Honourable senators, it is so good to see that, depending on whether it suits our purposes or not, our principles about leave as well as other things can change as they need to. We certainly appreciate that.

Not to put a damper on anything, but I have about a 75-minute speech here, so that puts us to what time? Sorry, colleagues, the rest of you may not be able to speak. You may as well go home, and Senator Gold and I will take care of the rest of the business.

I was reminded by my lovely wife today that I made a mistake earlier when I said that I had voted with Senator Gold. She said that I was supposed to remind him that, in fact, Senator Gold had voted with the opposition in the last vote, and not the opposition voting with him. I want that corrected for the record, please. Senator Gold, we appreciate that you voted with us.

Honourable senators, I rise to speak to Bill C-28, An Act to amend the Criminal Code (self-induced extreme intoxication). I have already said that I will support this bill. I am going to spend at least 10 minutes telling you why I shouldn’t. Then I will turn myself into a pretzel, like those who give leave one day and then don’t the next, and vote for something that I will be telling you for 10 minutes that we shouldn’t ever support.

This bill purportedly responds to the ruling of the Supreme Court of Canada in Brown and Sullivan last month, which found that section 33.1 of the Criminal Code was unconstitutional. The ruling by the Supreme Court came down on May 13, 2022. We heard nothing from the government on this matter for five weeks. I think the Prime Minister was on an airplane.

Suddenly, the bill was tabled just before the end of the session on June 17. No debate was scheduled on the bill for four full days, colleagues.

Then we were told that the bill we have before us, Bill C-28, must not only be adopted in extreme haste, but must essentially be adopted with no substantive legislative review at all. This, of course, is what our friend and colleague Senator Patterson was concerned about earlier today.

Honourable senators, for five weeks we heard absolutely nothing and then suddenly, as is customary with this government, panic set in. The government claims that in the five weeks from the court decision to last week, it was busily consulting on this bill. It claims that since the court rendered its decision it has consulted with about 30 groups. That is quite a large number.

Minister Lametti claimed, during our brief meeting in Committee of the Whole with him this week, that these groups almost unanimously approve of the government’s response to this bill. This is surprising, colleagues, on several levels.

First, it is surprising that the government was able to consult in a fulsome way with 30 groups in just one month, but that is what they say they did.

On other bills, this appears to have been completely beyond the government’s capacity. Just this past Monday, the Senate passed Bill S-7, which was also a government response to a court ruling from October 2020. Bill S-7 was introduced in response to a decision by the Court of Appeal of Alberta that struck down a section in the Customs Act. On that matter, the government was given 18 months by the court to introduce legislation in response to its ruling. Yet not only was that deadline missed but, as senators found out when the bill was studied at committee, the government had actually consulted with absolutely no one prior to introducing the bill. That was an extremely complex bill involving extremely complex legal issues.

Now we have this bill, which also deals with an extremely complex legal issue. Yet, if we are to take the minister’s word for it, in just one month the government was able to fulsomely consult with groups that unanimously approved the government’s course of action.

Honourable senators, I have to say that this stretches the imagination. I believe there is another explanation as to why the government took so long to introduce this legislation. It is quite simply due to the fact that its priorities are elsewhere. This is not a government that pays a great deal of attention to policy details. It throws borrowed money at problems and does not pay much attention to how money is spent.

It makes you wonder, colleagues, how there could be those of us — or you — who voted an hour ago for a completely out‑of‑control budget. There are even those who call themselves conservatives who voted for it. I find it extremely strange that we have conservatives who voted for that — conservatives who ran on a platform of being a conservative. Yet here they are.

I am not sure how many of you listen to Simon & Garfunkel. I am of that age. As Simon & Garfunkel sang, “Heaven holds a place for those who pray.” So, conservative colleagues, there is hope for you if you repent. A few years ago, Chuck Cadman promised to keep the Paul Martin government alive. After he voted he said that he then had to go and ask God for forgiveness. God forgave him, and he will forgive you.

And this government does a lot of signalling and proclaiming colleagues. I am sure that in relation to this decision by the Supreme Court, someone saw a potential political opportunity. It was an opportunity to look decisive. I do not intend to speak very much about the substance of the bill, as you may have already realized. That is better left to others. Senator Patterson has a lot more to say about that. But I do note that many senators in this chamber have, in only a short time, raised some very significant issues.

Senator Carignan referenced a learned professor at the University of Montreal, one who specializes in criminal defence who argues certain dimensions of extreme intoxication may not be covered by this bill at all. On Tuesday, Senator Cotter said:

. . . 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.

Senator Cotter and I did not start off on the best of terms, but I certainly have come to respect the tremendous knowledge that he has and the expertise that he brings to the Legal Committee, and I respect that quote.

Senator Pate quoted Sean Fagan, counsel for the defence in the case in question, when she said, “. . . the law would be entirely ineffective due to the burden placed on prosecutors.” I recognize informed concern and skepticism when I see it, and it is informed concern and, I’m sure, some skepticism, Senator Pate. This is why I’m so concerned about the way in which the government is attempting to frogmarch this bill through both the House and the Senate, and even that it is doing so badly.

On Tuesday, the government’s vaunted hybrid system crashed. We all know that. We shut down here because we could no longer operate. Fortunately, our Leader of the Government has not to this point suggested that we continue with this horrible system of hybrid since. I have the fullest confidence in him that he will not come forward with that. I want it in Hansard that I trust Senator Gold that he will not bring this forward.

But the government’s House leader, Mark Holland, wants and was just given another year of this system that has already failed us so many times. Why? Because he says there might be another pandemic coming, honourable senators. There just might be. Dr. Ravalia, have you heard of a pandemic that is coming?

No.

Thank you. There is the science. There is no pandemic coming. And yet, Mark Holland says we need to have another hybrid year so that we can all stay home and do whatever we do from home. If we are honest, this new approach where people have to be in Parliament less and less is the government’s more important priority nowadays. That, honourable senators, is sad. Hybrid is obviously popular with both Liberal and NDP caucuses — but none of us here are in the Liberal or NDP caucuses, are we? I do not think so. We are all independents. We voted independent. Oh, no, we all voted in favour. Well, we did not all vote, but a lot of us voted in favour of an NDP-Liberal budget just a few minutes ago.

