Justice Committee on Nov. 14th, 2022

[The Chair, Liberal, Randeep Sarai]

I'd like to call this meeting to order. Welcome back after the break week, everyone.

Welcome to meeting number 36 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 on the subject of Bill C-28, an act to amend the Criminal Code regarding 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 now for the benefit of 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, and 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 also 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 best we can. We appreciate your patience and understanding.

Mr. Perron has a question.

[Yves Perron, Bloc, Berthier—Maskinongé, QC]

Thank you, Mr. Chair. Thank you for welcoming me to your committee this morning.

I would just like to make sure, as usual, that the sound checks for interpretation were conducted before today's meeting.

[The Chair, Liberal, Randeep Sarai]

Yes. Thank you for asking. I think they've been done. All are good so far.

I do have cue cards as well. When you have 30 seconds remaining, I'll raise the yellow cue card. When your time is up, I'll raise the red one. I don't like interrupting, so if I can avoid that cue card, I will. Try to watch for that.

Mr. Perron, our tests have been done.

Now I'd like to welcome our witnesses for the first hour. Appearing today we have Benjamin Roebuck, ombudsperson for victims of crime. While our list says you're here by video conference, I believe you're right here in the room. Also, we have with us, via video conference, Rhiannon Thomas, from the Women and Harm Reduction International Network.

We'll begin with you, Mr. Roebuck, for five minutes.

[Dr. Benjamin Roebuck, Federal Ombudsperson for Victims of Crime, Office of the Federal Ombudsman for Victims of Crime]

Thank you.

Honourable Chairperson and members of the committee, thank you for the invitation today. It's very nice to meet you all.

Today we are here on the traditional, unceded, unsurrendered territory of the Algonquin Anishinabe people. I acknowledge our shared responsibility and my personal responsibility to work to address historical and ongoing colonialism, racism and oppression of indigenous peoples. This includes working together to dismantle the criminalization of indigenous peoples and learn from the resilience and vibrancy of diverse indigenous cultures.

As you may know, I have been recently appointed. I am so thankful for this opportunity to serve victims and survivors of crime in Canada. I am brand new, just three weeks in, so please be patient with me as I get caught up to speed.

I would like to thank the members of this committee for the tireless work on justice and human rights that you do. I know that there have been many recent decisions by the Supreme Court of Canada as well as government and private members' bills that require your attention.

The Office of the Federal Ombudsman for Victims of Crime is an independent resource for victims in Canada. Our office was created to help the federal government honour its commitments to victims of crime. Victims contact our office to learn about rights under federal laws, to learn more about federal services available to them or to make complaints about any federal agencies or federal legislation dealing with victims. We help to problem-solve and find solutions when victims' rights have not been respected, and we collaborate with stakeholders across the country to identify emerging trends or issues that affect victims of crime. Based on this work, when appropriate, we offer recommendations to federal agencies and help to ensure that victims' concerns are considered in the legislative process.

When the Supreme Court of Canada ruled in R. v. Brown that section 33.1 of the Criminal Code was unconstitutional, it had immediate and adverse effects on survivors of violent crime. The wording of the law and the language used by the SCC are difficult to understand and contributed to widespread misinformation about highly traumatic and personal experiences in the lives of Canadians.

Organizations supporting women who have experienced gender-based violence and many young survivors of sexual assault, in particular, believed that the government had allowed space for intoxication to become an allowable defence for violence imposed on the bodies of women and girls. This belief caused considerable distress, resurfacing of traumatic memories, and protests in high schools where young survivors shared personal experiences, sometimes without the resources to do that safely.

As ombudsperson for victims of crime, I believe that there was an urgent need to act, and I am thankful for the way the whole government moved quickly to respond to the SCC ruling. I also appreciate the clear messaging from the Minister of Justice and Attorney General of Canada, the Honourable David Lametti, when he said repeatedly, “Being drunk or high is not a defence for committing criminal acts like sexual assault.” I think that this showed empathy and it reflects a hopeful posture to act on other concerns raised by victims of crime.

I also understand that the unconventional approach to passing this legislation before it could be fully considered and weighed in our parliamentary committees has created an obligation to meaningfully engage in that process now.

