44th Parl. 1st Sess.
June 22, 2022 02:00PM
Madam Speaker, I am sure everybody in the lobby is surprised that I actually did that at the right time.
Tonight is one of our last evenings sitting in the House of Commons before we adjourn for the summer and return to our ridings. The speech that I am going to give tonight is truly based in what I am seeing all around us. It has become a culture of violence.
Tonight, we are speaking on Bill C-28. Although I support it in principle, we do have a lot further to go. Tonight, we have the opportunity to begin this discussion, which I hope becomes a much larger national discussion. We need to continue this conversation, especially with women's organizations, which have come out and cannot support this legislation.
A good ally of mine and friend, Megan Walker, discussed this legislation with me yesterday. She cannot support it and shared her concerns about the ability of the Crown to prove it. She feels that this legislation is tokenism
Women's organizations are stepping forward and asking us to halt this legislation, while other organizations are in full support of the legislation. To me, this is a clear yellow light that we have to be cautious and that we need to re-address this: that what we are doing today is just not enough. This needs to continue.
My last six months in my role as the shadow minister for women and gender equality and youth have given me the honour to work with people, especially in the committee on the status of women.
I can share with members that it seems like we are in a real mess, and I can tell us that we need change.
Let us start with this piece of legislation. I want to address it by sharing the letter that was received by the National Association of Women and the Law. It reads, and I quote:
Feminist organizations in Canada have long been concerned about the connection between men’s use of intoxicants, and violence against women. Study after study has shown that there is a direct link between so-called ‘drunkenness’ and sexual violence. There are studies that report an average of 50% of sexual assault perpetrators consumed alcohol at the time of the assault, with other studies showing a variance of between 30 and 75%.
Looking back to the 1994 Daviault decision, in which the Supreme Court ordered a new trial based on the accused’s extreme intoxication at the time of the incident, the ‘gap’ in the law quickly becomes apparent. Mr. Daviault had voluntarily consumed an excessive quantity of alcohol before forcing intercourse on the complainant, an elderly woman with a disability. In response, feminist groups like National Association of Women and the Law (NAWL) pressed the government to restrict the defence of extreme intoxication. The federal government enacted section 33.1 of the Criminal Code, closing the gap by preventing those who voluntarily consume intoxicants and then commit acts of violence from using the defence of extreme intoxication for general intent offences.
In May 2022, the Supreme Court of Canada’s unanimous decision in Brown struck down the law set out in s. 33.1, declaring it unconstitutional and stating that voluntarily taking intoxicating substances cannot replace the criminal intent required for a conviction. This decision re-opens the ‘gap’ left by the 1994 Daviault decision, once again leaving women vulnerable to crimes of violence when the accused can demonstrate that his intoxication put him into a state of automatism. Despite the assurances of some defence lawyers and their allies that reliance on extreme intoxication will be rare, research analyzing the extreme intoxication defence indicates that it will be raised with some regularity. Indeed, research shows that it will be used overwhelmingly by men, and that the majority of victims will be women.
I know that I shared a very lengthy part of that letter, but to me, this is what we are talking about. Yes, this legislation came out very quickly. That means we need to get it passed to stop the gap today, but that does not mean that the gap has fully been filled. That is why I am urging the government to say, yes, we have got Bill C-28 done but we need to do more. I am urging the government to get on the road and let us start doing those consultations. Let us start talking more.
I want to go back to stuff that we have also been hearing about Hockey Canada. We just heard that Hockey Canada receives one to two formal complaints annually and that there are investigations.
I want to talk about all of this, because one thing that I can indicate is that sexual violence and violence against children should never happen. We are seeing it more and more. In the past number of weeks, as I have been dealing with my role as the shadow minister for women and gender equality, and in chairing the committee on the status of women, we are talking about violence and more violence. Our one study on intimate partner violence was talking about domestic violence. Following that, we talked about Kyra's Law, named for a young girl, a young child, who was murdered by her father, basically to get back at the mother.
I am looking at what is happening with Hockey Canada. We talked about a young girl who was allegedly raped by eight hockey players, and there is no responsibility. Then we can talk about what we are talking about here today, Bill C-28. To me, it is really clear. We are talking about things that are a social issue. It is a sexual assault issue.
