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.

[Lena Metlege Diab, Liberal, Halifax West, NS]

Thank you, Minister.

With my time left, I have two more questions. How will Bill C-28 make Canadians and victims safer when it comes to crime? How commonly is this self-induced extreme intoxication used as a defence by alleged perpetrators, based on what you've been told?

[Lena Metlege Diab, Liberal, Halifax West, NS]

Thank you very much, Mr. Chair.

Thank you, Minister. We really appreciate your appearing before the committee to clarify Bill C‑28.

I would like to ask a few directed questions because I find there's a lot of confusion and misunderstanding. When you talk about the legal terminology and everything else, I can see why normal people really get confused by a lot of this stuff.

At the last meeting we had, I very much appreciated the fact that MADD Canada was present. Their very clear and concise testimony was that the legislation would not impact them whatsoever. I think that is very important for Canadians to understand.

In your testimony today, you said that it will never apply to crimes of sexual assault. That kind of testimony and facts are what we need Canadians to really understand.

Can you clarify this for Canadians in normal English or French in language that is not technical? I used to belong to the access to justice committee in Nova Scotia. In one of the first meetings, maybe because English and French were not my first languages, I very much appreciated understanding things in very simple, clear language.

What is extreme intoxication? What is self-induced intoxication? What are we talking about here, Minister?

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you, Chair.

Thank you, Minister, for appearing today on this important study.

People may wonder why we're having this study today. It was because of a Supreme Court decision, the Brown ruling, that frankly put Canadians, particularly women, at risk. I know that MP Vecchio and MP Brock—who serves on this committee—along with MP Caputo and I wrote a letter to you urging that you act quickly and offering any assistance we could give to close what was, I feel, a very serious condition in our Criminal Code and a serious gap created by the decision.

There will be a lot of questions today about the bill. I want to ask a broader question, though. Your government does respond to things when they see fit. For example, when there was a vacancy for the ombudsman for prisoners, it was filled the next day. When there was a vacancy for the ombudsman of victims of crime, it took a full year to fill that important position. I would like to have had the benefit of hearing from the ombudsman of victims of crime in the process around Bill C-5, around this and around other criminal justice legislation.

We've just completed a study in which we heard witness testimony on victims of crime. One of the most high-profile cases in Canada in recent memory was that of Sharlene Bosma, whose husband, Tim, was killed. It captured the attention of all Canadians. The individual who took his life was also convicted of killing his own father and his ex-girlfriend. Thanks to legislation that was put in place to allow for consecutive periods of parole ineligibility, he received a parole ineligibility period of 75 years.

However, as a result of the Supreme Court decision in Bissonnette, this individual will be eligible for parole after 25 years. The clock started ticking on that, I think, almost a decade ago. When Sharlene Bosma was here, she said the one bit of light that she hung on to in the whole situation was knowing that thanks to what she and the Crown prosecutor and other witnesses did, her daughter would never have to go to parole hearings. We heard over and over how parole hearings revictimize victims and their families.

Minister, you responded, and we co-operated with you to get swift passage of Bill C-28. This hearing is part of that, to see if there are ways it can be improved.

My question is this: Will you and will your government respond to the Supreme Court decision in Bissonnette?

[David Lametti, Liberal, Minister of Justice and Attorney General of Canada]

Thank you, Mr. Chair.

Thank you for inviting me to participate in the study on the subject matter of former Bill C‑28, An Act to amend the Criminal Code (self-induced extreme intoxication).

Assisting me today are Department of Justice lawyers Matthew Taylor, Chelsea Moore and Joanne Klineberg, to whom I am grateful.

As you know, this bill came into effect on June 23, 2022, less than six weeks after the Supreme Court of Canada rendered its decision in R. v. Brown, R. v. Sullivan, and R. v. Chan.

In these decisions, the Supreme Court found the former version of section 33.1 of the Criminal Code unconstitutional because it precluded the defence of extreme intoxication in all cases, regardless of whether the person acted negligently or was at fault while consuming intoxicating substances.

The Supreme Court reinstated the defence of extreme intoxication as a full defence for violent crimes and allowed accused persons to escape liability even when they negligently consumed drugs or other intoxicants. The quick passage of this law reflected the desire of all parliamentarians to close the gap in the law left by those decisions.

