Justice Committee on Oct. 27th, 2022

[The Chair, Liberal, Randeep Sarai]

I call this meeting to order.

Welcome to meeting number 34 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 the Zoom application.

I'd like to take a few moments 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. Please mute yourself when you're not speaking. For 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 will remind you 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. We appreciate your patience and understanding in this regard.

I would also like to inform the members that all tests involving the witnesses have been performed successfully.

Also, I use a little cue card system. When you have 30 seconds left, I'll raise the yellow card. When you're out of time, I'll raise the red. I ask that you conclude in that time so I don't have to interrupt you. I don't want to wreck the flow of your conversation.

I'd now like to welcome our witnesses appearing today.

For the first hour, we have Elizabeth Sheehy, professor emerita of law, University of Ottawa; Kerri Froc, associate professor, University of New Brunswick; and Isabel Grant by video conference.

Welcome to the committee. You each have five minutes. Afterwards, we'll have subsequent rounds of questions.

We'll begin with Ms. Sheehy for five minutes—or whoever would like to start. It's your choice.

[Dr. Kerri Froc, Associate Professor, University of New Brunswick, As an Individual]

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.

[The Chair, Liberal, Randeep Sarai]

Thank you.

[Dr. Kerri Froc]

I understand that she's under some time constraints, so it may be that you decide to direct the first round of your questions to her, but I leave that to you.

Thank you very much.

[The Chair, Liberal, Randeep Sarai]

Thank you, Dr. Froc.

We now go over to Professor Sheehy.

[Professor Elizabeth Sheehy, Professor Emerita of Law, University of Ottawa, As an Individual]

Good afternoon, and thank you for inviting me to speak to the amendment to section 33.1 of the Criminal Code.

My main point is that the defence of extreme intoxication will be invoked most frequently for crimes of male violence against women, with consequential effects for the reporting, policing, and prosecution of these crimes. If you examine the evidence in Brown and Chan, as examples, you will see that the new law will be largely incapable of limiting the extreme intoxication defence.

In the 12 months between the release of the Daviault decision and the enactment of the original section 33.1, the defence was advanced at least 30 times in reported cases, and they represent the tip of the iceberg. Almost half, 12 of these cases, involved clear violence against women: six sexual assaults, five spousal assaults, and the murder of a woman in the sex trade. Another two involved attacks on women. One man brutally beat his mother, and another attacked a woman in a nightclub. The majority of these claims were rejected for want of proof, but of the six cases where the defence succeeded, four were spousal assault cases.

Advocates on behalf of women who experience men’s violence readily understood that the extreme intoxication defence seamlessly colludes with narratives around violence against women that suggest that it is never men’s fault, but rather women’s fault, or somehow an agentless crime that is simply an inevitable feature of life.

Had section 33.1 not been enacted in 1995, we might have seen at least 30 reported cases a year of attempts to use this defence, and over 26 years, that would have been a minimum of 780 cases. The original section 33.1 put a near halt to this defence, but, even so, in that 26-year period, we found 86 cases where section 33.1 was mentioned, either to consider its constitutionality, or at least as one reason for rejecting an intoxication defence.

While one author reports that only four could have succeeded, because most failed the Daviault proof standard, that doesn't account for the fact that section 33.1 barred the defence, such that lawyers could hardly have been expected to invest in the resources required to both launch a constitutional challenge and substantiate the defence with expert evidence.

Of the 86 cases, 35 involved sexual assault, and another five involved men who attacked their current or former partners. Beyond those 40 cases of clear violence against women, there were another 23 cases where women were victimized, either as the sole target of the accused's violence, or as another victim in addition to male victims. Altogether, 63 of 86 cases involved female victims. Of the perpetrators, 80 were men and six were women. These numbers bear up even in the three cases before the Supreme Court of Canada in Brown, Sullivan, and Chan: three male perpetrators, three female victims, and one male victim.

Although we cannot predict how often the extreme intoxication defence will succeed, the harms to women extend to men’s attempts to invoke this defence. There's a serious risk that women will be deterred from reporting these crimes where perpetrators are intoxicated, because they will not be in a position to assess whether an extremely out-of-it perpetrator can be held accountable.

Further, the trauma caused to complainants by lengthened trials based on the extreme intoxication defence being advanced, the resulting diminished confidence of women in the justice system, as well as the wasted judicial and Crown resources, all must be considered as negative implications of this now unleashed defence.

Police and prosecutors will need to account for the extreme intoxication defence in their charging and prosecutorial decisions. It may also have an impact on cases involving lower levels of intoxication. Of course, currently, anything short of extreme intoxication is no defence to crimes of general intent, like sexual assault and manslaughter, but when the Crown or police are deciding whether to lay charges, they do not know exactly how intoxicated the accused was. They may not have solid evidence about whether that intoxication crossed the line to extreme intoxication. That evidence is uniquely in the hands of the accused. The Crown has no access to it unless they were able to test his blood immediately after the occurrence, which is rare.

