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.

Sitting Resumed

[Claude DeBellefeuille, Bloc, Salaberry—Suroît, QC]

Madam Speaker, I am pleased to rise and speak this evening—although I must say the hour is late, almost 9 p.m.—to join the debate on Bill C‑47.

Before I start, I would like to take a few minutes to voice my heartfelt support for residents of the north shore and Abitibi who have been fighting severe forest fires for several days now. This is a disastrous situation.

I know that the member for Manicouagan and the member for Abitibi—Baie-James—Nunavik—Eeyou are on site. They are there for their constituents and represent them well. They have been visiting emergency shelters and showing their solidarity by being actively involved with their constituents and the authorities. The teamwork has been outstanding. Our hearts go out to the people of the north shore and Abitibi.

Tonight, my colleague from Abitibi-Témiscamingue will rise to speak during the emergency debate on forest fires. He will then travel back home to be with his constituents as well, so he can offer them his full support and be there for them in these difficult times.

Of course, I also offer my condolences to the family grieving the loss of loved ones who drowned during a fishing accident in Portneuf‑sur‑Mer. This is yet another tragedy for north shore residents. My heart goes out to the family, the children's parents and those who perished.

Before talking specifically about Bill C-47, I would like to say how impressive the House's work record is. A small headline in the newspapers caught my eye last week. It said that the opposition was toxic and that nothing was getting done in the House. I found that amusing, because I was thinking that we have been working very hard and many government bills have been passed. I think it is worth listing them very quickly to demonstrate that, when it comes right down to it, if parliamentarians work together and respect all the legislative stages, they succeed in getting important bills passed.

I am only going to mention the government's bills. Since the 44th Parliament began, the two Houses have passed bills C‑2, C‑3, C‑4, C‑5, C‑6, C‑8 and C‑10, as well as Bill C‑11, the online streaming bill. My colleague from Drummond's work on this bill earned the government's praise. We worked hard to pass this bill, which is so important to Quebec and to our broadcasting artists and technicians.

We also passed bills C‑12, C‑14, C‑15, C‑16, C‑19, C‑24, C‑25, C‑28, C‑30, C‑31, C‑32, C‑36 and C‑39, which is the important act on medical assistance in dying, and bills C‑43, C‑44 and C‑46.

We are currently awaiting royal assent for Bill C‑9. Bill C‑22 will soon return to the House as well. This is an important bill on the disability benefit.

We are also examining Bill C‑13, currently in the Senate and soon expected to return to the House. Bill C‑18, on which my colleague from Drummond worked exceedingly hard, is also in the Senate. Lastly, I would mention bills C‑21, C‑29 and C‑45.

I do not know whether my colleagues agree with me, but I think that Parliament has been busy and that the government has gotten many of its bills passed by the House of Commons. Before the Liberals say that the opposition is toxic, they should remember that many of those bills were passed by the majority of members in the House.

I wanted to point that out because I was rather insulted to be told that my behaviour, as a member of the opposition, was toxic and was preventing the work of the House from moving forward. In my opinion, that is completely false. We have the government's record when it comes to getting its bills passed. The government is doing quite well in that regard.

We have now come to Bill C-47. We began this huge debate on the budget implementation bill this morning and will continue to debate it until Wednesday. It is a very large, very long bill that sets out a lot of budgetary measures that will be implemented after the bill is passed.

I have no doubt that, by the end of the sitting on June 23, the House will pass Bill C‑47 in time for the summer break.

What could this bill have included that is not in there? For three years, the Bloc Québécois and several other members in the House have been saying that there is nothing for seniors. I was saying earlier to my assistant that, in my riding of Salaberry—Suroît, we speak at every meeting about the decline in seniors' purchasing power. I am constantly being approached by seniors who tell me—

Justice

[Brad Vis, Conservative, Mission—Matsqui—Fraser Canyon, BC]

Mr. Speaker, I rise today to present a petition on behalf of the Seabird Island First Nation.

On June 23, 2022, Bill C-28 received royal assent. It allowed for extreme intoxication to be used as a defence for violent crimes, such as sexual assault, where a “reasonable person” would not have foreseen the risk of a violent loss of control. Residents are concerned about the impacts this will have on first nations communities like theirs, which are often in rural areas that are underserved by law enforcement.

The petitioners are calling on the Government of Canada to repeal the amendments made to the Criminal Code in Bill C-28. They call on it to uphold its commitment to protect the safety of first nations and a right-to-justice system that honours victims by holding offenders responsible for violent crimes.

[The Chair, Liberal, Randeep Sarai]

Perfect.

We will suspend for a few quick minutes—hopefully, we'll do this in the next one or two minutes—for our second review of the draft report of the subject matter of Bill C-28.

Thank you.

[Proceedings continue in camera]

[The Chair, Liberal, Randeep Sarai]

I call this meeting to order.

Welcome to meeting number 44 of the House of Commons Standing Committee on Justice and Human Rights. Pursuant to the order of reference of November 24, 2022, the committee is meeting to begin its study on Bill S-4, an act to amend the Criminal Code and the Identification of Criminals Act and to make related amendments to other acts in relation to the COVID-19 response and other measures.

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 by using the Zoom application.

I would like to take a few moments for the benefit of the witnesses.

Please wait until I recognize you by name before speaking. For those participating via video conference, click on the microphone icon to activate your mike, and please mute yourself when you're 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 best we can, and we appreciate your patience and understanding in this regard.

On our agenda today, we will proceed with Bill S-4. First we'll hear from the Barreau du Québec. Then, right afterward, per the motion adopted last Thursday, we'll do the clause-by-clause study. We also need to reserve a few minutes to complete our review, in camera, of the draft report on the subject matter of Bill C-28. As you all know, we have to report it before December 16.

Before Mr. Fortin asks me, I believe all the witnesses' mikes have been tested.

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

Thank you, Mr. Chair.

I want to thank both of the witnesses for bringing our attention back to the larger challenges that we face in the justice system beyond those that we are addressing in Bill C-28. I particularly want to thank Ms. Thomas for reminding us of the interaction between poverty, systemic racism and access to justice in our system.

Since time is drawing to a close here, I'd like to briefly give each of the witnesses a chance to add anything that they want to say at this time in these hearings.

I'll go to Ms. Thomas first, and then to Dr. Roebuck.

[Frank Caputo, Conservative, Kamloops—Thompson—Cariboo, BC]

Thank you, Chair.

Ms. Thomas, thank you for your work. My wife does work on behalf of women in a similar capacity, so I'm obviously appreciative of your work.

Thank you, Dr. Roebuck, and congratulations on your appointment.

I'm going to begin by talking about something that came to me earlier here today when I was listening. There's a crucial distinction that I think needs to be made here, and that is the raising of a defence versus the success of a defence, two very different things. The raising of a defence is dependent upon the threshold that has to be met, as in when somebody can raise this defence, in what circumstances. Here it's a question of whether there is extreme intoxication. The Minister of Justice came forward and said this defence will rarely be successful. But that's very different from saying this defence will rarely be permitted to be raised. They're very different things.

Now when I look at the Criminal Code, particularly sections 266 to 278 and onward, this is what we see: If a person wants to raise evidence of prior sexual activity, for instance, as part of their defence on a sexual assault or sexual interference or the like type of allegation, or if somebody is pursuing a record that relates to the victim, they have to go through an evidentiary hearing that is separate. In this case, we don't have a separate evidentiary hearing. We just have the defence that can be raised. In those two examples that I cited, as I recall, the victim is actually entitled to standing in the courtroom. What that means is that the victim is entitled to a lawyer and the victim is entitled to make submissions or make an argument to the judge.

On the one hand, we have this robust system that says we're going to have a high threshold, and before we even get to that threshold we're going to have the judge hear whether this is appropriate. On the other hand, we have extreme intoxication, and that defence can simply be raised and the victim isn't heard. That's what I see in Bill C-28.

As I was thinking and listening, what I was left with was this: Wouldn't it be prudent if we developed legislation that mirrors, say, section 276 to 278 and onward, saying that before you raise this defence, you actually have to have a threshold hearing before a judge, and at that threshold hearing the victim could actually get their own lawyer? Would that be something that would perhaps diminish the use of very questionable defences of this kind being raised—not being successful, but being raised—and would it take into account victim concerns more greatly?

I appreciate this is quite a loaded question, so I know that will probably take up most of our time.

Ms. Thomas and Dr. Roebuck, I'm happy to hear from both of you on that point.

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

In the context we were using before, it may have been good to have action, but it's not sufficient to stop with Bill C-28. There's a lot more we need to do in terms of supporting victims of sexual violence.

In your opening statement, you talked about the challenges faced by women in general within the court system but also by marginalized women, including those who might use substances. Could you talk a little bit more about those challenges and what's being done, if anything, to meet those challenges?

[Yves Perron, Bloc, Berthier—Maskinongé, QC]

What do you think of the approach used in Bill C‑28? The minister had two choices: create the offence of extreme intoxication, or require that a risk of loss of control and risk of harm due to the loss of control be demonstrated.

I noted during previous testimony that some people had expressed doubts as to the effectiveness of this clause. This was the case in particular for Mr. Hugues Parent, full professor of law at the Université de Montréal, who said that the proposed wording did not include the risk of a defence lawyer invoking psychosis, for example.

What do you think about this? Do you believe there is a significant gap to be addressed before moving forward with this bill?

[Yves Perron, Bloc, Berthier—Maskinongé, QC]

Thank you very much, Mr. Chair.

I thank the two witnesses for being with us this morning.

Mr. Roebuck, congratulations on the important position you hold. I cannot believe the position was vacant for so long, as my Conservative colleague mentioned. In any event, you are here.

In your statement, you made recommendations and used clear language. You said that there needs to be meaningful consultation and that a formal review should be conducted after two years. In your recommendations, I sense that you have significant concerns.

With Bill C‑28, do you think we achieved the desired balance between defending individuals and protecting victims, or do you instead think that the bill will not be effective?

[Larry Brock, Conservative, Brantford—Brant, ON]

Specifically I asked, sir, what your office is doing to contribute to the overall knowledge component as part of your recommendations moving forward. You mentioned knowledge, greater consultation, making revisions to the legislation and monitoring the data. Those are the four highlights I heard from your presentation.

I've heard from other witnesses that it was important for the government to respond appropriately to the Supreme Court of Canada's decision. I am not critiquing the government. It was appropriate they do that, and we urged them to do that, but there's been a great deal of criticism in terms of the speed with which they pass the legislation without proper consultation and without proper public announcements to victims' groups so that the public can be informed that this is not going to be opening up the floodgates for future litigation.

As I indicated at the outset, it's bad enough to convince a victim to participate in this process. I personally engaged in a number of round table discussions, and notwithstanding my highlights of Bill C-28, there is still that fear out there that the defence now has another tool available to them to litigate.

I'd like to know what your office is doing to assuage those fears.

[Larry Brock, Conservative, Brantford—Brant, ON]

Thank you, Mr. Chair.

Good morning, Ms. Thomas and Mr. Roebuck. Thank you so much for your appearance today to help us in this important study.

I'm going to try to balance my questions with respect to both witnesses. It really depends on the timing. I know I have only six minutes.

I'll go first to you, Mr. Roebuck. I want to personally congratulate you on your appointment to this particular role. It is a role that is so vastly important to victims in this country of ours from coast to coast to coast. I would be remiss if I did not highlight the fact that this particular position was left vacant for close to 13 months, notwithstanding the cries from the official opposition and other members of the House of Commons to fill it, because there was a need for victims to be heard.

As you have indicated in previous testimony—I've done a little bit of research—there is a real disconnect in terms of equality in the criminal justice system between the rights of the accused and the rights of the victims. You have opined specifically with respect to section 15 and section 28 of the charter, how there is that particular imbalance. It's so important to have you here filling this particular role. It would have been so helpful to have your knowledge and your background when we studied Bill C-5, and also when we studied, most recently, victims' rights with respect to participating in the criminal justice system.

That being said, I want to give you an opportunity to perhaps expand on some of the recommendations that you spoke about. As a former Crown attorney, I am so acutely aware of the abysmal statistics we have in terms of successful prosecutions in this country. It stems from a lack of reporting. It stems from a lack of knowledge of rights. It stems from a lack of trust that the victims have with police authorities, with participants in the criminal justice system. You yourself have opined that there was a great deal of misinformation that was largely alarmist the moment the Supreme Court of Canada released the decision.

I'd like to hear from you, sir, as to the particular steps your office is taking to perhaps assuage some of these fears and some of the concerns that victims have, particularly as they relate to the Supreme Court of Canada decision and the government's response with the passing of Bill C-28.

[Rhiannon Thomas, Women and Harm Reduction International Network]

Thank you to the committee for your invitation to have Women and Harm Reduction International Network—WHRIN for short—speak about Bill C-28.

My name is Rhiannon Thomas. I'm here as the representative to speak about considerations similar to the previous speaker's.

Here is an introduction and our context. WHRIN was formed in 2009 as a response to a worldwide scarcity of services, research and training programs that are inclusive of women, female-identified and gender-diverse people who use drugs, by the global community of women who use drugs, as well as drug policy and human rights activists. WHRIN has spent the past 15 years working to improve the availability, quality, relevance and accessibility of health, social and legal services for women who use drugs.

WHRIN reminds the committee that drugs, including alcohol, while sometimes associated with violence, cannot be seen as the direct cause of violence. WHRIN would argue that drug dependency is not a disease or illness, nor does drug use per se negate free will and intention.

I am certain that the honourable members on this committee will be very aware that women are most often the victims of violence, including physical, sexual and socio-economic. By that, I mean that women in relationships in which gender-based violence occurs often do not have the economic means to freely or safely exit them. Children, as the committee knows, are often caught up in these situations as well.

As the previous speaker said, it is most likely that men who engage in intimate partner and gender-based violence will attempt to use this defence if it is made available to them.

For some men, both drug use and intimate partner violence may be expressions of a need for power and control related to gender-based insecurities. Intimate partner violence is usually inflicted by men who, buoyed up by patriarchal contexts, believe that violence is apposite in certain situations. Such violence occurs in settings where the perpetrator is in control. It must be understood as deliberate and, at some level, premeditated, independent of the amount of alcohol or other drugs consumed, if any.