When I look back at that link between what I am talking about with Hockey Canada and the eight players, and what we are seeing here, the bottom line is that it should never be happening in the first place. In Hockey Canada, we are hearing about a civil law suit that went through. Hockey Canada actually paid out, rather than having this go through the criminal court system. Unfortunately, I understand why someone would choose a civil suit over our justice system right now. We know it is not perfect. With the help of Bill C-233 and other bills that have been put forward in the past, we need to ensure that there is proper training for judges, but it is not just judges. It is everybody involved.
When I look at this, I look at who is responsible. Ultimately, the perpetrator has to be responsible. Although this legislation closes that gap in which we are talking about the state of automatism, we also have to look at what is next.
Just weeks ago, we passed that important piece of legislation, Bill C-233 with unanimous support. It was an all-party effort. I believe it started a conversation, and I believe what we are doing here tonight is also starting that conversation. Just as the minister stated, I had the same conversation with my 18-year-old son. He called me the very next morning and asked me about it when I was in Ottawa. I said, “Son, I'm working on this.” We recognize that it does not mean that someone has to be drunk and this could happen, but there needs to be extreme intoxication. For a young woman, anything is a barrier, including the fact that somebody may use this defence. Everything like that is a barrier.
People are coming out and saying that this law is just window dressing and is not really tackling the real issues. I think what we have to tackle is the culture of sexual violence, because we seem to be ignoring it. I was thinking about it a lot over the past few days. Working on the Hockey Canada case has really brought things to light. These are our kids we are talking about. These are the kids that our kids go to public school with. These are the children, whether they are the perpetrators or the victims. These are just kids. Sometimes we get lost on our way and we confuse what is right and wrong. Is extreme intoxication good enough, or is because someone is an athlete or a politician good enough?
We know, from the recent Supreme Court ruling on May 13, that women's organizations have spoken up. Because of that, we know this needs to be addressed. The government has addressed it through this legislation as Bill C-28. I thank the Minister of Justice and Attorney General of Canada. We pushed on this and we asked for this to be done, so I thank him for doing so.
We need more transparency for victims, and we need to remember that victims have rights, too. This is the problem. We talk so much about the rights of our perpetrators, but our victims need to have rights too. This is what we are losing a lot of the time in these conversations, whether I am talking about Hockey Canada or extreme intoxication. No is no, and there must be consent.
Finally, I want to end this with a quote. I go back to the National Association of Women and the Law:
While they may not be successful in making out the defence – pleading the defence, in itself, will result in increased timelines and lengthy court processes for victims. Ultimately, C-28 is a missed opportunity to close the door on the use of the extreme intoxication defence where alcohol alone is used.
I am coming back and I am saying that this summer I will be working on this. I will be working on providing any information that I can to both the Minister for Women and Gender Equality and Youth and the Minister of Justice, because we can do better, and we need to make sure that we listen to everybody. We need to be listening to the victims, and we need to be working to end sexual violence.
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Madam Speaker, I would like to thank my colleague for her very thoughtful speech, as well as her support of this bill.
I want to quote from LEAF:
LEAF supports this thoughtful, nuanced, and constitutional legislation to address the narrow gap resulting from the SCC decisions.
“If adopted by Parliament, we will be looking to the courts to apply this legislation in a similarly thoughtful way,” says Pam Hrick, Executive Director & General Counsel at LEAF.
I am wondering if my friend opposite could comment on this. Based on her concerns about the bill, could the member see how it is so important for us to pass this bill today and have it as law before we rise?
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Madam Speaker, we need to pass it because, as the Minister for Gender Equality indicated, we do not want victims. We do not want another person to fall victim to this. I look at it as one is too many. We know that this defence being used once is one time too many, especially if somebody has been the victim of a sexual assault and somebody is getting off using this defence. We need to continue this conversation. Although this bill solves part of the problem, there needs to be a much bigger conversation.
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Madam Speaker, I thank my colleague and I want to take this opportunity to acknowledge her. She is the chair of the Standing Committee on the Status of Women. I wish her a very good summer. She was also with me at the meeting of the Standing Committee on Canadian Heritage on the horrible case of assault against a young woman; it is truly awful. She spoke about it at the end.
It was a difficult session. We conducted a study on domestic violence at the Standing Committee on the Status of Women. It was a very tough session. We heard some poignant testimonies.
