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.

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

Right. In the sort of hierarchy of fixes that you suggested, I guess my view of that is that if we could act quickly to enact Bill C-28, we should be able to act quickly on any of these fixes. That would be my hope.

Is there a hierarchy in those fixes, not just in terms of their simplicity, but in terms of their certainty for narrowing the defence?

Dr. Froc, you laid out those three, so maybe I can just ask you that.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Thank you, Mr. Chair.

Thank you to all the witnesses for being here today. I commend you on your work in constitutional law, especially to protect women's rights.

As you know, Bill C‑28 was introduced in response to the Supreme Court of Canada's decision in R v. Brown, which struck down section 33.1 of the Criminal Code, a provision which prevents a defence based on intoxication akin to automatism.

First of all, since the section was struck down, do you think the Supreme Court's decision created a legal vacuum?

Second, do you not think Bill C‑28 remedies the situation?

[Rob Moore, Conservative, Fundy Royal, NB]

Speaking of the horse being out of the barn, we now have legislation that's currently in place. This study that we're doing is backwards. Normally, committees study bills and get the type of evidence we're getting from you now as the bill is proceeding through the House and then goes on to the Senate. This is reversing that order. It presents challenges for us. We want to make sure that we as parliamentarians, as you rightly illustrated, do our job, which is to draft legislation that's going to work.

You mentioned, as all of our witnesses mentioned, the disproportionate impact on women. We've seen that in these cases. We've seen it when this defence is used. How do you respond to the support of LEAF, the Women's Legal Education and Action Fund, for Bill C-28?

[Dr. Kerri Froc]

I mean, we were consulted by a junior member of the Department of Justice on June 14. We provided a very detailed proposal to them by 5 p.m. that day, but of course the first reading of Bill C-28 happened on June 17. The horse was already out of the barn, at that point. It was “thank you for your input”, but it was obvious that it wasn't taken into account in any way whatsoever.

I don't know when other groups were consulted. That might be something you want to ask them. All I can tell you is that we were consulted within days before the bill was introduced. We had another very brief consultation on June 17, I believe. Luke's Place was invited to a Department of Justice consultation. I had about 15 minutes' notice that it was happening. I just happened to be able to get on the call.

Again, our suggestions were dismissed fairly summarily, but I can tell you that we provided a lot of technical detail on very short notice during that.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you for that.

I guess this goes back to you, Dr. Froc, to a comment you made around consultations. To me, there's really no excuse to not have extensive consultations. When we have serious decisions before the court, it's easy to contemplate that the court is going to make a decision and government has to respond. Some of these, if there's no suspension of invalidity, can have immediate and wide-reaching consequences, as this situation did. It resulted in Bill C-28.

I think the kind of discussion we're having today, and the kind of really detailed input that you have given.... Did you have the opportunity to provide that level of detail to the minister or to the department as they were contemplating drafting a response to this decision?

[Dr. Kerri Froc, Associate Professor, University of New Brunswick, As an Individual]

Mr. Chair, if it's all right, I would like to go first.

Good afternoon, Honourable Chair and members of the committee.

My name is Dr. Kerri Froc and I'm an associate professor at the faculty of law at the University of New Brunswick. My area of research is constitutional law and I specialize in women's rights.

Both professors Sheehy and Grant are nationally and internationally recognized experts and authors on violence against women and criminal law, particularly in relation to sexual assault, and I would urge you to give very serious attention to what they have to say about the knock-on effects of section 33.1's onerous burden on the Crown and how to fix it.

I am the chair of the National Association of Women and the Law, but I am here in my personal capacity. However, if you have factual questions in relation to the lack of consultation before Bill C-28 was introduced—and to be clear, the consultation with NAWL was a sham—I can answer them because I was there.

However, if you take nothing else away from my presentation, I want you to hear this. Parliament has other options than simply to legislate in identical words to those used by the Supreme Court in Brown. The court has recognized that Parliament is a constitutional interpreter in its own right and that its interpretations are worthy of respect. Indeed, in Brown, it recognized that its suggestions were simply that, suggestions, and that Parliament will be afforded deference when it comes up with a fix. It did not guarantee that if Parliament followed either of its two suggestions it would be charter-proof, nor did it maintain that Parliament must follow one of its suggestions using identical words to describe the threshold fault standard for the amendment to be constitutionally sound.

