Justice Committee on Nov. 14th, 2022

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

Thank you.

Dr. Roebuck, I have probably a minute and a half left.

Your last recommendation was around data collection. Can you expand on that? What kind of dataset are you speaking of? How do you suggest that data be collected? Most importantly, how can it be used to protect victims of sexual violence?

[Dr. Benjamin Roebuck]

Thank you for the question.

I believe that an appropriate way of collecting the data would be to look at every instance of the defence being used in court and look at success factors and when it's unsuccessfully used. It would be to look at the nature of the cases where it's being used and evaluate whether it is disproportionately affecting violence against women, as we've seen in the past.

I'm not sure yet of the proper mechanism within government to do that. Certainly, our office will also keep an eye on its use and likely commission a study in year two to report back on the work.

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

Thank you.

Do you know if that data is being collected at the moment? Do you have any sense of that, even from academic circles, given your background?

[Dr. Benjamin Roebuck]

Yes, there's an excellent research centre at Western University where some of that data is being monitored.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Naqvi.

We'll go to Monsieur Perron.

Welcome to the committee.

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

Thank you very much, Mr. Chair.

I thank the two witnesses for being with us this morning.

Mr. Roebuck, congratulations on the important position you hold. I cannot believe the position was vacant for so long, as my Conservative colleague mentioned. In any event, you are here.

In your statement, you made recommendations and used clear language. You said that there needs to be meaningful consultation and that a formal review should be conducted after two years. In your recommendations, I sense that you have significant concerns.

With Bill C‑28, do you think we achieved the desired balance between defending individuals and protecting victims, or do you instead think that the bill will not be effective?

[Dr. Benjamin Roebuck]

It's a great question.

Mr. Chair, in general in Canada, we have work to do to balance the system with regard to the rights of offenders and the rights of victims, where the rights of offenders are guaranteed under the charter, and victims typically have to ask for their rights to be respected, and there's no recourse for them to follow up outside of the complaints mechanism, which is part of why our office is vitally important to victims and survivors of crime.

In terms of clear language, it's not accessible to the average Canadian to understand. I just want to read this portion of the bill:

they departed markedly from the standard of care expected of a reasonable person in the circumstances with respect to the consumption of intoxicating substances.

For a survivor of sexual assault who tries to look at and understand the law, that's not clear, so the messaging has to be there, because already, as Ms. Thomas has pointed out, we know that less than 6% of sexual assaults in Canada are reported to the police. If women feel that they're not going to be believed because there was intoxication involved, that's significant. We need to clarify that.

We need to look at this issue also in the context of drug and alcohol policies and harm reduction and consider the importance of safer consumption programs as a means of people using more safely than in other contexts where private violence could occur.

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

Would you have a specific proposal to make, particularly on the portion you read us? Have you thought of language that the committee members could use to make a sound recommendation to the government?

Do you have something prepared already or would you be able to provide something to the committee?

[Dr. Benjamin Roebuck]

Mr. Chair, we can certainly look at some language and recommendations. I think you'll probably receive a lot of helpful input through the committee hearings about the way the language could be used and interpreted.

I think that for something as significant as this—because, as I mentioned, alcohol intoxication is present in so many contexts of violence—having a plain language summary at the top of the bill—even within the Criminal Code—that articulates the essence of what's being said, followed by the legal language, which I understand is important, could help to clarify.

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

What do you think of the approach used in Bill C‑28? The minister had two choices: create the offence of extreme intoxication, or require that a risk of loss of control and risk of harm due to the loss of control be demonstrated.

I noted during previous testimony that some people had expressed doubts as to the effectiveness of this clause. This was the case in particular for Mr. Hugues Parent, full professor of law at the Université de Montréal, who said that the proposed wording did not include the risk of a defence lawyer invoking psychosis, for example.

What do you think about this? Do you believe there is a significant gap to be addressed before moving forward with this bill?

[Dr. Benjamin Roebuck]

Thank you, Mr. Chair.

