Justice Committee on Oct. 24th, 2022

[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.

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

Mr. Chair, were sound tests performed before the meeting started for the witnesses participating by video conference?

Were the results satisfactory? I did not hear you say anything.

[The Chair, Liberal, Randeep Sarai]

The clerk acknowledges that they were all tested. They have all passed the sound test.

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

Thank you, Mr. Chair.

[The Chair, Liberal, Randeep Sarai]

Thank you.

Without further ado, I would ask our Minister of Justice, the Honourable David Lametti, to begin for five minutes.

[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]

Thank you, Minister.

Now we'll go to our first round of questions, beginning with Mr. Moore for six minutes.

[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, LaSalle—Émard—Verdun, QC]

Thank you, Mr. Moore, for that question.

Obviously, whether it's survivors of the mosque shooting in Quebec City or the Bosma family or others who have been victims of these horrific acts, our sympathy goes out to them. We do our best to make the system work as quickly as possible.

We diligently tried to fill the position of ombudsperson for victims of crime. Sometimes there are things that turn out to be out of your control in the way those processes work at an individual level. I won't go any further into detail, but we did our best from the beginning to fill that position. We have now done so. I think everyone agrees that the person we have picked is very good.

The difference between the Bissonnette decision and this case is that the Supreme Court gave us a couple of paths to move forward. The Bissonnette decision, again, doesn't change the actual sentence that the convicted killer got in that case. It only adds eligibility for parole. I appreciate that this is important, but eligibility for parole does not mean the person will get parole. We did our best to defend that case as part of the discretion a judge has to impose that kind of sentence. That was the argument the Attorney General of Canada made in that case in front of the Supreme Court. The court didn't accept it by a 9-0 decision.

I'm open to suggestions, but it doesn't have a path, or two paths in the case we're looking at today, with Brown and Sullivan. It doesn't have an easy or clear path. The decision of the Supreme Court was pretty clear in terms of the interpretation of the Constitution.

I would just underline that eligibility for parole is not parole. It doesn't guarantee parole, and the sentence as it exists still stands.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you, Minister.

I would urge, and we're urging, that the same minds that came together to respond to the decision in Brown and looked at the possible choices—and we're going to have time to discuss the pros and cons of the different options in Brown—turn to the Bissonnette ruling.

We've heard testimony from multiple victims and their families that the parole process in and of itself, and knowing that their children have to take part in it, is a revictimization.

In my own constituency just recently, someone on parole for killing my constituent's daughter when she was 16 years old was at large. Nobody even knew were he was. Now we understand that he's up for parole again, even though he was unlawfully at large.

The parole process in and of itself is a revictimization. We need to turn those same minds to a response to the Bissonnette ruling. I would certainly urge that.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Moore. Unfortunately, we're out of time.

We'll now go to Ms. Diab for six minutes.

[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?

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

Thank you, Ms. Diab, for the question.

“Self-induced” means you took the intoxicant yourself, whether it's alcohol, drugs or whatever. Self-induced refers to how you took them and that you took them of your own accord. Hence, that puts a bracket around what we're doing.

“Extreme intoxication” has been interpreted by the courts as something akin to a state of automatism. This means your body is functioning, but you're not in control of it. I think that's the easiest way to put it. Your limbs are moving and in rare cases you are capable of doing extreme acts, but you're not controlling yourself anymore. It is a rare set of circumstances. Legally, it has been carved out of a number of different things, so there is a carve-out here.

What we are doing is recognizing that the manner in which you entered that state of automatism matters, even though you did it yourself. In most cases, when it was reasonable for you to predict that there might be a loss of control, that there would be a loss of self-control, or that there might be a violent outcome, you will still be held responsible for whatever you did. If it was sexual assault, you will still be responsible for sexual assault. If it was manslaughter, you will still be responsible for manslaughter.

The only rare exception is if there was something that meant you couldn't have known, shouldn't have known or ought not to have known according to an objective, reasonable standard. If you got prescription pills for the first time and it couldn't have been predicted—nobody would have known or you couldn't possibly have known—that you would have this outcome, you might have a chance, if it provoked that state of automatism.