Nevertheless, it is popular for the same reason that it is popular with many in this chamber. One can sit at home, look into the camera for a few hours, read a couple of questions and pretend that one is a great servant of the public. It is clear who wins from hybrid sessions: parliamentarians. Parliamentarians who, quite frankly, do not want to show up for work.

I said today that when a person says, “with all due respect,” they are probably going to say something disrespectful. Senator Moncion remembers when I said it. And I do want to respect every senator here. I really do. And I do respect every senator here, but I do not believe that this is the way to conduct parliamentary business.

It is clear who wins from hybrid sessions, but Canadians, who are counting on us to undertake serious reviews of government legislation, lose. That is what we are seeing in relation to this very bill, Bill C-28. Even for this government, the process of Bill C-28 sinks to a new low. What the process around Bill C-28 illustrates is that of a government in chaos. In the face of multiple challenges that now confront our country, both domestically and internationally, we have a government consistently focusing on the wrong priorities.

Not only are its priorities wrong, it executes them badly. Look at Bill C-11. It turned into a complete fiasco in the House of Commons, and that happened for a second time, with the government having learned absolutely nothing from the fiasco that surrounded the previous Bill C-10. Consider Bill S-7, which we passed in this chamber earlier this week but only after it had to be virtually rewritten by the Standing Senate Committee on National Security and Defence. Then, we have the pending fiasco on Bill C-21, which is nothing more than a gratuitous attack on lawful sport shooters, even as gun crime in our cities continues to rise. Then we see what the Prime Minister and Minister Blair did with the Commissioner of the RCMP just to promote that legislation.

Honourable senators, the list goes on and on. In all of this mismanagement, it is Canadians who end up losing. Canadians, honourable senators, deserve so much better. We owe Canadians so much more. I only hope and trust that very soon they will have a competent government, and I will not blow our horn any more — I did that before dinner — but I truly hope that we will have a competent government that finally and actually puts Canadians first.

Honourable senators, that has not been done by this government. It does not matter how you put it. It does not matter what caucus you are from in this chamber. We have a government that has put themselves first, not Canadians. We need to turn that around. We need to approve Bill C-28 today. Why? Not because of this government, not because of their competence, not even because this is a good bill; but as has been said by others, it is a bill that is a step in the right direction. It is a bill that protects women, girls and children from heinous crimes that we have talked about over and over again.

That, honourable senators, is why at the end of tonight, whether we like it, whether we support this government — and I do not think that there is any illusion that I do — but this is a bill that I truly, honestly believe in my heart of hearts deserves unanimous consent. I hope you will support that tonight. Thank you.

Senator Plett, would you take a question?

Absolutely.

Senator Plett, you made remarks like, “No one will be convicted,” “entirely ineffective,” and “sinks to a new low.”

I am very concerned about this bill and have a right to feel very concerned. Do you feel there will continue to be violence against women once the bill is passed? My specific concern is violence against Indigenous women, considering there has been no progress toward resolving the issues connected to the missing and murdered Indigenous women and girls.

What I want to ask all of the Senate tonight is: Don’t we matter as women? It boggles my mind that the patriarchy is deciding this issue, but it is violence against women we are looking at. I am so very concerned about it. Thank you.

Senator McCallum, thank you very much for your question and thank you for your concern.

Senator McCallum, you know that I have the utmost respect and regard for you as a senator, for you as an Indigenous leader and for you as an advocate for Indigenous women and girls.

Do I believe that this will stop violence against women and children? Without question, I do not believe it will stop that. Do I believe that it is one measure toward stopping it? Yes, I do. Do I believe that targeting sport shooters and hunters will prevent murder? No, I don’t.

I am really trying to make sure that I get at the heart of your question. Do I have a concern for Indigenous women and children, and for the violence perpetrated against them?

Let me just simply, Senator McCallum, say this: I have a concern for every woman, every child that experiences some of the violence and the horrific things that have been perpetrated upon them, as we talked today about Senator Boisvenu and his daughter. It is regardless of whether they are Indigenous, Aboriginal, White, Black — I’m sorry, I do not differentiate between any races, between any ethnicities. Violence against women and children is horrific no matter what colour you are.

Honourable senators, I rise today to share with you my observations about Bill C-28, An Act to amend the Criminal Code (self-induced extreme intoxication).

The context in which we must examine this bill forces me to grapple with two very different sentiments that I find difficult to reconcile. On the one hand, I am very frustrated at having so little time to analyze this bill. On the other hand, I am aware that maintaining the status quo has serious repercussions for victims, given the Supreme Court decision of May 13. I realize that action must be taken now, and I believe that Bill C-28 is an adequate response to this urgent need, although, in an ideal world, the bill would have benefited from more in-depth study.

Colleagues, we must assess the ramifications of not acting now to fill this legal void, as was suggested by the Supreme Court. I would like to quote from R. v. Brown, which reads:

While s. 33.1 [of the Criminal Code] is unconstitutional, there may well have been other paths for Parliament to achieve its legitimate aims connected to combatting extreme intoxicated violence. . . . And it was not impermissible for Parliament to enact legislation seeking to hold an extremely intoxicated person accountable for a violent crime when they chose to create the risk of harm by ingesting intoxicants.

I want to emphasize “. . . when they chose to create the risk of harm . . . . ”

Now let me address why Bill C-28 is the correct response and will, indeed, close the gap in the law created by the Supreme Court decision R. v. Brown. As a reminder, in its decision, the court struck down section 33.1 of the Criminal Code. In doing so, it ruled that preventing the use of extreme intoxication as a defence for violent crimes was unconstitutional and in violation of sections 7 and 11(d) of the Charter.

As a response, the government chose to re-enact and amend section 33.1. This amendment proposed in Bill C-28 would ensure — as I believe is the right thing to do — that someone who voluntarily consumes intoxicants such as illegal drugs, alcohol or prescription drugs, and does so in a criminally negligent manner and, as a result of an extreme state of intoxication, violently attacks others, this person could be held criminally responsible for those violent acts.

This change is similar in spirit to the previous version of section 33.1, but with an emphasis on the concept of negligence. This is very important: an emphasis on the concept of negligence.

As Minister Lametti pointed out to us here in this chamber on Tuesday:

. . . 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.

This exemption is only valid in very rare cases. It will be up to the courts to determine the degree of negligence of an individual. In this context, criminal negligence is defined as not taking sufficient care to avoid a reasonably foreseeable risk of losing control and acting violently.