When the Supreme Court declares a piece of legislation unconstitutional, the response is usually, as it was here, for Parliament to go back to the drawing board to address its objective in a constitutional way using the court's ruling as guidance. When the court analyzes second-try legislation, it gives due deference to Parliament's attempt to solve a complex social problem in a way that respects individuals' rights. This does not mean that Parliament has carte blanche to violate rights on a second try, but it does mean that the court respects the separation of powers. Parliament is engaged in a process where all stakeholders are heard, the government attempts to reconcile disparate interests for the collective good, and democratic representatives—you all—deliberate. Ideally, that's how it works. Courts are confined to the parties before them and the legal issues brought forward by these parties, sometimes perhaps guided by intervenors. They interpret the Constitution and apply it. That's all.

In Brown, Justice Kasirer said, “I am aware that Parliament is entitled to deference in this analysis. Indeed, in crafting a new legislative response to the problem of intoxicated violence, it is up to Parliament to decide how to balance its objectives while also respecting Charter rights as much as possible”. He also said, “I am mindful that it is not the role of the courts to set social policy, much less draft legislation for Parliament, as courts are not institutionally designed for these tasks.”

The court said, in relation to amending section 33.1, that one academic, Hugues Parent, whom I understand you will be hearing from, “proposed no less than four variations” in how to satisfy the minimum criminal standard. Justice Kasirer also called the stand-alone offence of criminal intoxication “not a viable alternative” in terms of achieving Parliament's objectives. Therefore, the “two options” mantra that you have heard over and over is a mischaracterization in more ways than one.

Last, I want to suggest that there might be very good reasons for Parliament not to abdicate its role in legislating and give it over to the Supreme Court. Contrary to its own jurisprudence, the Supreme Court did not give women's rights consideration in the constitutional analysis, at least not due consideration and equal consideration.

Professor Sheehy's and my paper, which we provided to the clerk in advance of the hearing today, and which I hope you'll have the opportunity to read, provides this critique in detail. I can explain it or elaborate upon it today.

I know that ensuring that women's rights are given at least as much consideration as the rights of accused persons is very much in keeping with the tenor of your questions and discussions on the bill to date. Professor Grant's recommendations do just that, while adhering to the court's guidance in Brown.

[The Chair, Liberal, Randeep Sarai]

I call this meeting to order.

Welcome to meeting number 34 of the House of Commons Standing Committee on Justice and Human Rights.

Pursuant to Standing Order 108(2) and the motion adopted on September 22, the committee is meeting to begin its study of the subject matter of Bill C-28, an act to amend the Criminal Code, self-induced extreme intoxication.

Today's meeting is taking place in a hybrid format, pursuant to the House order of June 23, 2022. Members are attending in person in the room and remotely using the Zoom application.

I'd like to take a few moments for the benefit of the witnesses and members.

Please wait until I recognize you by name before speaking. For those participating by video conference, click on the microphone icon to activate your mike. Please mute yourself when you're not speaking. For interpretation for those on Zoom, you have the choice, at the bottom of your screen, of floor, English or French. For those in the room, you can use the earpiece and select the desired channel.

I will remind you that all comments should be addressed through the chair. For members in the room, if you wish to speak, please raise your hand. For members on Zoom, please use the “raise hand” function. The clerk and I will manage the speaking order as well as we can. We appreciate your patience and understanding in this regard.

I would also like to inform the members that all tests involving the witnesses have been performed successfully.

Also, I use a little cue card system. When you have 30 seconds left, I'll raise the yellow card. When you're out of time, I'll raise the red. I ask that you conclude in that time so I don't have to interrupt you. I don't want to wreck the flow of your conversation.

I'd now like to welcome our witnesses appearing today.

For the first hour, we have Elizabeth Sheehy, professor emerita of law, University of Ottawa; Kerri Froc, associate professor, University of New Brunswick; and Isabel Grant by video conference.

Welcome to the committee. You each have five minutes. Afterwards, we'll have subsequent rounds of questions.

We'll begin with Ms. Sheehy for five minutes—or whoever would like to start. It's your choice.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr Fortin.

I want to thank all the witnesses for their great testimony today and for helping us to understand Bill C-28. We thank you for that.

I have some members work to do, some housekeeping. The witnesses are dismissed. You are more than welcome to stay and listen to this, but you are free to go.

I wanted to give an agenda for the coming few meetings. For Thursday, October 27, in the first hour we have professors Elizabeth Sheehy, Kerri Froc and Isabel Grant. The second hour so far is Suzanne Zaccour.

For Monday, October 31, we have Hugues Parent, from Action Now Atlantic. In the second hour, we have the Women's Legal Education & Action Fund with Farrah Khan.

So far, we have three witnesses who declined our invitation. They are the Canadian Bar Association, the Barreau du Quebec, and Robin Parker.