Incidentally, this insight has implications for services designed for violent perpetrators, in which drug use should evidently be considered as a secondary factor in violence prevention interventions, given that the intention to inflict violence invariably precedes alcohol or other drug use.

Sexual violence is a place where we must be particularly careful with the use of this defence. Women are overwhelmingly the victims of sexual violence. This type of crime is one of the most under-reported, due to the burden of not having police believe narrative evidence. Even when cases get to court, survivors are cross-examined without trauma-informed approaches. If a survivor is a noted person who uses drugs, for example, their memories of the events are often discredited. In this way, a survivor can be blamed for a sexual assault, while the perpetrator—using this defence—has the potential to be acquitted for being intoxicated.

Additionally, if we consider gendered socio-economic realities, women have less access to legal supports. In most provinces, legal aid supports have been slashed for many years, so they are accessible only to the accused who are facing jail time, and not to survivors. Further, as parents and, often, the primary caregivers, women who may want to invoke such a defence may be reluctant to do so, due to the threat of losing child custody.

Importantly, due to the criminalization of many commonly used drugs, research on their physiological effects is limited, which would also impact the limitations of the use of this defence. To properly study if and how many drugs affect perceptions and the ability to make informed decisions is difficult, if not impossible, given the exemptions required. One drug we know a lot about is alcohol, since it is legal. We know that it affects inhibitions, perceptions, judgment and so on, and it has been clearly linked to violence—perhaps not causally—in many studies.

Finally, the criminalization of drugs, drug use and people who use drugs must also be considered. How will this affect communities that are most impacted by prohibition? Black, indigenous and poor people in this country—who are most often disproportionately incarcerated and have less access to pricey lawyers—certainly are not going to be in a position to pay for expert witnesses who can make assertions about the levels of intoxication and their relation to criminal intent.

I also would refer to the rising numbers of women, particularly indigenous women, in the federal prison system. You can easily find these numbers on the Canadian government website. I would encourage the honourable members of this committee to also read the report from the Office of the Correctional Investigator that was released last week, which pointed to how those numbers are increasing and how indigenous prisoners, especially female prisoners, are in prison longer and in maximum security more often. I ask this: Will this defence be accessible to these Canadians?

In summary—

[Dr. Benjamin Roebuck, Federal Ombudsperson for Victims of Crime, Office of the Federal Ombudsman for Victims of Crime]

Thank you.

Honourable Chairperson and members of the committee, thank you for the invitation today. It's very nice to meet you all.

Today we are here on the traditional, unceded, unsurrendered territory of the Algonquin Anishinabe people. I acknowledge our shared responsibility and my personal responsibility to work to address historical and ongoing colonialism, racism and oppression of indigenous peoples. This includes working together to dismantle the criminalization of indigenous peoples and learn from the resilience and vibrancy of diverse indigenous cultures.

As you may know, I have been recently appointed. I am so thankful for this opportunity to serve victims and survivors of crime in Canada. I am brand new, just three weeks in, so please be patient with me as I get caught up to speed.

I would like to thank the members of this committee for the tireless work on justice and human rights that you do. I know that there have been many recent decisions by the Supreme Court of Canada as well as government and private members' bills that require your attention.

The Office of the Federal Ombudsman for Victims of Crime is an independent resource for victims in Canada. Our office was created to help the federal government honour its commitments to victims of crime. Victims contact our office to learn about rights under federal laws, to learn more about federal services available to them or to make complaints about any federal agencies or federal legislation dealing with victims. We help to problem-solve and find solutions when victims' rights have not been respected, and we collaborate with stakeholders across the country to identify emerging trends or issues that affect victims of crime. Based on this work, when appropriate, we offer recommendations to federal agencies and help to ensure that victims' concerns are considered in the legislative process.

When the Supreme Court of Canada ruled in R. v. Brown that section 33.1 of the Criminal Code was unconstitutional, it had immediate and adverse effects on survivors of violent crime. The wording of the law and the language used by the SCC are difficult to understand and contributed to widespread misinformation about highly traumatic and personal experiences in the lives of Canadians.

Organizations supporting women who have experienced gender-based violence and many young survivors of sexual assault, in particular, believed that the government had allowed space for intoxication to become an allowable defence for violence imposed on the bodies of women and girls. This belief caused considerable distress, resurfacing of traumatic memories, and protests in high schools where young survivors shared personal experiences, sometimes without the resources to do that safely.

As ombudsperson for victims of crime, I believe that there was an urgent need to act, and I am thankful for the way the whole government moved quickly to respond to the SCC ruling. I also appreciate the clear messaging from the Minister of Justice and Attorney General of Canada, the Honourable David Lametti, when he said repeatedly, “Being drunk or high is not a defence for committing criminal acts like sexual assault.” I think that this showed empathy and it reflects a hopeful posture to act on other concerns raised by victims of crime.

I also understand that the unconventional approach to passing this legislation before it could be fully considered and weighed in our parliamentary committees has created an obligation to meaningfully engage in that process now.

The full continuum of intoxication caused by alcohol and other substances is a very present reality in many of the contexts that lead to criminal victimization. In the messy realities of these situations, people can slip in and out of their awareness of their behaviour and their impact on others, making it difficult to establish objective criteria about culpability. Other witnesses will explain that the defence of extreme intoxication is predominantly advanced by men perpetrating violence against women. As the Government of Canada launches its national action plan to end gender-based violence, I urge you to consider this legislation through that lens.

Our office has a few simple recommendations that I will leave you with. Number one is clear language. Continued misinformation about this legislation will have consequences on women and girls. The wording of Bill C-28 is complicated, and we recommend continued and clear messaging to the public.

The second recommendation is meaningful consultation. The diverse perspectives of Canadians emerging in the committee need to shape the legislation. We recommend making revisions to the legislation if significant concerns are identified.

Number three is monitoring. Intoxication is very common in contexts of violent crime, and you've heard significant concerns from women’s groups and survivors about the possibility of this defence being abused. We recommend a formal review after two years to evaluate how the defence has been used in court.

Thank you again for your time. I look forward to the conversation.

[The Chair, Liberal, Randeep Sarai]

I'd like to call this meeting to order. Welcome back after the break week, everyone.

Welcome to meeting number 36 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 on the subject of Bill C-28, an act to amend the Criminal Code regarding 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 now for the benefit of 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 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 also 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 best we can. We appreciate your patience and understanding.

Mr. Perron has a question.

[Pam Hrick]

I appreciate the opportunity to be able to speak to this.

My concern with any sort of reverse onus at this point is the large risk that the Supreme Court would find that to be unconstitutional. What I do appreciate about how this particular bill was tailored and implemented is the nuance that it allows to be brought to consideration of the defence. All the relevant factors that are able to be properly taken into account I think ensure the constitutionality of the legislation.

As to whether this sets too high a bar, or a nearly impossible bar.... I only caught part of the last panel, but I believe you had representatives from the Manitoba Prosecution Service, who were speaking to the extent to which they thought it would be possible to prosecute under these new provisions that have been implemented by Bill C-28. I'd defer to their prosecutorial expertise on that particular issue.

[Tako Van Popta, Conservative, Langley—Aldergrove, BC]

Thank you.

Ms. Hrick, earlier in this study—I think it was last week—we had some law professors here giving evidence, including Dr. Kerri Froc of the University of New Brunswick, who is the chair of the National Association of Women and the Law. That organization is critical of Bill C-28 and the revised section 33.1. In discussing Bill C-28, she talked about the “problematic aspects of the bill, which we fear will pose nearly impossible hurdles for prosecution of intoxicated perpetrators of violence against women.”

She then went on to say that there are other alternatives available that Parliament could have followed, rather than just necessarily one or the other of the two options that the Supreme Court of Canada gave us, including reversing the onus on the negligence aspect of the bill.

What do you say to that?

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

We understood earlier that Ms. Hrick was consulted by representatives of the Minister of Justice before Bill C-28 became law. Were you also consulted, Ms. Khan?

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

Thank you, Mr. Chair.

Ms. Hrick and Ms. Khan, thank you for joining us today.

Ms. Khan, my colleague Mr. Naqvi has encroached a bit on the question I wanted to ask you. I am also interested in how people perceive Bill C-28, as well as the correction that the government intends to make with respect to the interpretation of what may constitute a defence against certain crimes when it comes to extreme voluntary intoxication.

How do people see this? You've talked a lot about TikTok. Based on the answer you just gave, I understand that there is a negative perception or at least a negative effect that makes victims of sex crimes less likely to report them, as they are afraid that they will not be believed and that the perpetrator will not be found guilty. I am interested in this aspect.

I assume that women come to talk to you about a crime committed against them, and you explain the situation to them. Once you explain to them the scope of section 33.1 of the Criminal Code, do they understand and recognize its merits? Or, on the other hand, despite all the explanations given, do the victims feel that there is never an excuse, if I may say so, for the crime committed against them? This reaction is certainly understandable. In any event, I would like to know what the reality is on the ground when victims understand the scope of section 33.1.

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

What guidance did you impart when you were consulted in relation to Bill C-28?

[Pam Hrick]

I'll take the opportunity to reiterate that it was an incredibly small gap that the Brown decision created, and I will emphasize again that simply being drunk or being high is not a defence to crimes of general intent, including sexual assault.

What the Supreme Court did here was strike down an unconstitutional provision that prohibited, in all circumstances, people from raising the defence of extreme intoxication akin to automatism as a defence to crimes of general intent, including sexual assault.

What Bill C-28 did was take a look at what the Supreme Court said in its decision about what constitutional responses might look like, and it chose to implement one of those two options that would comply with constitutional rights, which are important. The rights of the accused are important and are to be respected, of course.

I think the implementation of the provisions in Bill C-28 strikes that balance between the rights of accused persons and the rights of women and girls and all those who experience gender-based violence to be free of violence. It provides that pathway where there is some more blameworthiness in conduct and also allows for individual circumstances to be taken into account in the adjudication of these cases, which is why we have found it to be a tailored and constitutional bill.

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

Thank you very much, Mr. Chair.

Ms. Khan and Ms. Hrick, it's really good to see you both. Thank you for the incredible work you do and for all the guidance that you've given me in the past in various ways when we have interacted on exactly the same issues. I feel like we continue to have the same conversation, unfortunately, again and again, which tells me that we have far more work to do.

I'll start with Ms. Hrick on the legal side of things, but I do want to pick up on the next steps that both of you articulated because I think it's an important conversation to get on the record as well.

Ms. Hrick, you mentioned that you were involved in this case. LEAF intervened. Thank you for that. Can you speak with regard to the gap the Brown decision created? In your view, how does Bill C-28 meet that gap? Could more have been done in that regard?

[Larry Brock, Conservative, Brantford—Brant, ON]

Thank you, Ms. Khan.

That, I believe, is a good segue to an area that I want to focus on. I listened very carefully to your opening statement, and this is a question that I put to the previous panel in our first hour.

I accept that across this great nation there is an erosion of trust. When we look at sexual assault victims and their responses to the criminal justice system, we see that they don't see a fair system. They see a system that is rigged against them right from the outset. They see...the statistics alone, the under-reporting, a mistrust in police investigations, mistrust in the relationship with Crown prosecutors, a mistrust of the judiciary and a mistrust of the probationary system. It's small wonder that the small portion of cases that we, as prosecutors, would have the privilege of prosecuting would still have those difficulties in terms of securing convictions, because of a number of issues. Largely, it's a result of individuals—victims—who just did not feel they were equal participants in the process.

When we take a look at Bill C-28 and take a look at the number of fears and concerns that victims have across this country, I totally agree with you that misinformation is eroding that public trust. It is up to the government, in my view—and I think you both share this—to engage in a public education system to reassure victims of crime, particularly in this area, that Bill C-28 does not open the floodgates. With regard to Ms. Hrick's commentary, this is a narrow gap. We, as lawyers, as parliamentarians, as academics, understand that, but the vast majority of Canadians do not.

I'm going to ask both of you specifically what more your organizations can do. What more can other agencies across this country do, in addition to the government response of educating the public?

[Larry Brock, Conservative, Brantford—Brant, ON]

Thank you, Mr. Chair.

Thank you, Ms. Hrick and Ms. Khan, for your attendance today and your participation in this important review of Bill C-28.

I'm going to offer an opportunity for you, Ms. Khan. You had much more to say, I believe, in your opening statement, so I'm going to cede some of my time and allow you to complete your thoughts.

[Pam Hrick, Executive Director and General Counsel, Women's Legal Education and Action Fund]

Thank you.

Good morning. My name is Pam Hrick. I'm the executive director and general counsel of the Women's Legal Education and Action Fund, also known as LEAF.

I am grateful to appear before you today from Toronto or Tkaronto, which is within the lands protected by the Dish With One Spoon Wampum Belt Covenant. I'd like to thank my colleagues Jen Gammad and Kat Owens for helping me prepare for this appearance today.

Founded in 1985, LEAF is a national charitable organization that advocates for the substantive equality of all women, girls and trans and non-binary people. We do this through litigation, law reform and public legal education that is feminist and intersectional.

LEAF was an intervenor in the Supreme Court case of R. v. Brown, which struck down the former section 33.1 of the Criminal Code. We intervened in that case to advocate for the equality of survivors of sexual and intimate partner violence, who are overwhelmingly women. When the Supreme Court released its decision, we were glad to see that it reiterated that intoxication alone is not a defence in sexual assault cases.

We were, however, deeply concerned to hear the confusion and misinformation circulating online after the decision was released, particularly among young people. People were worried about whether saying “I was drunk” was now a legitimate defence to sexual assault. The Supreme Court clearly said it was not.

LEAF was at the forefront of efforts to stem this tide of misinformation, alongside other gender justice advocates like Ms. Khan. Accurate information about what this decision meant was tremendously important, as is accurate information about what Bill C-28 means.