In my opinion, this is a good solution to the issue the Supreme Court decision has asked us to fix. The changes proposed by Bill C-28 are essential for public safety, particularly for the most vulnerable people in our society and, indeed, for everyone, because nobody is immune to falling victim to a violent assault. I would also add that it is needed for confidence in our justice system.

As presented to us today, the bill has the support of a majority of the stakeholders consulted before its conception, including groups for the defence and promotion of women like the Women’s Legal Education & Action Fund, or LEAF. In a statement published on June 17, Pam Hrick, Executive Director and General Counsel of LEAF, stated that Bill C-28 was, “. . . a thoughtful, nuanced and constitutional response” to the Supreme Court decision.

I think that I have made it clear that I support the adoption of this bill, and my support is consistent with my speech. I recognize the duty the government had to act quickly in order to close the gap in our law.

However, going back to the frustration I expressed earlier, I believe we need to find a balance between the necessity to adopt this time-sensitive government legislation now and the relevance of addressing the concerns raised by numerous senators during the Committee of the Whole and in their overall study of this bill ever since it was presented to us.

That is the balance that we need to find now between the necessity to adopt this time-sensitive legislation and then a further study of the relevance of the concerns raised by numerous senators and other stakeholders during the Committee of the Whole and in the media.

Colleagues, those concerns are valid. Even without the situation we find ourselves in, the Legal and Constitutional Affairs Committee should initiate a study. It is a question of public interest and general interest, and I have the utmost confidence in the strong legal minds who sit on that committee.

As such, it is essential for the Standing Senate Committee on Legal and Constitutional Affairs to be empowered to examine and report back on some strategic aspects of this bill, as we have done with the adoption of Motion No. 53.

We realize the distinction between the urgency of adopting this bill and the broader scope of this issue linked to intoxication. That is why the leaders of all the caucuses and groups, including me as facilitator, have made sure to put forward a non‑prescriptive motion that leaves a wide margin for action by the committee.

Now, after a careful study by both the Senate and the other place, the government will be requested to provide a complete and detailed response within 120 calendar days. Acting in such a manner is the right decision to make. It is the only means that immediately addressed the legal issue that Bill C-28 aims to fill while also giving the opportunity for the Senate to study and report on the broader issue of self-induced intoxication, including self-induced extreme intoxication in the context of criminal law.

We must also think that Bill C-28 could be used as a stopgap for this period between the adoption of the bill and a review from Parliament. That trial period could be useful in identifying the practical problems that could come up with the bill in its current form while not letting down the people most susceptible to violent assaults.

In closing, I think it would be irresponsible of us not to pass this bill today. We have a duty to act and to act now, in this case. That way we can ensure that the legislation properly protects our fellow citizens while closing a loophole for individuals who have committed violent crimes while intoxicated because of their own negligence. Thank you. Meegwetch.

Senator Saint-Germain, will you accept a question?

Yes.

What are the consequences of not acting? I can’t wrap my head around the conversation that we’re having here. It seems to me that women are still being put at risk, and they’re still the ones who are going to bear the burden. What are the consequences?

Thank you for the question, Senator McCallum. It is a key question, and I share your concern.

We all have to be very conscious that we need to act on many fronts. We need to take many actions for preventing violence against women, against racialized people and also against LGBT communities.

The consequence of not acting is that we will perpetuate this loophole in the law, given the Supreme Court decision, and then we will allow for perpetrators — those who would be in a position to commit violence or who have committed violence while they were under the influence of a substance — to still not be tried in a way that they would be considered responsible for the fact that they assaulted people when they were under the influence of a substance and they had voluntarily made the decision to use the substance.

So not acting will be protecting perpetrators rather than protecting their victims. That is why it is so important to fill this gap.

Once again, I stand by you, Senator McCallum, that we need to do more in order to prevent more violence against women, and against targeted and vulnerable people. Also, we need to act on the social front and to have more support after those violent acts have been perpetrated for the victims so they can heal in the best possible way.

Thank you again for your question.

Would you take a question, Senator Saint-Germain?

Yes, senator.

Thank you for your speech.

As you know, one of the strong criticisms of the bill from the legal community — noted scholars I won’t name and women’s groups — is that there’s too high a burden on the Crown in this draft of the bill, and that we all believe there should be a fix, but the fix is seriously flawed.

I’m just wondering if you’re concerned that while we wait for the committee to meet and hear the witnesses we know weren’t heard or weren’t heard properly, then the 120 days — that because of this stiff evidentiary burden on the Crown, persons will get away with crimes of rape or murder through what is an easy burden for the defence and a difficult burden for the Crown.

Thank you for the question.

First, I want to reframe your assertion that a majority of legal advisers and groups would be very concerned about the inability of the Crown prosecutor to act in a way that would be efficient, and that there is too much burden on their shoulders. I disagree with that, and I could certainly turn to, including in this chamber, legal people who will see or tell you the opposite.

But my main concern is that if we are not responsible in acting now in order to fix this gap in the law, the perpetrators will not be convicted. That is a very serious issue with a very serious impact. So my view is that the best way to protect the victims in the short term is to act now and to vote for this bill.

Furthermore, the Legal and Constitutional Affairs Committee’s mandate is not only with regard to this bill; it is with regard to the broader question of the criminal justice system — intoxication, the extreme intoxication and what could be done. What could be done is not only in the judicial field, the courts and the law; it’s the whole system of consistent and complementary measures that would provide for the victims to be better protected and for there to be more prevention. Unfortunately, further to their victimization, there would need to be more healing and services — notably, social, psychological and medical services — available and timely to help them heal.

That is my view.

Once again, for now, what we have to discuss is this bill. Will it fix an issue that is timely? My answer is yes.

Would you take another brief question?

Yes, senator.

Senator, I think you were saying we have to pass the bill or there will be a vacuum in the law. Would you say that what you’re advising the Senate is that although the bill may have flaws, which I believe may be corrected by the Legal and Constitutional Affairs Committee, it’s still better than doing nothing?

Exactly.

Thank you.

I would like to ask the senator one quick question, if he will take it.

Thank you, Senator Tannas. First, this is in no way to take away from your speech. I agreed with it 100%. As I said earlier today, Senator Tannas, I think I gave you a fair bit of credit for suggesting a way forward because of your issues about giving leave — or your caucus’s issues about giving leave — and how the Leader of the Government could move this forward.