How does Bill C‑28 fit into this context? She opened the door in her response to the previous question: in a continuum of measures that may be taken to address violence against people. She says that this bill may not go far enough. How does she see it? What would she have wanted to see to make this bill truly fit into the context where we address this violence against women?
I would like to hear her thoughts.
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Madam Speaker, I have really enjoyed my time working with the member for Shefford.
When we are looking at this bill, Bill C-28, we know that domestic violence increases with the intake of alcohol. We know that over the past two years, when we have seen stress and mental health also have many challenges, we have seen an increase in domestic violence, as well. With respect to Bill C-28, because I am a person who will always advocate for victims, I look at this as a very victim-centred bill. That is what we need to look at. It seems to be more perpetrator-centred, but that is the thing. We need to continue to fight for those victims and we understand that—
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- Jun/22/22 9:16:42 p.m.
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We have time for a brief question. The hon. member for Esquimalt—Saanich—Sooke.
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Madam Speaker, I know the member shares the same concern we have as New Democrats: This is only one part of attacking violence against women. Does she share with me the concern that the justice committee has twice recommended to the House that the government act to make coercive and controlling behaviour an offence in the Criminal Code? We know that coercive and controlling behaviour contributes directly to violence. Does she share my concern about the sloth with which the government is approaching that recommendation?
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Madam Speaker, the more I sit on the status of women committee and understand coercive behaviour, the more I have to recognize this is a huge problem, whether it is financial, sexual, regarding harassment or anything of that sort. Coercive behaviour is a very strong thing that we may not see, but we know it is mental abuse. Yes, I am urging the current government to continue to look at that, because we know that women who are living under coercive behaviours and circumstances are having problems leaving those very violent situations.
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Madam Speaker, I want to start by thanking my colleague, the member for Elgin—Middlesex—London, for her hard work, for the comments that she just made and for all of the efforts she has made on behalf of her constituency. I thank her as well for her work on the status of women committee and for her advocacy since the Supreme Court of Canada decision to have a response from the government. I really appreciate that.
She also makes sure the voices that have not been heard so much during the drafting process of Bill C-28 are being heard in the House today and will certainly be heard as this discussion continues.
I would expect that most, if not all, members of this House would agree that addressing and eliminating violence against women and girls should be a top priority and one that is dealt with expeditiously.
Unfortunately, it has been almost 40 days since the Supreme Court of Canada released its decision in the case of R. v. Brown, striking down section 33.1 of the Criminal Code. As a result of this decision, which was announced back in May, it would now be permissible to claim extreme intoxication due to drugs or alcohol as an excuse for murderers, abusers and attackers.
Conservatives have spent the last 39 days calling on the Minister of Justice to prioritize the response we are debating today. The government has control over the legislative agenda, and if it had wanted to bring this bill forward sooner, before the last days of the spring sitting, it did indeed have the power to do so. That would have allowed us a thorough debate in this House and a study at committee, where we could have heard some of the testimony that we are hearing now from the newspapers and from people writing to our offices with concerns about the bill. It should be in all of our interests, and in all Canadians' interests, that we as parliamentarians get our job right. Part of our job is drafting and voting on legislation, and we want to make sure that we hear from experts before we do that.
It took less than an hour for the Liberals to announce their intention to appeal the Alberta court decision regarding their unconstitutional anti-pipeline bill, but it has been 40 days days since the Supreme Court of Canada ruled that criminals will not be held accountable for murder if they were extremely intoxicated when they committed the crime. Why is the government turning on a dime in order to defend legislation that shuts down industries when we are just beginning debate, more than five weeks later, on the legislative response to the Supreme Court's ruling that leaves victims vulnerable?
Conservatives want to err on the side of having legislation in place sooner rather than later so that there can be an element of safety against this defence being used. However, while we can allow this bill to pass for the time being, I want to make it very clear that this is by no means the end of the discussion.
That is why we have insisted in the motion that the justice committee study this bill, this response, and that the minister appear and that the committee report back so that Parliament has an opportunity to improve this legislation if necessary.
Over the summer months, Conservatives will be speaking with stakeholders, organizations, women's groups and individuals whose voices must be heard when we are talking about strengthening the justice system. Conservatives will make sure that those voices are heard.
