Justice Committee on Oct. 31st, 2022

[Ami Kotler]

Okay. Very good.

I was saying, to the extent that the accused wanted to raise intoxication as a way of showing that they lacked one of the elements of the events. Then, if it was what the law calls a specific intent defence, that would be fine. So, if you were charged with murder because of intoxication and you didn't have the capacity to form a sufficient degree of intent, then it could reduce it to manslaughter, which is a general intent defence. However, when it came to general intent defences, because of section 33.1, you would be foreclosed from arguing that you lacked the intent necessary for the offence or that you had committed the offence involuntarily.

It was a fairly short process, and the focus of the prosecution would simply be whether the Crown could make out the offence, and that defence was not available...nowadays.

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

What changed because of the Brown decision?

[Ami Kotler]

Right. So, what the Supreme Court said was that the problem with that approach is that you have to have a degree of fault to convict somebody. You can't convict somebody who, for example, went to see a doctor, got a prescription, took their medication, had a completely unforeseen result and ended up doing something that they didn't even have any control over.

The legislation, as it stood, was not narrowed tightly enough to exclude those people, and the prosecution argued that the legislation shouldn't be read as including those people but should only be read as including those people who took substances negligently in a situation where there was a foreseeable risk that they could hurt somebody if they took them. It wouldn't catch those other people.

The Supreme Court said two important things. The first was that it didn't agree that that's what the legislation says. It said that it's written too broadly and catches everybody and is not narrowly tailored to just those people who exhibit that moral fault.

The second thing the Supreme Court said is even more important for your purposes. It hinted pretty strongly that, were you to draft legislation that was narrowly restricted to those who were negligent in the act of consumption, notwithstanding the constitutional concerns about convicting somebody for an offence that they committed when they weren't in control of their body, because of the very pressing concerns surrounding intoxicated violence, it may let that pass. That was the impetus for you to go back to see if you could put together a piece of legislation that did restrict liability to those who exhibited that degree of negligence: who consumed substances in circumstances to a degree or to an extent to which there was a foreseeable risk that there could be a violent loss of control.

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

In your view, did Parliament get it right in a fairly short period of time—to capture that concern of the Supreme Court in the way we have drafted and passed the legislation?

[Ami Kotler]

From what I can say, it appears to me that you tried to follow the road map that the Supreme Court had laid out for you, and of course whether there are ways in which the legislation could be improved.... Now that you have more time to think about it, I expect it is what you're looking at now.

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

From a prosecution services perspective, the gap that was left, has that been sufficiently met?

[The Chair, Liberal, Randeep Sarai]

Answer very briefly, please.

[Ami Kotler]

Yes.

[The Chair, Liberal, Randeep Sarai]

I want to thank Mr. Naqvi.

Thank you to all the witnesses for the first round.

We'll suspend for a minute or so to get sound checks done for the second panel. We'll resume right after that. Thank you.

[The Chair, Liberal, Randeep Sarai]

We are now resuming our panel with the next set of witnesses.

We have with us Pam Hrick, executive director and general counsel, Women's Legal Education and Action Fund, and Farrah Khan, executive director of Possibility Seeds, both appearing by video conference.

Hopefully, you've been sound-tested and you've chosen the right language on the bottom of your screen. If you want interpretation or floor, the option is there. I hope that's all good.

You each have five minutes. We'll begin with Ms. Khan.

[Farrah Khan, Executive Director, Possibility Seeds]

I'd like to begin by acknowledging that this conversation takes place across the traditional territories of many indigenous nations. I'm currently on the traditional territory of many nations, including the Mississaugas of the New Credit First Nation, the Anishinabe, the Chippewa, the Haudenosaunee, the Wendat peoples, and now home to many diverse first nations, Inuit and Métis people.

Thank you to the House of Commons Standing Committee on Justice and Human Rights for inviting me to appear as a witness for its study on the subject matter of Bill C-28, an act to amend the Criminal Code regarding self-induced extreme intoxication.

I'd like to thank Rebecca Akong and Grace Baric for helping me prepare for today's presentation.

My name is Farrah Khan. I have been raising awareness about gender-based violence, specifically sexual violence, for 25 years. I have been working in the field as a frontline worker for sexual assault survivors, and now run a sexual assault centre at Toronto Metropolitan University. This is an issue that is near and dear to me. Sexual assault continues to be the most under-reported crime in Canada.