The full continuum of intoxication caused by alcohol and other substances is a very present reality in many of the contexts that lead to criminal victimization. In the messy realities of these situations, people can slip in and out of their awareness of their behaviour and their impact on others, making it difficult to establish objective criteria about culpability. Other witnesses will explain that the defence of extreme intoxication is predominantly advanced by men perpetrating violence against women. As the Government of Canada launches its national action plan to end gender-based violence, I urge you to consider this legislation through that lens.

Our office has a few simple recommendations that I will leave you with. Number one is clear language. Continued misinformation about this legislation will have consequences on women and girls. The wording of Bill C-28 is complicated, and we recommend continued and clear messaging to the public.

The second recommendation is meaningful consultation. The diverse perspectives of Canadians emerging in the committee need to shape the legislation. We recommend making revisions to the legislation if significant concerns are identified.

Number three is monitoring. Intoxication is very common in contexts of violent crime, and you've heard significant concerns from women’s groups and survivors about the possibility of this defence being abused. We recommend a formal review after two years to evaluate how the defence has been used in court.

Thank you again for your time. I look forward to the conversation.

[The Chair, Liberal, Randeep Sarai]

Thank you.

You were right on time, Mr. Roebuck. Welcome to your new role and to your first appearance on this committee.

Next, we have Ms. Thomas for five minutes.

[Rhiannon Thomas, Women and Harm Reduction International Network]

Thank you to the committee for your invitation to have Women and Harm Reduction International Network—WHRIN for short—speak about Bill C-28.

My name is Rhiannon Thomas. I'm here as the representative to speak about considerations similar to the previous speaker's.

Here is an introduction and our context. WHRIN was formed in 2009 as a response to a worldwide scarcity of services, research and training programs that are inclusive of women, female-identified and gender-diverse people who use drugs, by the global community of women who use drugs, as well as drug policy and human rights activists. WHRIN has spent the past 15 years working to improve the availability, quality, relevance and accessibility of health, social and legal services for women who use drugs.

WHRIN reminds the committee that drugs, including alcohol, while sometimes associated with violence, cannot be seen as the direct cause of violence. WHRIN would argue that drug dependency is not a disease or illness, nor does drug use per se negate free will and intention.

I am certain that the honourable members on this committee will be very aware that women are most often the victims of violence, including physical, sexual and socio-economic. By that, I mean that women in relationships in which gender-based violence occurs often do not have the economic means to freely or safely exit them. Children, as the committee knows, are often caught up in these situations as well.

As the previous speaker said, it is most likely that men who engage in intimate partner and gender-based violence will attempt to use this defence if it is made available to them.

For some men, both drug use and intimate partner violence may be expressions of a need for power and control related to gender-based insecurities. Intimate partner violence is usually inflicted by men who, buoyed up by patriarchal contexts, believe that violence is apposite in certain situations. Such violence occurs in settings where the perpetrator is in control. It must be understood as deliberate and, at some level, premeditated, independent of the amount of alcohol or other drugs consumed, if any.

Incidentally, this insight has implications for services designed for violent perpetrators, in which drug use should evidently be considered as a secondary factor in violence prevention interventions, given that the intention to inflict violence invariably precedes alcohol or other drug use.

Sexual violence is a place where we must be particularly careful with the use of this defence. Women are overwhelmingly the victims of sexual violence. This type of crime is one of the most under-reported, due to the burden of not having police believe narrative evidence. Even when cases get to court, survivors are cross-examined without trauma-informed approaches. If a survivor is a noted person who uses drugs, for example, their memories of the events are often discredited. In this way, a survivor can be blamed for a sexual assault, while the perpetrator—using this defence—has the potential to be acquitted for being intoxicated.

Additionally, if we consider gendered socio-economic realities, women have less access to legal supports. In most provinces, legal aid supports have been slashed for many years, so they are accessible only to the accused who are facing jail time, and not to survivors. Further, as parents and, often, the primary caregivers, women who may want to invoke such a defence may be reluctant to do so, due to the threat of losing child custody.