Again, you have to reach that state and you have to prove that state. Then it's up to the Crown to show that you could have predicted, should have known or otherwise ought to have known.

[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?

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

It is rarely used as a defence, and even more rarely invoked successfully. There have been no reported cases since we've amended the legislation. Since the earlier Supreme Court decision, it was only rarely used, and was very, very infrequently successful.

It makes women safer and it makes men safer from acts that are perpetrated while in a state of self-induced intoxication, in the sense that it holds more people criminally responsible and only carves out those who had no way of knowing that this could have or should have happened. It helps us in a larger sense to deliver the message that intoxication is not a defence. You are responsible for what you do when you get intoxicated. I think that is as important as the Criminal Code amendment itself. It is sending out that message to everybody to counter the false narrative that somehow you could get off if you were drunk or if you were high. That is simply not the case.

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

Okay. Thank you so much. That is much appreciated.

[The Chair, Liberal, Randeep Sarai]

Thank you, Ms. Diab.

Next we'll go to Monsieur Fortin for six minutes.

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

Thank you, Mr. Chair.

Good morning, Minister. I am happy to see you here this morning.

We, at the Bloc Québécois, applaud this decision because we believe that this loophole in the law needed to be closed. I think it's important. I think the text is interesting.

However, I have a couple of questions. In fact, from the beginning, I've been wondering a lot about the notion of voluntary intoxication. Is there not a loophole there? Have you, for example, looked at the case of someone who says they meet the criteria but says they didn't voluntarily get intoxicated, where drugs were added to their drink or a stronger substance was added to the joint they thought was just cannabis? Have you looked at this aspect of extreme intoxication that is supposedly unintentional, but may be questionable?

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

Thank you for your question, Mr. Fortin.

We’re talking about self-induced intoxication. If another person is proven to be the cause of the intoxication, that could be a defence. Everything depends on the facts, and that does indeed raise another issue.

However, given that the person should have known, under the circumstances, that there was a risk, it would be much more difficult for them to prove their innocence. I am not talking here about the way the joint was made or the source of the intoxication, regardless of what it was. It’s the context that will determine it. Jurisprudence contains specific standards to reinforce the message that self-induced intoxication is not a defence and exceptions are rare.

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

Thank you, Minister.

In section 4, you propose a definition of self-induced extreme intoxication, which is “intoxication that renders a person unaware of, or incapable of consciously controlling, their behaviour.”

This definition seems somewhat vague to me. In your opinion, is it sufficient for the courts to reach a consensus? Would it have been possible to better define the term “extreme”?

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

Thank you. That is a good question.

This is a prescribed definition. We took it from the old version of the act. Furthermore, jurisprudence also defines extreme intoxication akin to automatism, which renders a person incapable of conscious self-control. This interpretation is easier to understand. It is in fact a standard recognized in the field, and it works well.

[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?

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

Thank you.

We conducted consultations quickly, but we had already conducted some previously. Let me give you the list of consulted organizations.

They were the following: Women's Shelters Canada, Luke's Place, Pathway Group, Ontario Network of Victim Service Providers, La Fédération des maisons d'hébergement pour femmes, Farrah Khan, Canadian Women's Foundation, LEAF, Robin Parker, National Association of Friendship Centres, Native Women's Association, Action Now Atlantic, Students for Consent Culture, Kent Roach, Janine Benedet, Frances Chapman, Gerry Ferguson, Michael Plaxton, Hugues Parent, Canadian Association of Black Lawyers, Criminal Lawyers' Association, Association des Avocats de la Défense de Québec, Criminal Trial Lawyers' Association, Tony Paisana, Jody Berkes, Women's Law Association of Ontario and the National Association of Women and the Law.

We held consultations, and the vast majority of organizations supported our process, whether it be officially or unofficially.

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

Were any specific concerns raised by consulted organizations regarding Bill C‑28?

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

I can tell you that the National Association of Women and the Law was one of the groups not in favour of the bill. The association wanted something closer to the old version of the act.