We know the statistics. We know that women and girls are disproportionately victims of violence and we know that the offenders in these instances are almost always male. The Liberals will try to distract Canadians from the fact that their self-proclaimed “feminist” government has been dragging its feet to address a vulnerability in the law that they were very well aware of, knowing that women and girls are most often the victims in situations like this.
Again I would like to commend the hard work of my colleague from Elgin—Middlesex—London in raising awareness of this issue through a campaign using the hashtag “#oneistoomany” on her social media.
On May 27, 14 days after the ruling came down from the Supreme Court, along with my Conservative colleagues from Elgin—Middlesex—London, Brantford—Brant and Kamloops—Thompson—Cariboo, I wrote a letter to the Minister of Justice to express the severity and urgency of this issue and calling for action. At that point, we thought we would see some action.
I would now like to share with the House some of what we asked for in that letter:
The decisions ruled by the Supreme Court of Canada in R v. Brown...and R v. Sullivan...imperil the safety of victims of violent physical attacks, domestic violence and sexual assault by permitting the dubious defence of non-insane automatism due to self-induced intoxication.
These offences disproportionately affect women, gender diverse individuals and vulnerable Canadians. The ruling made by the Supreme Court of Canada leaves a gap in the law that endangers the safety of communities and the lives of Canadians. This requires the utmost urgent action in order to protect Canadians, especially those at greater risk of experiencing gender-based violence.
The government must act now. It is your duty as the Minister of Justice and Attorney General of Canada to respond to these decisions, close the gaps in the law and ensure the protection of victims.
Our role as Parliamentarians is to represent the best interests of our communities regarding the law and legislation. This is an issue that affects us all, and we stand ready to assist in any way possible to work with you to ensure that there is an adequate response from parliament that prioritizes the safety and security of Canadians.
The Government of Canada owes it to the victims, survivors, and their families to act immediately.
Thank you for your attention to this matter. We eagerly await your response.
Eagerly await the minister's response we did. Now, 25 days after we first sent this to the Minister of Justice, we are finally having this discussion in the House of Commons today, just before we rise for the summer.
While Conservatives will allow the bill to proceed, we are not under any illusion that this is the end of the discussion. Rather, Conservatives have secured from the government a commitment to instruct the Standing Committee on Justice and Human Rights to take up a study on this matter when we return in the fall. This is a very serious topic that deserves our Parliament's time and attention. We can only improve legislation when we invite expert testimony into the conversation, which this study will certainly endeavour to do, and which we have not heard up until this point.
I know from speaking with different organizations that they felt extremely rushed. They had an online consultation, but they did not feel that they were able to give adequate input on the bill, on the impact it could have and on how it can be improved, which should be in all of our interest. There are many individuals and organizations that should have been properly consulted before and during the drafting of the bill.
This is a critically important issue that we are working to solve urgently, but that does not mean we cannot put the time and resources towards making sure the law reflects the contributions and concerns of the various stakeholders who have spoken out over the last few days about where the bill can and should be improved.
For example, the National Association of Women and the Law published a press release responding to the Liberals' Bill C-28. It states:
Despite the assurances of some defence lawyers and their allies that reliance on extreme intoxication will be rare, research analyzing the extreme intoxication defence indicates that it will be raised with some regularity. Indeed, research shows that it will be used overwhelmingly by men, and that the majority of victims will be women.
They call Bill C-28 “a missed opportunity to close the door on the use of the extreme intoxication defence where alcohol alone is used.” I think that is a very worthy discussion for us as parliamentarians to have.
To be clear, this is just one stakeholder organization whose perspective and expertise we need to hear and seriously consider when we are talking about strengthening the law to better protect women. Our study of this legislation and the law that it impacts will take place in the fall, and this will ensure that experts and stakeholders are properly consulted.
It is our role and responsibility, as Her Majesty's loyal opposition, to hold the government accountable, and where we so often see the Liberals failing Canadians is when it comes to matters of justice and their obligations to victims of crime.
Conservatives will continue to raise up the voices of victims and victims' advocates. We look forward to making significant progress in strengthening Canada's laws to better protect vulnerable Canadians.
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Madam Speaker, I thank my colleague for both his support and his speech. I also look forward to the discussion at committee in the fall on this issue.
LEAF, one of the major organizations representing women, said, “LEAF supports this thoughtful, nuanced, and constitutional legislation to address the narrow gap resulting from the [Supreme Court of Canada] decisions.”