I spent a bit of time this afternoon talking about and maybe paving the way for explanations that I have to make out there about what might be perceived as time allocation or a programming motion. So I guess I want to read something into the record and then ask you a question.

I just looked up what a programming motion, in fact, means. A programming motion can be used by the government to timetable a bill’s progress through the House of Commons by setting out the time allowed for debate at each of its stages. The motion is usually put forward for agreement immediately after a government’s bill has passed its second reading. Typically, it’s the government that would put forward a programming motion which would have time allocation, and so on and so forth.

I guess, Senator Tannas, I’m only asking this for the record because I don’t know that we need to debate what a programming motion is. I do not want to take anything away from Senator Gold. He has been very cooperative in trying to work this through. However, if the story is to be told correctly, this was actually a motion and an idea brought forward by the leader of the largest group in the Senate and the Leader of the Opposition in order to bring this to a close and to put some time constraints on it. The government agreed after the other four parties agreed.

I would simply like your affirmation that that, in fact, was the progress that was followed here.

Would Senator Tannas take a question?

Senator Tannas, you said in your speech that you support this bill based on the research apparently conducted by a number of experts. Can you tell us why the minister wasn’t able to tell us what other jurisdictions were consulted before this bill was introduced?

Honourable senators, the remarks this evening and throughout the day on this topic have been outstanding. Senator Gold gave one of his finest speeches, and it will be remembered here. I agree with much of it. His recitation of the history of these issues was outstanding.

This is a narrow but important issue, and a hole in the law that the Supreme Court of Canada itself acknowledges.

Let me begin by speaking about this personally. Much of my career has been skipping from issue to issue off of the tops of the waves rather than digging deeply into issues, with some exceptions, and this is one.

As a young lawyer doing legal aid work, I defended a young man with intellectual impairments who was charged with rape, as it was then called. He was extremely intoxicated, so much so that, many hours after his arrest, he blew 0.21 on the Breathalyzer — nearly three times the legal limit for driving a car. The defence was that he was too intoxicated to form the intent to commit the crime of sexual assault.

I did my best. The case went to the Saskatchewan Court of Appeal. The legal issues were complex, or at least they were at that time, and the Court of Appeal took a year to make a decision. They upheld the young man’s conviction — rightly, in my opinion.

This got me thinking about two things. First was the role of lawyers in defending people in these situations — a topic for another day. Second was the problematic nature of the law if people who put themselves in such a state can be absolved for what they did when they were very intoxicated.

Unlike other areas of the law, I have followed the evolution of the law in this area of extreme intoxication more closely than others. I found that Senator Gold’s recounting of that law brought me back to those cases and memories of that evolution.

It brings me, in some ways, to this place and this issue today. I have a tangent that I would share, but I feel Senator Plett stole the quota of tangents for the evening, and I’m going to let this one go and start my remarks at another point.

I have immense respect for Minister Lametti. In my view, he’s doing an excellent job in a very challenging portfolio, and I greatly admire the work of his Department of Justice team. In that sense, I’m in accord with the remarks of Senator Tannas.

On Bill C-28, I think they worked diligently on short notice, under significant public and political pressure, and they did the best they could. Let me be fair to the minister and his team: They may be working on a problem that is virtually intractable. Let me try to explain.

What we love or value in general terms, we often hate in its specifics. Here is what I mean: First, we have a foundational principle in our criminal law of hundreds of years’ standing, reinforced by our Charter of Rights that, with rare exceptions, we only punish people for offences when they have a guilty mind or, as Senator Dalphond said in his more erudite manner, mens rea. In simpler terms, we only use the criminal law to punish people for doing a bad thing if we conclude that they intended to do the bad thing, and nearly all of us are fine with this. Senator Gold presented this in a more elegant way.

Second, in an instance like the cases that bring us here, courts have found that the person who did the bad thing had no ability to intend to do the bad thing. Hence their acquittal, and hence our problem.

Let me add a bit to this. In Brown, Sullivan and Chan, all nine judges of the Supreme Court of Canada came to the same conclusion. It’s not some aberrant flight of fancy. In fact, in my view, Justice Kasirer’s decision, writing for the whole of the Supreme Court, is principled, honourable and heartfelt. He understood the significance of what he and his colleagues were deciding, and in an extraordinary effort — unusual in court decisions — offered ideas for ways forward for Parliament to fill the gap that they knew they were creating in the criminal law.

This is a classic example of what Professor Peter Hogg, perhaps Canada’s greatest constitutional lawyer — even, if I may say so, greater than the Leader of the Government in the Senate, perhaps a subject of debate on another day, I’m sure — referred to as a dialogue between the courts and the legislatures in relation to the Charter of Rights — in this case, Justice Kasirer’s dialogue; it is now our turn.

The question is: Is Bill C-28 the right parliamentary response in this dialogue? Many of us have spoken and will speak to the perceived or anticipated shortcomings of Bill C-28 as a response to what I will call self-induced criminally negligent extreme intoxification leading to harm to victims. In discussion with Minister Lametti, as Senator Plett noted, I raised one of these points myself regarding the ability to effectively prosecute the offence.

To be fair, the dilemma is difficult. We are reluctant — as Senator Gold noted — to create an offence that is limited to merely criminalizing negligent intoxification. Some have suggested, including the Supreme Court, that this provides a discount for intoxification. On the other hand, a bill like Bill C-28 honourably seeks to link the criminal negligence to the risk of harm and essentially the harm itself so that the perpetrator, if convicted, will be punished in line with the severity of the harm caused, not just the intoxication.

Here is my concern: By pursuing the very goal it seeks to achieve, Bill C-28 poses the risk that the necessary evidentiary connection, not constitutional, to that bigger offence and punishment — the linkage to that bigger guilty mind, the intention not just to become extremely intoxicated, but even objectively to risk harm — will be potentially unachievable.

Let me say a little bit more on that. Senator Gold described, rightly, that this will be an objective standard. I have no idea what the statistics are about magic mushrooms, but I want to tell you that it is almost unimaginable to me that lots of people having ingested a lot of magic mushrooms rush out and harm other people. My guess is that on all kinds of these substances the statistics are shockingly low that people take them and then engage in violence. If that is true, it powerfully undermines the argument that convictions will be achieved.