They know that these trials are going to require expert evidence and be resource-intensive. This could lead to charges not being laid where a high level of intoxication is involved, particularly in provinces like B.C., where the charge approval standard is substantial likelihood of conviction.

In turn, we will have no way to track the impact of the extreme intoxication defence on crimes of violence against women.

Thank you.

[The Chair, Liberal, Randeep Sarai]

Thank you, Professor Sheehy.

Next we have Professor Grant from UBC.

[Professor Isabel Grant, Professor, As an Individual]

Thank you very much, and thank you for giving me an opportunity to speak to you today.

I've been a criminal law professor for 35 years. My research was cited by the Court of Appeal of Alberta and the Supreme Court of Canada in Brown, and I was retained many years ago by the Department of Justice to examine the question of whether Parliament could constitutionally limit the defence of extreme intoxication for crimes of violence against women and girls.

I believe that the response to Brown that you have before you in section 33.1 was ill-conceived and rushed, and as Professor Sheehy has explained, I'm worried that it will have effects beyond cases of extreme intoxication. I think the lack of concern that we've heard from the defence bar about this legislation gives us a signal about how effective it will be in protecting women and girls from male violence.

I'd like to raise a couple of problems specifically with section 33.1 and suggest to you that there are some pretty easy fixes. The first problem is that the legislation missed the opportunity to codify Daviault and to say that the burden of proof is on the accused when he is raising a defence of extreme intoxication. Now I hope that most judges will assume this and read it in, but it was an oversight not to codify that in section 33.1.

However, the bigger problem is the standard in subsection 33.1(2). You have the legislation before you. Subsection 33.1(1) sets out the test that the Crown has to prove, the marked departure test. That is a constitutional minimum from which we cannot depart because the Supreme Court of Canada has indicated that. Subsection 33.1(2) really complicates the situation. Subsection 33.1(2) says that a judge “must consider the objective foreseeability of the risk that the consumption of the intoxicating substances could cause extreme intoxication and lead the person to harm another person.”

Now, it's not entirely clear what this means. What does it mean that a judge has to consider a legal standard? What if the judge considers it? Is the judge free to reject it? Is it determinative of the issue? It's a confusing standard for courts to apply, and it's not clear to me why it's even necessary or helpful.

However, the bigger problem with subsection 33.1(2) is that the standard of objective foreseeability of the risk of harm is unprovable by the Crown. What that means, of course, is that there won't be any cases in which this defence is denied—in other words, section 33.1 is not putting a limit on extreme intoxication.

The reason it's unprovable is that extreme intoxication is more likely to lead to unconsciousness or sleep or some other response on behalf of the accused. Violence is not a common response to extreme intoxication. What that means is that an accused can always say, “I've been intoxicated before, and I wasn't violent then, so how could I have foreseen that I would be violent this time?” or “I've never been extremely intoxicated before, so how could I possibly have foreseen that this time it would lead to violence?”

When you're dealing with relatively rare events, having a standard of objective foreseeability of harm is completely unworkable. So, unless you have an accused who's consumed the same amount of drugs and alcohol in the same circumstances and committed violence in the past, it's almost never going to be reasonably foreseeable that harm to another person would result.

As I mentioned earlier, I think there are some easy fixes to this. The simplest one is just to get rid of subsection 33.1(2). It isn't necessary. It's confusing for judges. It's telling them how to do their jobs. Judges apply the marked departure standard all the time. They know from case law that they have to look at all the circumstances of the offence and the circumstances in which that offence took place. Judges don't need Parliament telling them that they have to consider another legal standard. Maybe that's different from applying it, but they have to consider it, and without saying what that actually means.

The simplest response would be to get rid of subsection 33.1(2). It's confusing. It could result in section 33.1 being completely useless.

A second option, though, if you think it's important to retain subsection 33.1(2), would be to change the “foreseeability” standard and require foreseeability of a loss of control over one's actions instead of foreseeability of harm. As I said, when you're dealing with foreseeability of—

[The Chair, Liberal, Randeep Sarai]

Thank you, Ms. Grant.

I'm sorry, but your time is up. Hopefully, we will be able to extract—

[Prof. Isabel Grant]

I'm sorry. I didn't see the warning. Maybe we can pursue this in questioning.

Thank you.

[The Chair, Liberal, Randeep Sarai]

Thank you.

We'll go to our first round of questioning.

Mr. Moore, you have six minutes.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you.

Thank you to all our witnesses. I really appreciate the input you're giving today.

Professor Grant, you were just finishing a thought. I have only six minutes to work with, and I do have a number of questions I want to get to, but if you want to finish your thought, I'll give you the time to do that now.

[Prof. Isabel Grant]

Thank you very much.

Very briefly, I was saying that there are three ways to fix this problem. One is to get rid of subsection 33.1(2). The second way is to change the foreseeability standard to loss of self-control rather than foreseeability of harm. The third option is to insert a reverse onus clause that requires the accused to show whether or not the harm was foreseeable. That's been upheld as constitutional in Daviault and in the context of the mental disorder defence as well.

