Debates of June 22nd, 1995

The House proceeded to the consideration of Bill C-72, an act to amend the Criminal Code (self-induced intoxication), (with amendments) from the committee.

Criminal Code

[Allan Rock, Liberal, Minister of Justice and Attorney General of Canada]

moved that the bill, as amended, be concurred in.

(Motion agreed to.)

[The Speaker]

When shall the bill be read a third time? Now?

[Some hon. members]

Agreed.

[Allan Rock, Liberal, Etobicoke Centre, ON]

moved that the bill be read the third time and passed.

Mr. Speaker, it is a pleasure for me to rise today to defend Bill C-72, which has widespread support among Canadians and, I believe, the support of all members for quick passage in the House.

Mr. Speaker, Canadians hold the strong moral view that people who commit violent acts against others while voluntarily drunk should be held criminally responsible for their actions.

As members of this House are aware, last September the Supreme Court of Canada, in a case called Daviault, held that according to the common law, intoxication, even if self-induced, may be a defence to a charge of violence against another if the intoxication is so extreme that the accused was in a condition akin to automatism or insanity. As a result, the Supreme Court of Canada directed a new trial in the Daviault case in order to permit the trial court to canvas questions of fact relating to that potential ground of defence.

In the Daviault judgment the Supreme Court of Canada, in the exercise of its proper function, established the common law principles that apply in such cases. Today the House of Commons has the opportunity, in the exercise of its constitutional function, to establish a legislated rule; in short, to codify the principles that we believe should be paramount, starting with the principle of accountability for one's own conduct. As we consider this issue today, I suggest that we, as parliamentarians, must examine the question not just as an issue involving the common law but as a matter involving common sense.

The principle of accountability in the criminal justice system has been reflected in every measure this government has introduced while implementing its safe homes, safe streets agenda. During the session of Parliament that ends this week, the government has delivered on that agenda.

[Some hon. members]

Hear, hear.

[Allan Rock, Liberal, Etobicoke Centre, ON]

Bill C-37, which will receive royal assent later today, toughens the response to violent youth crime, doubling the maximum sentence for first degree murder, introducing important changes to the transfer provisions involving the trial of 16 and 17-year-olds in adult court when facing charges involving serious crimes of violence.

Bill C-41, passed by this House last week, codifies the principles and the purposes of sentencing, encouraging uniformity and predictability in criminal sentences, broadening the rights of victims in the criminal justice process and increasing their rights to restitution.

Bill C-42, passed earlier this year and proclaimed in force in mid-February, modernizes the criminal justice system in dozens of ways, simplifying criminal procedure and making protection ordered by the courts more readily accessible to women who are victims of the violence that is caused by the men with whom they live.

Bill C-68 cracks down on the use of guns in crime, providing for the longest mandatory minimum penitentiary terms in the Criminal Code for those who choose to use firearms in the commission of any one of ten serious offences. As passed by the House Commons, Bill C-68 also provides for mandatory minimum jail terms for those prosecuted on indictment for the possession of stolen or smuggled firearms and provides the police with valuable new tools in their continuing efforts to enhance community safety.

Bill C-104, which will be considered by the House later this afternoon, provides by amendment to the Criminal Code for the taking of bodily samples for DNA testing, providing an important tool for police and prosecutors in the investigation and prosecution of serious crime.

The creation of a national crime prevention council puts crime prevention on the national agenda for the first time, uniting community action with government policy so that Canadians, instead of wringing their hands worrying about safety in their communities, can roll up their sleeves and do something positive and constructive to increase the safety of their homes and of their streets.

With Bill C-72, the government has responded quickly and effectively to deal with an issue of grave public concern.

The aim of this bill is to amend the Criminal Code so that intoxication may never be used as a defence against general intent violent crimes such as sexual assault and assault. The bill therefore establishes a new standard of care.