Senator Gold and I had an informal discussion about Bill C-28 yesterday. It was a rich discussion. I will not say more about the content. It was enriching for me, at least, and it made me somewhat more hopeful — but I think that I would only say “somewhat” — that the bill will be able to be effective. It brought to mind a metaphor that I shared with Senator Gold. I wasn’t going to share it today, but I quite frankly can’t resist. I believe Senator Plett left one more metaphor on the table, and I would like to use mine now.

A Nova Scotian friend told me this story about two fellows riding in a rowboat. They are going down the river. Suddenly they realize, holy cow, they are about to go over a waterfall. One of them, the leader in the boat, says to the other, “Throw out the anchor.” The second guy says, “I would, but the anchor is not attached to the boat.” The first guy says, “Throw it out anyway, it might do some good.”

I am a little bit worried that this piece of legislation, as heartfelt as it is — and I prefaced that in my remarks to Minister Lametti — may not be effective.

Where do I ultimately stand on the bill?

First, I’m satisfied that it is constitutional. I have had advice on that from others. I am completely in agreement with Senator Gold. The bill will not be struck down. It touches all the bases the Supreme Court asks it to touch, and indeed the Supreme Court invites this as one option for consideration.

Second, I would have preferred more reflection to see whether other formulations are preferable. At the same time, I am aware of the urgency of the issue. Additionally, the willingness of all elected parliamentarians to embrace the option deserves meaningful consideration. I’m appreciative that plans are in place to enable senators to study the whole terrain of extreme intoxification in criminal law, including this section of the code. On balance, with some reluctance, I will support the bill and watch attentively its effectiveness. Thank you.

If I could indulge the chamber for just one second, we have, I think, five speakers left. I know we have 25 minutes. I would like to, with leave, simply ask this chamber that we not allow any questions but we allow all five of these speakers to speak and have their 10 minutes. It takes us where it takes us. I think it would be wrong for us to drop the last two speakers for the sake of 20 minutes.

Honourable senators, is leave granted?

Honourable senators, I rise today to speak to Bill C-28, An Act to amend the Criminal Code (self-induced extreme intoxication).

Senators, I have to say to you that I am very concerned with the process we have followed on Bill C-28. This is such an important issue in criminal law. But I also understand that because of the big gap that we currently have in the criminal law as a result of the recent Supreme Court decisions in R. v. Brown and R. v. Sullivan, I understand we have to act quickly and I accept that.

Senator Gold, I have one request of you: If the Legal and Constitutional Affairs Committee will study Bill C-28 — which I have no doubt we will — and provide recommendations to the Senate and Minister of Justice, the Minister of Justice will take our recommendations seriously and respond to us in the time we have set aside. Hopefully, if there are any recommendations, we will implement them.

Honourable senators, I had a much longer speech prepared, but out of respect for my colleagues and everyone who was able to speak, I will raise a few issues that I seriously think need to be looked at. Perhaps the committee will not agree with me.

I asked the minister, as well; we do not know what negligence looks like for extreme intoxication. Senators Cotter, Simons and I asked this question of Minister Lametti when he was here. I must admit that I did not find his answer satisfactory.

For example, what do we do with young adults and teenagers who might not know their tolerance? Would we exonerate all of them under the defence of extreme intoxication because they could not be negligent? Must the accused know their own limits to be negligent?

Second, we do not know whether the burden to prove negligence for extreme intoxication is appropriate.

If Bill C-28 passes, the Crown will need to prove beyond reasonable doubt that there was negligence on the part of the defendant. However, as Senator Boisvenu pointed out, it most likely will lead to a battle between expert witnesses. How will a jury or even a judge answer these incredibly hard questions?

Third, we do not know if we should or should not add a presumption in Bill C-28 that alcohol alone cannot cause extreme intoxication. As such, we are applying a defence which has now lost its context.

Senators, there are many questions that the committee will look at, I’m sure, but what will it take before the courts to prove negligence in reaching a state of extreme self-induced intoxication? How will the prosecutor be able to prove beyond a reasonable doubt that the accused was negligent in not objectively foreseeing that his consumption would lead to extreme intoxication and to harm? Especially for young adults who do not know their limits, how will negligence be applied?

Senators, I have heard so much this evening and throughout the debate that we must fill the gap. Women’s groups want this. First of all, I respectfully say to you that women’s groups are not a homogenous group. Some women’s groups want it. It is not a homogenous group.

Secondly, as a young lawyer, I tried to convince my client that if the judge found the accused liable, she would be protected. Four years later, he returned home and killed her. So to just say that we are protecting the vulnerable and women is not enough. By acting so fast, we will build a false idea within vulnerable groups that there is protection.

There is never protection if the resources are not there to protect the women. Thank you, honourable senators.

Honourable senators, I rise today to speak to Bill C-28, An Act to amend the Criminal Code (self-induced extreme intoxication). I want to remind us what we’re actually talking about here.

On a January night in 2018, Matthew Brown, a student at Mount Royal University in Calgary and the captain of the Mount Royal hockey team, went to a party. He had quite a bit to drink and then took some magic mushrooms.

That mixture put Mr. Brown into what the trial judge later described as “substance intoxication delirium,” a condition that was so extreme as to be “akin to automatism.” While capable of physical movement, Mr. Brown had no willed control over his actions.

He stripped off all his clothes on a cold Calgary January night and ran barefoot into the snow while friends chased after him. Fifteen minutes later he broke into the home of a professor at Mount Royal University, but Brown did not know her. This was a random attack, not an attack with a motive. He beat the professor with a broomstick, breaking her hand. Then he continued running, smashing his way into a second home a kilometre away an hour later. The couple who lived there called police, and police found him there delirious on the bathroom floor.

Mr. Brown had no criminal record, no history of mental illness. He had taken magic mushrooms before but never experienced anything like this reaction. At trial, a judge in Calgary found him not guilty, saying he could not have formed the necessary intent to commit a crime. The Alberta Court of Appeal disagreed, yet last month the Supreme Court of Canada ruled unanimously that Brown should not be held responsible for the violent actions he had committed and, further, that section 33.1 of the Criminal Code was unconstitutional.

As Senator Gold has explained to us, section 33.1 was introduced in 1994 in response to public outrage in the case of a chronic alcoholic named Daviault, who committed a terrible sexual assault while extremely drunk.

At that time, there were complaints that that bill was being rushed because it was passed within just a few months. It has long been seen as problematic and perhaps unconstitutional.

So why did the court strike down the section of the code last month? Let me quote from their unanimous judgment, and I promise this is a different quotation than the one read to us by Senator Gold.