The Supreme Court of Canada's recent judgment on the defence of self-induced extreme intoxication and the resulting Bill C-28 have been grossly misunderstood by the public—from people in my field to policy experts alike. Public and community-centred responses are rooted in a lack of fundamental understanding of the decision and the proposed new law. We can do better.

Members of the public, including me, were scared when they first heard the appeal and the decision. We were scared that this would allow self-induced extreme intoxication to be a valid defence for sexual assault, giving people who do harm carte blanche to commit sexual violence without repercussions.

I know now, from reading and understanding the bill and understanding the decision, that it's not true. But as sexual assault and alcohol consumption have often been co-related, it's reasonable to have this initial fear. About one in three respondents to a gender-based violence and unwanted sexual behaviour study in Canada stated that most incidents of unwanted sexual behaviour they were subjected to were related to alcohol or drug use by the perpetrator, with this being slightly more common among men than women. This view allows intoxicated people to get the idea that perpetuating sexual violence is okay—but it's not. I worry that organizations, sexual assault centres and survivors are getting the idea that this somehow is giving carte blanche when it's not.

Survivors may be less likely to report their cases if they're misinformed in their understanding of this defence and believe it will be invoked easily where people are drinking or doing drugs. In 2019, the general social survey reported that only 6% of sexual violence was reported to the police. I worry that the misinformation on this new defence may further reduce this already low statistic.

To understand why this matter has been taken up the way it has, we have to understand what the decisions actually say and why section 33.1 of the Criminal Code was deemed unconstitutional. In essence, section 33.1, as it was, breached an accused person's right to life, liberty and security of the person and the right to presumption of innocence by holding them criminally responsible for actions committed while in a state similar to automatism. This is when mind and body stop talking to each other. Think, for example, of sleepwalking, another form of automatism. This prevented anyone from raising the state of automatism as a defence in cases, general intent to violent offences, even when they could not reasonably predict they would reach this state when they were choosing to self-intoxicate.

The holding is actually progressive, as it safeguards the well-being of those potentially suffering from addiction issues, many of whom come from marginalized identities that are already overrepresented and over-criminalized in the so-called criminal justice system.

Contrary to what many people are saying online, on TikTok and social media...and that part worries me the most, as someone who works with survivors. I work with 16- to 24-year-olds. They were terrified about this. They were spreading misinformation. We need to do better about that conversation.

The thing was that the SCC was clear that drunkenness on its own would rarely result in a state similar to automatism. Therefore, the crux of the issue is the extent to which the consumption of drugs or alcohol prevents the user from having voluntary control over their actions. An accused would need to prove that they were in a state of extreme intoxication, drawing on expert advice. It would not be sufficient to show that they were really high or drunk. In other words, the accused would need to prove that they had no real control of their actions at the time of the offence.

The reasons for finding it unconstitutional lie in the fact that the old section 33.1 would lead to convictions even when someone is completely lacking intention, guilty mind or voluntariness to commit a crime. If one's intoxication is extreme to the point of automatism, they may negate the requirement of both mens rea—the guilty mind—and the voluntary wrongful act of the offence.

The new section 33.1 allows individuals to raise a defence under very limited circumstances consistent with the Supreme Court decision. While the onus remains with the Crown to prove beyond a reasonable doubt that the accused committed the act, the burden is on the defendant to establish the defence of extreme intoxication and the balance of probabilities using expert advice.

The Crown—

[The Chair, Liberal, Randeep Sarai]

Thank you, Ms. Khan.

Unfortunately, your time is up, but hopefully you'll be able to include that in some of the questioning.

[Farrah Khan]

Yes, no problem.

[The Chair, Liberal, Randeep Sarai]

It's over to you, Ms. Hrick, for five minutes.

[Pam Hrick, Executive Director and General Counsel, Women's Legal Education and Action Fund]

Thank you.

Good morning. My name is Pam Hrick. I'm the executive director and general counsel of the Women's Legal Education and Action Fund, also known as LEAF.

I am grateful to appear before you today from Toronto or Tkaronto, which is within the lands protected by the Dish With One Spoon Wampum Belt Covenant. I'd like to thank my colleagues Jen Gammad and Kat Owens for helping me prepare for this appearance today.

Founded in 1985, LEAF is a national charitable organization that advocates for the substantive equality of all women, girls and trans and non-binary people. We do this through litigation, law reform and public legal education that is feminist and intersectional.

