Justice Committee on Oct. 20th, 2022

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Ms. McBride or Mr. Bond, would you like to add something?

[Adam Bond]

Yes. I'm not entirely sure that I understand the question, but I think it's about what is extreme self-induced intoxication in this context. The bill does spell it out for us in subsection 33.1(4): “extreme intoxication means intoxication that renders a person unaware of, or incapable of consciously controlling, their behaviour.”

I'll avoid a discussion of how to determine the inability to control behaviour, but I think this has to be situated in the context of the other negligence provisions, essentially, that have been included in here. This rendering a person incapable of consciously controlling their behaviour is in the context of somebody who has, as Ms. Dunn pointed out, self-ingested an intoxicant, and this is in the context of somebody who has departed markedly from the standard of care.

This raises a lot of questions. What is the standard of care of a reasonable person in these circumstances? I think these questions have to go by a case-by-case kind of basis. We also have the element of the reasonable person, the foreseeability of the harm...these kinds of negligence elements that have been included.

For instance, in the Brown case, we were talking about somebody who ingested magic mushrooms and then essentially had no control. The question is, would this have been captured in this clause? Is it reasonable for a person to know what their behaviour would be when taking those types of illegal drugs?

The reasonable standard, is that something...? In some cases, for some people who have a history of certain types of abuses, of interference, with bodily harm, in those circumstances they should be aware, as a reasonable person, that they're likely to engage in this type of behaviour, but when people take intoxicants that are illegal, it's not like we go to the pharmacy and we see what the potential side effects are.... The question of whether or not something is foreseeable probably has to go through a case-by-case basis.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Thank you.

Would you like to add something, Mr. Dumschat?

[Eric Dumschat]

Unfortunately, I don't feel that I'm in a position to be able to add anything. As I mentioned, this doesn't really affect impaired driving, so I have not taken the time to educate myself to a point where I feel that I could comfortably speak on this topic.

[The Vice-Chair, Conservative, Rob Moore]

Thank you, Madam Brière.

Next, for six minutes, we will move to Mr. Fortin.

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

Thank you, Mr. Chair.

Thank you to all the witnesses for being here today.

This is an important and concerning issue for all Quebeckers and Canadians. This applies to crimes for which the self-induced extreme intoxication defence could be advanced. Almost all the witnesses told us that they had not been consulted before the bill was drafted.

Mr. Dumschat, if the Minister of Justice had consulted you on the bill beforehand, what would you have told him? What would you have recommended in response to the Supreme Court's decision?

[Eric Dumschat]

To be honest, I would have been surprised if we had been consulted. As I've said a few times now, this doesn't affect impaired driving, so it would be understandable that we would not be consulted on this, because, frankly, there would be no need to consult us on this.

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

Mr. Dumschat, as you well know, people who are so intoxicated that they no longer know what they are doing get behind the wheel and cause car accidents. Those people could use intoxication as a defence even though their intoxication was self-induced. You don't think there's a scenario where this could come into play?

[Eric Dumschat]

No, this won't come into play. The Supreme Court has upheld the fact that Parliament can create criminal offences where the gravamen, the very essence of it, is impairment. If someone were to say, “Your Honour, I can't be held responsible for driving while impaired; I was too impaired,” wouldn't make any sense in the case law, and this is pretty clear.

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

Thank you, Mr. Dumschat.

Ms. Dunn, I'll ask you the same question. You said you weren't consulted either. If you had been consulted, what would you have told the Minister of Justice about the bill?

[Jennifer Dunn]

You're correct. We were not consulted ahead of time. With regard to this bill, we know that it's truly an attempt to obviously address the Supreme Court's decision. It attempts to support victims and survivors of crime and hold offenders accountable.

The issue is that there was a reason this was put in place to begin with. I think the year was 1994, if I remember correctly. This decision really reopens that gap again, and it leaves women vulnerable to crimes. To be honest with you, we would have said that this decision shouldn't have been reversed to begin with or taken away to begin with.