The Supreme Court's decision created a very narrow gap in the law, something that would not be relevant to the overwhelming majority of cases where an accused person was drunk or otherwise intoxicated. The court laid out constitutionally compliant options for Parliament to consider if it wanted to address this very small gap. Bill C-28 was intended to fill this gap. As we said when it was introduced earlier this year, LEAF supports the amendments in Bill C-28. The changes to the Criminal Code represent a tailored and constitutional response in line with the Supreme Court of Canada's guidance in R v. Brown.

Education and training for justice system participants will be needed to ensure the law's proper application. Moving forward, however, we encourage committee members and all parliamentarians to resist focusing on the criminal law as an effective response to gender-based violence, including sexual violence. Canada's criminal legal system is a site of systemic discrimination. It disproportionately criminalizes Black, indigenous and racialized people while at the same time failing to effectively respond to the high levels of violence faced by members of these same communities.

In addition, the criminal legal system too often fails and retraumatizes survivors of gender-based violence. We urgently need a fully funded intersectional national action plan to end gender-based violence and violence against women. As part of that plan, we need survivor-centred approaches to addressing and ending gender-based violence and violence against women. Survivors must have agency and choice in every step of the process.

It is imperative to study, develop and implement survivor-centred alternatives that move beyond existing legal systems. Alternatives like restorative and transformative justice models broaden the possibilities for justice, accountability and healing. LEAF is committed to supporting this work through our own alternative justice mechanisms project, which will identify legal barriers to alternative justice mechanisms for sexual violence and propose law reform measures to address those barriers.

While this committee's current review serves an important purpose, I want to reiterate that the Supreme Court decision preceding Bill C-28 created only a very narrow gap in the law. Bill C-28 implemented a minor, constitutionally compliant response that follows the Supreme Court's guidance.

The bigger issue is what this committee, this government and this Parliament must do to more meaningfully address violence against women and gender-based violence. More criminal law is not the answer. The answer is properly supporting and funding education, prevention, frontline services and alternative accountability mechanisms that respond to the needs of survivors while working to end gender-based violence and violence against women entirely.

[Farrah Khan, Executive Director, Possibility Seeds]

I'd like to begin by acknowledging that this conversation takes place across the traditional territories of many indigenous nations. I'm currently on the traditional territory of many nations, including the Mississaugas of the New Credit First Nation, the Anishinabe, the Chippewa, the Haudenosaunee, the Wendat peoples, and now home to many diverse first nations, Inuit and Métis people.

Thank you to the House of Commons Standing Committee on Justice and Human Rights for inviting me to appear as a witness for its study on the subject matter of Bill C-28, an act to amend the Criminal Code regarding self-induced extreme intoxication.

I'd like to thank Rebecca Akong and Grace Baric for helping me prepare for today's presentation.

My name is Farrah Khan. I have been raising awareness about gender-based violence, specifically sexual violence, for 25 years. I have been working in the field as a frontline worker for sexual assault survivors, and now run a sexual assault centre at Toronto Metropolitan University. This is an issue that is near and dear to me. Sexual assault continues to be the most under-reported crime in Canada.

The Supreme Court of Canada's recent judgment on the defence of self-induced extreme intoxication and the resulting Bill C-28 have been grossly misunderstood by the public—from people in my field to policy experts alike. Public and community-centred responses are rooted in a lack of fundamental understanding of the decision and the proposed new law. We can do better.

Members of the public, including me, were scared when they first heard the appeal and the decision. We were scared that this would allow self-induced extreme intoxication to be a valid defence for sexual assault, giving people who do harm carte blanche to commit sexual violence without repercussions.

I know now, from reading and understanding the bill and understanding the decision, that it's not true. But as sexual assault and alcohol consumption have often been co-related, it's reasonable to have this initial fear. About one in three respondents to a gender-based violence and unwanted sexual behaviour study in Canada stated that most incidents of unwanted sexual behaviour they were subjected to were related to alcohol or drug use by the perpetrator, with this being slightly more common among men than women. This view allows intoxicated people to get the idea that perpetuating sexual violence is okay—but it's not. I worry that organizations, sexual assault centres and survivors are getting the idea that this somehow is giving carte blanche when it's not.

Survivors may be less likely to report their cases if they're misinformed in their understanding of this defence and believe it will be invoked easily where people are drinking or doing drugs. In 2019, the general social survey reported that only 6% of sexual violence was reported to the police. I worry that the misinformation on this new defence may further reduce this already low statistic.

To understand why this matter has been taken up the way it has, we have to understand what the decisions actually say and why section 33.1 of the Criminal Code was deemed unconstitutional. In essence, section 33.1, as it was, breached an accused person's right to life, liberty and security of the person and the right to presumption of innocence by holding them criminally responsible for actions committed while in a state similar to automatism. This is when mind and body stop talking to each other. Think, for example, of sleepwalking, another form of automatism. This prevented anyone from raising the state of automatism as a defence in cases, general intent to violent offences, even when they could not reasonably predict they would reach this state when they were choosing to self-intoxicate.

The holding is actually progressive, as it safeguards the well-being of those potentially suffering from addiction issues, many of whom come from marginalized identities that are already overrepresented and over-criminalized in the so-called criminal justice system.

Contrary to what many people are saying online, on TikTok and social media...and that part worries me the most, as someone who works with survivors. I work with 16- to 24-year-olds. They were terrified about this. They were spreading misinformation. We need to do better about that conversation.

The thing was that the SCC was clear that drunkenness on its own would rarely result in a state similar to automatism. Therefore, the crux of the issue is the extent to which the consumption of drugs or alcohol prevents the user from having voluntary control over their actions. An accused would need to prove that they were in a state of extreme intoxication, drawing on expert advice. It would not be sufficient to show that they were really high or drunk. In other words, the accused would need to prove that they had no real control of their actions at the time of the offence.

The reasons for finding it unconstitutional lie in the fact that the old section 33.1 would lead to convictions even when someone is completely lacking intention, guilty mind or voluntariness to commit a crime. If one's intoxication is extreme to the point of automatism, they may negate the requirement of both mens rea—the guilty mind—and the voluntary wrongful act of the offence.

The new section 33.1 allows individuals to raise a defence under very limited circumstances consistent with the Supreme Court decision. While the onus remains with the Crown to prove beyond a reasonable doubt that the accused committed the act, the burden is on the defendant to establish the defence of extreme intoxication and the balance of probabilities using expert advice.

The Crown—

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

Thank you, Mr. Kotler.

Do you think that Bill C-28's requirement that the accused present expert evidence on the state of extreme intoxication has raised the bar for establishing, in that particular case, that we are dealing with extreme intoxication?

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

Thanks very much.

I want to turn to Manitoba Prosecution Service—either Ms. Jules or Mr. Kotler.

I want to be very clear before the committee. You are saying that the changes made in Bill C-28 do close the gap and that you will be able to use this law to successfully prosecute, in your opinion.

[Holly Foxall, Program Director, Action Now Atlantic]

Thank you so much, Mr. Chair.

Thank you so much for having me here today. My name is Holly Foxall, and my pronouns are she/her. Today I am joining you from Mi’kma’ki, the ancestral and unceded territory of the Mi'kmaq people.

I'm the program director of Action Now Atlantic, which is an initiative and campaign to end sexual and gender-based violence at universities in Atlantic Canada through education, advocacy and community engagement. We've been fortunate enough to receive funding through Women and Gender Equality Canada to launch this project.

Our mission is to promote a culture of consent on campus through virtual workshops, the development of educational material and resources, and our own youth advocacy network. A big part of our work is connecting and collaborating with other organizations and individuals and taking a cross-provincial approach to addressing the issue of sexual violence on campus in Atlantic Canada.

The inspiration for Action Now Atlantic grew out of my personal frustrations around my own experiences and the experiences of my friends and peers while attending post-secondary education. I completed my undergraduate degree at Queen's University. I remember feeling a culture, both on and off campus, where sexual violence was normalized and many people didn't understand or respect consent. When I graduated and moved home to Nova Scotia, I remember seeing news stories about similar campus cultures and attitudes here. I read of many instances of sexual violence on campus where universities mishandled the cases and caused even greater harm to survivors.

Unfortunately, sexual violence is still a prevalent issue within post-secondary communities. We know that one in four women experiences sexual assault while attending a post-secondary institution, and 71% of Canadian post-secondary students have witnessed or experienced unwanted sexualized behaviour during their time at post-secondary institutions.

The first semester of university is meant to be an exciting time for students returning to school, but it's a notable time when it comes to sexual violence on campus. The first eight weeks of each fall semester are referred to as the “red zone”, when 50% of all sexual assaults on campus will occur. This is a time of increased vulnerability on campus, when there are many new students who are often away from home for the first time and without their usual support systems. It's critical that information around sexual violence and the laws relating to intoxication and assault are understood correctly by all members of our society, but especially those who may be engaging in sexual activity, drugs and alcohol.

When the news of the Supreme Court ruling on extreme intoxication was announced, there was serious concern about what the ruling would mean for campus communities and all survivors of sexual and gender-based violence. In our society, intoxication is often used as an excuse for those who cause harm, and a way to delegitimize survivors who do come forward.

I, along with so many Canadians, had many initial questions about this ruling. Would it provide more protection for those who sexually assault people and create even greater barriers for survivors to come forward? Would the ruling impact the ability and willingness of survivors to report cases of sexual violence? Do people who cause harm know that drunkenness alone is not a defence in sexual assault cases?

While the initial ruling got a lot of press, Bill C-28 and what it actually means received far less interest or time in the media. How people understand laws can greatly impact behaviours and cultures within our communities, so it's essential to have clear and easy-to-interpret information around these laws. This will build greater trust in our government and legal institutions.

I'm not a legal expert, so I will not try to comment on the technicalities of the initial Supreme Court ruling and Bill C-28 and what it means from a legal perspective, but I do hope to bring a youth perspective to this conversation. I can share why many survivors don't trust legal institutions and why rates of reporting sexual violence are so low, as well as what the initial reaction was within campus communities to this ruling and how it may impact campus cultures even with the implementation of Bill C-28.

I am someone who cares deeply about the safety and well-being of young people, and especially survivors of sexual violence. Anything that has the potential to create opportunity for people to cause harm and to build further barriers for survivors is something that we need to think critically about. How our legal institutions and governments share this information with the general public is important for community safety and overall trust within our institutions.

Thank you for your time.

[The Chair, Liberal, Randeep Sarai]

I call this meeting to order.

Welcome to meeting number 35 of the House of Commons Standing Committee on Justice and Human Rights.

Pursuant to Standing Order 108 and the motion adopted on September 22, the committee is meeting to begin its study on the subject matter of Bill C-28, an act to amend the Criminal Code regarding 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 make a few comments for the benefit of the witnesses and members.

Please wait until I recognize you before speaking. For those participating by video conference, click on the microphone icon to activate your mike, and 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.

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 attempt to do our best to put you in the speaking order.

For your information, all sound tests have been successfully performed with our witnesses.

I have a couple of cue cards. When you have 30 seconds left in your time, whether you're a witnesses or a member, I'll raise the cue card. When you're out of time, I'll raise the red, out-of-time cue card. Please be mindful of that so I don't interrupt your thoughts. Please wrap up when I raise the 30-second cue card.

I'd like to welcome our first witnesses. Appearing today, we will have Holly Foxall, program director from Action Now Atlantic, via video conference. Professor Hugues Parent from the University of Montreal is also via video conference. From Manitoba Prosecution Service, we have Ami Kotler and Michele Jules, executive director.

Each organization will have five minutes.

We'll begin with Manitoba Prosecution Service.

Judges Act

[Brad Redekopp, Conservative, Saskatoon West, SK]

Mr. Speaker, it is an honour and pleasure to speak in this House on behalf of the citizens of Saskatoon West. Of course, I am rising today to speak to the bill before us, Bill C-9, which makes changes to the way federally appointed judges can be removed for misconduct.

My approach today will be a bit different. I am not a lawyer, so I am not well versed in how law works and all the details and technicalities of it. The best example of that was from yesterday when I was privileged to attend the justice committee. I was listening to witnesses on the subject of Bill C-28, the extreme intoxication law. It is unbelievable that in this country, a person who gets so drunk that they commit a crime that results in great harm to a person can get off for it and there are no consequences. That is exactly what happened. That is why the government brought in Bill C-28 earlier. It was supposedly to fix this.

As a layperson at the committee yesterday, I was listening to all my learned colleagues ask very intelligent questions that were going over my head. I was listening to professors explain the legal technicalities of everything. However, one thing that did come out clear was that it is absolutely wrong that if a person commits a crime, they do not face consequences simply because they were too drunk. Clearly, that needs to be fixed.

The more troubling thing that came across to me was that the government attempted to fix this law in a very hurried way earlier this year. Essentially, it rammed through legislation to supposedly close a loophole. What I heard yesterday was that what the Liberals rammed through in a hurry, without proper consultation and without actually talking to people, has not solved the problem. In fact, it may have made it worse. We need to be very careful in the House when we propose solutions and ram them through the House without proper due diligence, because we can actually make things worse. That was the main thing I took away from yesterday.

I also want to note another piece of legislation going through the House right now. It is Bill S-4. It amends the process for peace officers to apply for and obtain a warrant using telecommunications rather than appearing in person. It expands the abilities for accused and offenders to appear remotely by audio conference and video conference. It also allows prospective jurors in a jury selection process to appear by video conference.

This is a bill that came about because of COVID. There were some changes needed in our system to accommodate more remote appearances, as members can see. What I find interesting is that these changes were due to the COVID epidemic we have, which started two years ago. It has taken two years for the Liberal government to get this to second reading in this House.

I find it odd that on one hand, some legislation gets rammed through almost instantaneously, like Bill C-28, while in the case of Bill S-4, it lollygags along for a while. Maybe COVID will be in the rear-view mirror when it finally gets passed. I find it quite rich when the government talks about those on the Conservative side obstructing things, when we are trying to do the proper due diligence and trying to make sure that we do not get bad laws.

This brings me to Bill C-9. This bill was originally introduced as a Senate bill, Bill S-5, in 2021. The bill modifies the existing judicial review process by establishing a process for complaints serious enough to warrant removal from office and another for offences that would warrant other sanctions, such as counselling, continuing education and reprimands. Currently, if the misconduct is less serious, one Canadian Judicial Council member who conducts the initial review may negotiate with the judge for an appropriate remedy.

