, quite frankly, I do not think gave us the answers we needed.

So the agreement that we reached is something similar to what they have in the House. We reached an agreement on process, not on whether we like the bill. We reached an agreement on process, and all senators who stand to speak to this motion today who are part of a caucus — or we like to call them groups now, or anything else we want to call them — have elected leaders, and they have indeed been elected. Senator Gold has been appointed, but Senator Saint-Germain has been elected by her group. Senator Cordy has been elected by hers, Senator Tannas by his, and I indeed by mine, and I thank my colleagues continually and am continually amazed at their confidence in me. I certainly appreciate it.

This was decided by all of the leaders, and we signed on to this. We all said we have to develop a process. We are here in the final days and the final hours of a fairly long sitting.

Over in the House of Commons, I’m sure the ministers’ drivers are at the doors ready to rush them out of town, those who have not left yet, and the rest of the members of all parties are ready to go home.

Tomorrow is Saint-Jean-Baptiste Day, an extremely important day in the province of Quebec, and certainly the fact that it’s Saint-Jean-Baptiste Day is an important issue for me. We don’t celebrate the same holiday, but we needed to do something to come out of here. We could have done something other than have this motion and come back here next week — at taxpayers’ expense — and debated this some more. We wouldn’t have gotten anywhere; we wouldn’t have changed it. The House has gone home. We could amend it; they wouldn’t be dealing with it and we would be running the risk of horrendous crimes happening across our country. Defences would be mounted because people were intoxicated, and this is not something I want.

I have argued many times in this chamber how the government is bringing us legislation that our government leader here and the government over in the other place are saying is time sensitive when there is nothing time sensitive about it. However, this bill, colleagues, is time sensitive. We need to pass this bill before we rise.

The minister said he was happy with the study, and we had a motion that the Legal Committee will study this, and we will get a report on this and will hopefully improve it, but we need to move forward.

The Senate has adopted similar motions in the past. For example, the MAID and legalization of cannabis bills were negotiated agreements, agreed by all caucuses and group leaders. There was no motion to limit debate or impose the will of the government on the opposition or other senators.

I had a part in negotiating the time frames in those where we changed some of the speaking times to 10 minutes from 15 minutes so everyone could have a say, but we did some limiting, and I believe that is good. I do not want to limit one senator from having his or her say here today, and, of course, we have passed motions that we are sitting until midnight, and that’s fine. We will sit here until midnight. We sat late last night, and this is normal.

Motion No. 53 allows Bill C-28 to receive second and third reading on the same day. Again, nothing very unusual about that. Agreeing to forgo the delays stated in the Rules is not something new. There are numerous precedents in our recent and not‑so‑recent past showing that we have done that. Bill C-28 is not a long and complex bill. It’s a very straightforward bill. The issue it touches is technical, but the bill is straightforward. So not having longer delays between first and second reading and then second and third reading is not prejudicial, and there may be senators who say it is prejudicial. It is not prejudicial.

Looking at the number of senators who have expressed willingness to speak on Bill C-28, I don’t think organizing the debate the way Motion No. 53 does will take away the right of any one senator to put on the record his or her opinion on the bill and even propose amendments. We have allowed the time. There is nothing in the motion that says we cannot put forward amendments.

The time limit on the motion is that we have to call the question by 9 p.m. tonight and, again, that is not time allocation. When the opposition signs on to a process that the government has brought forward, that cannot be interpreted as time allocation. That can be interpreted as two, three, four or, in this case, five sides getting together and having unanimity. Colleagues, I don’t think I’m breaking any confidence here, but we had unanimity on this issue. We had differing opinions on leave, for example, and, of course, leave wasn’t granted when Senator Gold brought this forward, and Senator Tannas made that clear.

I’m sorry again if I’m breaking confidence, but I don’t think I am. Senator Tannas made it clear to Senator Gold: Bring a motion in such a way that, if you are not granted leave, you have allowed yourself the one-day notice you will need to get this through. We will not hold you up here on Saint-Jean-Baptiste Day. We will not ask you to come back, but don’t ask us to give you leave because you know our group, our caucus, is inherently opposed to giving leave, as they have shown. But Senator Tannas was a willing participant and a willing recipient of the concept of what Senator Gold then did.