A person in a state of self-induced intoxication that renders them unaware of, or incapable of, consciously controlling their behaviour, who causes injury to another person, is criminally accountable. This person departs from the standard of reasonable care generally recognized in Canadian society and cannot claim extreme intoxication as a defence.

The government believes that the approach taken in Bill C-72 is fundamentally fair, both to the victims of violence and to those accused of crime. It is fair to the accused because we will set out in clear language in the Criminal Code the minimum standard of civilized conduct Canadians are entitled to expect from each other in the context of voluntary intoxication. Hence-

forth, let no one suggest that they were unaware of the standards by which their conduct in such cases is to be judged.

The bill is fair to victims of violence because it ensures accountability for the aggressor. It fosters protection for the security of the person. It introduces concepts of deterrence and punishment to cases of violence involving self-induced intoxication.

This bill reflects Parliament's grave concern about intoxicated violence and particularly its disproportionate effect upon women and children in Canada. It is not without significance, I suggest, that the Daviault case involved allegations of violence by a man against a woman. Almost all of the cases that followed the Daviault judgment also involved allegations of violence by men against women.

In both the preamble and the operative sections of Bill C-72 we acknowledge the need to deal with violence by men against women and we provide an important means to meet that need. Bill C-72 is a way in which this government is delivering on its commitment to deal squarely with violence by men against women.

I would like to take this opportunity to thank the speaker and the members of the Standing Committee on Justice and Legal Affairs for taking time to examine in depth the complex issues underlying this bill.

The evidence heard by the committee is valuable not only as an indication of the widespread support for the bill, but it is also an important record of Parliament's reasons for legislating in this area. To guide those who are called upon to apply the bill or to defend or adjudicate upon its constitutional validity, the committee heard from practising and academic lawyers, from women's groups, from experts on the psychiatric, pharmacological, and behavioural effects of intoxication.

Of key interest in my view was the uncontradicted testimony that there is absolutely no scientific evidence that alcohol acting alone can medically produce a state of automatism or a state akin to automatism.

To be sure, there were some witnesses who expressed concern about some elements of the bill in relation to the charter of rights and freedoms, but most witnesses strongly endorsed the legislation as constitutional and as an appropriate response to a serious legal and social problem.

The bill comes before the House today with two amendments, both of which I commend to my colleagues. First, the fourth paragraph of the preamble has been strengthened to reflect the scientific evidence that the committee heard. Instead of referring, as it did at first reading, to scientific evidence that many intoxicants, including alcohol, may not cause a person to act involuntarily, the revised bill refers to scientific evidence that most intoxicants, including alcohol, by themselves will not cause a person to act involuntarily.

The second amendment involves the term "basic intent" as it appeared in clause 1. Section 33.11 has been changed to general intent. The phrase "general intent" is an expression better known to the law and lawyers and makes the scope and intent of the bill crystal clear.

I suggest that Bill C-72 meets the test that Parliament must apply to all proposed legislation in the realm of the criminal law. It reflects our shared values and our notions of accountability while respecting the rights of those who may be charged with criminal offences.

I suggest that the bill is sound, fair and a workable recognition of those important public and constitutional principles of which I have spoken. I ask for the support of every member of the House for its speedy passage.

[Pierrette Venne, Bloc, Saint-Hubert, QC]

Mr. Speaker, we have passed these past few days two controversial and divisive bills. The most eclectic views were put forward, and the emotional intensity of the debate on bills C-68 and C-41 was reflected by some members' virulent outbursts.

Unlike these bills, Bill C-72 is not intended to cause controversy and debate, but rather to bring them to a close. The Supreme Court decision in the Daviault affair has outraged the general public. Henri Daviault was charged with sexual assault on a hemiplegic woman while intoxicated.

He was acquitted by the trial judge who was not absolutely certain that Daviault was sufficiently aware of what he was doing to form a criminal intent, that is to say the intent to sexually assault.