The bill states that the reasons a judge could be removed from office include:

(a) infirmity;

(b) misconduct;

(c) failure in the due execution of judicial office;

(d) the judge is in a position that a reasonable, fair-minded and informed observer would consider to be incompatible with the due execution of judicial office.

Also, a screening officer can dismiss complaints rather than referring them to the review panel should they seem frivolous or improper.

Federal judges are appointed for life, and it is absolutely critical that they are free of political inference. It is important that we have mechanisms in place to deal with them and remove them from office if that extreme point is necessary. Parliament sets laws, though, and judges need to respect the will of Parliament. A good example is the mandatory minimum sentences that the previous Conservative government brought in.

Any violent criminal, regardless of race, gender and sexual orientation, should be treated as equal. The offender should face a jury of their peers and if convicted should get the appropriate punishment. Prison time will keep that person off the streets so they cannot engage in further criminal activity.

Mental health issues, as well as drug and alcohol abuse, need to be addressed and monitored by trained personnel. Therapy and 12-step programs that are offered in prisons must be made mandatory for prisoners. Under house arrest, there is no way to ensure that these offenders get the help they need.

We also need to consider victim safety when we are sentencing offenders. A sad but real truth is that violent crime is often committed within a family. It can be spousal abuse, sexual exploitation of a child, custodial kidnapping or robbery for the purposes of illicit substances. The people in closest proximity are always the most accessible victims. If a judge is required to sentence a spousal abuser to live at home rather than go to prison, what happens to the abused spouse and children? Do they flee to a crisis centre, or will they will get revictimized?

I want to talk a bit about Saskatoon and my riding of Saskatoon West. It is an awesome and beautiful place to live and work. My wife and I call it home. For years before I became a member of Parliament, I was a home builder. I built new homes for families moving into the riding.

First as a candidate and now as an MP, I can say that I have knocked on almost every door in Saskatoon West. As I have walked through those neighbourhoods, I have seen some of the areas of highest crime. In the past year, there have been 389 cases of reported sexual violations in Saskatoon, 2,303 reported cases of assault, 65 reported cases of kidnapping and abduction and 759 cases of violation under the Controlled Drugs and Substances Act.

Saskatoon is well above the national crime severity index of 73.4 in Canada's largest cities and has a crime severity index of 118, and it was ranked fourth behind Lethbridge, Winnipeg and Kelowna in 2020. Much of this crime is in the areas right around my constituency office. My constituency office is on the convergence of these neighbourhoods, and according to the Saskatoon Police Service, it is in the highest crime area of Saskatoon. As a result, we have to be very diligent in our office. We have gotten to know many of the people who live in the neighbourhood. They frequent our office and frequent the area by our office, and we have developed relationships with them.

My staff have a security door and a buzzer system in place to screen people before they come into the office. Still, my office has been broken into and I have had my House of Commons computer stolen. An employee of mine had the window on his car broken just because somebody wanted a few quarters that were sitting in there. A lot of this is because of addicts. We have a lot of addiction issues that drive many of the crime problems we have.

This is something that I agree with the government on. The approach on how to fix it, though, is where we differ. I believe in the miracles of alcohol and drug treatment through 12-step programs and abstention. The NDP-Liberals believe in what is called harm reduction.

What I think needs to happen is that addicts need to be treated with love and compassion, which is offered through 12-step programs. These programs offer alcoholics and addicts a way to get clean and help others get clean at no cost to the individual or taxpayer. Unfortunately, there are two things that the government does not like. First, these are programs of spirituality. They require the addict to “turn their will and lives over to the care of God”. Second, as I explained, this does not require big government intervention. These programs deliver miracles; I know that for a fact. I know people who have been through them and care about them.

As I wrap up, I just want to say that there are so many areas that we need to be working on in this House to improve our criminal justice system. Bill C-9 is a good step forward. We need to make sure that our judges are independent and that they are worthy of the positions they hold.

[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?

[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?

[The Chair, Liberal, Randeep Sarai]

Thank you, Monsieur Fortin, for keeping us on budget. I think we're all in favour of that.

We have one more hour for victims of crime, which will be on October 17, when we return after Thanksgiving. We'll be starting on Bill C-28 right after that, so I ask that you have all witness names in by October 12. That would be Wednesday of next week.

Criminal Code

[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)

[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.

[Gérard Deltell, Conservative, Louis-Saint-Laurent, QC]

Madam Speaker, I thank my colleague from Saint‑Jean for her speech.

I am glad that she said she was not a criminal law expert, because if she were, we would have gotten another great lesson. I congratulate her on giving such an excellent, well-documented and detailed speech, as usual, especially on a topic like this one.

With respect to Bill C‑28, I must admit that I am not naturally a particularly open-minded person. This is a humble confession, but I was reassured to see that this is being taken seriously by the Minister of Justice and by parliamentarians. I also want to commend my colleague from Fundy Royal, who collaborated in the drafting of this bill.

The member said in her speech that the government would refer this bill to parliamentary committee to address certain aspects. We had to move quickly in response to the Supreme Court decision, but is the member, as a lawyer, reassured by the fact that this issue will be dealt with again in parliamentary committee this fall?

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

Madam Speaker, I am pleased to rise to speak to Bill C‑28 this evening, in part because it got me to look over my old class notes. I am trained as a lawyer, but I certainly do not claim to be a criminal lawyer. As a result, while reading the Brown decision, I had to go back and review some of the concepts to refresh my memory.

Tonight's debate is taking place in the knowledge that, in any case, the bill will be passed at the end of the discussions that will take place. The content of the bill will not be changed in any way this evening. I think this may be a good opportunity to recap the events that led to the bill we are debating. Furthermore, I will certainly have a lot of fun this summer discussing the bill with my friends in criminal law, who already had a few things to say to me when they read the content of the bill. I hope this is something that will be done again in the fall because there are potential improvements to be made to Bill C‑28.

To explain why we are talking about extreme intoxication as a defence, we have to go back to the Daviault case. The year is 1989. Seventy-three-year-old Henri Daviault is a chronic alcoholic. One evening, a friend of his wife's asks him to bring her some alcohol. After drinking seven or eight beers at a bar, he sets out with a 40-ounce bottle of brandy to bring to her. He arrives at the home of the woman, who is partially paralyzed and uses a wheelchair. All we know of what happened next is that he drank all or most of the 40 ounces of brandy, and the next morning found himself naked in the woman's bed after sexually assaulting her, which he does not remember.

Mr. Daviault pleads automatism. He argues that he was in such an extreme state of intoxication that it was almost like sleepwalking. He was not aware of what he was doing. This is not the same as simply forgetting the next morning what happened the night before. This is about not being able to control one's body. His defence is supported by toxicological evidence. One expert states that after consuming that amount of alcohol, most people of normal constitution would have ended up in a coma or even dead.

The evidence is accepted by the Supreme Court, which considered whether a state of intoxication so extreme that an accused is in a state that bears a striking resemblance to automatism or mental illness as defined in section 16 of the Criminal Code can be used as a defence following a crime that requires not specific intent, but only general intent. Can this be used as a defence? The court decides that, yes, the principle of automatism can be used as a defence in cases of general intent offences. It is almost a though a new defence has been created.

The majority opinion in Daviault was criticized for its “alarming lack of consideration of the social context of sexual assault particularly for women and children”. At the time, Professor Grant argued that “alcohol is often implicated in gendered violence, and therefore strong equality protections are necessary”. She wrote, “The suggestion that someone could be too drunk to be convicted of sexual assault shocked the public's sense of justice and common sense”.

Parliament was therefore kind of stuck with the Supreme Court decision that allowed the defence of extreme intoxication in cases involving offences such as sexual assault and other general intent offences such as assault. That was the background to Parliament's adoption of the old section 33.1, which was at issue in Brown. Section 33.1 eliminated the defence of self-induced intoxication akin to automatism applied to the violent offences identified in subsection 33.1(3) where the accused departed markedly from the standard of care described in subsection 33.1(2).

In its response to Daviault, Parliament sought to supply a link between the intention to become intoxicated and the intention to commit a crime of violence identified by the majority. In a way, the two intentions were conflated, which was part of the problem in Brown with respect to the constitutionality of section 33.1. I will come back to that.

The purpose of drafting the section at that time was, as noted in the preamble to what was then Bill C-72, the fact that domestic and sexual violence have “a particularly disadvantaging impact on the equal participation of women and children in society”. Parliament was particularly mindful that the accused should not be allowed to use self-induced intoxication to justify acts of violence against women and children.

The purpose of using the Oakes test was to determine whether section 33.1 passed the test of the Canadian Charter of Rights and Freedoms and whether it was constitutional. In essence, this was Brown's challenge to the Supreme Court of Canada; he stated that this section was not constitutional and he should not be subject to it.

When applying the Oakes test, it must first be established that there is an infringement of the Charter caused by the wording of the section. Is there an infringement? The Crown submitted its arguments and the judges held that, contrary to the Crown's contention, the “marked departure” standard of fault in paragraph 33.1(2) clearly applies to the violent offence, not to the act of self-induced intoxication.

As I was saying, Parliament sort of combined these two principles, so that when a person committed an offence, such as sexual assault or assault, they were always departing from the standard of good conduct. That person automatically ended up being subject to section 33.1 and having no defence to put forward.

What was said, and what the judges held, was that section 33.1 operated akin to a regime of absolute liability by allowing conviction without proof beyond a reasonable doubt that the accused intentionally or voluntarily committed the offence. Section 33.1 improperly substituted intent to become intoxicated with intent to commit a violent offence.

Section 33.1 directed that the accused was criminally responsible even in the case of involuntary conduct. Because involuntariness negates the actus reus of the offence, involuntary conduct is not criminal, and Canadian law recognizes the requirement of voluntariness for the conviction of a crime, the person was deprived of an aspect of fundamental justice. The judges wrote that the defence of automatism denies the element of voluntariness and therefore negates the actus reus of the offence. Involuntary conduct is understood to be genuinely exculpatory because, while the prohibited act was harmful, the accused lacks the capacity to answer for what they did. A physically involuntary act, however wrongful in outward appearance, is not a guilty act that can be imputed to an accused.

What this means is that this defence, in this context, appears to be a violation of a charter right, because it amounts to an absolute liability offence. As soon as a right is violated by the Charter, the Oakes test can be used to determine whether upholding the section in question is justified, in the context of today's society and in spite of the fact that it infringes on a charter right.

There are several steps to the Oakes test. First, the section in question must respond to a pressing and substantial need. Then, there must be a rational connection between the objective and the means used to achieve it. After that, it must be proven that the section is minimally impairing and that there is no less rights-impairing means of achieving the objective. Lastly, there must be proportionality between the effects of the section and the objective.

For the first step, there must be a pressing and substantial objective. As I already said, parliamentarians went through this exercise when they drafted section 33.1. This was even mentioned in the preamble, which pointed to the broad reasons the section was enacted in the period following Daviault, namely the protection of the victims of extremely intoxicated violence and a sense that the law should hold offenders accountable for the bodily harm they cause to others when, by choice, they become extremely intoxicated.

It was in this context and with these two specific goals in mind that Parliament drafted section 33.1. The Court agreed that the section served a pressing and substantial purpose and cited Justice Lamer in Robinson: “There is no question that the protection of the public from intoxicated offenders is of sufficient importance to warrant overriding a constitutionally protected right or freedom”. The first part of the Oakes test was satisfied.

The second part of the Oakes test is that it must be proven that the means has a rational connection to the objective. I will quote the Supreme Court, which upheld the Court of Appeal ruling that the deterrent and denunciating effects of section 33.1 provide a rational connection to Parliament's protective objective.

In addition, s. 33.1 is rationally connected to the objective of holding individuals accountable, in as full a manner as possible, for the choice to become extremely intoxicated and the violence committed while in that state. It is obvious that where a person is foreclosed from advancing a defence that could result in an acquittal, that person is held accountable for something they otherwise would not be.

The second part of the Oakes test is satisfied here.

It is on the third part of the test that things start to get dicey. That is where the court is suggesting to Parliament—which is rather exceptional— what legislators could do to rewrite section 33.1 so as to make it constitutional. The court analyzed the third part of the Oakes test to see if there was any way for the rights of the accused to be less substantially impaired while still meeting the original objectives of that section of the act.

The court suggested two options. The first, and some members have spoken about it, was to create a separate offence that would criminalize the act of becoming so extremely intoxicated that a person puts themselves in a state that is dangerous to others. However, Parliament has dismissed that option in the past for two different reasons.

I, too, submit that this option would not be the right course of action to replace what we currently have in Bill C-28. It could be a subsidiary or complementary approach, but it is not the right way to replace section 33.1. In fact, it could open the door to lesser sentences for offences committed in a highly intoxicated state. Some people even called it a “drunkenness discount”. For example, the sentence for voluntarily becoming highly intoxicated could correspond to dangerous driving and the person might avoid being sentenced for aggravated or sexual assault.

The other problem is that the real harm caused by the offender would not be recognized. This approach would imply that the offender should not be held responsible for the harm they did by committing assault or sexual assault. This option should not replace the current wording of Bill C-28, but could be used as a complementary approach.

The second option upheld by the court was to review, to a certain extent, the question of the marked departure by intoxication. The idea was that individuals could still be found guilty where there was a genuine marked departure from the situation in which they had placed themselves. Parliament asserted that it was open to Parliament to enact legislation to hold extremely intoxicated persons accountable for violent crimes where they had chosen to create the risk of harm by ingesting intoxicants.

In other words, perpetrators could be held accountable for the offence in subsection 33.1 if the legal standard of criminal negligence required a demonstration that both the risk of loss of control and the risk of the resulting harm were reasonably foreseeable. In either scenario, Parliament would enact a law based on the moral instinct that individuals who choose to become extremely intoxicated can legitimately be held responsible for creating a situation where they threaten the integrity of others.