Today is June 23 — I may be repeating myself here — and tomorrow is a holiday in Quebec. Historically, the Senate does not sit on that day. Prolonging debate on Bill C-28 just for the sake of it would force us to come back for a few days next week at a large cost to taxpayers and is unnecessary.

Lastly, I want to point out that the motion provides for a thorough study of the issues surrounding Bill C-28 by our Standing Senate Committee on Legal and Constitutional Affairs. I already mentioned that. Again, this is something all groups agreed to. Let’s make sure the Legal and Constitutional Affairs Committee studies it. They have given Senator Jaffer and her committee a mandate to bring this forward. This is a government motion. This comes from Senator Gold, and I have every confidence in our members on the Legal and Constitutional Affairs Committee that they will do a thorough job of this. It should be made clear that this is a very integral part of the agreement.

So, colleagues, I know there are those — including in my own caucus — who do not want to give in. We do not want to give the government what they want, and that’s fair. However, there comes a time when you develop processes, and over the years that I have been involved — Senator Harder will bear witness to this, as will Senator Gold — I have never, when I have made an agreement, agreed that we will pass a bill by a certain time. I have agreed that we will allow the question to be called on a bill by a certain time. That’s a distinct difference, and not one leader out of the five of us committed one of you, colleagues, to how you were going to vote.

We only committed that we will do this, that we will do this today and that we will do it in an orderly fashion. We limited some speaking times, but we did not limit the number of speakers, so I encourage everyone to speak. I also encourage that we go through with this. The time will come later in the day when I will be speaking on Bill C-28 and I will make my wishes known on Bill C-28. I will have some things to say, but now we’re talking about this motion. I encourage all of us to have our say, but let’s move on to the debate on the bill, a very important bill that has received all-party support at the other end, as it should. This is an issue that concerns each and every Canadian. It is time sensitive and has to be passed before we leave here tomorrow. Thank you, colleagues.

Hon. Dennis Glen Patterson [ + ]

Honourable senators, I rise today to speak to the programming Motion No. 53 that has been introduced regarding Bill C-28, the bill dealing with extreme intoxication leading to a state akin to automatism.

I was first alerted to the potential issues with this bill after the text was tabled last Friday. Over the weekend, the concerns continued to flood in from notable legal minds across the country. This past Tuesday, I sat and listened as senator after senator raised concerns about potential loopholes created by the bill. For me, this is one of those moments where I feel the need to exercise my independence and speak up so that, frankly, I can sleep comfortably at night. I am thankful to be supported by a group that values that type of independence.

As you all know, I summoned up my courage and gave a resounding “no” when the government tried to move this motion with leave yesterday. I want to explain why. Things happen in this place all the time that frustrate one or more of us. For me, I am most frustrated when we seem to shirk our responsibility to carefully review legislation and to ensure we are always representing our regions, minorities and voices that aren’t always heard.

I listened carefully to Senator Dasko last night, who told us that Canadians are still not seeing value for money when they look at the Senate. I have been here long enough to see tools like time allocation and programming motions used. In my experience, a programming motion is best used when we have a large, complicated piece of legislation and we need to chart a path forward for it. It’s not used to limit debate and skip stages in the parliamentary review process for a bill that, at the time leave was sought yesterday, had not even been introduced yet.

I know that the Canadian Senators Group, or CSG, leadership explored ways to allow more voices to be heard on this issue. We put forward the question of extending the Committee of the Whole. We could have had another 65 minutes after Minister Lametti’s testimony to hear from women’s organizations and other witnesses who were and are eager to testify about this bill, or it was suggested we could have a short study by the Legal Committee. We had a committee that met last night during the supper break, so it could have happened as quickly as yesterday if there had been support for that but, in the end, those options were all rejected.

Honourable senators, leadership is certainly about standing strong and firm at times. However, it’s also, I believe, about demonstrating a willingness to listen and compromise at times. I believe that because of their unwillingness to accommodate these requests and the overall inflexibility of the government, we were put in a position where we would be asked to do everything with leave. That would challenge one or more senators to be the sole reason for us having to sit, for example, on Saint-Jean-Baptiste Day tomorrow or into next week. It is a tactic that forces one or more people to become the “bad guy,” and I know how that feels. so often we hold our noses and let things through despite our objections.