I also want to let you know that the Manitoba Prosecution Service would like to be a witness for this, although they were not invited. I will ask if there's consensus to invite them. Unless I hear otherwise, I will invite them and have them appear either then or on November 3. I think we have a slot on November 3.

Hearing no objections, I'll invite them.

That leaves us with this additional witness for our November 3 meeting, which should be a two-hour meeting. After that, we'll get drafting instructions from our analyst on that.

Mr. Clerk, is there anything I've missed?

[Matthew Taylor, General Counsel and Director, Criminal Law Policy Section, Department of Justice]

Sure.

I think Minister Lametti has already spoken to the thought process that he took in terms of the decision to introduce the bill and the decision not to put a reference to the court.

As he said, we did have a bit of a road map from the Supreme Court and from the Brown decision. Certainly that informed the work that the department did to support the government in introducing the legislation, noting that charter considerations are detailed in the charter statement. As you know, the law that was passed in Bill C-28 is informed by the law that came before it.

Perhaps the last thing I could say, and my colleagues could jump in, would be that the criminal negligence standard is a well understood and accepted minimum fault requirement for criminal law, and that's based on Supreme Court guidance as well.

I think all of those things taken together provide some context as to why the route was taken as it was.

[David Lametti, Liberal, LaSalle—Émard—Verdun, QC]

Foremost, the accused will be required to present expert evidence confirming that they were in a state of extreme intoxication. Then, it will be up to the prosecutor to determine that was not the case or that the accused departed from the standard outlined in section 33.1. This means they cannot use this defence.

Prosecutors already recognize these standards and are used to them, so it should therefore work pretty well. Judges are also used to them, especially since the Daviault ruling and the previous version of section 33.1. The specifics included in Bill C‑28 will facilitate their deliberations.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Thank you, Mr. Chair.

Minister, thank you for being with us today.

We have just concluded our study on the Canadian Victims Bill of Rights. Do you think that the new section 33.1 of Bill C‑28 strikes the appropriate balance between the rights of the accused and protection of the victim?

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

Thank you, Mr. Chair.

Minister, I would like your opinion on a matter that is somewhat broader than Bill C‑28.

When we study certain aspects of legislation involving criminal law, the main problem is that victims often have the impression that they were not consulted and not taken into account in the judicial process.

While reviewing Bill C‑28 on self-induced extreme intoxication, it seemed to me that the most virulent criticisms of this bill will come from victims, and probably with good reason. They will say that they have been raped, injured or something else by a person, man or woman, claiming to have been in a state of involuntary extreme intoxication. This aspect of the bill may be vulnerable to criticism by victims. Have you reviewed it?

Shouldn’t victims of these crimes, especially violent crimes, be given greater consideration in the judicial process? For example, they could be part of the process and participate in decisions if they wanted to. I know that the administration of justice falls under provincial jurisdiction, and you understand that I don’t want to lead you down that path. However, when it comes to substantive legislation in criminal law, aren’t there certain aspects that the federal government could cover, for example in the Criminal Code, so that victims have greater consideration?

[Karen Vecchio, Conservative, Elgin—Middlesex—London, ON]

Thank you very much, Mr. Chair.

I am so glad to be here to talk about Bill C-28. As the minister knows, we talk a lot about this in my work as the shadow minister for women and gender equality and also as the chair of the status of women committee. We know that with intimate partner violence, the statistics are showing that in many of cases, the violence is men versus women. If we're looking at extreme intoxication with alcohol or drugs, we once again know that those statistics are very high.

Minister, you spoke about members such as LEAF and organizations that were receptive of this, but we also note that there were groups that were not. I have a list of at least 20 here that were not. I think the one thing I want to say is this: Let's make sure we listen to them all.

I know we have this preconceived notion, and to anybody who's out there, the question is this: Why are we studying a bill after it has passed? Just as Mr. Moore has said, it's important that we do this. However, I'm really hoping that we're taking these lessons as learned and that if there need to be changes, we're actually going to do them, because the women's voices need to be heard.

We're looking at two similar organizations, LEAF versus the National Association of Women and the Law. One is very supportive and one is not. Can you describe to me the conversations that you've had with the National Association of Women and the Law and the things that they would like to see you change?

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

Were any specific concerns raised by consulted organizations regarding Bill C‑28?

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

Thank you and I will change the subject.

As you know, last week we heard from organizations about Bill C‑28. One comment, which came up more than once, surprised me somewhat. We were talking about consultations, and certain individuals seemed to think that they had not been consulted or had not been sufficiently consulted.

Could you tell us about consultations done by your department before tabling Bill C‑28? Who was consulted, and on which aspects of the bill where they consulted? What were the comments by consulted organizations or individuals?