Evidence of meeting #34 for Justice and Human Rights in the 44th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was defence.
A recording is available from Parliament.
Head of Feminist Law Reform, National Association of Women and the Law
I know that NAWL, our organization, was involved in pushing for this legislation, so it's definitely something that we believed should be addressed. We believe that the defence of extreme intoxication shouldn't just be available without safeguards.
Obviously, the Supreme Court of Canada has ruled this provision to be unconstitutional, so it's not an option to go back there, but, as Professor Froc has explained, it doesn't mean that there are no other options on the table.
Liberal
Yasir Naqvi Liberal Ottawa Centre, ON
What was your reaction to the Supreme Court of Canada's decision in the Brown case? Did you agree with the analysis? Do you agree with the decision, or do you have concerns about the court's reasoning when dealing with the previous section 33.1?
Head of Feminist Law Reform, National Association of Women and the Law
We believe that women's rights and interests could have received more consideration. I also want to add that it wasn't a complete surprise. There has been commentary for a while saying that these provisions might be unconstitutional, and, obviously, the litigation doesn't get.... Someone who raises constitutionality to the Supreme Court doesn't get a decision in a day. It often takes many years.
It was, I might say, reasonably foreseeable that we could be put in this situation. That's why NAWL's primary concern, or one of the things we've been most vocal about, has been why the consultations hadn't taken place before. If there was such a need to act so quickly, which is hard to understand given the minister's insistence that the defence is so rarely used, then why weren't these consultations started much earlier with women's groups?
Liberal
Yasir Naqvi Liberal Ottawa Centre, ON
I've heard that argument before. I don't know if one could presuppose a Supreme Court decision and be ready for all eventualities at all times. I don't 100% agree with that thought process, but that's just my opinion.
Don't you think, by the fact that the Supreme Court decision came, that there was a gap, a vacuum, that needed to be addressed as quickly as possible in order to protect women? Was the position that all parliamentarians took by fast-tracking the drafting and passage of the legislation, in your view, not an appropriate way to move forward? Should we have delayed it? Would that have been a good public policy?
Head of Feminist Law Reform, National Association of Women and the Law
I think it's one way or another. Either it's such a rare defence that it doesn't matter that the standard is very high for the Crown, because it's such a rare defence that it never comes up and hasn't come up since the Brown decision, or this is a very urgent matter for which there is no time to even have these hearings we're having today.
I don't think it is fair to women's groups, which have been instrumental in working toward just getting our basic sexual assault provisions in the Criminal Code, to rush these consultations. As Professor Froc explained, we felt that the way we were consulted was a little bit after the fact. I don't want to presume the intention for these consultations, but we definitely felt that a couple more weeks to make sure it was done better would have been preferable.
It also depends on whether you are going to go away from this committee and then make amendments to the law or if we're being heard after the fact. There have now been consultations, but we want meaningful consultation so that it's not just us talking at you. We want our concerns to be, ideally, integrated in the law-making process.
Liberal
Yasir Naqvi Liberal Ottawa Centre, ON
I appreciate that. Thank you for that.
I also heard in your remarks that you're concerned about the law, of course, but also, critically, about the application of the law. Am I correct that in a lot of the women's groups the bigger concern...? The law may be good or perfect, but how it's applied by the police, prosecutors and judges is a bigger concern because its applicability across the country has not been identical or the same. Is that a big issue for your organization?
Head of Feminist Law Reform, National Association of Women and the Law
Yes. As a sexual assault law scholar, I can say that application is always our biggest concern. I wouldn't say that the law is perfect and the problem is application. We have concerns with the law. We believe that the law is feeding and giving possibilities for the application to be even worse because of the lack of clarity.
Liberal
Yasir Naqvi Liberal Ottawa Centre, ON
A lot of the conversation in our earlier panel was around subsection 33.1(2) and whether there should be a standard or not. This is where I'm getting a little concerned and confused. I think that providing for a standard in subsection 33.1(2) will allow for a more uniform application of the law versus the absence of a standard, where different judges, prosecutors and police officers may interpret the law differently.
Head of Feminist Law Reform, National Association of Women and the Law
Can I answer?
Head of Feminist Law Reform, National Association of Women and the Law
It's not a standard. As Professor Grant explained, the standard is “marked departure”. What is given in the subsection we're criticizing is factors. It's always the question, why these two factors? What were all of the other factors that you decided not to include in the law, and why? How are these factors to be weighed? That's what we think will lead to inconsistent and problematic application.
Liberal
The Chair Liberal Randeep Sarai
Thank you, Mr. Naqvi.
It's over to you, Monsieur Fortin, for six minutes.
Bloc
Rhéal Fortin Bloc Rivière-du-Nord, QC
Thank you, Mr. Chair.
Ms. Zaccour, thank you for being here.
You said the minister didn't consult you before bringing in these provisions. If he had, what would you have told him?
Head of Feminist Law Reform, National Association of Women and the Law
We probably would have told him what we said today. We would have highlighted the importance of making sure not only that the Crown can prove the standard, but also that the factors are clear and relevant.
