Bill C-28

An Act to amend the Criminal Code (self-induced extreme intoxication)

This enactment amends the Criminal Code to provide for criminal liability for violent crimes of general intent committed by a person while in a state of negligent self-induced extreme intoxication.

Criminal Code

[Christine Normandin, Bloc, Saint-Jean, QC]

Madam Speaker, in a way, I am reassured that it has already been announced that there will be an ex post facto review of the measure. I would hope that legal professionals will be invited. My criminal law colleagues for both the Crown and the defence would certainly have some interesting things to say. I imagine it will be most interesting to analyze the section as applied.

I will say it again. The government must “consider the objective foreseeability of the risk that the consumption of the intoxicating substances could cause extreme intoxication and lead the person to harm another person”.

What is “objective foreseeability”? As I said, how should substance addiction, the type of drug consumed, the individual's predisposition, their past experience with drugs, and their emotional and family circumstances be taken into account? All these factors open the door to myriad interpretations. Does the government want to clarify that or not? That is a valid question. Perhaps there will be more answers in parliamentary committee.

[Gary Anandasangaree, Liberal, Parliamentary Secretary to the Minister of Justice and Attorney General of Canada]

Madam Speaker, I would like to thank my colleague.

I would like to just reflect on the past 40 days or so since the Supreme Court decision came about. The government has moved expeditiously to put forward this legislation. We thank the member and her party for their support and look forward to studying this bill at committee later on this year.

I want to ask her what she has been hearing from key stakeholders. I know that on our end, for example, we have heard this from LEAF:

LEAF supports this thoughtful, nuanced, and constitutional legislation to address the narrow gap resulting from the SCC decisions.

Could the member comment on what she has been hearing from key stakeholders in her riding and in Quebec?

[Christine Normandin, Bloc, Saint-Jean, QC]

Madam Speaker, I am not the justice critic, so, unfortunately, I cannot say that I have had the privilege of meeting with women's groups, among others, that might have had a thing or two to say. I opted to focus more on the practical legislative aspect of the issue with my colleagues, some of whom are more knowledgeable about criminal law. They said there may or may not be some room for improvement. Perhaps once the parliamentary committee completes its study, it will conclude that Bill C‑28 is well written.

What is important to remember is that we have a Supreme Court ruling explaining why section 33.1 was not constitutional and suggesting an approach for drafting the new bill. What we do not want to do is draft a new bill on behalf of women's groups and others that will also be overturned by the court in the end. We have to keep that in mind.

[Niki Ashton, NDP, Churchill—Keewatinook Aski, MB]

Madam Speaker, everyone has talked about the importance of prevention and, above all, the need to take action on sexual assault.

Could my colleague also share her comments on the need for the government to act more comprehensively to end violence and sexual assault against women?

[Christine Normandin, Bloc, Saint-Jean, QC]

Madam Speaker, I think that in some ways, it is even more important to tackle this problem than it is to address Bill C‑28. It is important to remember that the bill deals with extremely rare cases. Extreme intoxication to the point of automatism is not a common occurrence. We have seen it only a few times over a period of 30 years, while sexual assault offences are sadly far more common. With that in mind, it is even more important to tackle this problem directly and much more aggressively. Although what we are doing tonight is absolutely necessary, the focus should be more on sexual assault.

[Andréanne Larouche, Bloc, Shefford, QC]

Madam Speaker, I am just going to ask my colleague a question and take the opportunity to thank her once again for her work during this session.

Unfortunately, the session is ending with a bill that touches on a very sensitive issue. Women's groups have many questions and doubts. It is clear that the issue of defences in cases of sexual assault is extremely delicate.

What message does this bill send, as part of a continuum? I see that the stars are aligning at the moment for us to work on this issue. I am thinking in particular of the Standing Committee on Canadian Heritage and the Hockey Canada case. There has been a lot of talk about the importance of working on the culture of toxic masculinity and how we educate young men about their behaviour towards women. Similarly, the Standing Committee on the Status of Women just did a study on intimate partner violence. Today, this bill is being introduced. These are extreme cases. How does this add to a series of really important measures to be able to work on this important issue?

Statistics show that people are often intoxicated in cases of sexual assault. The numbers are staggering.

[Christine Normandin, Bloc, Saint-Jean, QC]

Madam Speaker, there is the whole issue of how to deal with different types of sexual assault. My colleague mentioned a few. I would say that this is a different issue. We cannot see the bill as being part of a continuum because we are responding to a Supreme Court of Canada decision, and we could not anticipate exactly when it would be handed down. It is rather unfortunate that the ruling was handed down at the end of the session. We could not tell the Supreme Court of Canada to delay its decision until the fall or to release it sooner so we would have more time. That was out of our control.