I want to clearly thank the leaders for introducing this motion because even though I disagree with it and feel that this is an inappropriate use of an otherwise legitimate tool — in fact, it really skirts around the Rules of the Senate — at least, other colleagues and I have the chance to stand up and speak out, as Senator Plett pointed out just now. At least we are ensuring that if we do move forward, it is because a majority of the Senate has agreed that it is appropriate to give expedited passage to this bill without hearing from anyone else but the government and ourselves.

I think that’s wrong. I fully recognize that I may stand alone, or virtually alone, in opposing this motion. I felt a bit like David versus Goliath in that respect, the underdog facing an insurmountable obstacle, but as another underdog, namely Rocky Balboa, said, “I stopped thinking the way other people think a long time ago. You gotta think like you think.”

Colleagues, I want to give the last word to the women I feel should be part of this debate by reading a letter sent to all senators dated June 21, 2022. By the way, they have been standing by, ready to come here and express their strong concerns, since this bill was rapidly moved through the House of Commons and sent our way.

I see this letter as eloquent evidence in support of my belief that we should not be proceeding with a path forward that does not include them, and it is the main reason that I will vote against this motion. I will let them speak for me because they perfectly reflect my concerns.

Here is the letter:

I write on behalf of the National Association of Women and the Law (NAWL). Founded in 1974, NAWL is a feminist organization that promotes the equality rights of women through legal education, research, and law reform advocacy. While NAWL agrees that Parliament should act expeditiously to respond to the Supreme Court decision in Brown, it is deeply concerned with the seeming rush to pass Bill C-28, amending s.33.1 of the Criminal Code, before Parliament recesses for the summer. There was a lack of meaningful consultation prior to the bill being introduced and with the substance of the bill. In the best traditions of the Senate as the house of sober second thought, NAWL asks that Senators take the time to carefully examine the bill and refer it to its Legal and Constitutional Affairs Committee with sufficient time to hear from relevant stakeholders, including women’s groups, Crown prosecutors, and medical experts. . . . This is necessary in order for the Committee to consider revisions to problematic aspects of the bill, which we fear will pose nearly impossible hurdles for prosecution of intoxicated perpetrators of violence against women.

I attach our press release that provides some further details of our concerns, particularly with the requirement that prosecutors prove beyond a reasonable doubt both that the loss of control after the consumption of intoxicants was reasonable foreseeability and the foreseeability of harm. We also provide a chart of two alternatives to amend s.33.1, which our criminal and constitutional experts have developed in order to avoid the current weaknesses of Bill C-28. We presented these alternatives to the Department of Justice, in a meeting organized by DOJ lawyers only mere days before the Bill was tabled. As a result, these alternatives did not receive meaningful consideration and we cannot discern that they are reflected in Bill C-28 in any way. This is in stark contrast to the early consultation with NAWL before the introduction of the bill inserting section 33.1 into the Criminal Code. NAWL also testified before Parliament suggesting a number of amendments to what became the final text of s.33.1.

The defence of extreme intoxication is one that is almost always advanced by men perpetrating violence against women. Further, men responsible for violence against women are usually intoxicated. Even if it is a high evidentiary bar for a successful defence of extreme intoxication, the real-life impacts of the availability of the defence on charging and prosecution decisions cannot be underestimated. Parliament should act quickly to ensure that accused men who voluntarily become extremely intoxicated before committing gendered violence are held accountable. However, it should not act hastily and entrench a flawed bill into law. NAWL respectfully asks you to take the time to ensure that Bill C-28 will serve justice.

The letter, colleagues, was signed by Dr. Kerri A. Froc, Chair, National Steering Committee of the National Association of Women and the Law and co-signed by representatives of Luke’s Place Support and Resource Centre, Women’s Shelters Canada, Ending Violence Association of Canada, Canadian Femicide Observatory for Justice and Accountability, Alberta Council of Women’s Shelters, Sexual Assault Centre of Edmonton, Barbra Schlifer Commemorative Clinic, Persons Against Non-State Torture, London Abused Women’s Centre, Ontario Network of Sexual Assault/Domestic Violence Treatment Centres, Action ontarienne contre la violence faite aux femmes, WomenatthecentrE and Lanark County Sexual Assault & Domestic Violence Program.