That is what Parliament is proposing as the alternative to the current subsection 33.1(2). Since it had proved that there were other legislative solutions that would achieve the same objectives and be less harmful to the accused, the court concluded that the minimal impairment standard of the Oakes test had not been met. As a result, the court found that section 33.1 should be declared of no force or effect.

Finally, the last component requires proportionality between the limitations to the section of the law and the legislative objectives. The court ruled that the risk of imprisoning the morally innocent outweighed the objective of protecting society.

All of this influenced the wording of the new section 33.1. Now, rather than associating the departure from the standard with the offence, it is actually associated with the person's consumption, that is, the way in which the person induced their own state of extreme intoxication.

I want to raise two points in connection with that. As I said, Bill C‑28 is being passed a little hastily, unfortunately. The courts tasked with interpreting its provisions will not be able to consult the debates of the House on this bill to understand the legislator's intent because they were so short, abbreviated even. That is kind of problematic.

Nevertheless, there was also an urgent need for action. If the legal void created by invalidating section 33.1 was not filled, we could have seen a situation like what happened right after Daviault, when there was a distinct possibility that an accused could raise the defence of extreme intoxication akin to automatism. In the absence of any structure, it made sense to act quickly.

Having said that, certain questions remain unanswered, and there have been some criticisms. I am thinking in particular of Professor Hugues Parent, who was quoted as saying the following in yesterday's edition of La Presse:

“The problem—and it is a serious problem—is that by limiting extreme intoxication to a state akin to automatism, the government is discounting states of intoxication that do not disrupt the individual's awareness, but that affect their sense of reality, such as psychosis.”

Automatism induced by a substance, such as a drug, is “very, very rare”, said Mr. Parent. In his more than 20 years of research on this subject, he saw the courts accept no more than four cases.

However, cases of psychosis triggered following drug consumption, where the highly intoxicated individuals are aware of their actions, “occur very frequently, as police and psychiatrists will tell you”. But these individuals are not covered by Bill C‑28...

This deserves another look. I submit that the automatism defence is a common law creation and that it is not expressly mentioned in the wording of the proposed section 33.1, any more than psychosis is. The interesting thing about the Brown decision is that it says that Brown was in a psychotic state akin to automatism. Maybe that is covered by section 33.1, but maybe not. That is worth exploring.

The proposed section 33.1 reads as follows: “A person who, by reason of self-induced extreme intoxication, lacks the general intent or voluntariness ordinarily required to commit an offence referred to in subsection (3), nonetheless commits the offence”. Does that not also encompass psychosis? Is there not a mens rea defence that in any case would fall outside section 33.1? It is a valid question.

As I was saying, it would be good if the government could avoid falling into the same old bad habits this fall when the time comes for the ex post facto review of this section in committee. If we encounter pitfalls, if we observe that the interpretation is not clear when it comes to substance addiction, the type of drug consumed, the individual's predisposition, or the emotional or family circumstances, I hope the government will have the humility to be open to amending the proposed section.

[Rob Moore, Conservative, Fundy Royal, NB]

Madam Speaker, I want to start by thanking my colleague, the member for Elgin—Middlesex—London, for her hard work, for the comments that she just made and for all of the efforts she has made on behalf of her constituency. I thank her as well for her work on the status of women committee and for her advocacy since the Supreme Court of Canada decision to have a response from the government. I really appreciate that.

She also makes sure the voices that have not been heard so much during the drafting process of Bill C-28 are being heard in the House today and will certainly be heard as this discussion continues.

I would expect that most, if not all, members of this House would agree that addressing and eliminating violence against women and girls should be a top priority and one that is dealt with expeditiously.

Unfortunately, it has been almost 40 days since the Supreme Court of Canada released its decision in the case of R. v. Brown, striking down section 33.1 of the Criminal Code. As a result of this decision, which was announced back in May, it would now be permissible to claim extreme intoxication due to drugs or alcohol as an excuse for murderers, abusers and attackers.

Conservatives have spent the last 39 days calling on the Minister of Justice to prioritize the response we are debating today. The government has control over the legislative agenda, and if it had wanted to bring this bill forward sooner, before the last days of the spring sitting, it did indeed have the power to do so. That would have allowed us a thorough debate in this House and a study at committee, where we could have heard some of the testimony that we are hearing now from the newspapers and from people writing to our offices with concerns about the bill. It should be in all of our interests, and in all Canadians' interests, that we as parliamentarians get our job right. Part of our job is drafting and voting on legislation, and we want to make sure that we hear from experts before we do that.

It took less than an hour for the Liberals to announce their intention to appeal the Alberta court decision regarding their unconstitutional anti-pipeline bill, but it has been 40 days days since the Supreme Court of Canada ruled that criminals will not be held accountable for murder if they were extremely intoxicated when they committed the crime. Why is the government turning on a dime in order to defend legislation that shuts down industries when we are just beginning debate, more than five weeks later, on the legislative response to the Supreme Court's ruling that leaves victims vulnerable?

Conservatives want to err on the side of having legislation in place sooner rather than later so that there can be an element of safety against this defence being used. However, while we can allow this bill to pass for the time being, I want to make it very clear that this is by no means the end of the discussion.

That is why we have insisted in the motion that the justice committee study this bill, this response, and that the minister appear and that the committee report back so that Parliament has an opportunity to improve this legislation if necessary.

Over the summer months, Conservatives will be speaking with stakeholders, organizations, women's groups and individuals whose voices must be heard when we are talking about strengthening the justice system. Conservatives will make sure that those voices are heard.

We know the statistics. We know that women and girls are disproportionately victims of violence and we know that the offenders in these instances are almost always male. The Liberals will try to distract Canadians from the fact that their self-proclaimed “feminist” government has been dragging its feet to address a vulnerability in the law that they were very well aware of, knowing that women and girls are most often the victims in situations like this.

Again I would like to commend the hard work of my colleague from Elgin—Middlesex—London in raising awareness of this issue through a campaign using the hashtag “#oneistoomany” on her social media.

On May 27, 14 days after the ruling came down from the Supreme Court, along with my Conservative colleagues from Elgin—Middlesex—London, Brantford—Brant and Kamloops—Thompson—Cariboo, I wrote a letter to the Minister of Justice to express the severity and urgency of this issue and calling for action. At that point, we thought we would see some action.

I would now like to share with the House some of what we asked for in that letter:

The decisions ruled by the Supreme Court of Canada in R v. Brown...and R v. Sullivan...imperil the safety of victims of violent physical attacks, domestic violence and sexual assault by permitting the dubious defence of non-insane automatism due to self-induced intoxication.

These offences disproportionately affect women, gender diverse individuals and vulnerable Canadians. The ruling made by the Supreme Court of Canada leaves a gap in the law that endangers the safety of communities and the lives of Canadians. This requires the utmost urgent action in order to protect Canadians, especially those at greater risk of experiencing gender-based violence.

The government must act now. It is your duty as the Minister of Justice and Attorney General of Canada to respond to these decisions, close the gaps in the law and ensure the protection of victims.

Our role as Parliamentarians is to represent the best interests of our communities regarding the law and legislation. This is an issue that affects us all, and we stand ready to assist in any way possible to work with you to ensure that there is an adequate response from parliament that prioritizes the safety and security of Canadians.

The Government of Canada owes it to the victims, survivors, and their families to act immediately.

Thank you for your attention to this matter. We eagerly await your response.

Eagerly await the minister's response we did. Now, 25 days after we first sent this to the Minister of Justice, we are finally having this discussion in the House of Commons today, just before we rise for the summer.

While Conservatives will allow the bill to proceed, we are not under any illusion that this is the end of the discussion. Rather, Conservatives have secured from the government a commitment to instruct the Standing Committee on Justice and Human Rights to take up a study on this matter when we return in the fall. This is a very serious topic that deserves our Parliament's time and attention. We can only improve legislation when we invite expert testimony into the conversation, which this study will certainly endeavour to do, and which we have not heard up until this point.

I know from speaking with different organizations that they felt extremely rushed. They had an online consultation, but they did not feel that they were able to give adequate input on the bill, on the impact it could have and on how it can be improved, which should be in all of our interest. There are many individuals and organizations that should have been properly consulted before and during the drafting of the bill.

This is a critically important issue that we are working to solve urgently, but that does not mean we cannot put the time and resources towards making sure the law reflects the contributions and concerns of the various stakeholders who have spoken out over the last few days about where the bill can and should be improved.

For example, the National Association of Women and the Law published a press release responding to the Liberals' Bill C-28. It states:

Despite the assurances of some defence lawyers and their allies that reliance on extreme intoxication will be rare, research analyzing the extreme intoxication defence indicates that it will be raised with some regularity. Indeed, research shows that it will be used overwhelmingly by men, and that the majority of victims will be women.

They call Bill C-28 “a missed opportunity to close the door on the use of the extreme intoxication defence where alcohol alone is used.” I think that is a very worthy discussion for us as parliamentarians to have.

To be clear, this is just one stakeholder organization whose perspective and expertise we need to hear and seriously consider when we are talking about strengthening the law to better protect women. Our study of this legislation and the law that it impacts will take place in the fall, and this will ensure that experts and stakeholders are properly consulted.

It is our role and responsibility, as Her Majesty's loyal opposition, to hold the government accountable, and where we so often see the Liberals failing Canadians is when it comes to matters of justice and their obligations to victims of crime.

Conservatives will continue to raise up the voices of victims and victims' advocates. We look forward to making significant progress in strengthening Canada's laws to better protect vulnerable Canadians.

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

Madam Speaker, I have really enjoyed my time working with the member for Shefford.

When we are looking at this bill, Bill C-28, we know that domestic violence increases with the intake of alcohol. We know that over the past two years, when we have seen stress and mental health also have many challenges, we have seen an increase in domestic violence, as well. With respect to Bill C-28, because I am a person who will always advocate for victims, I look at this as a very victim-centred bill. That is what we need to look at. It seems to be more perpetrator-centred, but that is the thing. We need to continue to fight for those victims and we understand that—

[Andréanne Larouche, Bloc, Shefford, QC]

Madam Speaker, I thank my colleague and I want to take this opportunity to acknowledge her. She is the chair of the Standing Committee on the Status of Women. I wish her a very good summer. She was also with me at the meeting of the Standing Committee on Canadian Heritage on the horrible case of assault against a young woman; it is truly awful. She spoke about it at the end.

It was a difficult session. We conducted a study on domestic violence at the Standing Committee on the Status of Women. It was a very tough session. We heard some poignant testimonies.

How does Bill C‑28 fit into this context? She opened the door in her response to the previous question: in a continuum of measures that may be taken to address violence against people. She says that this bill may not go far enough. How does she see it? What would she have wanted to see to make this bill truly fit into the context where we address this violence against women?

I would like to hear her thoughts.

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

Madam Speaker, I am sure everybody in the lobby is surprised that I actually did that at the right time.

Tonight is one of our last evenings sitting in the House of Commons before we adjourn for the summer and return to our ridings. The speech that I am going to give tonight is truly based in what I am seeing all around us. It has become a culture of violence.

Tonight, we are speaking on Bill C-28. Although I support it in principle, we do have a lot further to go. Tonight, we have the opportunity to begin this discussion, which I hope becomes a much larger national discussion. We need to continue this conversation, especially with women's organizations, which have come out and cannot support this legislation.

A good ally of mine and friend, Megan Walker, discussed this legislation with me yesterday. She cannot support it and shared her concerns about the ability of the Crown to prove it. She feels that this legislation is tokenism

Women's organizations are stepping forward and asking us to halt this legislation, while other organizations are in full support of the legislation. To me, this is a clear yellow light that we have to be cautious and that we need to re-address this: that what we are doing today is just not enough. This needs to continue.

My last six months in my role as the shadow minister for women and gender equality and youth have given me the honour to work with people, especially in the committee on the status of women.

I can share with members that it seems like we are in a real mess, and I can tell us that we need change.

Let us start with this piece of legislation. I want to address it by sharing the letter that was received by the National Association of Women and the Law. It reads, and I quote:

Feminist organizations in Canada have long been concerned about the connection between men’s use of intoxicants, and violence against women. Study after study has shown that there is a direct link between so-called ‘drunkenness’ and sexual violence. There are studies that report an average of 50% of sexual assault perpetrators consumed alcohol at the time of the assault, with other studies showing a variance of between 30 and 75%.

Looking back to the 1994 Daviault decision, in which the Supreme Court ordered a new trial based on the accused’s extreme intoxication at the time of the incident, the ‘gap’ in the law quickly becomes apparent. Mr. Daviault had voluntarily consumed an excessive quantity of alcohol before forcing intercourse on the complainant, an elderly woman with a disability. In response, feminist groups like National Association of Women and the Law (NAWL) pressed the government to restrict the defence of extreme intoxication. The federal government enacted section 33.1 of the Criminal Code, closing the gap by preventing those who voluntarily consume intoxicants and then commit acts of violence from using the defence of extreme intoxication for general intent offences.

In May 2022, the Supreme Court of Canada’s unanimous decision in Brown struck down the law set out in s. 33.1, declaring it unconstitutional and stating that voluntarily taking intoxicating substances cannot replace the criminal intent required for a conviction. This decision re-opens the ‘gap’ left by the 1994 Daviault decision, once again leaving women vulnerable to crimes of violence when the accused can demonstrate that his intoxication put him into a state of automatism. Despite the assurances of some defence lawyers and their allies that reliance on extreme intoxication will be rare, research analyzing the extreme intoxication defence indicates that it will be raised with some regularity. Indeed, research shows that it will be used overwhelmingly by men, and that the majority of victims will be women.

I know that I shared a very lengthy part of that letter, but to me, this is what we are talking about. Yes, this legislation came out very quickly. That means we need to get it passed to stop the gap today, but that does not mean that the gap has fully been filled. That is why I am urging the government to say, yes, we have got Bill C-28 done but we need to do more. I am urging the government to get on the road and let us start doing those consultations. Let us start talking more.

I want to go back to stuff that we have also been hearing about Hockey Canada. We just heard that Hockey Canada receives one to two formal complaints annually and that there are investigations.

