Justice Committee on Oct. 24th, 2022

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

Thank you, Mr. Chair.

Mr. Minister, I'm going to ask you a question that I actually didn't intend to ask you, but our colleagues have broadened the discussion here.

We've just had a report that this is the seventh consecutive year of an increase in intimate partner violence and an increase in the severity of the violence. In 2019, for instance, we saw 77 homicide victims in intimate partner cases. In 2020, we saw 84, and in 2021, it was 90 of those cases. This committee has twice recommended to the government a package of measures to deal with intimate partner violence, and one of the things suggested was making coercive controlling behaviour a criminal offence.

Do you think that making coercive controlling behaviour in intimate partner relationships a criminal offence would be a useful tool for combatting intimate partner violence?

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

First of all, generally on intimate partner violence, I share the broad concerns here. We've tried a number of measures. We're open to a number of measures, and I am open to creating an offence of coercive control and to look at other jurisdictions. I know that's what the committee was doing, and that's what we need to do. I'm certainly open to that and I think it could be a very useful addition to the tools that we have.

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

In terms of—I hate “whole of government”—whole-of-government responses across the country, one of the problems seems to be the differing ways that provinces provide services and supports to victims of intimate partner violence.

Has there been any consideration given to some kind of task force that would look at best practices and minimum standards for jurisdictions across the country?

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

I would certainly be open to that. I've just come back from a federal-provincial-territorial first ministers meeting, and they did actually congratulate us on this piece of legislation—all of us collectively, for having worked together—so thank you.

We did also discuss, as one of the topics, how we support.... Quebec, for example, is trying specialized courts, which seems to me to be a good idea. Much of the administration of justice is in provincial and territorial hands, so we're there as a willing partner, but I would be open to ideas for making sure that we have the best practices recognized across the country and have those standards met.

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

Thank you, Mr. Minister.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Garrison.

We have one more round. I don't have the Conservative name, but I'll ask the clerk who would like to speak for the first five minutes.

[The Clerk of the Committee, Mr. Jean-François Lafleur]

I have Mr. Caputo. Sorry about that.

[The Chair, Liberal, Randeep Sarai]

Maybe I do have it.

Mr. Caputo, I'm sorry about that. You have five minutes.

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

Thank you, Mr. Chair.

Thank you, Minister, for being here. It's always a pleasure to have you here.

I want to pick up on your first statements that intoxication doesn't excuse sexual assault. I think that's something that all of us around this table would universally state. We really do have an epidemic on this issue, not only with education but also with how frequently this occurs.

My colleague Ms. Diab picked up on this, and I want to clarify. I took your statement as being a moral statement to say that just because you have had something to drink or a lot of drinks, it does not excuse the fact that you take someone's sexual dignity and that you don't have their consent to do this. Really what we have—and section 33.1 recognizes it—is an excuse in extreme intoxication. It may be rarely used, but it still does exist.

Am I making sense when I say that?

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

It is possible only—and you would know this as a former prosecutor—in a very rare and particular set of circumstances, because as the accused you have to establish, first of all, according to the Daviault test, that you were in a state of extreme intoxication. You have to do that with expert evidence, and only once you do that can the Crown disprove it, and if they disprove it, then your defence is done. Otherwise, you then move to the point we're on today, which is to go to the criminal negligence standard for how you entered into that state.

Therefore, only a very rare set of circumstances would put you there. The court has said, jurisprudence has said and we have said around this table that intoxication is not a defence for crimes like sexual assault. I can say this to you—again, as a former prosecutor—that it's a general intent defence, so it's not going to be a defence, and we need to make that clear.

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

I do take your point because on a basic level, I don't understand—and this is just on a human level, not speaking as a lawyer—how somebody can be in a state of extreme intoxication akin to automatism, as in you don't know what you're doing, where you're going and what you're saying, and still commit a sexual assault. On a basic human level, I just don't understand how that is the case.

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

Just to reinforce that, if it's alcohol, it's probably impossible for you to get to that state and still be functioning, right? The point here is about some kinds of drugs, and we're working out those standards. Again, the standard example that I use is the prescription drug that you take because the doctor tells you to take it, and there's no way you could have known that this would happen. If there are known potential side effects and you knew about them, that probably negates your defence.

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

The reason I used intoxication by alcohol is that, as I recall, that was Daviault. Those were the facts.

For me personally, this is an area of significant concern. That's why, two weeks ago, I put forward Bill C-299, which would raise the maximum sentences for all sexual offences—or not all, but almost all sexual offences—proceeding by indictment to life imprisonment to reflect this epidemic and to reflect the seriousness of this, to reflect that victims themselves are often put into a psychological life imprisonment when they are sexually assaulted.

Is that something you could see yourself supporting?

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

I'm happy to take a look at it. As you know, my problem is with minimum mandatories. We have raised maximum penalties in other areas. I will undertake to look at it with an open mind.

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

Thank you. Perhaps we can chat at a future date.

One of the issues we have with new legislation—and you'll be aware of this—is that we have 10 provinces and three territories, and this law will be tested in every single one of those. It gets tested at the trial level. Then it goes to the court of appeal, and then it has to go to the Supreme Court of Canada. This costs probably hundreds of millions of dollars in litigation.

There's one way around this, and that's with a reference case to the Supreme Court of Canada, who could say that revised section 33.1 is, in its view, constitutional or unconstitutional. Was there any thought given to that? One of the things that we're hearing about in consultations, in my view, and one of the things that we're talking about today, is uncertainty. A reference case would give us certainty.

My question is this: Was there any thought given to a reference case to the Supreme Court of Canada?

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

In this particular case, I'll be honest: no, because the court gave us such a clear road map of either A or B, and we took B. It was also because there are so few cases that invoke this particular defence. Over 20 years, there have been fewer than 10, if I am correct.

I think it is highly unlikely that we're going to see the successful invocation of this defence, except in the most extreme— I don't want to say “extreme”—the rarest of circumstances.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Caputo.

Last, we'll have Ms. Brière for five minutes.

[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?

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

Thank you for your question.

Yes, I think so, from a legal standpoint. As I was just saying to Mr. Fortin, we are currently expanding as much is possible the scope to establish an intoxicated person’s guilt.

There were obviously many more elements in the answers I gave to Mr. Garrison. More must be done to support victims.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

In the new section, to decide if a person has departed markedly from the standard of care, the court may consider any relevant circumstance, including anything that the person did to avoid the risk.

To which circumstances are we referring? Do you think that this clarification could, for instance, allow the courts to consider the situation of an accused from a marginalized group that is disproportionately targeted by the criminal justice system, or indigenous or racialized persons?

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

The short answer is yes.

A contextual analysis of the circumstances based on an objective standard, like that of criminal responsibility, is always required.

Possible factors include the environment, the nature and the quantity of substances consumed, the individual’s state of mind, as well as measures taken to avoid the risk, if any. However, we leave it to the courts to determine if people meet the objective standard. This way of doing things has worked well in the past. These cases are relatively rare, and I think the courts will fulfil their duty.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

In practice, on the ground, what does it mean for police officers involved and for prosecutors in terms of the burden of proof? What kind of workload will this add for them?

[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]

To what other context does the Criminal Code’s standard of predictable criminal negligence apply?

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

We use it in the case of offences arising from specific behaviours, such as dangerous driving or failing to provide the care necessary for life, specifically for young children. This standard is known and applied. I think that we are targeting the same type of offences here.