Importantly, due to the criminalization of many commonly used drugs, research on their physiological effects is limited, which would also impact the limitations of the use of this defence. To properly study if and how many drugs affect perceptions and the ability to make informed decisions is difficult, if not impossible, given the exemptions required. One drug we know a lot about is alcohol, since it is legal. We know that it affects inhibitions, perceptions, judgment and so on, and it has been clearly linked to violence—perhaps not causally—in many studies.

Finally, the criminalization of drugs, drug use and people who use drugs must also be considered. How will this affect communities that are most impacted by prohibition? Black, indigenous and poor people in this country—who are most often disproportionately incarcerated and have less access to pricey lawyers—certainly are not going to be in a position to pay for expert witnesses who can make assertions about the levels of intoxication and their relation to criminal intent.

I also would refer to the rising numbers of women, particularly indigenous women, in the federal prison system. You can easily find these numbers on the Canadian government website. I would encourage the honourable members of this committee to also read the report from the Office of the Correctional Investigator that was released last week, which pointed to how those numbers are increasing and how indigenous prisoners, especially female prisoners, are in prison longer and in maximum security more often. I ask this: Will this defence be accessible to these Canadians?

In summary—

[The Chair, Liberal, Randeep Sarai]

Thank you, Ms. Thomas.

[Rhiannon Thomas]

Oh, I'm sorry. I had one more thing to say. Do I have time?

[The Chair, Liberal, Randeep Sarai]

Sure. Go ahead.

[Rhiannon Thomas]

In summary, WHRIN's position around this issue is that we see no evidence of direct causal association between drug use and violence or other offences. However, it is clear that mitigating factors should always be considered holistically, without drug use alone, per se, being an isolated factor. Contextual issues such as acting under duress of threats or intimidation, exploitation, gender, history as violence survivor, all these things should be considered together, and mandatory simplistic views should always be avoided.

Thank you.

[The Chair, Liberal, Randeep Sarai]

Thank you, Ms. Thomas, and welcome to the committee.

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

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

Thank you, Mr. Chair.

Good morning, Ms. Thomas and Mr. Roebuck. Thank you so much for your appearance today to help us in this important study.

I'm going to try to balance my questions with respect to both witnesses. It really depends on the timing. I know I have only six minutes.

I'll go first to you, Mr. Roebuck. I want to personally congratulate you on your appointment to this particular role. It is a role that is so vastly important to victims in this country of ours from coast to coast to coast. I would be remiss if I did not highlight the fact that this particular position was left vacant for close to 13 months, notwithstanding the cries from the official opposition and other members of the House of Commons to fill it, because there was a need for victims to be heard.

As you have indicated in previous testimony—I've done a little bit of research—there is a real disconnect in terms of equality in the criminal justice system between the rights of the accused and the rights of the victims. You have opined specifically with respect to section 15 and section 28 of the charter, how there is that particular imbalance. It's so important to have you here filling this particular role. It would have been so helpful to have your knowledge and your background when we studied Bill C-5, and also when we studied, most recently, victims' rights with respect to participating in the criminal justice system.

That being said, I want to give you an opportunity to perhaps expand on some of the recommendations that you spoke about. As a former Crown attorney, I am so acutely aware of the abysmal statistics we have in terms of successful prosecutions in this country. It stems from a lack of reporting. It stems from a lack of knowledge of rights. It stems from a lack of trust that the victims have with police authorities, with participants in the criminal justice system. You yourself have opined that there was a great deal of misinformation that was largely alarmist the moment the Supreme Court of Canada released the decision.

I'd like to hear from you, sir, as to the particular steps your office is taking to perhaps assuage some of these fears and some of the concerns that victims have, particularly as they relate to the Supreme Court of Canada decision and the government's response with the passing of Bill C-28.

[Dr. Benjamin Roebuck]

Thank you for the question, Mr. Chair.

I'm here and ready to work. We're starting by engaging stakeholders and listening. I don't want to come in with a pre-established agenda, even though there are clear issues that need to be tackled. I think we need to hear directly from victims and survivors of crime across the country: What are the pressing issues right now that need to be moved on?

I think one of my keen observations at the moment around legislative changes that are happening is that I don't think it's right to dismantle mandatory minimum penalties without considering increasing protections and access to justice for victims of crime. There has to be some compensation in that equation, which is why I'm very interested in Bill C-233, about the potential use of electronic monitoring as a way of protecting women's safety if offenders are given the option of conditional sentencing. I think we have to look at the balance when we're making decisions as important as that.