I want to talk about all of this, because one thing that I can indicate is that sexual violence and violence against children should never happen. We are seeing it more and more. In the past number of weeks, as I have been dealing with my role as the shadow minister for women and gender equality, and in chairing the committee on the status of women, we are talking about violence and more violence. Our one study on intimate partner violence was talking about domestic violence. Following that, we talked about Kyra's Law, named for a young girl, a young child, who was murdered by her father, basically to get back at the mother.

I am looking at what is happening with Hockey Canada. We talked about a young girl who was allegedly raped by eight hockey players, and there is no responsibility. Then we can talk about what we are talking about here today, Bill C-28. To me, it is really clear. We are talking about things that are a social issue. It is a sexual assault issue.

When I look back at that link between what I am talking about with Hockey Canada and the eight players, and what we are seeing here, the bottom line is that it should never be happening in the first place. In Hockey Canada, we are hearing about a civil law suit that went through. Hockey Canada actually paid out, rather than having this go through the criminal court system. Unfortunately, I understand why someone would choose a civil suit over our justice system right now. We know it is not perfect. With the help of Bill C-233 and other bills that have been put forward in the past, we need to ensure that there is proper training for judges, but it is not just judges. It is everybody involved.

When I look at this, I look at who is responsible. Ultimately, the perpetrator has to be responsible. Although this legislation closes that gap in which we are talking about the state of automatism, we also have to look at what is next.

Just weeks ago, we passed that important piece of legislation, Bill C-233 with unanimous support. It was an all-party effort. I believe it started a conversation, and I believe what we are doing here tonight is also starting that conversation. Just as the minister stated, I had the same conversation with my 18-year-old son. He called me the very next morning and asked me about it when I was in Ottawa. I said, “Son, I'm working on this.” We recognize that it does not mean that someone has to be drunk and this could happen, but there needs to be extreme intoxication. For a young woman, anything is a barrier, including the fact that somebody may use this defence. Everything like that is a barrier.

People are coming out and saying that this law is just window dressing and is not really tackling the real issues. I think what we have to tackle is the culture of sexual violence, because we seem to be ignoring it. I was thinking about it a lot over the past few days. Working on the Hockey Canada case has really brought things to light. These are our kids we are talking about. These are the kids that our kids go to public school with. These are the children, whether they are the perpetrators or the victims. These are just kids. Sometimes we get lost on our way and we confuse what is right and wrong. Is extreme intoxication good enough, or is because someone is an athlete or a politician good enough?

We know, from the recent Supreme Court ruling on May 13, that women's organizations have spoken up. Because of that, we know this needs to be addressed. The government has addressed it through this legislation as Bill C-28. I thank the Minister of Justice and Attorney General of Canada. We pushed on this and we asked for this to be done, so I thank him for doing so.

We need more transparency for victims, and we need to remember that victims have rights, too. This is the problem. We talk so much about the rights of our perpetrators, but our victims need to have rights too. This is what we are losing a lot of the time in these conversations, whether I am talking about Hockey Canada or extreme intoxication. No is no, and there must be consent.

Finally, I want to end this with a quote. I go back to the National Association of Women and the Law:

While they may not be successful in making out the defence – pleading the defence, in itself, will result in increased timelines and lengthy court processes for victims. Ultimately, C-28 is a missed opportunity to close the door on the use of the extreme intoxication defence where alcohol alone is used.

I am coming back and I am saying that this summer I will be working on this. I will be working on providing any information that I can to both the Minister for Women and Gender Equality and Youth and the Minister of Justice, because we can do better, and we need to make sure that we listen to everybody. We need to be listening to the victims, and we need to be working to end sexual violence.

[Maxime Blanchette-Joncas, Bloc, Rimouski-Neigette—Témiscouata—Les Basques, QC]

Madam Speaker, I listened carefully to the speech given by my colleague, the Minister for Women and Gender Equality and Youth.

She told us that lives are at stake. I completely agree with her, and the Bloc Québécois is definitely in favour of Bill C‑28. If lives are at stake, then my question is obvious: Why did they wait so long to introduce legislation?

In R. v. Brown, which went to the Supreme Court, there was already a decision at the trial level. The government could have been proactive and provided a framework for such situations. I will quote the Supreme Court, as follows:

Parliament had before it a record that highlighted the strong correlation between alcohol and drug use and violent offences, in particular against women, and brought to the fore of Parliament’s attention the equality, dignity, and security rights of all victims of intoxicated violence.

[Mike Morrice, Green, Kitchener Centre, ON]

Madam Speaker, I appreciate that the Minister for Women and Gender Equality and Youth and the governing party have moved quickly.

I wonder if she could offer her insights in response to comments recently reported in the media by Kerri Froc, chair of the National Association of Women and the Law, who shared concerns that Bill C-28, as written, may be too difficult for prosecutors to prove. What are the minister's comments on that?

[Marci Ien, Liberal, Toronto Centre, ON]

Madam Speaker, the hon. member is my critic. I have deep respect for the member and for the way she leads with such empathy.

It is important that we remember why we are here tonight and why we acted so expeditiously in this regard. It is my belief that lives are on the line. When we have the kind of misinformation that was rampant on social media, that creates fear. I saw it in my own daughter, and I know she is not alone. That is something we are addressing. We moved quickly to close the gap.

There was consultation, but it is so important to remember why we are here. Bill C-28 would address a rare defence. The impact of misinformation on young people and young women has been absolutely significant. I have heard first-hand young women who truly thought that if they were attacked, there would be no protection for them, none. We had to act quickly and we did. It has been just over—

[Marci Ien, Liberal, Toronto Centre, ON]

Madam Speaker, I want to reiterate what Bill C-28 would do, because that is why we are here tonight. Bill C-28 would amend the Criminal Code so that individuals would be held responsible for violence they commit while in a state of extreme intoxication if they ended up in that state through their own criminal negligence.

That is an important point. In other words, if people voluntarily consume intoxicants, drugs or mix drugs with alcohol knowing that there is a risk of losing control and becoming violent, they may be held criminally responsible. That is the gap that we are closing.

[Marci Ien, Liberal, Toronto Centre, ON]

Madam Speaker, as mentioned, the Supreme Court ruling created a gap, and unfortunately, that gap was quickly filled with misinformation.

I have a personal note. A couple of weeks ago, my daughter, Blaize, came home from school. She is 17 years old. She said, “Mom, how messed up is it that people can just get drunk and then assault other people?” This, of course, was based on information she had seen on social media.

I come from a background of research. In my previous life I was a reporter, so I dug into this a bit. I looked into some of the social media posts, and I looked into what Blaize and other young women across this country were seeing. What I saw were social media posts with thousands of likes and comments misleading young women about what the Supreme Court's decision actually means.

I want to share, if I might, a couple of examples. One caption of a clip said, “POV: You are a teenage girl living in Canada where rape is now legal, if you are intoxicated”. It had 489,000 likes, more than 9,000 comments and almost 6,000 shares. Another post said, “You are a 16-year-old teenager living in Canada, and being too intoxicated is legal for rape and sexual assault”. That had 2.1 million views, and that is why I am here tonight.

While Bill C-28 would address a rare defence, the impact of the gross misinformation on young people, and young women especially, has been absolutely significant. This unintentional misinformation and sometimes intentional alarmist reporting style come with very serious consequences for women right across this country, as they are adding to the stigma that survivors already face when reporting gender-based violence. We know the data already shows us that just 5% of sexual assaults are actually reported to police.

Parliament simply cannot go another day knowing there are young women who believe that, if they are attacked, they will not be protected. It is why, in the little more than five weeks since the Supreme Court's decision, we are making it clear that individuals who consume drugs or alcohol in a criminally negligent manner are held criminally responsible. There will be no loophole.

For those who saw this ruling or the headlines surrounding it and felt that fear, I want them to know that I see them. I understand them, and I understand where that feeling comes from. By closing the gap created by the Supreme Court's rulings, the legislation would strengthen Canada's legal system and better protect some of the most vulnerable members of our society.

Bill C-28 is just one of the many actions we are taking to address gender-based violence and build public confidence in the criminal justice system. We are addressing this from every angle, with changes such as implementing more training for judges, funding campus supports for students and working with provinces and territories on a national action plan to end gender-based violence, which is on track to come out this year.

I know there is still distrust in our justice system, especially for racialized women and girls, indigenous women and members of the LGBTQ2 community, but I hope Bill C-28 will address some of these very real concerns. We cannot lose this hard-won ground. Acting quickly to close the gap created by the Supreme Court's ruling is an important part of this effort. I encourage my hon. colleagues and the other place, as well, to support this bill now before us.

[Marci Ien, Liberal, Minister for Women and Gender Equality and Youth]

Madam Speaker, thank you for the opportunity to express my unequivocal support for Bill C-28.

What I would like to do is focus on what this legislation means for the women and youth who are disproportionately impacted by violence, and more specifically, intoxicated violence. The extreme intoxication we are talking about is not about being drunk and not about being high. The Supreme Court has clearly said that drunkenness is not a defence in crimes of violence, including sexual assault.

That is really important, so I am going to repeat it: Drunkenness is not a defence in crimes of violence, including sexual assault.

In recent years, Canadians have deepened their understanding of the harmful social norms and influences that contribute to gender-based violence. They are also aware that our justice and social systems often fail victims and survivors. When we take an even closer look at this issue, we see that indigenous women and girls, racialized people and LGBTQ2+ people experience gender-based violence and sexual violence more than any other segments of society.

All Canadians deserve a justice system that protects them. Everyone, especially those who are most at risk, deserves to feel protected from violence. These ideals lie at the core of the legislation that is before us this evening.

In May, the Supreme Court of Canada's ruling essentially created a gap in Canadian law, a gap that can enable perpetrators to avoid conviction if they are able to prove that extreme intoxication rendered them not responsible for the crimes they committed. Bill C-28 aims to close this gap.

As mentioned, the Supreme Court ruling created a gap. Unfortunately, that gap was quickly filled with misinformation, so—

[Andréanne Larouche, Bloc, Shefford, QC]

Madam Speaker, I thank the minister for his speech. I am my party's status of women critic, and the Standing Committee on the Status of Women just finished a study on intimate partner violence. I believe the minister said that 68% of victims had been attacked by an intoxicated person, which sounds extremely high to me.

In a few words, how would the minister say that Bill C‑28 fits into the existing continuum of measures to combat intimate partner violence? Some women's groups seem to have some doubts. Does the minister understand all the aspects of the issue, and could he tell us more about them?

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

Madam Speaker, I am pleased to rise today to speak to Bill C-28. This bill responds to the Supreme Court decisions in Brown and Sullivan and Chan, which address rare yet serious situations in which a person harms someone else while in a state of self-induced extreme intoxication.

I would like to thank, first of all, the Minister for Women and Gender Equality and Youth. As well, I thank my critics, including the member for Fundy Royal, the member for Esquimalt—Saanich—Sooke, et le député deRivière-du-Nord for their collaboration and co-operation from the day that this Supreme Court decision was rendered, just over five weeks ago.

We have moved with alacrity, but also with precision, in order to fill a gap. I really want to thank my colleagues for the level of co-operation that we have received with respect to this matter, and colleagues on all sides of the House as well as the Senate who expressed an interest in us moving quickly.

Since the Court's decisions were released, many Canadians, including members in the House and the other place, have expressed concerns that acts of violence committed while in a state of extreme intoxication might very well go unpunished. Parliamentarians from all parties have urged action, as have some of my provincial and territorial counterparts. I am pleased that earlier this week there was an all-party agreement to move this forward swiftly. There are times when it is our duty as parliamentarians to move quickly to solve problems, and this is one of those times.

Women's rights organizations have expressed concerns about rulings that could change our way of seeing intoxication and criminal liability. They are concerned about the message that sends to survivors of sexual assault and other violent crimes.

We have heard that young women are nervous to return to university and college campuses this fall for fear that they could be assaulted and see intoxicated perpetrators escape liability. That is why we have acted quickly to introduce Bill C-28.

It is also tangible proof of our commitment to a justice system that keeps communities safe and holds offenders accountable while respecting the charter.

There has been a lot of inaccurate and misleading information online about the court's decisions.

Let me be clear: being intoxicated is not a defence for a criminal act such as sexual assault. That was the law before the Supreme Court decision, and it is still the law today. Extreme intoxication is a serious condition in which the person is unaware of or incapable of controlling their behaviour.

Parliament previously considered this issue in response to the 1994 decision of the Supreme Court in Daviault. In that case, the court found that a defence of extreme intoxication could be used for general intent crimes. Parliament responded by enacting section 33.1 of the Criminal Code, which limited the extreme intoxication defence in cases involving violent offences.

In the recent Brown decision, five weeks ago, the Supreme Court found that Parliament had two legitimate and pressing objectives in section 33.1. First, section 33.1 sought to protect the public from extremely intoxicated violence, especially women and children who are at a higher risk of experiencing violence, including violence committed by individuals who are intoxicated.

We know that there are clear links between intoxication and gender-based violence, particularly sexual violence and intimate partner violence, or IPV. According to a 2018 Statistics Canada survey, 63% of women and girls who were killed were killed by an intoxicated attacker.

Last year, the World Health Organization identified the harmful use of alcohol as a risk factor for sexual violence and IPV. Fighting violence committed by intoxicated people while protecting the public is clearly still a pressing objective.

The second objective was to hold individuals accountable by ensuring that they could not escape liability for crimes of violence committed while in a state of self-induced extreme intoxication. The Supreme Court recognized that these two objectives remain pressing and substantial today.

However, because section 33.1 also captured cases where extreme intoxication and violence were not reasonably foreseeable, the court concluded that the law risked convicting people who might not be to blame for ending up in a state of extreme intoxication. This, therefore, infringed the charter.

Bill C-28 addresses this gap in the law created by the court's decisions and introduces a new section 33.1 with the same public protection and accountability objectives. With this bill, we are standing up for victims and survivors of crime. This bill reaffirms that it is fair and just to hold individuals responsible for crimes of violence like assault, sexual assault and manslaughter committed in a state of extreme intoxication if they were criminally negligent in their consumption of intoxicating substances.