We should still be able to know that women and girls can be protected without the potential for somebody to use self-induced intoxication as a defence.

[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?

[Jennifer Dunn]

It would be important to make sure, and I know this is something that is supposed to be done, that the gender-based analysis lens was looked at, or was used to look at this bill, as well. I'm unsure if the committee has information on that piece. I think that would be an important step.

Speaking to that, it would have been very important during consultation time to listen to women with lived experience, as well. Some of the women whom we spoke with during the round table gave some pretty good input on how they feel about this situation. Sometimes it's something as easy as education, for example, to let people know what this means in the real world.

To be honest with you, when we receive phone calls from women, they wonder what's going to happen to them, and what is going to happen next to them. When people on the ground don't particularly know what is going on, that's a huge problem for us, so a public education piece would have been vital in this circumstance.

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

Thank you, Ms. Dunn.

[The Vice-Chair, Conservative, Rob Moore]

Thank you. You're out of time.

Thank you, Mr. Fortin.

Next, for six minutes, we have Mr. Garrison.

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

Thank you very much, Mr. Chair.

I do want to start off by saying that I think some of us around the table have sort of forgotten the situation we were in when asking about why people weren't consulted.

The Supreme Court made a decision, which created a gap in the criminal law. It also created a lot of confusion in the public. I think that a consensus among all of the parties—among ourselves—was that we needed to act quickly. These sessions we're holding now were planned at the time because we knew that the consultations couldn't really take place fully unless we were going to leave that gap for months after the Supreme Court decision. It's kind of been forgotten here that we really are endeavouring to do those consultations at this point because of the time frame we were forced into.

I want to thank the representative from MADD for being here. He's in a peculiar position of providing a kind of negative evidence, but I think it's important that MADD was here today to say that. I think we still have some of that confusion out in the public that this decision has somehow affected impaired driving.

I know it's an awkward position for you to be in here today, saying it doesn't affect what we're concerned about, but I think an important message for us to get out to the public is that it doesn't change anything about impaired driving.

With that very long preamble, I would like to ask the Native Women's Association of Canada about what we actually did in the bill and whether they think it's sufficient.

In common language, we did two things. We set a very high standard for what it means to be in extreme intoxication. It's basically automatism where you're not in control anymore. Also, we require that evidence—not just a claim—be presented of that state. The second thing we did is we said that prosecutors can then evaluate whether care was taken by a reasonable person.

Given the Supreme Court decision, what I'm really interested in today is if this is a good thing that we've done here. Is it a sufficient thing that we've done?

[Adam Bond]

I'll try to be as brief as I can.

Is what we've done here a good thing? I think essentially two options were available. Both of them resulted in the same outcome. The court had basically said it's a stand-alone offence or fix section 33.1.

For reasons that were echoed in the consultations through the 1990s on this with women's groups, there was a risk that a stand-alone offence could undermine other types of plea deals—like, somebody could commit a sexual assault then plea out to a lesser offence of extreme intoxication. Then there's this option of tightening it up and including these negligent standards.

At the end of the day, we don't know if either of these options is really going to be successful in addressing what was at the core of Brown, which is the substitution of the mens rea for becoming intoxicated with the mens rea to commit the offence. Does it do it? We will find out one day, I'm sure.

Is it good? I think it was good that action was taken quickly. We should have been consulted earlier. We would have liked to have a conversation, even if there were only two options and both of those options have ended at the same place.

When we did consult and when we did have conversations with Justice, our position was, as the president said here, that the bill cannot be enough. These are systemic issues. They cannot be dealt with by fixing the Criminal Code. They cannot be dealt with in the Criminal Code itself.

The reason we have this provision to try to deny the application of a defence of self-induced intoxication is that we have problems with extreme intoxication and with misuse of substances. These problems are pronounced in marginalized communities, including indigenous communities, because of the legacies of systemic racism and because of colonization.