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

Specifically I asked, sir, what your office is doing to contribute to the overall knowledge component as part of your recommendations moving forward. You mentioned knowledge, greater consultation, making revisions to the legislation and monitoring the data. Those are the four highlights I heard from your presentation.

I've heard from other witnesses that it was important for the government to respond appropriately to the Supreme Court of Canada's decision. I am not critiquing the government. It was appropriate they do that, and we urged them to do that, but there's been a great deal of criticism in terms of the speed with which they pass the legislation without proper consultation and without proper public announcements to victims' groups so that the public can be informed that this is not going to be opening up the floodgates for future litigation.

As I indicated at the outset, it's bad enough to convince a victim to participate in this process. I personally engaged in a number of round table discussions, and notwithstanding my highlights of Bill C-28, there is still that fear out there that the defence now has another tool available to them to litigate.

I'd like to know what your office is doing to assuage those fears.

[Dr. Benjamin Roebuck]

We have an advisory committee that we're ready to re-engage, service providers across the country who are keenly interested in this issue and a number of women's organizations and groups that are very interested in monitoring this outcome. We'll look to stay on top of how it's being used in the courts. Our office will monitor that as well. We hope to come back to the committee with an evaluation of how it's being used.

I think it's really important to understand that the perceptions of legislation are what people act on. In abusive relationships where there's coercive and controlling behaviour, any misperceptions around the way that this can be used....You can have an abuser trying to convince a victim that it can't be reported because they were intoxicated.

I think clarity is really important, and we'll try to promote clear messaging on this to the best of our ability.

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

Thank you, sir.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Brock.

The next round of questioning goes to Mr. Naqvi for six minutes.

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

Thank you, Mr. Chair.

I also want to start by congratulating Mr. Roebuck on his appointment. It's three weeks in, and I'm sure you're learning something new every day. I'm sure this will continue.

I'll start my questioning with Ms. Thomas.

Thank you for joining us today. Can you share with us, in your organization's experience, the reaction of the communities you worked with when the Brown decision was rendered by the Supreme Court of Canada?

[Rhiannon Thomas]

In our organization, the immediate reaction was the concern from the community that this kind of defence is going to do more damage to people who are victims of violence, because already the balance is not in favour of victims of violence.

I don't really know what else to say. There's a real concern about providing perpetrators of violence with more power in the court system.

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

Do I read correctly from your response that you had hoped that Parliament acts as fast as possible in making it absolutely clear that such a defence does not exist?

[Rhiannon Thomas]

Yes, if that is the reality. From the perspective of our organization, what ends up happening in the courts will really be the evidence that we would use to analyze what's happening.

I agree that it's important that the government is clear about what the laws mean and how that works out, but ultimately, if the courts rule in favour of someone who is violent, especially depending on the substance that they are using, and using that as an excuse for violence that is premeditated or a separate issue, that will continue to be a concern.

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

What are your suggestions in terms of making it even more absolutely clear that intoxication or just being high is never a defence when it comes to perpetrating any crime, in particular as it relates to sexual violence?

[Rhiannon Thomas]

I'm sorry. Can you repeat the question?

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

In your view, what else can be done or what else can the government do to make the point absolutely clear, as has been in this instance where the Minister of Justice and other government officials were very quick to highlight it, that just intoxication or being high is not a defence for committing any crime or sexual violence?

I'm of the view that we have more work to do in regard to educating people—men in particular—that this is never a defence.

What is your recommendation as to what else can be done?

[Rhiannon Thomas]

That's a great question.

Real investment in support services for women and families who experience intimate partner violence and gender-based violence would be a crucial step, because those services are rare. The shelter system, for example, for women who are escaping violence is very full all the time. This was particularly highlighted during lockdowns and the pandemic.

I think it's really looking at investment in services for women who are victims of violence and particularly sexual violence. I can't overstate how overwhelming it is to try to report sexual violence to the police.

I'm sure all the honourable members of this committee will understand the dark figure of crime when it comes to sexual violence. It is very difficult to report that and even once it is reported, going to court is a very traumatic system because there is no support there to help people get through that system and through that process.