I therefore do not think it belongs in a continuum of measures for other problems. It is really something that fell into our lap. The Supreme Court of Canada could have decided not to strike down the section. Then we would have had nothing to do. In short, we had no control over the Supreme Court of Canada's decision, and we are never supposed to have any.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Madam Speaker, I am pleased to be speaking tonight on Bill C-28, though perhaps not to be speaking at this hour, but I am glad to see Parliament acting quickly in response to the Supreme Court of Canada decision in R. v. Brown, which found section 33.1 of the Criminal Code, prohibiting the use of the extreme intoxication defence, unconstitutional. That was on May 13 of this year, only some five weeks ago.

It is important to note that the Supreme Court found section 33.1 violated the charter, both section 7, which provides protection for life, liberty and security of the person, and section 11(d), which protects the presumption of innocence. It is also important to note that our legal system has gone back and forth over time on the legality of using extreme intoxication as a defence in crimes requiring an element of intent.

The Supreme Court of Canada, before the charter, in 1978, in a case called R. v. Leary, said it never could be used as a defence in those kinds of cases. However, after the charter was established in 1994, in a case called R. v. Daviault, the Supreme Court overruled what I guess we could call the previous common law rule and restored the possibility of using extreme intoxication as a defence, finding that the prohibition violated the charter.

The details of the Daviault case were particularly horrible, which other members recounted earlier, and they actually caused Parliament to act fairly quickly in 1995 to restore the prohibition on the use of extreme intoxication as a defence by inserting section 33.1 of the Criminal Code. That is the section the Supreme Court now has said is unconstitutional once again.

I want to stop here and remind everyone that simple intoxication has never been a defence in Canada for crimes of violence of any sort, including sexual assault, and nothing about the current Supreme Court decision or about Bill C-28 changes that. Simple intoxication is not a criminal defence in this country, but there has been a great deal of misinformation, particularly online, that has misled people into thinking that somehow simply being drunk is a defence in criminal law in Canada.

We have to remember that extreme intoxication is a very specific and limited circumstance, a specific circumstance where impairment is so severe that people have no control over their bodies, their minds have no control over their bodies or, in common language, they are unconscious about what they are doing. Even though these cases are rare, like other members who have spoken before me, I am glad to see us acting quickly to restrict the possibility of anyone being able to escape responsibility for their actions by using the extreme intoxication defence and avoiding responsibility, therefore, for the harms that they have caused others.

Many groups have urged us to act quickly, but I acknowledge that there are some others who are concerned that we risk not getting it exactly right by moving too quickly. That is why I am glad to see that the motion we are dealing with tonight has a provision in it for hearings at the justice committee in the fall. It is unusual for us to conduct hearings on a law so soon after passing it, but I think it gives us a chance to review what we are doing here tonight to see if we have in fact had unforeseen problems or to see if in fact there is more that we need to do. That is why I am confident with us moving ahead tonight because we will do that review in the fall.

The Supreme Court of Canada itself pointed out a couple of options available to us as parliamentarians to restrict the possible use of an extreme intoxication defence while still respecting the charter. I believe that Bill C-28 does this well, in ways that would effectively re-establish the principle that in almost all cases, extreme intoxication is no defence.

How would Bill C-28 do this? It would do it in two ways. In order to make a claim of extreme intoxication, defendants will have to provide expert evidence in their own cases that their intoxication was so severe as to amount to what in law is called automatism. This is a well-known legal concept and a specific state already defined in law that the mind is not in control of the body. Therefore, defendants have to present evidence in their own cases, not that it is possible that they were extremely intoxicated and not just claiming that they were extremely intoxicated, but that they were, according to expert evidence presented, in a state of extreme intoxication. That evidence, of course, will have to be presented in court and can be tested in court.

The second way in which Bill C-28 would make it difficult to use this defence is that the prosecution would be able to argue that even if the accused has proved that they were in a state of extreme intoxication, they failed on the standard of criminal negligence because they failed to take the measures a reasonable person would have taken to avoid causing harm.

If a person takes intoxicants or combines prescription drugs and illegal drugs or combines alcohol and magic mushrooms or whatever it is that the accused was doing, and if they, as a reasonable person, should have known the possibility of losing control and the possibility of violence, then they should have taken measures to limit that possibility, and if they did not, then they could not use this defence.

My summary, in plain language, is that the Supreme Court of Canada cracked open the door on the use of extreme intoxication defence, and what we are doing with Bill C-28 is shutting that door as far as possible while still being consistent with the Charter of Rights.

The Minister of Justice has presented a charter statement for Bill C-28 that certifies that Bill C-28 is in fact charter compliant and consistent with the decision of the Supreme Court in R. v. Brown. I have no reason to doubt the content of that charter statement.

As likely the last speaker on Bill C-28 tonight before we adopt it, I do not want to risk going on at too great a length, but let me say that after a House sometimes has had a bad reputation with the public for being overly partisan and polarized and unable to look after the public good, I believe we are demonstrating something different here tonight.