There are parallels with other types of behaviour that I think need to be considered.

With something like psychosis, generally it's understood that it's a partial break from reality or a partial difference in perception. I think the way we're talking about extreme intoxication may be oversimplified in reality, and we need to consider the fluidity of the impacts of extreme intoxication.

I think that's a really important consideration and the impression of victims of crime should be considered in that, as has been recommended, but I think it's an oversimplification to assume that there's a complete disconnect that's permanent throughout the complete duration of an offence.

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

Thank you very much.

When he appeared before the Committee, Minister Lametti stated that the new clause 33.1 would be easy to apply. Do you share this opinion?

We can see that you have some doubts as to the wording, which you find too technical, but that, on the whole, you think the content could be good. I would like to hear what you have to say on this.

[Dr. Benjamin Roebuck]

Thank you for the question, Mr. Chair.

I don't believe that it will be a common defence. I think there is a high threshold that's established in the law, but we do need to monitor it to ensure it doesn't become more common.

As was raised earlier, I think a part of the concern about the bill was that there was some misunderstanding about what it meant, and I think some of that would still be part of this process. I don't think it will be a common defence, but I think the perception of Canadians still has the power to influence the way that sexual assault survivors choose to report or not report.

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

Thank you very much.

[The Chair, Liberal, Randeep Sarai]

Thank you, Monsieur Perron.

Next we'll have Mr. Garrison for six minutes.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Thank you very much, Mr. Chair.

I want to thank both witnesses for being present today, and I also want to welcome the new ombudsman for victims of crime. I will say that I sympathize with him for having been called before a parliamentary committee when he's barely settled into the chair, and I appreciate his intention to consult widely before taking on more specific perceptions.

I want to start by asking you, Mr. Roebuck, if you believe that when Parliament acted quickly this did anything at all to stem the perception that a big gap had been opened in the Criminal Code that would allow perpetrators to get away with crimes by claiming extreme intoxication.

[Dr. Benjamin Roebuck]

I do believe there was value in taking quick action on this matter. The misconceptions were continuing to grow, and without a legislative response or a response from the House, I do believe they would have caused further harm to survivors of sexual assault and partner violence and other forms of victimization.

There is still work to do in terms of communicating clearly with the public so that we can root out some of the misconceptions that were present in that period of time, and there are still concerns to address in monitoring how this bill will impact survivors.

I do believe that the immediate action was justified and important for the safety of survivors in Canada.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

I, too, regret that we didn't have you in place sooner so that you could have been part of our consultation for the study we're doing on victims of crime, but I certainly look forward to having input from you as we go forward on this in the future.

I want to turn to Ms. Thomas, and I want to start by asking the same question I asked Dr. Roebuck. Do you believe that Parliament acting quickly did anything to help staunch the fear that some major gap had been opened that would allow people to claim extreme intoxication as a defence?

[Rhiannon Thomas]

Quick action is certainly a good approach. However, as to the impact on the views of a community of people who have been so affected by violence and sexual violence, I think it is very difficult to understand how big that gap is and how much damage occurs in the public to people who have experienced this kind of violence. Because, historically speaking, sexual violence in particular but also other kinds of violence have never been addressed and survivors have not gotten the supports they required, I think quick action is important, but a lot more needs to be done to stem these concerns.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

In the context we were using before, it may have been good to have action, but it's not sufficient to stop with Bill C-28. There's a lot more we need to do in terms of supporting victims of sexual violence.

In your opening statement, you talked about the challenges faced by women in general within the court system but also by marginalized women, including those who might use substances. Could you talk a little bit more about those challenges and what's being done, if anything, to meet those challenges?

[Rhiannon Thomas]

That's a really good question and it's a lot to answer.

I'm here representing WHRIN, but I have many years of experience doing frontline work with people who use substances, and also in supporting people through court systems. Poverty is the number one challenge. If you're a poor person in Canada, your access to legal supports is minimal. My experience with most people who are in the provincial systems in particular, but also the federal system, is that if they do not have access to legal supports they often end up pleading out and serving time, whether they're guilty or not, just because that is the only option available to people if they don't have money for a lawyer. I'm sure I don't need to talk about how the situation of poverty in Canada is increasing with the cost of living and so on.