The Quebec Appeal Court quashed this decision two years ago and convicted Daviault. But on September 30, the Supreme Court of Canada ruled that pleading intoxication could be admissible in some specific cases and ordered a retrial.

Reactions to the decision rendered by the highest court of the land were quick to follow. While a plea based on the Daviault decision was expected to be used only very exceptionally, the interpretation given to this decision by lower courts lead to three acquittals within two months.

All these cases involved women who had allegedly been assaulted, sexually or otherwise. In the Blair case, in Alberta, an alcoholic was charged with assaulting his wife. He was acquitted on the basis of the Daviault decision. In the Compton case, in Prince Edward Island, the accused, who only vaguely remembered what happened at a social gathering because he was drinking, was acquitted of charges of sexual assault. The judge said that he could not make a ruling and that he was not

convinced that the Crown had established the criminal intend required to convict the accused.

Closer to home, in the district of Hull, in the Thériault case, a Court of Quebec judge acquitted a man charged with assaulting and threatening his spouse on the grounds that he was too high on cocaine to realize what he was doing.

Three cases of women who were victims of assault and all three resulted in acquittals. This is more then the public could take. Canadians have had enough of the aberrant decisions made by our judicial system. Following the Supreme Court decision, the Minister of Justice decided to take action. In fact, the general outcry provoked by the Daviault case and the subsequent decisions made by lower courts was such that the minister had to respond immediately. This is of course a political decision; it is only a short term solution, before the Criminal Code undergoes a comprehensive review. This is what we call a piecemeal approach.

The problem with this approach is that it inevitably results in a legislative mosaic which lacks cohesion. Although the justice minister has done some pretty good patchwork, it is still incomplete and inadequate. We wonder whatever happened to the judicial and legislative powers. Simple logic tells us that Parliament should legislate and then let the courts interpret the intent of the legislation. However, this is not the case. The courts, and particularly the Supreme Court, seem to be telling Parliament how to legislate. The world has gone crazy.

It is up to the Minister of Justice to initiate reforms. The Supreme Court should not have to lead him by the hand. It is not up to the highest court in the country to take the initiative, the minister should do it. Enough of stopgap measures. Let us get on with it. The Daviault case was not the only opportunity used by the Supreme Court to send a message to the Minister of Justice.

Indeed, in the McIntosh decision, brought down on February 23, the court gave a rather surprising interpretation of the notion of self-defence. The judges concluded that an aggressor responsible for a dispute could avail himself of the principle of self-defence in a murder case. Chief Justice Lamer made a very telling comment when he wrote, and I quote: "It is clear that legislative action is required to clarify the Criminal Code's self-defence regime". He added: "It is, in my opinion, anomalous that an accused who commits the most serious act has the broadest defence. Parliament, after all, has the right to legislate illogically".

The message is rather clear. Yet, it remains unanswered. With all due respect, the judges of the Supreme Court were not elected by the people and it is not their duty to indicate the direction the criminal law should take. Jurisprudence has an important role to play in the development of the law, but it is not a substitute for the decisions we as legislators are supposed to make.

As for the bill before us today, the substantive amendments to the Criminal Code proposed in Bill C-72 are preceded by a preamble setting out the circumstances and considerations justifying this new legislative measure. The preamble will appear in the texts as an integral part of the amending legislation, but it will not be included in the Criminal Code. In fact, the preamble is longer than clause 33.1, which will be added to the Code. It is therefore difficult to ignore.

Generally speaking, the preamble gives the background to the bill. Among other things, mention is made of the serious concern with violence in society, the close association between violence and intoxication and the recognized potential effects of alcohol on human behaviour. In this same vein, reference is made to the moral view that people who, while in a state of self-induced intoxication, violate the physical integrity of others are blameworthy and must therefore be held criminally accountable for their conduct, whence the need to incorporate in the law a standard of care, departure from which would entail criminal fault.