I wonder if my friend opposite could comment on that. I recognize that there may be some limitations that he identifies, but the general consensus that has been received is that this is a sound bill that is based on consultation with many experts in the field.
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Madam Speaker, I thank the hon. parliamentary secretary for his work on the justice committee. It is good to work with him.
The point is that we have a justice committee, and when the government brings in legislation and it gets to committee, we study it and bring in experts. LEAF has made commentary and no doubt would be a witness if this bill were before our committee. Likewise, the National Association of Women and the Law has made commentary in public and would also likely be a witness at our committee.
That is the point. Without being rushed, we would be able to study this bill at committee and hopefully improve it if necessary. However, by its being introduced last Friday, we do not have that opportunity. We need to act with urgency, but in the fall we need to make sure that if there is any way to improve the law beyond this, we take further action.
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Madam Speaker, how important is it for us in Parliament to ensure that we are strengthening laws to make sure we are protecting women at this time, who are often targets of sexual assault?
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Madam Speaker, my hon. colleague is absolutely right. We have heard from different organizations that the Supreme Court decision puts women at risk and that we have to act with urgency. We called on the government to act right away, because it knew there was a vulnerability there, and we know the response could have been sooner.
As I said, we waited 40 days for this, and I would have liked for those different women's organizations to give input at our committee. As some of them are suggesting, we could have improved the bill.
The hon. member is right that we need to act with urgency, making any improvement to the law to fill this gap. We need to do that now, but always with an eye to looking at how we can further strengthen the law in the future.
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Madam Speaker, my colleague talked about the importance of addressing gender‑based violence, and I hear him loud and clear. However, when he talks about proposing improvements to the bill this fall, does he have any idea what he would like to propose if he ever wanted to revisit this?
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Madam Speaker, one of the proposals put forward by the National Association of Women and the Law is absolutely shutting the door on the defence of self-induced extreme intoxication caused solely by the consumption of alcohol. That is one proposal that I would have liked to hear some more thought and evidence on.
Also, on the threshold that is in place, there are concerns that the threshold for the prosecution to meet in order to get a conviction would be set too high by this legislation. There are suggestions of alternatives that would lower the bar for prosecution. We want to make sure that offenders are held accountable for violent acts committed against fellow Canadians and that this court decision does not result in people who should be held accountable not being held accountable.
I am always open to hearing diverse views on how we can improve and strengthen legislation, and we need to take the time at justice committee to do just that.
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Madam Speaker, I am pleased to rise to speak to Bill C‑28 this evening, in part because it got me to look over my old class notes. I am trained as a lawyer, but I certainly do not claim to be a criminal lawyer. As a result, while reading the Brown decision, I had to go back and review some of the concepts to refresh my memory.
Tonight's debate is taking place in the knowledge that, in any case, the bill will be passed at the end of the discussions that will take place. The content of the bill will not be changed in any way this evening. I think this may be a good opportunity to recap the events that led to the bill we are debating. Furthermore, I will certainly have a lot of fun this summer discussing the bill with my friends in criminal law, who already had a few things to say to me when they read the content of the bill. I hope this is something that will be done again in the fall because there are potential improvements to be made to Bill C‑28.
To explain why we are talking about extreme intoxication as a defence, we have to go back to the Daviault case. The year is 1989. Seventy-three-year-old Henri Daviault is a chronic alcoholic. One evening, a friend of his wife's asks him to bring her some alcohol. After drinking seven or eight beers at a bar, he sets out with a 40-ounce bottle of brandy to bring to her. He arrives at the home of the woman, who is partially paralyzed and uses a wheelchair. All we know of what happened next is that he drank all or most of the 40 ounces of brandy, and the next morning found himself naked in the woman's bed after sexually assaulting her, which he does not remember.
Mr. Daviault pleads automatism. He argues that he was in such an extreme state of intoxication that it was almost like sleepwalking. He was not aware of what he was doing. This is not the same as simply forgetting the next morning what happened the night before. This is about not being able to control one's body. His defence is supported by toxicological evidence. One expert states that after consuming that amount of alcohol, most people of normal constitution would have ended up in a coma or even dead.