Through the confidence and supply agreement between the Liberals and New Democrats, I believe we have already demonstrated that in a minority Parliament we can co-operate and work together to get things done, but Bill C-28 demonstrates an even broader ability of parliamentarians from all parties to come together co-operatively and to act swiftly in the public interest. That is what we will be doing tonight when we pass Bill C-28 a little over a month after a Supreme Court decision that cracked that door open to escaping responsibility for violent acts by claiming extreme intoxication.

What we are doing tonight is once again, as I said, making that a remote possibility. We are making it the remote possibility that it should be.

I hope we come across other opportunities in this Parliament to have the same zeal for working together. One of those opportunities is on the issue of coercive and controlling behaviour, and there is a link here because we are talking about violence primarily against women.

Twice the Standing Committee on Justice and Human Rights has recommended to the House that the government introduce legislation to make coercive and controlling behaviour a criminal offence. Such legislation would recognize that coercive and controlling behaviour is in itself a form of violence, but it would also recognize that it is very often a precursor to physical violence.

As I said, twice now the justice committee has recommended this to the House, and I hope we will find an opportunity to get the same all-party agreement and the same ability to move forward on that piece of legislation as well.

In conclusion, sometimes I am very proud to be a part of this Parliament, and tonight, on Bill C-28, is one of those nights.

[Rob Moore, Conservative, Fundy Royal, NB]

Madam Speaker, it warms the heart to hear my hon. colleague is proud to be a member of the House tonight. I commend him for his work on the justice committee.

In light of the compressed timeline we are dealing with, we all recognize the government needed to act with extreme urgency when this decision came down. Is the member open to working with members of all parties on the justice committee in the fall to hear from witnesses who may have ideas on how this legislation, which will have already passed by then, could perhaps warrant further amendments to the Criminal Code to best close this loophole?

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Madam Speaker, I want to state again, as I have many times, that the hon. member for Fundy Royal and I have a good working relationship, despite the fact there are many things we might not agree on. Sometimes there is common ground, as there is tonight.

Certainly I agree with him. Though it was not our idea and I believe it may have been his idea, the motion we are dealing with would order the justice committee to conduct such hearings in the fall. As I said in my speech, it will give us the opportunity to see whether we have done the right thing and whether there is more we can do on the issue of violence against women through extreme intoxication.

Absolutely, the answer is yes.

[Gary Anandasangaree, Liberal, Parliamentary Secretary to the Minister of Justice and Attorney General of Canada]

Madam Speaker, I want to thank my colleague for his very thoughtful presentation today. I also want to thank him for his co-operation at the justice committee and for his hard work.

I want to ask him what he is hearing from key stakeholders. I know we have been engaged with a number of key stakeholders who are quite supportive of the legislation. His co-operation is essential to getting this passed. I want to know what his stakeholders are telling him about this legislation and if there is any feedback on its overall intent, as well as the balance that we were able to find in coming forward today.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Madam Speaker, my experience is the same as what the minister and others have expressed, which is that the vast majority of people I have heard from in this short period of time, especially ordinary citizens, would like to see us move very quickly to close this possible loophole. The majority of organizations that are more active in legal reform have also said they think this bill accomplishes what we need to do.

As I said in my speech, there are some, but only a few I have heard from in the past few days, that think that we could do more or that we could make closing the door even tighter. I am not sure they are correct about that, given the Supreme Court decision, but I am certainly willing to hear from them in the hearings we will conduct this fall.

[Lindsay Mathyssen, NDP, London—Fanshawe, ON]

Madam Speaker, in terms of the stakeholders that did come forward, I know that LEAF has shown support for this piece of legislation. However, LEAF specifically called for a great deal more education within the justice system, and more advocacy for women who deal with, and have to go through, the criminal justice system when they experience violence.

Could he talk about what the government should be doing in order to address those concerns that LEAF brought forward?

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Madam Speaker, in justice, when talking about a number of issues, there is always an area where we need to do more. That is the issue of violence against women. We have heard the Liberal government talk about its action plan for quite a long time now, and I think most of us are ready to see that plan and would like to make sure there is actually action in the action plan.

As I mentioned toward the end of my speech, the issue of coercive and controlling behaviour is a form of violence, but it also usually leads to physical violence eventually. We have had all-party agreement at the justice committee; we achieved that twice. We have held hearings at the justice committee. I express my hope, and I do it again, that sometime very soon in this Parliament we will get the same all-party agreement to move quickly on that issue as well.

[The Assistant Deputy Speaker, NDP, Carol Hughes]

There being no further members rising, pursuant to order made on Tuesday, June 21, the motion is deemed adopted and Bill C-28 is deemed read a second time, referred to a committee of the whole, deemed considered in committee of the whole, deemed reported without amendment, deemed concurred in at report stage and deemed read a third time and passed on division.

(Motion agreed to, bill read the second time, considered in committee of the whole, reported without amendment, concurred in, read the third time and passed)