I’m happy to let them have the last word in concluding my speech with their fervent desire to be heard.

Thank you, honourable senators.

I wonder whether the senator would take a question.

Senator Patterson [ + ]


Thank you, Senator Patterson, for that speech. Let me say at the outset about your analogy of David and Goliath that David was never a minority; he had God on his side. Nevertheless, Senator Patterson, my question really is this: I felt the other day when we passed four government motions in a matter of an hour that I needed to leave and go take a shower.

I suggested to the Leader of the Government in the Senate here a few minutes ago that I needed to wash my mouth with soap after supporting the government. So I take no great pride and pleasure in supporting what I believe has certainly been, even in this particular bill, a shirking of responsibility.

There is a difference here, in my opinion, and I will get to my question immediately. The difference is that this, in my opinion, was not precipitated by the government. It was precipitated by the Supreme Court of Canada. They struck something down. They forced the government to do something and, quite frankly, they forced the government to do something, in my opinion, in too much of a hurry. This is not like a campaign promise that was made two years ago and then two years pass before they come forward with the bill.

Senator Patterson, you alluded to having a couple of suggestions, and they were certainly thought out, about the Legal and Constitutional Affairs Committee having a quick meeting or having a second Committee of the Whole. What would have been the purpose, other than we would have heard some people?

We really didn’t have the time to do anything about it, other than what we have done now — voting on a bill, hopefully passing the bill, then having the Legal and Constitutional Affairs Committee do a study, sending a report to the government, having the government respond in a certain period of time and hopefully correct something that indeed is flawed. What could we have done better with the path that you possibly suggested?

Senator Patterson [ + ]

Thank you for the question, Senator Plett.

Greater legal minds than mine have weighed in on this bill since it was introduced in a hurry in the other place. As I pointed out in the letter I just read, there is a clear concern that the evidentiary burden on the Crown in this bill is too high and that, in fact, there is a risk that this will allow the acquittal of persons who use this defence.

In fact, this association of concerned women’s groups has suggested simple amendments that will fix that problem of the evidentiary burden. So that perhaps could have been discussed and considered by our eminently qualified Legal and Constitutional Affairs Committee. We could have had a bill before us and a recommendation on an amendment that would fix that flaw.

Hon. Jim Quinn [ + ]

Honourable senators, I want to start by thanking Senator Plett for his observations that, as senators, we do have the right to rise, say what we are thinking and what we believe our motivation should be as individuals. I also want to say that I, for one, embrace the independence of this Senate. Although as a new senator, I sometimes observe and I’m not sure how independent we actually are.

With that, I will start my formal comments which are, as I said — although I am new to the Senate — a few observations on what I understand is not an unusual occurrence in December and June. At these points on the parliamentary calendar, we are asked — if not expected — to rush to pass proposed legislation as some matters are deemed to be government priorities and essential at the moment that they are to be considered.

There can be little doubt that some items are essential and must be responded to in a timely manner. We are all aware that we are not the elected representatives of the people of Canada. That privilege belongs to our colleagues in the other place. At the same time, we are parliamentarians. We are expected to play an important role in the legislative process on behalf of Canadians from all regions of our country.

Among other things, we are expected to be a place of sober second thought, to review and add value to government bills and to hear from Canadians through our committee work, which I understand — and I hear on an ongoing basis — is the strength of this institution.

I’ve said it before, but I believe it’s worthy of being repeated today: We’ve all been appointed, and part of that process is speaking with the Prime Minister. When I had that conversation with the Prime Minister, he acknowledged that I may not always agree with the initiatives of his government but that, as an independent senator, he expected me to participate in debate with the goal of proposing input that I felt would add value to proposals.

He acknowledged that even then I may still not necessarily agree with a given proposal, which he noted is okay, but that, as an independent senator, he encouraged me to do my job of bringing sober second thought to the discussion.

Honourable colleagues, in doing my job I clearly understand that you may not agree with things I bring forward. And that’s perfectly fine, because I understand that you, too, are doing the job that you have been asked to do. All I expect, and all that we should expect of each other, is that we continue to respect but not necessarily agree with the views and inputs of others because, at the end of the day, we are all doing the best we can in doing our jobs.