The evidence is accepted by the Supreme Court, which considered whether a state of intoxication so extreme that an accused is in a state that bears a striking resemblance to automatism or mental illness as defined in section 16 of the Criminal Code can be used as a defence following a crime that requires not specific intent, but only general intent. Can this be used as a defence? The court decides that, yes, the principle of automatism can be used as a defence in cases of general intent offences. It is almost a though a new defence has been created.
The majority opinion in Daviault was criticized for its “alarming lack of consideration of the social context of sexual assault particularly for women and children”. At the time, Professor Grant argued that “alcohol is often implicated in gendered violence, and therefore strong equality protections are necessary”. She wrote, “The suggestion that someone could be too drunk to be convicted of sexual assault shocked the public's sense of justice and common sense”.
Parliament was therefore kind of stuck with the Supreme Court decision that allowed the defence of extreme intoxication in cases involving offences such as sexual assault and other general intent offences such as assault. That was the background to Parliament's adoption of the old section 33.1, which was at issue in Brown. Section 33.1 eliminated the defence of self-induced intoxication akin to automatism applied to the violent offences identified in subsection 33.1(3) where the accused departed markedly from the standard of care described in subsection 33.1(2).
In its response to Daviault, Parliament sought to supply a link between the intention to become intoxicated and the intention to commit a crime of violence identified by the majority. In a way, the two intentions were conflated, which was part of the problem in Brown with respect to the constitutionality of section 33.1. I will come back to that.
The purpose of drafting the section at that time was, as noted in the preamble to what was then Bill C-72, the fact that domestic and sexual violence have “a particularly disadvantaging impact on the equal participation of women and children in society”. Parliament was particularly mindful that the accused should not be allowed to use self-induced intoxication to justify acts of violence against women and children.
The purpose of using the Oakes test was to determine whether section 33.1 passed the test of the Canadian Charter of Rights and Freedoms and whether it was constitutional. In essence, this was Brown's challenge to the Supreme Court of Canada; he stated that this section was not constitutional and he should not be subject to it.
When applying the Oakes test, it must first be established that there is an infringement of the Charter caused by the wording of the section. Is there an infringement? The Crown submitted its arguments and the judges held that, contrary to the Crown's contention, the “marked departure” standard of fault in paragraph 33.1(2) clearly applies to the violent offence, not to the act of self-induced intoxication.
As I was saying, Parliament sort of combined these two principles, so that when a person committed an offence, such as sexual assault or assault, they were always departing from the standard of good conduct. That person automatically ended up being subject to section 33.1 and having no defence to put forward.
What was said, and what the judges held, was that section 33.1 operated akin to a regime of absolute liability by allowing conviction without proof beyond a reasonable doubt that the accused intentionally or voluntarily committed the offence. Section 33.1 improperly substituted intent to become intoxicated with intent to commit a violent offence.
Section 33.1 directed that the accused was criminally responsible even in the case of involuntary conduct. Because involuntariness negates the actus reus of the offence, involuntary conduct is not criminal, and Canadian law recognizes the requirement of voluntariness for the conviction of a crime, the person was deprived of an aspect of fundamental justice. The judges wrote that the defence of automatism denies the element of voluntariness and therefore negates the actus reus of the offence. Involuntary conduct is understood to be genuinely exculpatory because, while the prohibited act was harmful, the accused lacks the capacity to answer for what they did. A physically involuntary act, however wrongful in outward appearance, is not a guilty act that can be imputed to an accused.
What this means is that this defence, in this context, appears to be a violation of a charter right, because it amounts to an absolute liability offence. As soon as a right is violated by the Charter, the Oakes test can be used to determine whether upholding the section in question is justified, in the context of today's society and in spite of the fact that it infringes on a charter right.
There are several steps to the Oakes test. First, the section in question must respond to a pressing and substantial need. Then, there must be a rational connection between the objective and the means used to achieve it. After that, it must be proven that the section is minimally impairing and that there is no less rights-impairing means of achieving the objective. Lastly, there must be proportionality between the effects of the section and the objective.
For the first step, there must be a pressing and substantial objective. As I already said, parliamentarians went through this exercise when they drafted section 33.1. This was even mentioned in the preamble, which pointed to the broad reasons the section was enacted in the period following Daviault, namely the protection of the victims of extremely intoxicated violence and a sense that the law should hold offenders accountable for the bodily harm they cause to others when, by choice, they become extremely intoxicated.
