Justice Committee on Oct. 20th, 2022

[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.

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

Mr. Chair, I want to make sure that those participating in the meeting via Zoom underwent the necessary sound checks.

[The Vice-Chair, Conservative, Rob Moore]

Yes, the necessary sound checks were conducted.

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

Very good. I think it's important to mention that at the beginning of each meeting. We have to make sure the sound quality is acceptable for the interpreters, so they can do their jobs properly.

Thank you, Mr. Chair.

[The Vice-Chair, Conservative, Rob Moore]

That's a great point.

To all of our witnesses, if you have any questions, just let us know.

We will begin. I would like to welcome our first witnesses, from the Native Women's Association of Canada, Carol McBride, president, and Adam Bond, manager, legal services.

You have five minutes for your opening remarks.

[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]

Thank you.

I should mention for everyone that I'll put up a card if you have 30 seconds left, and then this one means you're out of time, but our witness was right on time, so thank you for that.

Next we have, from Mothers Against Drunk Driving, MADD Canada, Eric Dumschat, legal director. He's appearing by way of video conference.

[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.

[The Vice-Chair, Conservative, Rob Moore]

Thank you to our witness.

Next, and finally, we have, for five minutes, the London Abused Women's Centre and Jennifer Dunn, executive director, appearing by way of video conference.

[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.

[The Vice-Chair, Conservative, Rob Moore]

Thank you.

Thank you to all of our witnesses for their opening statements. I didn't get to use my cards at all.

We will now turn to the question-and-answer time. The first round is for six minutes each, beginning with Mr. Caputo.

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

Thank you, Mr. Chair.

I want to thank each and every one of our witnesses, both present and appearing virtually. What you have to say here is important. It's not only important; it is necessary, and it's necessary that we get this right.

I don't mean to take up the witnesses' time, but I was particularly struck by your comments, Ms. Dunn, by what you just said, because it was very striking on so many levels.

You spoke about myths. The first thing that came to my mind was the ability of somebody who commits a sexual assault, an offence that is intrinsically violent in and of itself, to claim to be so drunk as to not know what they're doing. Claiming that defence is something I've never really understood, so I understand what you're saying.

The first question I was going to ask was answered by Ms. Dunn, but I invite everybody to talk about the consultations that took place. Any or all of the witnesses are invited to discuss those from both a personal perspective and with respect to whether they feel in general that sufficient consultations have occurred in this process.

[Adam Bond, Manager of Legal Services, Native Women's Association of Canada]

We were consulted. It wasn't a great deal of consultation. I think we understand that the government was under a lot of pressure and that there were some misunderstandings about what the SCC decision meant. There was a concern that the public was under the impression that becoming intoxicated was essentially a “get out of jail free” card.

That said, we would have preferred to be consulted more and earlier on in the process. By the time we were reached out to, I think decisions with the direction of the bill had already been made.

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

Could I follow up on that, sir?

Obviously, you said that you would prefer that the consultations had been to a greater extent. What were the consultations?

[Adam Bond]

We had a meeting with Department of Justice where they had invited us to discuss the legislation. They invited us to provide our input, and they had explained to us the processes that they had gone through before that point to consult other stakeholders.

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

Thank you.

Do any of the other witnesses wish to weigh in on this?

[Jennifer Dunn]

I can say something. I think it was clear in my presentation that we had a round table in August. Since it was in August, it was after everything was already complete. We were not consulted ahead of time at all.

Thank you.

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

Could I follow up on that answer, please?

My sense is that you're probably fairly plugged into people who work in the field as well. Can you comment generally on the feeling in the community of whether there were there sufficient consultations on this very important topic?

[Jennifer Dunn]

I have to say that I have not heard in our community of any of the organizations that we work with being consulted. That's not to say it didn't happen, but it is concerning that we wouldn't know based on the work that we all do together.

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

This question is for the representative from MADD Canada.

Thank you for being here. I know you've been very clear that you may not have as much to add to the conversation, but in about 30 seconds, could you tell us about the general feedback you got from the public on this point?

[Eric Dumschat]

We had a lot of confusion and a lot of questions, not only from our members but, because we are one of the bigger names in the anti-impaired driving scene, from the media. They questioned if this was going to mean that people could claim, “I can't be charged with driving impaired, I was too impaired.” We had a few questions about that.

It was pretty quickly dealt with just because, as I said in my opening remarks, it doesn't affect us. We put out a blast to our membership. I know I gave an interview to at least one media thing. How much further it goes beyond that I couldn't tell you.

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

Thank you, all.

[The Vice-Chair, Conservative, Rob Moore]

Next we have Madam Brière for six minutes.

[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]

Thank you very much.

It is our understanding that “extreme intoxication”, when seen in this way, wouldn't be from just one intoxicating substance. For example, you could not have consumed just alcohol; it would have to be perhaps a combination of intoxicating substances that could cause extreme intoxication. Further to that, there would have to be reason to believe that the intoxicating substances would create an extenuating circumstance, if you will, for an individual as well.

We believe, however, that an individual would have to know that they would be taking the intoxicating substances to begin with, whether it's alcohol or drugs, which would cause the problem to begin with. I know that in part this does not answer your question, but that's basically the understanding of it. We know that this is not a matter of an individual having a couple of drinks and then being able to claim they were drunk and committed a sexual assault. We know that this is definitely not the case, but do people on the ground know that? Not easily; they do not know that right off the top, right off the bat, when they hear about these types of conversations. That is one of our biggest concerns.

Thank you.