So we are at that time of year, on the eve of rising for summer recess, when there is considerable pressure for us to waive our jobs as senators to study, with sober second thought, legislation that comes from the House of Commons.

With Bill C-28, there are legitimate concerns being raised by numerous individual Canadians, and I have no doubt that all of us in this chamber have had our inboxes inundated with emails from people from across the country with varying views. We are also hearing from various organizations, including women’s organizations, that feel that they did not have meaningful consultation in the preparation of this bill. They are also concerned that Parliament is not seriously listening to them, simply because it’s June and we are looking to rise for the summer.

I have no doubt, if it were March, that we would go through a more normal process of hearing from witnesses and engaging in debate. I believe debate is so valuable in gaining a better appreciation for the reasoning of honourable colleagues’ points of view. In fact, I embrace the value of debate, as I believe it helps each of us to be better informed as we decide, as independent senators, how we will eventually vote on a particular matter.

Here we are today, proposing that we rush through this bill — through all stages in one day. I may be continuing to learn the rules of processing legislation in the Senate, but at this time, with this bill, it just simply seems wrong, especially when we know there are numerous women’s groups that have just been referred to. They’re asking us to slow it down just a bit so they have the opportunity to be heard on what is truly an important piece of legislation. I, for one, believe that these women need to be heard.

The government could have brought this bill forward earlier or asked us to sit longer to deal with this important issue. If this motion is defeated, what would be the next steps? The Senate and the Legal and Constitutional Affairs Committee could meet next week to be sure that we have heard from stakeholders, such as these women’s groups and, I would respectfully add, legal experts.

In fact, I mention this latter group as many of our colleagues are lawyers, and some of them seem to have expressed some concerns with legal implications. I understand that those concerns are connected to a question of if the evidentiary burden is too high and the result could be that the Crown will be unable to secure a conviction. I, for one, would value senators with legal backgrounds having the opportunity to consider this and any other points of law through just a bit more discussion with other legal experts at committee.

Hearing from women’s groups and legal experts may result in amendments being proposed, and we would then be collectively in a better position to accept them or not. Passing this motion seems to get things backwards: After having passed the bill and receiving Royal Assent, it’s proposed that we then study what will be law later in the fall.

Should we not take that bit of time now to at least hear from the women’s groups that have simply asked to be heard and from legal experts so we can have a better understanding of their points of view? I’m not suggesting that Parliament sit beyond the opportunity of having our committees hear from the aforementioned people.

Before closing, I want to say that I respect the work that the leaders do in this chamber, but I also respect the ability, as a member of my particular group, the Canadian Senators Group, to express my independence and be respected by my colleagues. So I thank them for that.

Honourable colleagues, I thank you for allowing me to express my thoughts in this chamber today.

Hon. Frances Lankin [ + ]

Honourable senators, I appreciate very much being able to participate in this debate, and I thank Senator Plett. I appreciate hearing about the discussions writ large and — not breaking confidence — the discussions of the leadership. I’ve heard some of these things as other people have been talking in the lead-up to this debate. One of the things that perhaps hasn’t been brought out was a clear desire to work through all of the legislation in a way that would bring us to a close today. I truly appreciate Senator Plett and his reference to the national holiday in Quebec tomorrow as one of the things that we traditionally respect, and I respect and agree with that.

I also appreciated his question to Senator Patterson. Senator Plett, I’m not there to say “hear, hear” in person to your remarks across the floor, but I want to say that one of the reasons I appreciate you is that your preambles are almost as long as my mine usually are, and so I feel a little comforted by that.

However, on the serious nature of this motion before us, I share a lot of the concerns that have been raised by my three brother senators. I speak from a different end position, but I share the concerns. I’ve come to a different conclusion, and I appreciate the opportunity to set that forward and how I worked through the issue.

When we held Committee of the Whole with Minister Lametti, I have to admit that I found that process unusual and one that gave me concern. I would rather have had a short committee process than the Committee of the Whole, but the leaders unanimously agreed with that process and put that forward. And I felt I could glean a lot from that.