It is simply unacceptable for people to negligently put themselves in a dangerous state in which they cannot control their actions and then escape the consequences if someone gets hurt. The Supreme Court has described extreme intoxication as “a state akin to automatism”. In other words, the body is doing something but the mind is not in control.

Legally, extreme intoxication is very rare. An accused cannot just assert that they were in a state of extreme intoxication when they harmed someone and be absolved of liability; they need to prove that they were in that rare mental state by using expert evidence.

Bill C-28 leaves this important requirement for establishing the defence in place. What changes is what happens next.

If a person establishes that they were in a state of extreme intoxication under Bill C-28, they would still be held criminally liable if they 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 foreseeable risk—in this case, the risk of a violent loss of control.

Determining criminal negligence—and this is a standard known to law—involves a two-step process. First, would a reasonable person, in those circumstances, have foreseen the risk and taken steps to avoid it? This is an objective test. Second, did the person's failure to do so amount to a marked departure from the standard of care expected of a reasonable person in the circumstances?

The risk here is whether consumption of intoxicants could cause extreme intoxication and lead the person to harm someone. By requiring proof of negligence, Bill C-28 corrects the constitutional deficiency found in the former section.

Bill C-28 also requires courts to assess whether the person's conduct amounted to a marked departure and requires courts to consider all relevant circumstances, including anything the person did to avoid the risk. Courts routinely conduct this type of assessment in other areas of criminal law, notably in relation to offences of criminal negligence. The bill makes clear that all relevant circumstances must be taken into account. While these circumstances will vary from case to case, certain factors can be expected to arise, including the nature of the substance and the setting where they were consumed.

To help illustrate the bill's intention, let us consider a couple examples. Someone who attends a crowded gathering and quickly consumes a large amount of a substance known to cause psychosis and agitation, without taking any precautions, could likely be proved to be criminally negligent and thus convicted.

By contrast, let us say someone takes a prescription drug, triggering an unanticipated state of extreme intoxication and hurts someone. However, because they could not have anticipated a violent loss of control when they took the medication, in this case they might very well be acquitted. Each case will turn on the unique facts before the court.

Bill C‑28 responds to the Supreme Court of Canada's Brown, Sullivan and Chan decisions. As LEAF said last week, Bill C‑28 is a thoughtful, nuanced and constitutional piece of legislation to address the narrow but significant gap resulting from the Supreme Court of Canada decisions. This bill recognizes that all members of society have a responsibility to protect each other from the foreseeable risks of their behaviour, and it holds people accountable for the harm they cause when they fail to meet that responsibility.

I firmly believe that Bill C-28 serves to complete the work that Parliament began in 1995 when it first enacted section 33.1. It protects the public and holds people accountable for their actions in a way that is fair and constitutional.

I once again repeat the thanks that I offered at the beginning to my critics, who worked diligently with all of us to help advance this quickly.

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

moved that Bill C-28, An Act to amend the Criminal Code (self-induced extreme intoxication), be read the second time and referred to a committee.

Madam Speaker, I seek unanimous consent to share my time with the Minister for Women and Gender Equality and Youth.

Order Respecting the Business of the House and its Committees

[Mark Holland, Liberal, Leader of the Government in the House of Commons]

moved:

That, notwithstanding any standing order, special order or usual practice of the House, beginning on Friday, June 24, 2022, and ending on Friday, June 23, 2023:

(a) members may participate in proceedings of the House either in person or by videoconference, provided that members participating remotely be in Canada;

(b) members who participate remotely in a sitting of the House be counted for the purpose of quorum;

(c) provisions in the Standing Orders to the need for members to rise or to be in their place, as well as any reference to the chair, the table or the chamber shall be interpreted in a manner consistent with the virtual and hybrid nature of the proceedings;

(d) the application of Standing Order 17 shall be suspended;

(e) in Standing Orders 26(2), 53(4), 56.1(3), and 56.2(2), the reference to the number of members required to rise be replaced with the word “five”;

(f) the application of Standing Order 62 shall be suspended for any member participating remotely;

(g) documents may be laid before the House or presented to the House electronically, provided that:

(i) documents deposited pursuant to Standing Order 32(1) shall be deposited with the Clerk of the House electronically,

(ii) documents shall be transmitted to the clerk by members prior to their intervention,

(iii) any petition presented pursuant to Standing Order 36(5) may be filed with the clerk electronically,

(iv) responses to questions on the Order Paper deposited pursuant to Standing Order 39 may be tabled electronically;

(h) should the House resolve itself in a committee of the whole, the Chair may preside from the Speaker’s chair;

(i) when a question that could lead to a recorded division is put to the House, in lieu of calling for the yeas and nays, one representative of a recognized party can rise to request a recorded vote or to indicate that the motion is adopted on division, provided that a request for a recorded division has precedence;

(j) when a recorded division is requested in respect of a debatable motion, or a motion to concur in a bill at report stage on a Friday, including any division arising as a consequence of the application of Standing Order 78, but excluding any division in relation to the budget debate, pursuant to Standing Order 84, or the business of supply occurring on the last supply day of a period, other than as provided in Standing Orders 81(17) and 81(18)(b), or arising as a consequence of an order made pursuant to Standing Order 57,

(i) before 2:00 p.m. on a Monday, Tuesday, Wednesday or Thursday, it shall stand deferred until the conclusion of Oral Questions at that day’s sitting, or

(ii) after 2:00 p.m. on a Monday, Tuesday, Wednesday or Thursday, or at any time on a Friday, it shall stand deferred until the conclusion of Oral Questions at the next sitting day that is not a Friday,

provided that any extension of time pursuant to Standing Order 45(7.1) shall not exceed 90 minutes;

(k) if a motion for the previous question under Standing Order 61 is adopted without a recorded division, the vote on the main question may be deferred under the provisions of paragraph (j), however if a recorded division is requested on the previous question, and such division is deferred and the previous question subsequently adopted, the vote on the original question shall not be deferred;

(l) when a recorded division, which would have ordinarily been deemed deferred to immediately before the time provided for Private Members’ Business on a Wednesday governed by this order, is requested, the said division is deemed to have been deferred until the conclusion of Oral Questions on the same Wednesday, provided that such recorded divisions be taken after the other recorded divisions deferred at that time;

(m) for greater certainty, this order shall not limit the application of Standing Order 45(7);

(n) when a recorded division is to be held, the bells to call in the members shall be sounded for not more than 30 minutes, except recorded divisions deferred to the conclusion of Oral Questions, when the bells shall be sounded for not more than 15 minutes;

(o) recorded divisions shall take place in the usual way for members participating in person or by electronic means through the House of Commons electronic voting application for all other members, provided that:

(i) electronic votes shall be cast from within Canada using the member’s House-managed mobile device and the member’s personal House of Commons account, and that each vote require visual identity validation,

(ii) the period allowed for voting electronically on a motion shall be 10 minutes, to begin after the Chair has read the motion to the House, and members voting electronically may change their vote until the electronic voting period has closed,

(iii) in the event a member casts their vote both in person and electronically, a vote cast in person take precedence,

(iv) any member unable to vote via the electronic voting system during the 10-minute period due to technical issues may connect to the virtual sitting to indicate to the Chair their voting intention by the House videoconferencing system,

(v) following any concern, identified by the electronic voting system, which is raised by a House officer of a recognized party regarding the visual identity of a member using the electronic voting system, the member in question shall respond immediately to confirm their vote, either in person or by the House videoconferencing system, failing which the vote shall not be recorded,

(vi) the whip of each recognized party have access to a tool to confirm the visual identity of each member voting by electronic means, and that the votes of members voting by electronic means be made available to the public during the period allowed for the vote,

(vii) the process for votes in committees of the whole take place in a manner similar to the process for votes during sittings of the House with the exception of the requirement to call in the members,

(viii) any question to be resolved by secret ballot be excluded from this order,

(ix) during the taking of a recorded division on a private members’ business, when the sponsor of the item is the first to vote and present at the beginning of the vote, the member be called first, whether participating in person or remotely;

(p) during meetings of standing, standing joint, special, special joint, except the Special Joint Committee on the Declaration of Emergency, and legislative committees and the Liaison Committee, as well as their subcommittees, where applicable, members may participate either in person or by videoconference, and provided that priority use of House resources for meetings shall be established by an agreement of the whips and, for virtual or hybrid meetings, the following provisions shall apply:

(i) members who participate remotely shall be counted for the purpose of quorum,

(ii) except for those decided unanimously or on division, all questions shall be decided by a recorded vote,

(iii) when more than one motion is proposed for the election of a chair or a vice-chair of a committee, any motion received after the initial one shall be taken as a notice of motion and such motions shall be put to the committee seriatim until one is adopted,

(iv) public proceedings shall be made available to the public via the House of Commons website,

(v) in camera proceedings may be conducted in a manner that takes into account the potential risks to confidentiality inherent in meetings with remote participants,

(vi) notices of membership substitutions pursuant to Standing Order 114(2) and requests pursuant to Standing Order 106(4) may be filed with the clerk of each committee by email; and

(q) notwithstanding the order adopted on Wednesday, March 2, 2022, regarding the Special Joint Committee on the Declaration of Emergency, until the committee ceases to exist and where applicable,

(i) the committee shall hold meetings in person only should this be necessary to consider any matter referred to it pursuant to subsection 61(2) of the act,

(ii) members who participate remotely shall be counted for the purpose of quorum,

(iii) except for those decided unanimously or on division, all questions shall be decided by a recorded vote,

(iv) in camera proceedings may be conducted in a manner that takes into account the potential risks to confidentiality inherent in meetings with remote participants,

(v) when more than one motion is proposed for the election of the House vice-chairs, any motion received after the initial one shall be taken as a notice of motion and such motions shall be put to the committee seriatim until one is adopted;

that a message be sent to the Senate to acquaint Their Honours that this House has passed this order; and

that the Standing Committee on Procedure and House Affairs be instructed to undertake a study on hybrid proceedings and the aforementioned changes to the Standing Orders and the usual practice of the House.

Madam Speaker, it is my pleasure to rise on this motion and talk about the extension of hybrid provisions for one year and the opportunity for the procedure and House affairs committee members to study the issue of either the use or the non-use of those provisions as they deem through their process and their recommendations thereafter.

I will take us back for a moment to March 2020. As the whole business of the pandemic was unfolding, it was about a week before this House shut down when I had a conversation with the House administration at that time asking what the pandemic plan was and what we had on the books. Of course, those who wrote it had put something together, but it became apparent very quickly upon looking at it that the intersection of what was planned with what happened in real life meant that the plan, frankly, was not of much use.

We then began a process, and I want to thank members from all parties, reflecting back on those early days in March 2020, as we attempted to find a way for Canada's Parliament to continue to do its business and to make sure that, notwithstanding the fact that we had this incredible public health emergency that sent people to their homes, Canadians knew that the seat of their democracy continued to function, continued to get bills passed and continued to put supports out there for them.

Before I talk about some of those supports, I want to take a moment to thank the House administration and officials who worked with us to create these tools and innovations to allow our democracy to continue to function. In an incredibly short period of time, an ability was developed to participate and vote virtually. This eventually led to a voting app and other refinements that have enabled members, whether or not they are sick, whether or not they are unable to be at the House for medical or other reasons, to continue to participate in the proceedings of the House and to make sure they are not disenfranchised and their constituents continue to be represented.

Members would remember that Canadians and businesses were reeling in those early days of COVID, and some three million jobs were lost. There was a real state of folks not knowing where things were going to go. Small businesses were left unable to serve their customers and wondering what their future would be. It was specifically because of the provisions we put in place, which all parties worked on with the House administration, that we were able to still get those supports adopted and make historic support available to make sure that businesses and individuals did not fall through the cracks.

Now we see the economy roaring back, and 115% of jobs lost during the pandemic have come back, compared to below 100% for the United States. We see us being a world leader in economic growth, number two in the G7 and trending towards being number one next year. It is absolutely evident that the supports that were put in place to make sure that Canadians did not fall through the cracks were what got us there.

When we think of the bravery of people opening a small business, taking a chance and putting themselves out in the world, putting their shingle out and hoping to survive, there are a lot of things they have to prepare for, such as the possibility that their product may not be as popular as they had hoped, or the long hours that they, and the people they employ, will have to put in to try to make the business successful. Of course, it is not reasonable for folks to expect that a global pandemic will be the thing that shuts them down. It was, in fact, those hybrid provisions that enabled people to get that work done.

The pandemic continues, but before I talk about the continuing pandemic, I will take a moment to talk about all the things that we got done, and not just those historic supports.

As the pandemic came and went, as we thought it was over last November and we thought that things might be returning to a sense of normalcy but we got hit by omicron, the flexibility of Parliament meant that we were able to continue to get the job of the nation done. We can take a look at how much Parliament was able to accomplish from January to June: 14 bills, not including supply, were presented, and we introduced seven bills in the Senate on a range of important issues. Many of the bills that we are passing now or that have just passed through the House are going to the Senate, and it is our hope and expectation, particularly with the great work that was just done on Bill C-28, that the Senate will be able to get that done as well before it rises for the summer. This was all done using the hybrid provisions.

Let us take a look at some of those bills.

Bill C-19 is critical to grow our economy, foster clean technology, strengthen our health care system and make life more affordable for Canadians in areas such as housing and child care.

Bill C-18 would make sure that media and journalists in Canadian digital news receive fair compensation for their work in an incredibly challenged digital environment.

Bill C-11 would require online streaming services to contribute to the creation and availability of Canadian stories and music to better support Canadian artists.

Bill C-21 would protect Canadians from the dangers of firearms in our communities, making sure that we freeze the market on handguns, attack smuggling at the border and implement red flag provisions to address domestic violence.

Bill C-22 was brought forward to reduce poverty among persons with disabilities in Canada and is part of a broader strategy that has seen more than one million Canadians lifted out of poverty. That is particularly remarkable when we think that it was this government that set the first targets ever for poverty reduction. After we set those goals, we have been exceeding them every step of the way, and Bill C-22 is a big part of that strategy.