Then, there are also all those other challenges that are experienced. People who are Black or indigenous are disproportionately stopped by police. There's plenty of evidence on that. I hope that, as we continue to collect more race-based data in this country in various places, we'll start to see facts and figures on that information.

Again, poverty, race, the address where people are calling for crimes.... I'm here in Toronto, and I can certainly say that when you call 911, depending on what the issue is, if you call for an ambulance the police will come depending on where you're calling from. If you're coming from a poor area, that's when the police will also automatically arrive.

Then, on top of that, another challenge is the fact that we're in a situation right now where we're talking about criminalization of drugs and drug use, which has a direct impact on this kind of law. When people are criminalized for substance use, then the people who will be disproportionately impacted and more likely to be arrested or charged will be, again, people who are poor, people who are racialized and people who are otherwise marginalized.

[The Chair, Liberal, Randeep Sarai]

Thank you, Ms. Thomas.

Thank you, Mr. Garrison.

I will next go to a five-minute round beginning with Mr. Caputo.

[Frank Caputo, Conservative, Kamloops—Thompson—Cariboo, BC]

Thank you, Chair.

Ms. Thomas, thank you for your work. My wife does work on behalf of women in a similar capacity, so I'm obviously appreciative of your work.

Thank you, Dr. Roebuck, and congratulations on your appointment.

I'm going to begin by talking about something that came to me earlier here today when I was listening. There's a crucial distinction that I think needs to be made here, and that is the raising of a defence versus the success of a defence, two very different things. The raising of a defence is dependent upon the threshold that has to be met, as in when somebody can raise this defence, in what circumstances. Here it's a question of whether there is extreme intoxication. The Minister of Justice came forward and said this defence will rarely be successful. But that's very different from saying this defence will rarely be permitted to be raised. They're very different things.

Now when I look at the Criminal Code, particularly sections 266 to 278 and onward, this is what we see: If a person wants to raise evidence of prior sexual activity, for instance, as part of their defence on a sexual assault or sexual interference or the like type of allegation, or if somebody is pursuing a record that relates to the victim, they have to go through an evidentiary hearing that is separate. In this case, we don't have a separate evidentiary hearing. We just have the defence that can be raised. In those two examples that I cited, as I recall, the victim is actually entitled to standing in the courtroom. What that means is that the victim is entitled to a lawyer and the victim is entitled to make submissions or make an argument to the judge.

On the one hand, we have this robust system that says we're going to have a high threshold, and before we even get to that threshold we're going to have the judge hear whether this is appropriate. On the other hand, we have extreme intoxication, and that defence can simply be raised and the victim isn't heard. That's what I see in Bill C-28.

As I was thinking and listening, what I was left with was this: Wouldn't it be prudent if we developed legislation that mirrors, say, section 276 to 278 and onward, saying that before you raise this defence, you actually have to have a threshold hearing before a judge, and at that threshold hearing the victim could actually get their own lawyer? Would that be something that would perhaps diminish the use of very questionable defences of this kind being raised—not being successful, but being raised—and would it take into account victim concerns more greatly?

I appreciate this is quite a loaded question, so I know that will probably take up most of our time.

Ms. Thomas and Dr. Roebuck, I'm happy to hear from both of you on that point.

[Rhiannon Thomas]

I could speak to it very quickly.

I think that is certainly a good consideration. However, I would come back again to my points about access to legal aid. If such a measure was taken, there would also need to be financial support for the victim to be able to access a lawyer, because having the right to access a lawyer is not the same as being able to actually access a lawyer.

That's my comment on that point. Thank you.

[Frank Caputo, Conservative, Kamloops—Thompson—Cariboo, BC]

Thank you. I know that in British Columbia legal aid is provided for such applications.