Following Bill C-28, the law now provides that those who are criminally negligent in their voluntary consumption of intoxicants can be held liable for the harm they cause to others while in a state of extreme intoxication. Former Bill C-28 was described by the Women's Legal Education and Action Fund, LEAF, as a “thoughtful, nuanced, and constitutional” solution to the small but important gap left in the law by the Supreme Court decisions.

The objectives of former Bill C-28 are the same as the previous version of section 33.1, adopted in 1996, to protect victims of intoxicated violence by holding accountable those who negligently self-intoxicate and cause harm to others. The court in Brown recognized these objectives as legitimate and pressing, and suggested two constitutionally viable pathways that Parliament could adopt to ensure liability in appropriate cases. We chose one of those approaches, which allows a conviction for a crime of violence, such as manslaughter or sexual assault. This approach will hold offenders accountable, as victims rightly expect, while also respecting the charter.

Under proposed section 33.1, the Crown may seek a conviction for violent crime by proving that the accused hurt someone while in a state of extreme intoxication resulting from their own criminally negligent consumption of intoxicants. The person would be held criminally liable if they were proved to have departed markedly from the standard of care expected of a reasonable person in those circumstances. A “marked departure” means that a person's conduct fell far below what a reasonable person would have done in those circumstances to avoid a foreseeable risk—in this case, the risk of a violent loss of control.

You will recall that extreme intoxication is a rare mental state akin to automatism when the accused loses control of their actions, but is still capable of acting. Let me clarify once again that this condition is exceptionally rare, and that intoxication, even to an advanced degree, does not meet the definition of extreme intoxication. Again, intoxication alone is never a defence in crimes such as sexual assault.

I want to say this in English as well, because it is critical for everyone to understand: Intoxication is never a defence for crimes like sexual assault. That was the case after the Supreme Court decisions; it remains the case today.

Using extreme intoxication as a defence is very difficult. In order to succeed, the accused has to meet a higher evidentiary threshold that normally applies, first by convincing the judge on the balance of probabilities, and with expert evidence, that they were extremely intoxicated at the time of the violence. Drunkenness or intoxication in and of itself is not a defence. Extreme intoxication is a rare and extreme state. The Supreme Court has made it clear that it is nearly impossible to end up in a state of extreme intoxication through the consumption of alcohol alone. Bill C-28 closed a narrow but important gap in the law to ensure that the use of this defence remains exceptionally rare.

Some have suggested that the new provision will be hard to enforce, claiming it would be too much of a challenge for the Crown to prove that the risk of violence was foreseeable. I disagree. In my view, this new law is eminently enforceable. Parliament has sent a clear signal that anyone who voluntarily consumes intoxicants in circumstances showing gross disregard for the safety of others will be held accountable if they go on to commit violence.

I note specifically that the law only requires “a risk” of violent loss of control. Properly interpreted, this is a lower threshold than we find in other provisions of the Criminal Code, which require that a particular outcome be likely, such as under section 215, when a person who is likely to cause permanent health injuries to another may be liable for failing to provide the necessaries of life. Crowns successfully prove that offence, despite the higher “likely” standard, so I'm confident that they will be able to prove that there was a risk of a violent loss of control as well.

Keep in mind that the Crown does not need to prove any of this unless the accused has already met the very high bar of proving they were in a state of extreme intoxication. If the accused can't prove that, they will be guilty of the offence, like anyone else.

Reasonable Canadians want to know the risks—even rare risks—associated with the intoxicants they plan to use and with how they plan to use them. All reasonable Canadians are concerned about the safety of others when their actions pose a risk.

When we saw the level of misinformation following the Supreme Court decision, we knew it was important to act quickly. There was a lot of conversation that simple intoxication could be used as a defence for horrific crimes, such as sexual assault. This unintentional misinformation and the sometimes intentionally alarmist reporting style come with very serious consequences for women across the country, adding to the stigma that survivors already face when reporting gender-based violence.