It was in this context and with these two specific goals in mind that Parliament drafted section 33.1. The Court agreed that the section served a pressing and substantial purpose and cited Justice Lamer in Robinson: “There is no question that the protection of the public from intoxicated offenders is of sufficient importance to warrant overriding a constitutionally protected right or freedom”. The first part of the Oakes test was satisfied.
The second part of the Oakes test is that it must be proven that the means has a rational connection to the objective. I will quote the Supreme Court, which upheld the Court of Appeal ruling that the deterrent and denunciating effects of section 33.1 provide a rational connection to Parliament's protective objective.
In addition, s. 33.1 is rationally connected to the objective of holding individuals accountable, in as full a manner as possible, for the choice to become extremely intoxicated and the violence committed while in that state. It is obvious that where a person is foreclosed from advancing a defence that could result in an acquittal, that person is held accountable for something they otherwise would not be.
The second part of the Oakes test is satisfied here.
It is on the third part of the test that things start to get dicey. That is where the court is suggesting to Parliament—which is rather exceptional— what legislators could do to rewrite section 33.1 so as to make it constitutional. The court analyzed the third part of the Oakes test to see if there was any way for the rights of the accused to be less substantially impaired while still meeting the original objectives of that section of the act.
The court suggested two options. The first, and some members have spoken about it, was to create a separate offence that would criminalize the act of becoming so extremely intoxicated that a person puts themselves in a state that is dangerous to others. However, Parliament has dismissed that option in the past for two different reasons.
I, too, submit that this option would not be the right course of action to replace what we currently have in Bill C-28. It could be a subsidiary or complementary approach, but it is not the right way to replace section 33.1. In fact, it could open the door to lesser sentences for offences committed in a highly intoxicated state. Some people even called it a “drunkenness discount”. For example, the sentence for voluntarily becoming highly intoxicated could correspond to dangerous driving and the person might avoid being sentenced for aggravated or sexual assault.
The other problem is that the real harm caused by the offender would not be recognized. This approach would imply that the offender should not be held responsible for the harm they did by committing assault or sexual assault. This option should not replace the current wording of Bill C-28, but could be used as a complementary approach.
The second option upheld by the court was to review, to a certain extent, the question of the marked departure by intoxication. The idea was that individuals could still be found guilty where there was a genuine marked departure from the situation in which they had placed themselves. Parliament asserted that it was open to Parliament to enact legislation to hold extremely intoxicated persons accountable for violent crimes where they had chosen to create the risk of harm by ingesting intoxicants.
In other words, perpetrators could be held accountable for the offence in subsection 33.1 if the legal standard of criminal negligence required a demonstration that both the risk of loss of control and the risk of the resulting harm were reasonably foreseeable. In either scenario, Parliament would enact a law based on the moral instinct that individuals who choose to become extremely intoxicated can legitimately be held responsible for creating a situation where they threaten the integrity of others.
That is what Parliament is proposing as the alternative to the current subsection 33.1(2). Since it had proved that there were other legislative solutions that would achieve the same objectives and be less harmful to the accused, the court concluded that the minimal impairment standard of the Oakes test had not been met. As a result, the court found that section 33.1 should be declared of no force or effect.
Finally, the last component requires proportionality between the limitations to the section of the law and the legislative objectives. The court ruled that the risk of imprisoning the morally innocent outweighed the objective of protecting society.
All of this influenced the wording of the new section 33.1. Now, rather than associating the departure from the standard with the offence, it is actually associated with the person's consumption, that is, the way in which the person induced their own state of extreme intoxication.
I want to raise two points in connection with that. As I said, Bill C‑28 is being passed a little hastily, unfortunately. The courts tasked with interpreting its provisions will not be able to consult the debates of the House on this bill to understand the legislator's intent because they were so short, abbreviated even. That is kind of problematic.
Nevertheless, there was also an urgent need for action. If the legal void created by invalidating section 33.1 was not filled, we could have seen a situation like what happened right after Daviault, when there was a distinct possibility that an accused could raise the defence of extreme intoxication akin to automatism. In the absence of any structure, it made sense to act quickly.