LEAF was an intervenor in the Supreme Court case of R. v. Brown, which struck down the former section 33.1 of the Criminal Code. We intervened in that case to advocate for the equality of survivors of sexual and intimate partner violence, who are overwhelmingly women. When the Supreme Court released its decision, we were glad to see that it reiterated that intoxication alone is not a defence in sexual assault cases.

We were, however, deeply concerned to hear the confusion and misinformation circulating online after the decision was released, particularly among young people. People were worried about whether saying “I was drunk” was now a legitimate defence to sexual assault. The Supreme Court clearly said it was not.

LEAF was at the forefront of efforts to stem this tide of misinformation, alongside other gender justice advocates like Ms. Khan. Accurate information about what this decision meant was tremendously important, as is accurate information about what Bill C-28 means.

The Supreme Court's decision created a very narrow gap in the law, something that would not be relevant to the overwhelming majority of cases where an accused person was drunk or otherwise intoxicated. The court laid out constitutionally compliant options for Parliament to consider if it wanted to address this very small gap. Bill C-28 was intended to fill this gap. As we said when it was introduced earlier this year, LEAF supports the amendments in Bill C-28. The changes to the Criminal Code represent a tailored and constitutional response in line with the Supreme Court of Canada's guidance in R v. Brown.

Education and training for justice system participants will be needed to ensure the law's proper application. Moving forward, however, we encourage committee members and all parliamentarians to resist focusing on the criminal law as an effective response to gender-based violence, including sexual violence. Canada's criminal legal system is a site of systemic discrimination. It disproportionately criminalizes Black, indigenous and racialized people while at the same time failing to effectively respond to the high levels of violence faced by members of these same communities.

In addition, the criminal legal system too often fails and retraumatizes survivors of gender-based violence. We urgently need a fully funded intersectional national action plan to end gender-based violence and violence against women. As part of that plan, we need survivor-centred approaches to addressing and ending gender-based violence and violence against women. Survivors must have agency and choice in every step of the process.

It is imperative to study, develop and implement survivor-centred alternatives that move beyond existing legal systems. Alternatives like restorative and transformative justice models broaden the possibilities for justice, accountability and healing. LEAF is committed to supporting this work through our own alternative justice mechanisms project, which will identify legal barriers to alternative justice mechanisms for sexual violence and propose law reform measures to address those barriers.

While this committee's current review serves an important purpose, I want to reiterate that the Supreme Court decision preceding Bill C-28 created only a very narrow gap in the law. Bill C-28 implemented a minor, constitutionally compliant response that follows the Supreme Court's guidance.

The bigger issue is what this committee, this government and this Parliament must do to more meaningfully address violence against women and gender-based violence. More criminal law is not the answer. The answer is properly supporting and funding education, prevention, frontline services and alternative accountability mechanisms that respond to the needs of survivors while working to end gender-based violence and violence against women entirely.

[The Chair, Liberal, Randeep Sarai]

Thank you, Ms. Hrick.

We'll go to our first round of questions for witnesses, beginning with Mr. Brock for six minutes.

[Larry Brock, Conservative, Brantford—Brant, ON]

Thank you, Mr. Chair.

Thank you, Ms. Hrick and Ms. Khan, for your attendance today and your participation in this important review of Bill C-28.

I'm going to offer an opportunity for you, Ms. Khan. You had much more to say, I believe, in your opening statement, so I'm going to cede some of my time and allow you to complete your thoughts.

[Farrah Khan]

That's so nice. Thank you.

I think the biggest things that I want to name—and Pam has already brought it up—are the two pieces we see. We really need the justice department to look at public legal education to address the misinformation that comes out. I even think about the SCC decision that came out on Friday. People are so scared...and the work, and survivors are. When we don't have a good communication process that includes youth.... The most misinformation that was coming out about this was coming out on TikTok. I saw thousands of young people talking about this and sharing this, yet we didn't have a communications plan. When this comes out or when anything comes out that will affect survivors, we have to think about the accompanying communications plan so that people are not spreading more misinformation that will hurt survivors.

The other thing I want to name is that transformative justice processes need to be funded in this country. If we're saying that this is administrative justice.... Justice goes beyond the legal walls, and right now, it's not being funded. It's only been looking at a very narrow idea of justice, and we need better.

[Larry Brock, Conservative, Brantford—Brant, ON]

Thank you, Ms. Khan.

That, I believe, is a good segue to an area that I want to focus on. I listened very carefully to your opening statement, and this is a question that I put to the previous panel in our first hour.