We acted quickly to ensure that this sort of narrative did not remain in the public realm, as it is important for all Canadians to feel safe. I am pleased that all parliamentarians were able to come together and act swiftly to prevent the misinformation from taking deep roots.

I will be closely following your study on this important issue and I look forward to reading your final report. In the meantime, we will continue to work closely with our federal, provincial and territorial partners to ensure the effective implementation of the legislation.

Thank you.

[The Chair, Liberal, Randeep Sarai]

I call this meeting to order.

Welcome to meeting number 33 of the House of Commons Standing Committee on Justice and Human Rights.

Pursuant to Standing Order 108(2) and 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 by using the Zoom application.

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

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

I'd also like to let you know that I will be using a few cue cards. When you have 30 seconds left in your speaking time, I'll raise this book. It's just a yellow background for now. When your time is up, I'll use this red folder, which indicates that your time is up.

Without further ado, I'd like to welcome our first witness for the first hour—

Go ahead, Mr. Fortin.

[The Vice-Chair, Conservative, Rob Moore]

Thank you, Mr. Garrison.

I want to thank all of our witnesses who appeared here and virtually. We appreciate your input as we study the subject matter of Bill C-28.

Members, I would ask those of you who are on virtually to use the second link sent to you a few minutes ago for the second part of our meeting. That part is going to be in camera.

I will be relinquishing the chair to our real chair at that point. The second hour of our meeting is in camera.

I want to thank our witnesses. We appreciate your testimony.

I will suspend the meeting for a few minutes.

[Proceedings continue in camera]

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

Thank you, Mr. Chair.

I want to come back to what I was saying earlier.

Mr. Bond, I may have misunderstood what you said, so please correct me if I did. I thought you said that you were fine with Bill C-28 and that it was an appropriate response to the Supreme Court's decision in Brown.

Your preference, however, is the status quo before Brown. Obviously, that's not possible, except perhaps in fantasyland. We have to accept the Supreme Court's decisions.

I gather, then, that you're fine with the bill. If not, in two minutes or less, can you tell me exactly which provisions of the bill need to be amended and how?

[Anju Dhillon, Liberal, Dorval—Lachine—LaSalle, QC]

Thank you, Mr. Chair.

My questions will be mostly for Ms. McBride.

Bill C-28 says people who have committed violent crimes cannot use the defence of voluntary extreme intoxication if they have consumed intoxicants in a negligent manner.

What impact do you think this bill will have on indigenous women, girls and gender-diverse people, and how would it affect their confidence in the justice system?

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

I realize that you disagree with the Supreme Court's decision, but since the court's ruling can't be appealed, we have to live with it. Far be it from me to defend the Minister of Justice, but I do wonder what the best approach is given that we have to deal with the Brown decision.

What approach should the government have taken to deal with this issue? The bill is one option. You said you weren't consulted, and that seems to be true for just about every organization. What I want to know is what should the government have done.

Are there parts of Bill C-28 that should have been dropped or changed? Are there provisions that should have been added? What's your view?

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Thank you, Mr. Vice-Chair.

Thank you to the witnesses for being here this afternoon and for providing their input.

As you know, our government introduced Bill C-28 in response to a decision the Supreme Court of Canada handed down in May. The minister, Mr. Lametti, introduced the bill in June, so rather quickly. We received a letter from the Conservative members asking us to respond quickly, and we were very happy to be able to do that.

Just to make sure we are all on the same page, I would like the representatives of all three organizations appearing today to tell us what the criteria are to satisfy the definition of self-induced extreme intoxication.

You can go first, Ms. Dunn.

[Jennifer Dunn, Executive Director, London Abused Women's Centre]

Thank you to the committee for inviting me here today. It's very nice to see you all again.

My name is Jennifer Dunn, and I am the executive director of the London Abused Women’s Centre, or LAWC, here in London, Ontario.

LAWC is a feminist organization that supports and advocates for personal, social and systemic change directed at ending male violence against women and girls.

LAWC is a non-residential agency that provides women and girls over the age of 12 who have been abused, assaulted, exploited or trafficked or who have experienced non-state torture immediate access to long-term, trauma-informed, woman-centred counselling, advocacy and support.