Section 33.1 breaches s. 7 of the Charter by allowing a conviction without proof of mens rea or proof of voluntariness. It is a principle of fundamental justice that proof of penal negligence, in the form of a marked departure from the standard of a reasonable person, is minimally required for a criminal conviction, unless the specific nature of the crime demands subjective fault. Section 33.1 requires an intention to become intoxicated but intention to become intoxicated to any degree suffices — it matters little that a person did not foresee their loss of awareness or control, and nothing is said about the licit or illicit nature of the intoxicant or its known properties. For this reason, while s. 33.1 applies to those who recklessly invite their loss of control, it also captures unexpected involuntariness, for example an unexpected reaction to a prescribed pain medication. It also imposes criminal liability where a person’s intoxication carries no objective foreseeability of harm. Furthermore, instead of asking whether a reasonable person would have foreseen the risk and taken steps to avoid it and whether the failure to do so amounted to a marked departure from the standard of care expected in the circumstances, s. 33.1 deems a marked departure to be present whenever a violent act occurs while the person is in a state of extreme voluntary intoxication akin to automatism. Since s. 33.1 allows the court to convict an accused without proof of the constitutionally required mens rea, it violates s. 7 of the Charter. Section 33.1 also directs that an accused person is criminally responsible for their involuntary conduct. Because involuntariness negates the actus reus of the offence, involuntary conduct is not criminal, and the law recognizes that voluntariness for the conviction of a crime is a principle of fundamental justice.

The court’s ruling was clear. You can’t be convicted of a crime if you’re in a state of automatism, unconscious of your actions. That is not a legal loophole. It is a fundamental principle of justice. Again, this is not the same thing as having your judgment impaired by crack, meth or vodka.

As Senator Gold explained, the court stressed this defence is not available to those who just get really drunk or high. A person in a state of automatism has, for all intents and purposes, left their own body. It is an extremely rare condition and an extremely rare defence in law.

Nonetheless, there has been a huge public backlash to this ruling and a fear that the decision somehow gives a get-out-of-jail-free card to anyone who got drunk and committed a sexual or domestic assault, so we see this extraordinary rush to amend section 33.1. It is truly extraordinary.

Bill C-28 was introduced in the House of Commons last Friday. Suddenly, it is here before us, and we are asked to pass it immediately, without study by the Standing Senate Committee on Legal and Constitutional Affairs and with very truncated speeches. We’ve heard only from the minister — not from any of the bill’s critics; not from those who feel it goes too far; not from those who feel it doesn’t go far enough; and not from those who simply find its language unclear, confusing and open to challenge.

Bill C-28 offers a new definition of what it means for a person to depart markedly from the standard of care. First, the court must consider the objective foreseeability of the risk that the consumption of an intoxicating substance could cause extreme intoxication. Second, it must consider all relevant circumstances, including anything that person did to avoid the risk.

The premise then is to treat the consumption of drugs such as magic mushrooms as a type of criminal negligence. I fear, though, that we could find ourselves caught in a kind of ex post facto logical loop.

If you take recreational prescription drugs recklessly, end up in a state of automatism and do not commit a violent act against another person, presumably you are every bit as negligent, morally speaking. So then are you only guilty if you hurt someone due to a rare reaction? The temptation, I fear, may be to argue backwards: that the fact that you did hurt someone is itself the proof of your negligence.

Now, Mr. Brown drank a lot, but that did not trigger any violence. Then he took some mushrooms, as he had done before without ill effect. Yet that night, that combination of alcohol and psilocybin caused him to commit terrible acts. Was his bizarre neurochemical reaction reasonably or objectively foreseeable? Could a reasonable Canadian have predicted it?

In law there is an adage that the risk to be perceived defines the duty to be obeyed. What was the risk to be perceived in this case, and what was the duty? I don’t know if Bill C-28 strikes the right balance between protecting the rights of victims and the rights of the accused to a fair trial. Perhaps you don’t either. How could we, given the bill has had virtually no debate in the House, that we were never able to call expert witnesses, and there has been no time for meaningful, public press debate?

This unseemly haste, my friends, is not a mark of political courage but of political cowardice, and every single party in the other place is implicated. Nobody wanted to deal with the political risks of tackling these hard questions in earnest; and, if we’re frank, nobody much wanted to delay their summer holidays. Instead, our friends over there tossed us this hot potato. This Senate is full of former judges, former prosecutors, former police detectives, former constitutional law professors. We count amongst us doctors, people who have worked in the corrections system, a professor of psychiatry, human rights advocates, experts in domestic violence and victims’ rights and feminist law reform. Oh, and half of us are women. And yet, this chamber — so uniquely qualified to analyze and study this bill — has been robbed of our chance to do the job we were designed for. We have been robbed of our chance to do a proper study of this bill before the fact, not after. Talk about ex post facto logic.

We are being asked to irresponsibly pass a bill on speculation in the hopes that, if there are problems, we can fix them later. For the sake of everybody who may be brought to trial in the interim, this is something I cannot support. Thank you. Hiy hiy.

Honourable senators, I rise today to speak to Bill C-28, An Act to amend the Criminal Code (self‑induced extreme intoxication).

As is true with many in this chamber and many in the general public, I, as a First Nations woman, have substantial concern and misgivings about the haste with which we are dealing with this legislation. I do not know if there are those in this chamber who can honestly say that the Senate has done due diligence on Bill C-28. I, for one, cannot make that assertion.

It is a very unusual and dangerous practice that we are engaging in, both here and in the other place. I understand that a House of Commons committee has been tasked with studying the subject matter of this bill in the fall. I also note Minister Lametti’s support for the Senate to undertake a similar committee study following a question by Senator Carignan during Committee of the Whole. However, I find it highly concerning that Parliament has agreed to do this process backwards. Studying the contents of a bill and thereby understanding the perspectives of the experts in this field only after that bill has become law is ill-advised.

One can argue that it treads dangerously close to impacting our collective privilege in fulfilling our senatorial duties. How can we vote competently on legislation if we have not been given the chance to adequately study and consider its merits and shortcomings?

This is especially true for me, colleagues, as a non-affiliated senator. Senator Plett, in his remarks on Motion 53, referenced it as not being time allocation as it had unanimity in its support. At no point was I consulted, informed or approached about the process around this bill or any other such legislative matters.