A minor amendment has been suggested by the justice committee concerning paragraph 4 of the preamble, which points out logically enough that the consumption of intoxicants may not necessarily cause a person to act involuntarily.

It is difficult to argue with virtue. On the other hand, the preamble raises a number of questions and comments. What is meant by saying that violence has a particularly disadvantaging impact on the equal participation of women and children in society. Are we afraid to say what we mean? Why does the preamble emphasize violence against women and children? Why are we still and always compared with children? It has really started to bug me that women are being equated with children, when it comes to victimization.

Let me make this clear. I am not saying that children do not deserve special attention. What bothers me is the condescending and paternalistic attitude of the lawmaker. Whenever women need protection of any importance, we protect them as if they were children. It would seem to me that several people still consider us the weaker sex, actually, as weak as a child.

Therefore, society should give us women the same protection, according to the lawmakers, perhaps; that is a male way of thinking. A woman does not need to be taken by the hand. A woman does not need to be told to look twice before crossing the street. A woman is a mature and responsible being. A woman is a mother who raises a child. A woman is not a child.

Stop thinking of us in this way. If, in general, women need special protection, that protection should be different from the protection given to children. And children certainly do not encounter the same obstacles as women do, when they try to take an active role in society. So, why suggest that they are similar? Otherwise, we would have to reclassify all human beings in our society. We would have to start talking about adults, on the one hand, and, on the other, women and children. There was a time

when people used to think this way. It would seem that the lawmaker is now heading back in that direction.

The summary gives an insight into the legislative amendments contained in Bill C-72. However, this litany of excuses has no other purpose than to eventually refer the issue to the Supreme Court, for an opinion on the approach taken in the amendments made in Bill C-72.

The Minister of Justice is consistent as he again considers the option of a referral asking the Supreme Court to examine the amendments to the Criminal Code in Bill C-72, as soon as the legislation is passed by Parliament but before the legislation comes into force.

He would seek a non-binding advisory opinion from the Supreme Court, as if Parliament needed the seal of approval of the courts! And if the Supreme Court felt that the provisions were unconstitutional, we would have to go through the whole process again. We would be back to square one, and the time spent in the House and in committee would have been wasted.

If the Minister of Justice is so sure that his bill would pass the test of a constitutional challenge, why bother seeking the approval of the Supreme Court?

Immediate implementation of these amendments is both necessary and crucial. As long as we keep postponing the coming into force of this legislation, the number of these sad and sordid cases will continue to increase. Courts across the country are waiting for the Minister of Justice to act. This time they are seeking an opinion from the Supreme Court.

Aside from the preamble, the bill is very brief. Just one clause. Bill C-72 proposes to add a new section 33.1 to the Criminal Code, which consists of three subsections. The first one removes the defence of self-induced intoxication, the second subsection defines the standard of fault and the third specifies the type of offence to which the provision applies.

Section 33.1 of the bill will be added to the general part of the Criminal Code under the heading Self-induced intoxication . However, the section in question provides no definition of this term and does not list specific circumstances to which the section does not apply. It seems to me that the Minister of Justice, who wants to correct a judicial decision, is still leaving a lot of room for interpretation. The connection between the preamble and subsection three of the article seems somewhat ambiguous.

[The Acting Speaker (Mr. Kilger)]

It being 5.30 p.m., the House will now proceed to the consideration of Private Members' Business. Before we do, however, I would ask the hon. member for Saint-Hubert if she could tell the House how long she will need to conclude her remarks. Perhaps we could then agree to delay Private Members' Business, or perhaps we should ask for unanimous consent.

Could the hon. member for Saint-Hubert help us out with this information?

[Pierrette Venne, Bloc, Saint-Hubert, QC]

Mr. Speaker, I would need 8 or 9 minutes more.

[The Acting Speaker (Mr. Kilger)]

Under the circumstances, I would ask, without wanting the hon. member for Saint-Hubert to be bound by her statement, if there is unanimous consent?