I accept that across this great nation there is an erosion of trust. When we look at sexual assault victims and their responses to the criminal justice system, we see that they don't see a fair system. They see a system that is rigged against them right from the outset. They see...the statistics alone, the under-reporting, a mistrust in police investigations, mistrust in the relationship with Crown prosecutors, a mistrust of the judiciary and a mistrust of the probationary system. It's small wonder that the small portion of cases that we, as prosecutors, would have the privilege of prosecuting would still have those difficulties in terms of securing convictions, because of a number of issues. Largely, it's a result of individuals—victims—who just did not feel they were equal participants in the process.

When we take a look at Bill C-28 and take a look at the number of fears and concerns that victims have across this country, I totally agree with you that misinformation is eroding that public trust. It is up to the government, in my view—and I think you both share this—to engage in a public education system to reassure victims of crime, particularly in this area, that Bill C-28 does not open the floodgates. With regard to Ms. Hrick's commentary, this is a narrow gap. We, as lawyers, as parliamentarians, as academics, understand that, but the vast majority of Canadians do not.

I'm going to ask both of you specifically what more your organizations can do. What more can other agencies across this country do, in addition to the government response of educating the public?

[Pam Hrick]

Sure. I'll take a stab at this first.

Before I get into what we are doing with the limited resources that we have as organizations and advocates in this area, I will say that I think when we're talking about how well, as a society, we're dealing with sexual violence, we have a tendency to look at conviction rates and reporting rates as indicia of whether or not we're doing a good job. I really hope that one message I can convey here today—and that we do try to convey—which is grounded in community and in the experiences that we've heard survivors share, is that looking at conviction rates doesn't accurately reflect how well we are dealing with sexual violence.

I would like for us to more consistently look at how survivors feel about the accountability they're able to obtain and the healing they are able to engage in when they've experienced sexual violence, and use that as a metric for how well we're doing, offering a wide array of options for survivors to choose from about the path to justice, accountability, and healing and support that looks right for them.

To address the question of what more we can do, again, I run a non-profit. I know that Ms. Khan operates in similar spaces. We certainly do the best we can with the resources that we have to reach as many people as possible. Part of what we did—actually working with Ms. Khan—after these decisions came out was to deliberately go to spaces where young people, in particular, were interacting: Instagram and TikTok in some cases. We were trying to share information as a trusted resource—and I believe we, as LEAF, are that, given our history of 37 years of advocacy in this space for the legal rights of women, girls and now trans and non-binary people as well.

We try to reach as many people as we can in the spaces where they are, and I think that's an important and fundamental aspect of the work that Ms. Khan does as well, which I would invite her to speak about.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Brock.

[Larry Brock, Conservative, Brantford—Brant, ON]

Thank you, Mr. Chair.

Thank you, ladies.

[The Chair, Liberal, Randeep Sarai]

Next we have Mr. Naqvi for six minutes.

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

Thank you very much, Mr. Chair.

Ms. Khan and Ms. Hrick, it's really good to see you both. Thank you for the incredible work you do and for all the guidance that you've given me in the past in various ways when we have interacted on exactly the same issues. I feel like we continue to have the same conversation, unfortunately, again and again, which tells me that we have far more work to do.

I'll start with Ms. Hrick on the legal side of things, but I do want to pick up on the next steps that both of you articulated because I think it's an important conversation to get on the record as well.

Ms. Hrick, you mentioned that you were involved in this case. LEAF intervened. Thank you for that. Can you speak with regard to the gap the Brown decision created? In your view, how does Bill C-28 meet that gap? Could more have been done in that regard?

[Pam Hrick]

I'll take the opportunity to reiterate that it was an incredibly small gap that the Brown decision created, and I will emphasize again that simply being drunk or being high is not a defence to crimes of general intent, including sexual assault.

What the Supreme Court did here was strike down an unconstitutional provision that prohibited, in all circumstances, people from raising the defence of extreme intoxication akin to automatism as a defence to crimes of general intent, including sexual assault.

What Bill C-28 did was take a look at what the Supreme Court said in its decision about what constitutional responses might look like, and it chose to implement one of those two options that would comply with constitutional rights, which are important. The rights of the accused are important and are to be respected, of course.

I think the implementation of the provisions in Bill C-28 strikes that balance between the rights of accused persons and the rights of women and girls and all those who experience gender-based violence to be free of violence. It provides that pathway where there is some more blameworthiness in conduct and also allows for individual circumstances to be taken into account in the adjudication of these cases, which is why we have found it to be a tailored and constitutional bill.