I can only assume the same was true for my non-affiliated colleagues. This long-standing subjugation of the unaffiliated has removed my voice and opinion from larger decisions of the Senate, including Bill C-28. I take exception to that.

Colleagues, I would like to state that I support the concept of this bill; I do not support the practice. Self-induced extreme intoxication should never be accepted as a viable defence for heinous and criminal acts. It is a loophole that needs to be closed. The closing of this loophole is intended, of course, to ensure guilty parties do not elude punishment on what constitutes a technicality. It is also, of equal importance, intended as a protection for the victims, who are largely women, from the criminal acts that tend to flow from self-induced extreme intoxication.

Honourable senators, given the extremely short time frame between the Supreme Court of Canada’s ruling on this matter and the introduction of this legislation in the House being a little over a month, it should come as no surprise that the issue of inadequate consultation has been a big one. I note that the issue of inadequate consultation is also not a new one.

As it pertains to Bill C-28, this issue has been raised by one of the groups that had actually been consulted, the National Association of Women in the Law, or NAWL. They contest that they, as well as many other interested stakeholders, have faced a lack of meaningful consultation. They also rightly state that the Senate, through the Standing Senate Committee on Legal and Constitutional Affairs, would greatly benefit from hearing from medical experts, women’s groups and Crown prosecutors whose job it is to prosecute on behalf of victims.

When questioned on this shortcoming by Senator White during Committee of the Whole, Minister Lametti responded by saying:

We did the consultations we could do in the time that we had from the date of the Supreme Court decision. We reached out.

You must admit, honourable senators, that this is a less‑than‑confidence‑inspiring response.

Honourable senators, beyond the issue of consultation, it has been raised that there are serious concerns that Bill C-28 represents a flawed piece of legislation. This concern, at its core, is that Bill C-28 will not accomplish what it seeks to. This is due to the fact that the burden of proof, which regrettably falls on the Crown and the victim, is a threshold that is nearly impossible to meet.

The National Association of Women in the Law registered a very valid concern around the stringent requirements for prosecutors to prove beyond a reasonable doubt both that the loss of control after the consumption of intoxicants was reasonably foreseeable, as well as the foreseeability of harm. In their words, through their June 21 press release, NAWL indicates:

Indeed, NAWL is concerned that this reform will prove impossible for the prosecution to implement. And that in the end, the heavy burden of men’s extremely intoxicated violence will fall predominantly on the women they harm. This is because the Crown must prove beyond a reasonable doubt that a reasonable person could have foreseen that the accused’s consumption of a given intoxicant could cause loss of voluntary control, even though reasonable people may not actually know the effects of the intoxicants they are consuming, particularly with respect to quantities and combinations of intoxicants. Further, the Crown must now also prove that the reasonable person could have foreseen that the consumption of the intoxicants could lead them to become violent and harm others, even though there appears to be little scientific evidence to support the claim that any particular drug makes violence more likely.

As some of you will know, this concern has also been echoed to senators’ offices by the Alberta Council of Women’s Shelters, known as ACWS, an organization that supports over 50 shelters across the province of Alberta for women, children and seniors facing domestic abuse. In their words, they are working “. . . to end domestic violence through culture-shifting violence prevention programs, collective data and research, and front-line training.”

Colleagues, our Senate committee would have done well to learn from groups like NAWL and ACWS and Indigenous organizations, due to their expertise and boots-on-the-ground work.

If such organizations register concern with the process and content of this legislation, we would be wise to heed their words.

As Minister Lametti stated before the Senate:

You may have been aware of the reaction to the Supreme Court decision. It was pretty much universal across Canada. . . .“You need to act quickly.”

Honourable senators, it is a fine line that exists between acting quickly and acting negligently. I am worried that we find ourselves on the wrong side of that line when it comes to Bill C-28. We have heard senators during Committee of the Whole make remarks to the minister by saying such things as, “The law would be entirely ineffective due to the burden placed on prosecutors,” and:

. . . what I worry about here is that the proposal . . . will miss the mark and almost nobody will be able to be convicted under this provision.

Honourable senators, I believe this bill is yet another form of violence against women, and particularly Indigenous women. And do I trust the government? Do Indigenous women trust the government? I would say no. Why would we place our trust in such an institution?

Let us ensure we do the right thing for Canadians and not the convenient thing for parliamentarians as we prepare to vote on Bill C-28. Thank you. Kinanâskomitin.

Honourable senators, I commend the Minister of Justice on his laudable intentions with this bill. I have no doubt that protecting victims of violent crime and sexual assault is an objective that we all share. Given the importance of this objective, it is vital that we not take any shortcuts, but rather give the bill the full consideration and analysis that it is due, particularly in light of the evolving information regarding the serious flaws in the government’s consultation process, and the significant and substantial concerns raised by numerous groups. It is greatly and deeply concerning — and, frankly, irresponsible — for the Senate to vote on this matter without first having heard from the relevant parties and becoming more fully informed on the implications of passing this bill.

In an understandable attempt to act expeditiously, the minister is rushing Bill C-28 through the legislative process with a somewhat staggering disregard for standard procedure and due process. This push has given way to what can only be considered a disconcerting lack of government transparency. The government claims it must act with urgency, but also acknowledges that cases involving intoxication amounting to automatism are incredibly rare.

Why is this, colleagues? A few home truths. Most accused who are charged with violent offences are poor, racialized and represented by legal aid lawyers. They can’t afford the incredible defence teams, the medical reports and the legal gymnastics that are required to make the types of arguments that were brought before the Supreme Court of Canada in this matter. That’s why the cases are rare, my friends.

They are also rare because they, staggeringly, strain the credulity of the claims. Yet, we have due process requirements, and those due process requirements require — as Senator Simons so aptly put it — that even those individuals with the greatest privilege have those opportunities to raise those cases.

Is this bill in the interests of public safety — I encourage us all to consider this — or, as many of us feel, a result of politically motivated social pressure? Let us be clear, honourable colleagues, the government knew the need for this legislation was coming. They knew whom to consult, they knew where they were and they could have conducted full consultations in preparation for whatever decision came down from the Supreme Court of Canada.

The supposed consultations which took place in the crafting of this bill may serve to highlight my point. The content of these consultations with women’s organizations, victims’ advocacy groups and criminal law experts have yet to be made available to our offices. Despite repeated requests, aside from one press release, we have received no details about the submissions, opinions or advice put forward by these groups or others.