Would there be unanimous consent that I not see the clock so the hon. member for St. Hubert could conclude her remarks? Then at approximately 5.40 p.m. we would go into Private Members' Business. Is there unanimous consent?

[Some hon. members]

Agreed.

[Jim Silye, Reform, Calgary Centre, AB]

Mr. Speaker, I rise on a point of order. I believe the parliamentary secretary to the House leader has another issue he would like to bring forward. If he does I would like to have that heard now so that we could proceed. We would agree to the request.

[The Acting Speaker (Mr. Kilger)]

As we say repeatedly from the Chair, it is your House and I am only here to accede to your wishes.

Committees Of The House

[Peter Milliken, Liberal, Parliamentary Secretary to Leader of the Government in the House of Commons]

Mr. Speaker, in light of the comments of the Reform Party whip I would seek the consent of the House for a couple of motions. I move:

That 15 members and 7 staff of the Standing Committee on Industry be authorized to travel to Toronto, Ontario, during the adjournment of the House between August 1 and August 3, 1995, in order to conduct hearings on major banks and their activities.

I seek unanimous consent for that motion and then I will have another one.

[The Acting Speaker (Mr. Kilger)]

The House has heard the terms of the motion. Is there unanimous consent?

[Some hon. members]

Agreed.

(Motion agreed to.)

Subsitutions

[Peter Milliken, Liberal, Parliamentary Secretary to Leader of the Government in the House of Commons]

Mr. Speaker, I move, seconded by the Minister of Justice:

That, notwithstanding the provisions of the Standing Orders, the chief whip of any party can, for the purposes of this trip, make substitutions by giving notice to the clerk of the committee. These substitutions will apply for the duration of the trip and will take effect as soon as they are received by the clerk of the committee.

I ask for the unanimous consent of the House to introduce this motion as well, Mr. Speaker.

(Motion agreed to.)

[Peter Milliken, Liberal, Kingston and the Islands, ON]

Mr. Speaker, I would ask for leave to revert to presentation of reports by interparliamentary delegations so that the hon. member for Labrador could present a report to the House.

[The Acting Speaker (Mr. Kilger)]

Is there unanimous consent?

[Some hon. members]

Agreed.

Interparliamentary Delegations

[Bill Rompkey, Liberal, Labrador, NL]

Mr. Speaker, pursuant to Standing Order 34(1) I have the honour to present to the House, in both official languages, the seventh report of the Canadian NATO Parliamentary Association which represented Canada at the 1995 spring session of the North Atlantic Assembly.

[The Acting Speaker (Mr. Kilger)]

Before returning to the previous business before the House, I would like to express my thanks to the House for its co-operation.

The hon. member for St. Hubert will conclude her remarks. Upon completion of the remarks we will proceed to the private members' hour. I particularly appreciate the co-operation and the indulgence of the member in whose name the motion stands, the hon. member for Mission-Coquitlam.

The House resumed consideration of the motion that Bill C-72, an act to amend the Criminal Code (self-induced intoxication), be read the third time and passed.

Criminal Code

[Pierrette Venne, Bloc, Saint-Hubert, QC]

Mr. Speaker, I thank my colleagues for allowing me to conclude my comments on Bill C-72 right away.

I was speaking about the preamble and the relationship of the preamble to the third paragraph of the new clause. The preamble provides that it is necessary to legislate a basis of criminal fault in relation to general intent offences involving violence.

However, subclause 33.1(3) of the bill provides that the section applies to offences including violence or threat of violence under the Criminal Code or any other act of Parliament. Does this not mean that the section would also apply to specific intent offences with violence? This however is not the case.

In fact, an individual charged will still be able to claim self-induced intoxication as a defence against such serious charges as murder, theft, robbery, extortion, breaking and entering and torture.

As the preamble to the bill indicates, we clearly recognize the close association between violence and intoxication. The urgency of the situation requires immediate intervention. Every day women are battered by their drunken spouse.

