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.