Having said that, certain questions remain unanswered, and there have been some criticisms. I am thinking in particular of Professor Hugues Parent, who was quoted as saying the following in yesterday's edition of La Presse:
“The problem—and it is a serious problem—is that by limiting extreme intoxication to a state akin to automatism, the government is discounting states of intoxication that do not disrupt the individual's awareness, but that affect their sense of reality, such as psychosis.”
Automatism induced by a substance, such as a drug, is “very, very rare”, said Mr. Parent. In his more than 20 years of research on this subject, he saw the courts accept no more than four cases.
However, cases of psychosis triggered following drug consumption, where the highly intoxicated individuals are aware of their actions, “occur very frequently, as police and psychiatrists will tell you”. But these individuals are not covered by Bill C‑28...
This deserves another look. I submit that the automatism defence is a common law creation and that it is not expressly mentioned in the wording of the proposed section 33.1, any more than psychosis is. The interesting thing about the Brown decision is that it says that Brown was in a psychotic state akin to automatism. Maybe that is covered by section 33.1, but maybe not. That is worth exploring.
The proposed section 33.1 reads as follows: “A person who, by reason of self-induced extreme intoxication, lacks the general intent or voluntariness ordinarily required to commit an offence referred to in subsection (3), nonetheless commits the offence”. Does that not also encompass psychosis? Is there not a mens rea defence that in any case would fall outside section 33.1? It is a valid question.
As I was saying, it would be good if the government could avoid falling into the same old bad habits this fall when the time comes for the ex post facto review of this section in committee. If we encounter pitfalls, if we observe that the interpretation is not clear when it comes to substance addiction, the type of drug consumed, the individual's predisposition, or the emotional or family circumstances, I hope the government will have the humility to be open to amending the proposed section.
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Madam Speaker, I thank my colleague from Saint‑Jean for her speech.
I am glad that she said she was not a criminal law expert, because if she were, we would have gotten another great lesson. I congratulate her on giving such an excellent, well-documented and detailed speech, as usual, especially on a topic like this one.
With respect to Bill C‑28, I must admit that I am not naturally a particularly open-minded person. This is a humble confession, but I was reassured to see that this is being taken seriously by the Minister of Justice and by parliamentarians. I also want to commend my colleague from Fundy Royal, who collaborated in the drafting of this bill.
The member said in her speech that the government would refer this bill to parliamentary committee to address certain aspects. We had to move quickly in response to the Supreme Court decision, but is the member, as a lawyer, reassured by the fact that this issue will be dealt with again in parliamentary committee this fall?
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Madam Speaker, in a way, I am reassured that it has already been announced that there will be an ex post facto review of the measure. I would hope that legal professionals will be invited. My criminal law colleagues for both the Crown and the defence would certainly have some interesting things to say. I imagine it will be most interesting to analyze the section as applied.
I will say it again. The government 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”.
What is “objective foreseeability”? As I said, how should substance addiction, the type of drug consumed, the individual's predisposition, their past experience with drugs, and their emotional and family circumstances be taken into account? All these factors open the door to myriad interpretations. Does the government want to clarify that or not? That is a valid question. Perhaps there will be more answers in parliamentary committee.
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Madam Speaker, I would like to thank my colleague.
I would like to just reflect on the past 40 days or so since the Supreme Court decision came about. The government has moved expeditiously to put forward this legislation. We thank the member and her party for their support and look forward to studying this bill at committee later on this year.
I want to ask her what she has been hearing from key stakeholders. I know that on our end, for example, we have heard this from LEAF:
LEAF supports this thoughtful, nuanced, and constitutional legislation to address the narrow gap resulting from the SCC decisions.
Could the member comment on what she has been hearing from key stakeholders in her riding and in Quebec?
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Madam Speaker, I am not the justice critic, so, unfortunately, I cannot say that I have had the privilege of meeting with women's groups, among others, that might have had a thing or two to say. I opted to focus more on the practical legislative aspect of the issue with my colleagues, some of whom are more knowledgeable about criminal law. They said there may or may not be some room for improvement. Perhaps once the parliamentary committee completes its study, it will conclude that Bill C‑28 is well written.
What is important to remember is that we have a Supreme Court ruling explaining why section 33.1 was not constitutional and suggesting an approach for drafting the new bill. What we do not want to do is draft a new bill on behalf of women's groups and others that will also be overturned by the court in the end. We have to keep that in mind.
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