The results of a national survey on assaults against female spouses, in which more than 12,300 women participated, were released in March 1994. As I said previously, this survey establishes beyond the shadow of a doubt the relationship between alcohol and violence. It reveals that alcohol is a prime factor in spousal assaults. The aggressor had been drinking in half of all the reported assaults.

More specifically, the rate of assault on woman living with a man who drinks regularly, that is at least four times a week, was three times higher than for abstinent husbands.

Women whose husbands drink often five drinks or more at one time were six times more exposed to assault than women whose spouse did not drink. In 1993, 55 per cent of the men who killed their partners had consumed alcohol.

That being said, Bill C-72 is only part of the solution when dealing with the violence issue. When sexual assault results in the death of the victim, what was common assault becomes culpable homicide. The offender will be able to use the intoxica-

tion defence, whereas he could not have presented such a defence if the victim had not died, since in that case he would have been charged with aggravated sexual assault.

Which leads to the following nonsense. If the aggressor hits his victim hard enough to cause her death, he can plead that he was too intoxicated to know what he was doing. On the other hand, if the victim recovers from her injuries, he will no longer be able to use this defence. Such nonsense ought to be remedied at once. The only way this can be done is by consolidating the Criminal Code and updating our law so that it reflects what society condones and what it will not tolerate.

Every form of violence should be exterminated like vermin. The Minister of Justice should not wait any longer to complete the reform of the general part of the Criminal Code. The rules of criminal law are archaic and many of its fundamental principles are not included in the general part, as they were developed by the courts.

Precedents shape the law. It is high time for roles to be reversed and for lawmakers to act responsibly. The Barreau du Québec quite rightly expressed serious concerns about Bill C-72.

In its brief to the Standing Committee on Justice and Legal Affairs, it suggests a global approach to penal law. Here is what it said in unequivocal terms. "The Barreau du Québec wishes to emphasize that, far from eliminating the confusion which surrounds the concepts applying to criminal law, the proposed legislation creates even greater confusion. The urgency is of a political nature and is the direct result of the treatment, by the media, of the Daviault case. This certainly confirms the need to look at the issue, but we must do so in the appropriate general context".

Other groups showed less tolerance toward Bill C-72. The Criminal Lawyers Association called the legislation "premature". These criminal lawyers feel that the bill violates the charter of rights and freedoms. They deplore the attitude of the Minister of Justice, who is providing a political solution to a legal issue. These criminal lawyers also feel that the premises of the preamble are flawed and are too open to interpretation.

Without necessarily agreeing with these groups, I do see a common denominator, namely the need to reform our criminal law, particularly the Criminal Code. Using a piecemeal approach or merely patching things up only leads to inconsistent legislation and absurd precedents.

We need a comprehensive review, as Superior Court Justice Réjean Paul said:

"It has already been quite a while since the Law Reform Commission of Canada suggested to Parliament that it should undertake major changes regarding substantive law and criminal procedure, so as to be able to deal with contemporary issues. It is necessary to adopt a new Criminal Code, as well as a new Code of procedure. In Canada, we are still using a working tool that dates back to the previous century, was reworked in 1927 and 1952, and patched up several times since to deal with new political, economic or social realities".

The chaotic situation prevailing in our criminal law system could not be better summed up. Therefore, I exhort the Minister of Justice to stop grandstanding and to propose an overhaul in September. Criminal law needs a steady hand at the helm, someone capable of keeping on course, not someone who will be dragged along in the wake of the courts.

In closing, I would like to wish all of my colleagues a pleasant end of session; we all know that the last sprint is difficult. I wish you all a good summer and above all, a happy national holiday, Saint-Jean-Baptiste Day, to all Quebecers. May we proudly celebrate the joy that comes with belonging to a people who will soon, very soon, take charge of their own affairs and create a country of their own.