Of course, as all of us do, I have reached out and sought other opinions with respect to the actual provisions of Bill C-28. I’m not speaking about that right now, I’m speaking about the motion before us. I have heard views from many women’s organizations, pro and con, moving to fix the loophole in the way it has been suggested now or not fixing it now, coming back in the fall with a report after having passed it, and, if amendments are required, seeking to pressure the government to do that or waiting and doing those amendments in the fall.

I’ve heard from many, so a lot of the views that we are failing to hear, as both previous senators said, have come to us through other routes. That’s not as helpful as having an open public record of these, although I know many senators in the debate on the actual bill this afternoon and this evening will put those forward, and we will hear quotes from many of those organizations.

Senator Patterson listed a number of organizations. I know and have worked with those organizations. I know and have worked with the executive directors of those organizations, who are in place today, over the years, and I respect the points of view they put forward, as I do the other organizations that have taken a different position.

I’m aware that after the court decision was released there was a huge response for the government to act quickly. In fact, I believe there might have been a letter — I might have been a signatory to it; I haven’t had a chance to go back because we’re all very busy at this point in time — calling on the government to act quickly. My recollection is that maybe over 30 senators participated in that call, as well as many external organizations.

One of the reasons I’ve come to a position in feeling that I can support this motion before us is that the government themselves moved quickly to fix this problem. The question of whether the fix is correct is what we need to examine. But they moved quickly.

I have confidence this particular government wants to fix this. I also have confidence, having seen unanimous consent in the House of Commons, that all the political parties’ representatives, duly elected and accountable through elections, believe that a quick move is important. I have confidence in that.

If, over the course of this summer, there is another case that comes forward in which the defence is successful, and it is determined to be because of the provision in Bill C-28 is not adequate, I have confidence that every one of us, every political party and the government of the day will respond again to bring forward a way to fix that. There is a united political, parliamentary, governmental, executive branch resolve to do the right thing here, and I applaud that.

When I learned about the unique solution in the House of Commons, which I learned about during Committee of the Whole, my first reaction was a little bit of outrage. Why didn’t I know that coming into this? As I reasoned through it, I brought the temperature down and thought about it over the course of the evening and I applauded the transparency of the minister in telling us that, because it was not information we were aware of. And I know the flurry around the chamber in terms of wondering, “What’s this?” was shared by many.

Despite that novel approach — and it’s novel in the suggestion of a committee looking at the provision afterward — I felt it was very important that we stay true to the role of the chamber of sober second thought. I had to work through all of my frustrations about the sheer number of Senate bills, the number of pre-studies, the orchestration by the leaders to get us through this work — and I appreciate their work on that — but I had to work through that frustration. Part of that frustration, as we all know, is the end-of-session frustration that comes along.

I had to create nuance in my own mind; I challenged myself to consider nuances regarding the general systemic issues that are brought about by the fact that we have a minority government in the House of Commons and that it takes two parties to dance, that there is an opposition and a government and the time for and the timing of debate on a whole range of things also led to the desire of the government to bring forward Senate bills and pre-studies.

It’s frustrating.

But there is nuance between the systemic and the situational. This is situational. I’m not going to repeat Senator Plett’s comments about the timing of this court decision and the need to respond. I think it is.

I believed, when I heard about the solution in the House of Commons, that we needed to have the opportunity to review this provision in committee and be able to take account of the report from the Justice Committee of the House of Commons, which will come forward this fall; they have to report by December 31. My understanding was that such was going to be the suggestion to us as well. I protested that in what I hope was a constructive way. You’ll see the motion has us taking the opportunity of an extended period of time that would take us through to the end of March, I think it is, so that we can review and have the benefit of the report of the House of Commons.

I also believe that it was incredibly important that there was an accountability exchange with the government, even though I have the confidence that, on this particular issue, they would respond if there were to be a court case or if the reports coming out of the testimony of witnesses and the deliberation of committees demanded that such be the case and they saw the logic of that.

I really believed there had to be an accountability measure. So I suggested — again, constructively, I hope, and I appreciate that the leaders accepted this — that there had to be a response from the government to the report from the Senate and a timeline given for that.