In June, justice minister David Lametti tabled Bill C-28. This bill was introduced in response to the Supreme Court of Canada decision striking a section of the Criminal Code of Canada, which left a huge hole for extreme intoxication when it plays a part in a violent offence against another person. Evidence shows that this type of offence most frequently occurs by men against women.

The London Abused Women’s Centre believes the Supreme Court has made a mistake. We agree that Parliament had to act in response to the Supreme Court decision, but we do feel it was rushed. There was a lack of consultation before the bill was introduced.

In August, MP Karen Vecchio held a virtual round table about Bill C-28 at the London Abused Women’s Centre. MP Larry Brock was also in attendance. We had a table filled with frontline workers and women with lived experience. During this round table, my colleague Kelsey Morris said:

It's incredibly infuriating we have seen intoxication used against victims and survivors for eons. Intoxication has continuously been used as something to villainize and condemn survivors and now we are all watching in real time as this same vessel of intoxication is being used to protect and excuse perpetrators…if this defence becomes prominent, as women we've got the message loud and clear that we are not safe in Canada.

During this round table, women with lived experience said to us that they were concerned about the Supreme Court's priorities. One woman mentioned that protecting victims should come first. Women should always be a priority. Women said that the people who haven't been through this can’t possibly understand. They said that you can't ask survivors who have been failed time and time again to trust that this is not going to make things worse. Women have lived through situations in which they have been told that certain things are unlikely to happen and then they have had to end up living through those situations in the criminal justice system.

On June 23, it was said:

The Government of Canada will continue to take action to maintain public confidence in the criminal justice system and support victims and survivors of crime. This legislation is one of several recent legislative reforms and programs the government has advanced to support victims and survivors of crime, including survivors of sexual assault.

During our round table in August, one woman made an important point about the fact that the extreme intoxication defence might be rare because these types of cases are not making it that far. We know from Statistics Canada that only 6% of sexual assault cases are reported to police, and of those 6% only one in five results in a trial. Even before a case goes to court, survivors face complex barriers to reporting. The criminal justice system is largely based on testimony and evidence, which is not effective to those harmed. The extreme intoxication defence creates additional challenges.

The London Abused Women’s Centre believes this decision by the Supreme Court of Canada was made to favour the criminal instead of the victim. The Supreme Court’s decision has left a huge hole. The extreme intoxication defence can be seen as excusing the offender's actions, can show a failure to hold offenders accountable, can be seen as minimizing violent crimes, and upholds even some myths about rape.

Women call us every day for support. When our community found out about this, women called us and asked us how this was going to hurt them. They asked us what they should do next. Women report that they are fearful that perpetrators, mostly men, might automatically think that they will not be held responsible if they are intoxicated.

In conclusion, we know that Bill C-28 is an attempt to address the Supreme Court’s decision around extreme intoxication and that it aims to support victims and survivors of crime and to hold offenders accountable, but at the end of the day the ruling from the Supreme Court truly diminishes all past victories that protect women and girls.

Thank you.

[Eric Dumschat, Legal Director, Mothers Against Drunk Driving (MADD Canada)]

Thank you, Mr. Chair and members of the committee, for this opportunity to speak with you about Bill C-28.

My name is Eric Dumschat, and I am the legal director for Mothers Against Drunk Driving Canada, or as it's more colloquially known, MADD Canada. I am pleased to have this opportunity to speak with you today about this topic as it is one that I know has caused many of our members some confusion.

Simply put, MADD Canada cannot provide an opinion on this bill because it does not affect impaired driving.

When the Supreme Court of Canada decision in May of this year effectively allowed for the use of “extreme intoxication” as a defence for certain violent crimes, MADD Canada heard from many members of the public. While the defence could only be used in very limited circumstances, there was widespread public discussion and fears that those charged with impaired driving or with numerous other Criminal Code offences could now use voluntary extreme intoxication as a defence to escape responsibility and accountability for their actions.

With respect to impaired driving, we assured concerned citizens at the time that the ruling would not impact impaired driving cases. This is because impairment is the essence of an impaired driving offence, whereas it is not for other crimes, such as assault. In short, voluntary self-induced extreme intoxication is not a defence for impaired driving.