We need not only amendments to the Criminal Code. We need more substantive policies and programs to address the underlying issues. If we get ahead of extreme intoxication, it won't be an issue. If nobody commits the crimes because of the extreme intoxication, then we don't need section 33.1. We need to focus more on the peripheral policies and programs to address these underlying issues because it doesn't matter what you do; nothing is going to be enough in the Criminal Code alone.

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

Thank you. I think that's very important testimony for the committee to have heard and to think about when we're reporting back to Parliament at the end of this.

I know there's not going to be very much time, but I'd like to ask Ms. Dunn the same.... Maybe I won't ask Ms. Dunn this time. I'll ask on another round.

Let me stay with the Native Women's Association of Canada then.

I know the answer to this, but do you see ways that we could actually increase the support services at the community level to help deal with those addiction problems that lead to extreme intoxication?

[Adam Bond]

Well, I definitely don't have enough time for that one. I would just say it needs to be done at a community level and at a nation-to-nation level because we can't paint with too wide a brush. We need to understand that the communities and the organizations are in the best position to explain what services and supports they need.

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

Thank you very much.

[The Vice-Chair, Conservative, Rob Moore]

Thank you, Mr. Garrison.

Mr. Garrison's time is up, but there will be other opportunities for sure.

Next for five minutes we'll go to Mr. Van Popta.

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

Thank you very much, Mr. Chair.

Thank you to all the witnesses for being here and sharing your wisdom with us. This is a very important study.

Ms. Dunn, I want to focus on you first. Thank you for the important work that you do in helping women who are the victims of crime.

Today we're talking about whether or not extreme intoxication can be a defence for a person accused of a violent crime. You are a very important witness for us, Ms. Dunn, because, to quote the Minister of Justice when he introduced this legislation, we know that there are clear links between intoxication and gender-based violence, particularly sexual violence and intimate partner violence. As well, 63% of women and girls who were killed were killed by an intoxicated attacker.

In your earlier evidence, it was clear that you did not agree with the Supreme Court of Canada's decision in R. v. Brown, which reintroduced that defence into Canadian jurisprudence. My question is whether in your opinion there was ever a possibility that that defence should be reasonably available. I'm going to take the facts in the Brown case. He had consumed alcohol and magic mushrooms, and he said in evidence that he did not know what the impact of that was going to be. He could not reasonably have foreseen that he would lose control over his ability to know what he was doing.

In those circumstances, would it be reasonable for that defence to be available?

[Jennifer Dunn]

Thank you very much for the question. I appreciate the opportunity.

This is interesting. Asking if this defence should be available in other situations is a good question for us because it all comes down to the systemic issues that we have at hand here. I would like to say that the majority of people who commit sexual assault, for example, are men. In these types of situations with these men, should that type of defence be available? It should absolutely not be because the women are at most risk in this type of situation. But in other types of situations—let's just use the exact example that you just gave but with a woman—we would say let's think about that. There should be, perhaps, more opportunities for this person. They should be able to use extreme intoxication as a defence.

Then it comes down to this big systemic issue that we have at play here, which is the fact that these laws are not being looked at through the lens of violence against women. I think it is really important to think about how we protect women in this situation. How do we protect specifically indigenous women and racialized women, and what does that look like? I don't think it's a matter of whether this defence will be good in some situations, and whether it will be a good idea to allow this defence here but not a good idea to allow it there, because it's way bigger than that.

I'm going to put a period at the end of my sentence there.

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

Thank you.

Many Canadians would be very sympathetic to what you just said, but we parliamentarians have the challenge that the Supreme Court of Canada put to us and we're trying to respond to it.

The Supreme Court in the Brown case said that section 33.1 was unconstitutional but they did say that if you were to frame a law within these parameters it might be constitutional, so that's what we're trying to do here. Your evidence is very useful for us. Thank you for that.

I'll cede my time. Thank you very much to all the witnesses.

[The Vice-Chair, Conservative, Rob Moore]

Next for five minutes we'll have Ms. Dhillon.