It's reasonable to say that someone is being irresponsible when they become intoxicated knowing there is a risk that the intoxication could lead them to cause harm to another person. Similarly, someone is being irresponsible when they become intoxicated knowing that they are at risk of losing all control over their behaviour. Why, then, include both aspects? Professor Grant pointed this out: Are both necessary? Is it a standard? Are they factors?
We will have to push hard to get the law clarified. Since the beginning, we've criticized the necessity of proving that the risk of harm was foreseeable.
Bloc
Rhéal Fortin Bloc Rivière-du-Nord, QC
Subsection 33.1(2) states that “the court must consider the objective foreseeability of the risk”. This is a rare situation to begin with, and every factor makes it that much rarer. The objective foreseeability of the risk that the person's consumption of intoxicating substances could cause extreme intoxication has to be proven. That strikes me as a very rare situation.
Do you disagree?
Head of Feminist Law Reform, National Association of Women and the Law
That's a big question.
It depends, to some extent, on the degree of risk that has to be proven. I don't think the law makes that clear. Is it necessary to prove that it was possible that it could happen? Probable? Plausible? That is where the law is open to interpretation.
A judge could easily consider that there is always a risk of losing control when a person becomes intoxicated. Others might argue that most people who become intoxicated do not become violent, as was mentioned earlier. Regardless, some people definitely become violent before reaching a state of extreme intoxication.
Ultimately, it's never foreseeable. That is why my recommendation is to monitor how the law ends up being interpreted, because the parameters proposed for guiding the courts could obscure the meaning of the law, rather than clarify it.
Bloc
Rhéal Fortin Bloc Rivière-du-Nord, QC
Besides getting rid of subsection 33.1(2) altogether, what amendments would you make to the provision if you could?
Head of Feminist Law Reform, National Association of Women and the Law
Professor Grant talked about getting rid of it, which is certainly a worthwhile suggestion.
Assuming that the provision was here to stay, I would say that the risk of an individual becoming violent and the risk of them losing control over their behaviour are each sufficient, on their own, to hold the person responsible for their actions. I said that earlier. In my opening remarks, I gave the example of a man who regularly assaults his wife while drunk. The fact that he becomes violent when he drinks is foreseeable, but it's not necessarily foreseeable that he will reach a state of extreme intoxication. Regardless, even when he is in control of his behaviour, he is violent towards his wife.
That is why this dual standard is excessive, in my view. My recommendation would certainly have been to clarify it, so as not to leave it up to the courts to determine what a reasonable person would have done and whether it amounted to a marked departure. I think the degree of risk should have been assessed, so that it was clear whether it was possible, plausible or probable.
Those are things I encourage you to think about.
Bloc
Rhéal Fortin Bloc Rivière-du-Nord, QC
I realize that the case law covers a range of viewpoints, but we're talking about people who consume intoxicating substances and reach a state of extreme intoxication. Those are pretty serious circumstances.
Do you not agree that, once a person has consumed enough of an intoxicating substance, they are necessarily at risk of reaching a state of extreme intoxication and thus causing harm to someone else? I'm not saying that it will necessarily happen; I'm simply saying that there is an objective risk.
I don't know how much of an intoxicating substance amounts to extreme intoxication, but it goes without saying that it's a lot. Some might argue that it's not a problem. Nevertheless, when an individual consumes a large quantity of the substance, isn't it automatically foreseeable that the person could reach a state of extreme intoxication?
October 27th, 2022 / 5:35 p.m.
Liberal
The Chair Liberal Randeep Sarai
Thank you, Monsieur Fortin.
I will give you a few seconds to answer that really quickly, Ms. Zaccour.
Head of Feminist Law Reform, National Association of Women and the Law
One of the problems is that a good many people become intoxicated but don't necessarily know what they are consuming or how much. How many beers does it take for extreme intoxication to become foreseeable? Is it five, 10, 15, 20, 25 or 30 beers? I don't know. That's why the people consuming the substances have to be experts.
As an advocate for women's rights, I'm always concerned about the risk that someone who puts themselves in this type of situation and loses control over their behaviour could become violent towards a woman or someone else.
Liberal
The Chair Liberal Randeep Sarai
Thank you, Monsieur Fortin.
Mr. Garrison, we'll go over to you for the last round.
NDP
Randall Garrison NDP Esquimalt—Saanich—Sooke, BC
Thank you very much, Ms. Zaccour.
You did say, sort of offhand, “a couple more weeks”. I have to respond as a parliamentarian: In parliamentary terms, another couple of weeks would have meant missing the spring session completely, and we would have been here this fall, at this time, trying to deal with this.
I know that's sometimes hard for people to contemplate, but for Parliament to move as fast as we did was a minor miracle. If we hadn't at that point, we would likely be here now. We're in a minority Parliament, so we also risk the instability of a minority Parliament not getting to act at all. I think sometimes there is a greater risk than is generally understood, if we had not acted.
I guess that leads to my question again of whether there was or still is a vacuum to fill. I think I know your answer, but I would like you to address that directly.