Those are the three options.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you for that.

I guess this goes back to you, Dr. Froc, to a comment you made around consultations. To me, there's really no excuse to not have extensive consultations. When we have serious decisions before the court, it's easy to contemplate that the court is going to make a decision and government has to respond. Some of these, if there's no suspension of invalidity, can have immediate and wide-reaching consequences, as this situation did. It resulted in Bill C-28.

I think the kind of discussion we're having today, and the kind of really detailed input that you have given.... Did you have the opportunity to provide that level of detail to the minister or to the department as they were contemplating drafting a response to this decision?

[Dr. Kerri Froc]

I mean, we were consulted by a junior member of the Department of Justice on June 14. We provided a very detailed proposal to them by 5 p.m. that day, but of course the first reading of Bill C-28 happened on June 17. The horse was already out of the barn, at that point. It was “thank you for your input”, but it was obvious that it wasn't taken into account in any way whatsoever.

I don't know when other groups were consulted. That might be something you want to ask them. All I can tell you is that we were consulted within days before the bill was introduced. We had another very brief consultation on June 17, I believe. Luke's Place was invited to a Department of Justice consultation. I had about 15 minutes' notice that it was happening. I just happened to be able to get on the call.

Again, our suggestions were dismissed fairly summarily, but I can tell you that we provided a lot of technical detail on very short notice during that.

[Rob Moore, Conservative, Fundy Royal, NB]

Speaking of the horse being out of the barn, we now have legislation that's currently in place. This study that we're doing is backwards. Normally, committees study bills and get the type of evidence we're getting from you now as the bill is proceeding through the House and then goes on to the Senate. This is reversing that order. It presents challenges for us. We want to make sure that we as parliamentarians, as you rightly illustrated, do our job, which is to draft legislation that's going to work.

You mentioned, as all of our witnesses mentioned, the disproportionate impact on women. We've seen that in these cases. We've seen it when this defence is used. How do you respond to the support of LEAF, the Women's Legal Education and Action Fund, for Bill C-28?

[Dr. Kerri Froc]

I think you'll be hearing from LEAF, so you can ask them those questions on whom they consulted for their analysis and upon what basis they made it. All I can tell you is what we did.

Professors Grant and Sheehy are before you. There are others we consulted. I'm rather partial, because Professor Sheehy was my master's supervisor. I can tell you that both of them were cited by the court in Brown. They not only have decades of experience doing the analysis of criminal law and constitutional law, but they are also very well regarded in the women's community of organizations dealing with violence against women. I'm a relatively new professor in relation to them, but I would just encourage you to listen to them very seriously.

[Rob Moore, Conservative, Fundy Royal, NB]

Yes, and that's exactly what we're doing here today. We're listening very intently to what you have to say.

Professor Sheehy, perhaps you'd like to respond to this. It's been described that Parliament was really given only two options with the Supreme Court decision. You can pick lane A or lane B, and there were reasons why lane A was picked and not lane B. You're saying that this was a false choice, that there are other options.

Do you want to just quickly respond to that?

[Dr. Kerri Froc]

I don't want to hog the microphone, but I can respond to that.

Again, just to reiterate, the court said that lane A wasn't a viable option of creating a stand-alone defence. The reason it said this wasn't a viable option is that the objectives of protecting women and girls, and also having enough accountability.... It simply wasn't a viable alternative.

What they were really saying is that the only thing that would satisfy the objective of Parliament is amending section 33.1. It never said that you have to follow lockstep with its suggested wording—for a very good reason, because it knows that Parliament can engage in the kinds of consultations that you're doing right now. What it did say is that it needs to be a minimum criminal standard, and there are a number of ways you can do that.

[The Chair, Liberal, Randeep Sarai]

Thank you.

[Dr. Kerri Froc]

Again, they cited one academic who said there were four ways. We proposed other ways as well that we believe are constitutional. Again, it's up to you to make that assessment based on what we're telling you might be some of the effects of getting this wrong—

[The Chair, Liberal, Randeep Sarai]

Ms. Froc, unfortunately you're out of time. We'll try to get it with someone else.

Next we have Mrs. Brière for six minutes.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Thank you, Mr. Chair.

Thank you to all the witnesses for being here today. I commend you on your work in constitutional law, especially to protect women's rights.

As you know, Bill C‑28 was introduced in response to the Supreme Court of Canada's decision in R v. Brown, which struck down section 33.1 of the Criminal Code, a provision which prevents a defence based on intoxication akin to automatism.

First of all, since the section was struck down, do you think the Supreme Court's decision created a legal vacuum?

Second, do you not think Bill C‑28 remedies the situation?

[Prof. Isabel Grant]

Can I respond to that briefly?

Yes, the decision in Brown definitely left a vacuum, but I don't know what defence this legislation will limit. I think that vacuum is just as serious today as it was before this legislation was drafted. I don't understand what hypothetical accused will be denied a defence under this legislation. I don't think it will happen, and that's why we're here today, because we're very worried about that.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Thank you.

Would you like to add something?