In R. v. Brown, paragraphs 66 and 78, the Supreme Court noted:

Parliament can constitutionally preclude intoxication as a defence if it is the gravamen of the offence.

It noted later:

The Crown is mistaken when it draws an analogy between impaired driving offences and s. 33.1. The gravamen of the offence faced by Mr. Brown does not include intoxication, unlike criminal offences for impaired driving.

Counsel for Mr. Sullivan made the point plainly: “The gravamen of assault is not intoxication. Without intoxication, every element of an assault [must] be proven; without intoxication, driving is benign.”

This case did nothing to change the inapplicability of this defence in the impaired driving context. As such, MADD Canada was satisfied that the May Supreme Court ruling on extreme intoxication as a defence would not impact cases of impaired driving.

I thank the committee for its time and would be happy to answer any questions once we have question period.

[Grand Chief Carol McBride, President, Native Women's Association of Canada]

Good afternoon, honourable committee members.

I will begin my remarks by acknowledging that we are gathered on unceded, unsurrendered territory of the Anishinabe Algonquin nation, my homeland.

NWAC takes two key positions on Bill C-28.

First, Parliament must address the systemic factors that contribute to indigenous women's substance misuse and indigenous women's overincarceration rates.

Second, indigenous victims of violence must have easy access to gender-specific recovery services that align with indigenous approaches to healing.

As you know, honourable committee members, on May 13, 2022, the Supreme Court of Canada struck down the Criminal Code's limitation on the defence of self-induced intoxication.

As a national indigenous organization representing indigenous women, girls, two-spirit, transgender and gender-diverse people, NWAC's criminal reform advocacy seeks to eliminate indigenous overincarceration and prevent systemic factors contributing to violence.

As Bill C-28 engages in the areas of concern, NWAC offers this brief statement to clarify its position.

According to the last report tabled in Parliament from the Correctional Investigator of Canada, Dr. Zinger, indigenous women represent about 50% of federally incarcerated women, despite representing only 4.9% of the adult population. This crisis demonstrates the links between colonization, systemic discrimination and intergenerational trauma. The genocide findings in the missing and murdered indigenous women and girls final report unpacks and explains these systemic factors.

NWAC is invested in ensuring that victims can access indigenous justice and healing supports and services. These supports must align with the community's indigenous legal order. It is important to ensure that community-driven, gender-specific healing and support services are sustainably funded and available to violence victims.

In addition to addressing victims' healing, NWAC emphasizes a harm reduction and prevention framework. Canada's criminal justice system is largely inattentive to the role that substance misuse plays in bringing indigenous women, girls and gender-diverse people into contact with the criminal law system as offenders, victims or both. This failure perpetuates substance misuse cycles and overincarceration.

Honourable committee, please also recognize that according to Bill C-28, when the self-induced intoxication defence is successfully applied, no one is held responsible for the harm, but the victim continues to suffer. Indigenous women, girls, two-spirit, transgender and gender-diverse people face a disproportionate likelihood of being victims of violence. In some cases, this violence will be perpetuated by someone acting under the influence of extreme intoxication.

Redressing systemic harms built into the criminal justice system requires understanding the differences between indigenous justice and healing and Canada's criminal law framework. Indigenous legal frameworks engage principles favouring healing, rehabilitation, elder mediation and restorative justice. Indigenous justice and healing models require women, girls, two-spirit, transgender and gender-diverse people who become violence victims to undergo healing and receive support predicated on indigenous understandings of these concepts.

Reconciliation principles require creating legal space for indigenous healing and justice.

Thank you. Meegwetch. Merci.

[The Vice-Chair, Conservative, Rob Moore]

I call this meeting to order. As you can see, our usual chair is not here, but I'm assured he's going to be back for the second hour. I'll try not to mess things up too much in his absence.

Welcome to meeting number 32 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 Zoom.

I would like to make a few comments 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, and please mute your mike when you are not speaking.

There is 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 remind everyone 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, and we appreciate your patience and understanding in this regard.

[The Chair, Liberal, Randeep Sarai]

It would be for committee business on Bill C-28.

Could the analysts tell us when they'll be able to have a draft report for us?