Bill C-28, which I talked about a minute ago, deals with the extreme intoxication defence. It is a great example of Parliament in a hybrid environment being able to work collaboratively to ensure that we close an important loophole to make sure that the extreme intoxication defence is not used when murder has been committed.

These are just some of the bills that we have been able to put forward, and we have been able to do so in a way that empowered all members of Parliament to be able to participate, whether they had COVID or not.

To give members a sense of the challenges, not only was all of this done using the hybrid system and during the middle of a pandemic, but it was done while dealing with obstruction. We saw all the times the Conservatives obstructed government legislation. In fact, 17 times over the past 14 weeks, the Conservatives used obstruction tactics, using concurrence motions and other tactics to block and obstruct, in many cases, legislation that was supported by three out of the four official parties here. They took the opportunity to obstruct, yet despite that, we have been able to make great progress.

The Conservatives support Bill C-14, yet we ended up spending a night because they were moving motions to hear their own speakers. At the MAID committee looking at medical assistance in dying, where there was incredibly sensitive testimony, witnesses were not able to testify because of the tactics and games that were happening here in this place. However, despite all that, in a hybrid environment we have been able to move forward.

Let us look at last week. Last week there were five members of the Liberal caucus who had COVID, and one of these people was the Prime Minister. I do not know how many members there were in other caucuses, but all were still able to participate in these proceedings. Every day, unfortunately, thousands of Canadians across the country continue to get COVID. Sadly, many of them are in hospitals and, even more tragically, many of them are dying. This pandemic is still very much a reality.

What we have seen over the last two years is that every time we try to start a parliamentary session, we spend weeks debating whether we should or should not continue using the hybrid system. Parliament deserves stability. People are still getting COVID. They have the right to be able to participate in this place, and as has been demonstrated by the incredible amount of work we have been able to get done during the pandemic, from historic supports in the deepest, darkest time of the pandemic to the more recent times dealing with a whole range of legislation that is absolutely critical to Canadians, these provisions allow us to continue to do the work of this nation in extraordinary times.

I do not think we should be in a position such that every time we start Parliament, we continue to have this debate. Canadians need predictability, as we do not know where this pandemic or public health circumstances are going. Canadians need predictability until the House of Commons, through a committee process, can evaluate the utility and usefulness of the provisions outside of a pandemic reality to see if they should be extended or used. We need to have a proper, thorough debate in that venue, hearing from witnesses, hearing from parliamentarians, taking a look at what was accomplished and at what could be done better or differently.

We are already seeing big improvements in everything, from the services that are being delivered to interpretation. I look forward to PROC's work to see whether or not these provisions have utility, but until then, this measure would give us the stability for PROC to do its report and for Parliament to continue to function in incredibly challenging times.

That is why I think it is only prudent to pass this measure now. It is so that Parliament will have the stability to do its work, so Canadians will know this work will not be interrupted, and so we can focus instead on the business of the nation.

Interruption to Proceedings

[Greg McLean, Conservative, Calgary Centre, AB]

Mr. Speaker, I am rising on a question of privilege concerning last night's crash of the hybrid Parliament system. I was working in my Confederation Building office here in the precinct for the House of Commons, but could not log into the Zoom portion of the House's proceedings last night. We were discussing Bill C-21, the government's cynical approach to gun control, which was to be followed by Bill C-28, a response to the Supreme Court's decision that relieved extremely intoxicated criminals of taking responsibility for their crimes. These are both issues that many of my constituents are very passionate about, and I wanted to be present for the debates.

Several colleagues also tried to access the video conference for the sitting, but were unsuccessful, I was told. I also understand that a meeting of the very important Special Joint Committee on the Declaration of Emergency, the committee looking into the government's choice to declare a national emergency over this winter's truck protest in Ottawa, had to be abandoned because of these technical failures.

Beyond the obvious inconvenience and embarrassment of the hybrid system, which incredibly the government House leader will be asking later today to be renewed for another year, this incident represents broadly, I believe, a breach of the privilege to be able to represent my constituents. Under the House order of November 25, 2021, which reinstituted hybrid arrangements after last year's election, “members may participate in proceedings of the House either in person or by video conference”. It states “may participate”. There is no caveat or qualification to that. There is nothing that says it is only applicable when all the technology lines are up.

As much as I may think the hybrid Parliament should be scrapped, the House has agreed to those arrangements until at least tomorrow, so I sought to exercise my right to participate remotely from my parliamentary office, yet I simply could not.

While I acknowledge that the House suspended last evening shortly after the connectivity problems were flagged, which was appropriate, the way the House adjourned was not, however. According to the records of the House, the sitting resumed at 8:54 last evening when the parliamentary secretary to the government House leader then sought unanimous consent for the House to adjourn. The chair then canvassed the House in the usual manner and found there was agreement for the motion. Since I was trying to attend remotely, but with a technical range that prevented me from doing so, I was unable to present for that vote. That too is a breach of my privileges.

I have since come to understand that there had been a consensus of party representatives to reconvene the House for the purpose of adjourning when it became obvious that technical issues could not be resolved prior to midnight. That said, I understand that my House leader's office had been assured by the government House leader's office that a minister of the Crown would be proposing the adjournment of the House. That is a critical point in these circumstances. Last night's sitting was an extended sitting under the House order of May 2, better known as Motion No. 11, which permits a cabinet minister to move an adjournment motion on a point of order, which is deemed adopted upon being moved. There would have been no vote and no opportunity to object. The NDP-Liberal agreement on Motion No. 11 already stripped me of those rights.

Had any of the 39 ministers of the Crown been here to manage the Business of the House, the House could have properly adjourned early under the Liberals' ruthless Motion No. 11, but they did not even manage that correctly. Instead, there was a vote and I was not able to be present for it. Your predecessors, Mr. Speaker, have found several prima facie cases of privilege concerning the inability of a member to reach the House, especially when there is a vote.

Mr. Speaker Regan put it well on April 6, 2017, at page 10,246 of the Debates:

The importance of the matter of members' access to the precinct, particularly when there are votes for members to attend, cannot be overstated. It bears repeating that even a temporary denial of access, whether there is a vote or not, cannot be tolerated.

He cited favourably the 21st report of the Standing Committee on Procedure and House Affairs in 2004, in relation to security arrangements on Parliament Hill for the visit of an American president:

The denial of access to Members of the House—even if temporary—is unacceptable, and constitutes a contempt of the House. Members must not be impeded or interfered with while on their way to the Chamber, or when going about their parliamentary business. To permit this would interfere with the operation of the House of Commons, and undermine the pre-eminent right of the House to the service of its Members.

Those cases concerned physical obstruction.

Page 111 of House of Commons Procedure and Practice, third edition, reminds us, “A Member may also be obstructed or interfered with in the performance of his or her parliamentary functions by non-physical means.” This new hybrid world obviously presents entirely new considerations that had not even been contemplated when those previous cases arose or when our procedural authorities were written. Bosc and Gagnon, at page 112, continues, “It is impossible to codify all incidents which might be interpreted as matters of obstruction [or] interference”.

That said, Mr. Speaker, I know that you, yourself, have been seized with considering just how privilege intersects with the virtual component of our proceedings from the very beginning. When the procedure and House affairs committee first began studying these issues in the earliest weeks of the pandemic, you testified on April 21, 2020, saying, at page five of the evidence, “By not having the connectivity or by having any issues, that could be an issue down the road.”

Later you added, at page 10, with particular relevance to my situation last night, “Allowing individuals to vote is the heart of our system, and it's the base of parliamentary privilege.” You reinforced this point in your July 6, 2020, appearance before the same committee by commenting, at page six of the evidence, “It is a member's privilege to vote, and we don't want the member to lose that privilege or not be able to access it.”

The issue goes much deeper than just attending votes. I could not attend any of the virtual sitting. A predecessor of yours, Peter Milliken, bluntly made the point about connection failures to the procedure and House affairs committee on April 23, 2020, at page 19 of the evidence. He said, “It would be a matter of privilege if they couldn't get into it.”

Taking the evidence the committee heard in the spring and summer of 2020, it presented two reports which helped form the structure of the hybrid system which has evolved here. Its views on these issues are equally clear.

In its fifth report presented in May 2020, the committee wrote at page 31, “It is essential that any modifications to the procedures and practices of the House made in response to the COVID-19 outbreak fully respect the rights possessed by members under parliamentary privilege.” It continues, “Further, in the exercise of the rights accorded by parliamentary privilege, members have the right to full and equal participation in parliamentary proceedings.” Last night, I did not have full and equal participation in parliamentary proceedings.

In its seventh report, which was presented in July 2020, at page 55, the committee recommended:

That the virtual or hybrid parliament replicate the rules and customs of the House as closely as possible...in order to fully ensure the democratic role of Parliament (deliberation, accountability and decision-making), as well as the parliamentary rights and privileges of members.

Further in the report, at page 60, the committee recommended, “That members participating virtually in any proceedings of the House of Commons enjoy and exercise the same parliamentary privileges that apply to members physically present.” I was incapable of exercising the same rights and privileges as my colleagues inside the chamber last evening when the Chair canvassed the House on the parliamentary secretary's unanimous consent motion.

As for the causes of the outage last night, I would submit that identifying the origins and motivations, if any, if either can even be identified, is immaterial to this question of privilege.

First, and most important, House business was conducted in defiance of the order adopted on November 25, 2021, denying me the opportunity to participate and vote, which is in breach of parliamentary privilege.

Second, that is a matter that a committee of the House, with a privilege reference, can determine. I will quote Mr. Speaker Milliken from October 15, 2001, at page 6085 of the debates, who said:

There is a body that is well equipped to commit acts of inquisition, and that is the Standing Committee on Procedure and House Affairs, which has a fearsome chairman, quite able to extract information from witnesses who appear before the committee, with the aid of the capable members who form that committee of the House.

Third, even if the source of last night's technical difficulties can be readily pinpointed, I would refer you to the ruling of your predecessor, the hon. member for Regina—Qu'Appelle, on March 6, 2012, at page 5,834 of the debates, where he found a prima facie case of privilege in connection with the online hacker collective Anonymous.

I have long thought that we need to get back to traditional in-person sittings of the House. Yesterday's situation is just the latest example of why it is so important.

Though I recognize I am straying into debate on Motion No. 19, which is on today's schedule, the point remains that something serious happened last night. It was something that rose to the level of a breach of privilege, and a committee needs to get to the bottom of it. Should you agree, Mr. Speaker, I am prepared to move the appropriate motion.

[Jennifer Gold]

I made some suggestions, but I didn't get a chance to speak to some of the larger systemic problems and maybe where they flow from.

What I'd like to see this government move in the direction of is eradicating poverty; implementing greater support for people with mental illness and mental challenges; implementing greater education and training for the judiciary and the police; providing supports for the next generation; taking into account intergenerational trauma and strengthening gun control, such as through Bill C-21.

I think this government has an opportunity to create transformational change, and we applaud the steps in that direction that Bill C-21 and Bill C-28 reflect, as well as the recent amendments to the Judges Act and the Criminal Code that require judges to be trained on sexual assault law and social context.

Justice

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

Mr. Speaker, I would first like to thank my colleague from Saint-Laurent for her question and for her dedication to this issue.

I want to clarify one very important point: Being intoxicated is not a defence for criminal acts such as sexual assault. That was the law before the Supreme Court decisions and it is still the law today.

Bill C-28 amends the Criminal Code so that in the rare case of extreme intoxication, someone in a state of negligent self-induced extreme intoxication can be criminally responsible.

We will continue to build a justice system that is more effective, fairer, and worthy of victims' trust.

[The Chair, Conservative, Karen Vecchio]

I would like to welcome everybody to the 27th meeting of the Standing Committee on the Status of Women. I call this meeting to order.

Before I get started, I just want to commend everybody. We are finishing up our session today on the status of women, and today we've had the IVP report tabled. Thank you so much to Sonia for making sure that was tabled. Moreover, Bill C-28 was introduced. I just want to say congratulations to everybody and great work on collaboration.

Today we are returning to this very important study as well.

Pursuant to Standing Order 108(2) and the motion adopted on Tuesday, February 1, the committee will resume its study of resource development and violence against indigenous women and girls.

Today's meeting is taking place in hybrid form.

Pursuant to the House order of November 25, 2021, members are attending in person in the room, and remotely using the Zoom application. Per the directive of the Board of Internal Economy on March 10, 2022, all those attending the meeting in person must wear a mask except for members who are at their place during proceedings.

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 via video conference, click on the microphone icon to activate your mike and please mute yourself when you are not speaking. On interpretation, for those on Zoom you will the choice at the bottom of the screen of the floor, English, or French. For those in the room, you can use the earpiece and select the desired channel. I remind you that all comments should be addressed through the chair.

Today I would like to welcome our witnesses.

As an individual, we have the Honourable Michèle Audette, senator and former commissioner of the National Inquiry into Missing and Murdered Indigenous Women and Girls. From Regroupement des centres d'amitié autochtones du Québec, we have Jennifer Brazeau, executive director. From the Department of Natural Resources we have Kimberley Zinck, director general, reconciliation.

From the Department of Public Safety and Emergency Preparedness, we have Christine Moran, the assistant deputy minister, indigenous secretariat; Mélanie Larocque, director general, program development and intergovernmental affairs, crime prevention branch; and Michelle Van De Bogart, director general, law enforcement and border strategies.

And from the Impact Assessment Agency of Canada, we have Patricia Brady, vice-president, external relations and strategic policy, and Brent Parker, director general, external relations and strategic policy.

Everybody, we have a big day today. So, to all of you we will be granting you five minutes for your opening statement. I will be putting up a notice for your one-minute reminder, indicating that you have 60 seconds to go. I will give you maybe 10 seconds over that, but because we have such an extraordinary panel today, we want to make sure that everybody has the opportunity to hear from all of the witnesses and that all of the questioners get their opportunity to speak as well.

I am going to pass it over for the first five minutes to, as an individual, the Honourable Michèle Audette, senator.

Criminal Code

[David Lametti, Liberal, Minister of Justice]

moved for leave to introduce Bill C-28, An Act to amend the Criminal Code (self-induced extreme intoxication).

(Motions deemed adopted, bill read the first time and printed)