The fact that we only keep hearing about repeated reference to one press statement from one group is indeed, honourable colleagues, instructive. The hurried nature of this process raises further questions about its efficacy. According to some of the witnesses listed by the minister, consultation was not only wholly inadequate, the participants didn’t even know the phone call they engaged in was considered a consultation. Significant procedural and due process concerns were actually raised by many of those groups, and apparently ignored or disregarded.

As correspondence and pleas over the past few days underscore, concerns raised by witnesses were evidently not meaningfully considered in the drafting of this bill. How are we meant to serve our purpose of providing sober second thought when we lack the information required to make a knowledgeable and carefully considered decision? The purpose of committee study is significant and multifold. Beyond the political, it allows us to learn about the impacts and implications of proposed legislation from experts who can highlight that which may not be intuitive to us individually and, more importantly, how it may affect the most vulnerable and marginalized people. In this case, sexual assault victims, almost always women.

We learn from these processes and, more importantly, we then alter our legislation accordingly. We don’t do it the opposite way. Bill C-28 is not yet law, and already we are aware of overlooked issues. As many of my colleagues have pointed out, one of the most noted concerns is the increased legal burden on the Crown to prove criminal negligence. The minister has acknowledged this question and highlights for us that, under the proposed law, the accused will need to first raise the issue of extreme intoxication. Still, the onus of disproving this highly subjective, specialized, scientific defence will rest with the Crown.

Our ability to further research the matter has been stifled. We are left to wonder how severe the impact of this problem will actually be. In fact, at this stage, we’re advised by many groups — apparently consulted by the Department of Justice — that don’t know whether proving objective foreseeability beyond a reasonable doubt will prove to be a prohibitive hurdle for prosecutors.

I want to take a moment to briefly highlight that these concerns are not mine alone. Informed stakeholders and experts have been vocal in expressing fear that it’s unclear at which point one becomes negligent for simply taking a drug, one that does not put the rest of their friends or family into a state of automatism. Can we truly prove that in consumption of an intoxicant, there may be an objectively foreseeable risk that the user will lose control and become violent? That, dear friends, is one of the suggestions in this legislation.

The onus to make these points will be on the Crown, despite the amendments recommended by groups like the National Association of Women and the Law and shelters. We have not considered those options. Allow us not to fail those groups, but instead to acknowledge the validity in these critiques. As responsible lawmakers, we have this responsibility.

Much has been made of the need for haste following the Supreme Court’s ruling, although we seem to overlook the fact that, even in the decision itself, the Court suggested we study — that we study — and then we legislate. For many of us, skipping these important steps amounts to an abdication of our responsibility, and for me, personally, it’s reminiscent of where we were three years ago on another important Charter issue: solitary confinement.

Instead of chasing this runaway train with a “woulda, coulda, shoulda” review after the fact, please, honourable colleagues, let us pause, double-check the track we’re on, correct it if necessary and continue responsibly.

Our primary role here in the Senate is to provide sober second thought, so before I yield my time, I ask you all: How can we provide sober second thought without the opportunity for thought itself? Meegwetch. Thank you.

Honourable senators, a few months ago, my daughter turned 15. She now has 15 years of life experience. She’s a twin, so she has double that amount. Her name is Sheshka. Sheshka wrote to me while I was in the Yukon with other Indigenous women to mark the third anniversary of the report of the National Inquiry into Missing and Murdered Indigenous Women and Girls.

At 11 p.m., Quebec time, she sent me the following text message: “Mom, is it true?” As you can imagine, as a mother or a parent, when your child reaches out to you at that time of night, you have to wonder what is going on. So I replied, “Why? What are you talking about?” She then asked me, “Is it true that when someone is intoxicated or whatever, they have the right to rape me or take advantage of me as a woman?” That was my 15‑year‑old daughter asking. You can imagine how upsetting that was for me, too. I wondered what was going on, so I went straight to Google to find out. I was with Ms. Nagano, whom you met today, who is a former member of the RCMP. Together, we figured out what was going on.

I’ve been trying to reassure my daughter every day since, because this concern has grown more and more with social media, the internet, their friends and situations where some of these young women may have experienced similar trauma.

I told my daughter, Sheshka, that a few of us women here in this beautiful chamber are going to write to the Government of Canada, to the other senators and to Canadian society, to let them know that we intend to look at every option available to us to respond effectively and in a substantive way to this Supreme Court ruling. I told her that we were going to commit — I was, anyway — to urging the federal government to look into the different legislative and political levers that are available. I made her that promise.

You will understand that her reaction today, when we had a chance to discuss it, was, “ In that case, mama, why is drinking and driving a crime, when a man can rape me and that is not a crime?” That was before we received the bill. I told her not to worry, that we would collectively find better ways to protect men and women, the young and old.

I understand that the Supreme Court rendered a decision, but I did not see if this decision came with a deadline, a period of time, unless I missed that paragraph. People are talking about the urgency of this matter this evening and I understand that. We have been told about urgency over and over since we were born — especially Indigenous women.

I am spoiled to be here surrounded by legal advisers. You mentioned it, dear colleagues, but we also have experts on procedure, who know how we should do things and how to uphold traditions. I really liked some of the comments about how we can innovate and how we can do things in the fall when Parliament resumes. Can you reassure me, my daughter Sheshka and all the women living in the Far North, who may not have access to the same services that are offered here in the more southern part of the country? There may also be addiction problems stemming from colonial violence and other factors that are all set out in the reports that have been written over the years. It is important to look at this from a social perspective, an Indigenous perspective, a human rights perspective and a restorative justice perspective to ensure that, when we conduct those studies, we can recognize that, in fact, it is rare, and that we should not rush, but also that it is important to do things right.

In that same time frame, we will hear about a gang rape, and there will be silence. Women still find themselves debating or demonstrating that the legal side is important, but we cannot forget the psychosocial side.

Like you, I wish we could do things differently tonight, but I am hopeful that Senator Gold, our government representative, can assure us that, come fall, we will experience what I have shared with you tonight and see it in action. Senator Plett, I would ask that you remind our Government Representative that Indigenous voices need to be part of any upcoming studies. Tshinashkumitnau.

Are honourable senators ready for the question?

Is it your pleasure, honourable senators, to adopt the motion?

Hon. Senators: Agreed.

(Motion agreed to and bill read second time.)