Once again, some people said, “Well, how do we know they’ll respond?” They can ignore it; governments of all stripes over the years have ignored those things. If we put forward amendments today, how do we know they would respond? They will sometimes accept amendments and other times not, and all of the situational pressures at this moment will exist with respect to looking at amendments as well.

So I do not like the situation that we’re in, but I can see the nuanced difference between the situational matter before us, the procedure that is before us and the systemic issues that we need to continue to deal with and to push back on. I appreciate the leaders who do that; I appreciate the role that Senator Gold fulfills. I know the Government Representative Office pushes back often. I believe the government understands more and more. I also know we’re in a minority Parliament. Will the day get better?

I also challenge myself with this: Is this the time to stand up and say “no” like Senator Patterson? He arrived at a decision with respect to leave, and whether he will, in terms of the bill itself, we have to debate this afternoon. We’ll deliberate, and I will listen to that. But is this the opportunity to stand up and say “no” and to put it to the government and push back in such a way this isn’t dealt with?

I believe that something right now is better than nothing. I would hate if there were a case where a successful defence is mounted, as was in the consideration of the court decision that is before us. I would hate for that to happen, but if there is no provision to fix this it can happen for sure because of the precedent that has been set by the court.

So I believe there are potential problems with this actual wording that may lead to innovative defence strategies that, in the case of significant severe intoxication, may lead to another court case. The chances of that happening over the next few months before this study and work is done — or the next five months until the report comes out of the House of Commons — then the period of our review can be shorter than longer if we choose. I believe that either situation is imperfect. That’s the imperfect world we live in.

With respect to the speakers who have gone before me, and with respect to the collective level of concern that we have, we should reassert our role on an ongoing, systemic basis as a chamber that follows the work of the duly elected and accountable politicians in order to provide added value in the spirit of, as the Supreme Court decision said, not competing with the House of Commons but being complementary. This particular motion does the best it can in the situational circumstances in which we find ourselves. One more time, I want to say that I appreciate the very difficult work of the leadership groups to arrive at this approach.

With that, I’ll finish my remarks. Thank you very much.

Hon. Mary Jane McCallum [ + ]

Would Senator Lankin accept a question?

The Hon. the Speaker [ + ]

Senator Lankin has two minutes left of her time.

Senator Lankin [ + ]

That’s barely enough time, but I will.

Senator McCallum [ + ]

How do the officials look after the minorities — the people whose votes don’t matter because there are not enough of them? They’re not a majority. Is it not the Senate that has to look after the minorities, the vulnerable and Indigenous peoples? How will they be looked after with this bill?

Thank you.

Senator Lankin [ + ]

Thank you, Senator McCallum. I’m not going to speak about the substance of the bill. I believe you’re really asking me about the process.

Yes, that is a key job for the Senate. In fact, it is a mandated approach suggested and ruled on by the Supreme Court of Canada in their 2014 decision, without a doubt. I also believe it is the job of the elected politicians in the House of Commons. I also believe it is the job of all people in all orders of government. I don’t think we are the only place, but I sometimes think we are the last place. We are certainly, with a constitutional point of view, responsible — it’s the Supreme Court point of view — for ensuring constitutionality and compliance with the Charter, for representing the voices of minority groups — in particular, Indigenous peoples — regional voices and technical drafting voices.

Do we have enough time to do all that well and often? No. I’m going to move, again, from the systemic to the situational.

I am a feminist. I am a woman. Many of you know from previous remarks that I am a survivor of sexual assault. I want this law to be right, and I want everybody’s point of view to inform it. What will happen now is a stopgap over the summer until this is examined in a different way. I believe that is better than nothing, but I do not at all dismiss the importance that we all place on ensuring that we hear those voices.

We will hear them in a novel way, which will be after this provision but with the opportunity to amend it. Thank you.

The Hon. the Speaker [ + ]

If you are opposed to the motion, please say “no.”

The Hon. the Speaker [ + ]

All those in the chamber who are in favour of the motion will please say “yea.”

The Hon. the Speaker [ + ]

All those in the chamber who are opposed to the motion will please say “nay.”

The Hon. the Speaker [ + ]

In my opinion, the “yeas” have it.

The Hon. the Speaker [ + ]

I see two honourable senators rising. The vote will take place now.

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