Hon. Dennis Glen Patterson: Would you take a question, Senator Saint-Germain?

Senator Patterson: Thank you for the question, Senator Plett.

Greater legal minds than mine have weighed in on this bill since it was introduced in a hurry in the other place. As I pointed out in the letter I just read, there is a clear concern that the evidentiary burden on the Crown in this bill is too high and that, in fact, there is a risk that this will allow the acquittal of persons who use this defence.

In fact, this association of concerned women’s groups has suggested simple amendments that will fix that problem of the evidentiary burden. So that perhaps could have been discussed and considered by our eminently qualified Legal and Constitutional Affairs Committee. We could have had a bill before us and a recommendation on an amendment that would fix that flaw.

Senator Patterson: Thank you.

Senator Patterson: Senator, I think you were saying we have to pass the bill or there will be a vacuum in the law. Would you say that what you’re advising the Senate is that although the bill may have flaws, which I believe may be corrected by the Legal and Constitutional Affairs Committee, it’s still better than doing nothing?

Senator Patterson: Would you take another brief question?

Senator Patterson: Yes.

Hon. Dennis Glen Patterson: Honourable senators, I rise today to speak to the programming Motion No. 53 that has been introduced regarding Bill C-28, the bill dealing with extreme intoxication leading to a state akin to automatism.

I was first alerted to the potential issues with this bill after the text was tabled last Friday. Over the weekend, the concerns continued to flood in from notable legal minds across the country. This past Tuesday, I sat and listened as senator after senator raised concerns about potential loopholes created by the bill. For me, this is one of those moments where I feel the need to exercise my independence and speak up so that, frankly, I can sleep comfortably at night. I am thankful to be supported by a group that values that type of independence.

As you all know, I summoned up my courage and gave a resounding “no” when the government tried to move this motion with leave yesterday. I want to explain why. Things happen in this place all the time that frustrate one or more of us. For me, I am most frustrated when we seem to shirk our responsibility to carefully review legislation and to ensure we are always representing our regions, minorities and voices that aren’t always heard.

I listened carefully to Senator Dasko last night, who told us that Canadians are still not seeing value for money when they look at the Senate. I have been here long enough to see tools like time allocation and programming motions used. In my experience, a programming motion is best used when we have a large, complicated piece of legislation and we need to chart a path forward for it. It’s not used to limit debate and skip stages in the parliamentary review process for a bill that, at the time leave was sought yesterday, had not even been introduced yet.

I know that the Canadian Senators Group, or CSG, leadership explored ways to allow more voices to be heard on this issue. We put forward the question of extending the Committee of the Whole. We could have had another 65 minutes after Minister Lametti’s testimony to hear from women’s organizations and other witnesses who were and are eager to testify about this bill, or it was suggested we could have a short study by the Legal Committee. We had a committee that met last night during the supper break, so it could have happened as quickly as yesterday if there had been support for that but, in the end, those options were all rejected.

Honourable senators, leadership is certainly about standing strong and firm at times. However, it’s also, I believe, about demonstrating a willingness to listen and compromise at times. I believe that because of their unwillingness to accommodate these requests and the overall inflexibility of the government, we were put in a position where we would be asked to do everything with leave. That would challenge one or more senators to be the sole reason for us having to sit, for example, on Saint-Jean-Baptiste Day tomorrow or into next week. It is a tactic that forces one or more people to become the “bad guy,” and I know how that feels. so often we hold our noses and let things through despite our objections.

I want to clearly thank the leaders for introducing this motion because even though I disagree with it and feel that this is an inappropriate use of an otherwise legitimate tool — in fact, it really skirts around the Rules of the Senate — at least, other colleagues and I have the chance to stand up and speak out, as Senator Plett pointed out just now. At least we are ensuring that if we do move forward, it is because a majority of the Senate has agreed that it is appropriate to give expedited passage to this bill without hearing from anyone else but the government and ourselves.

I think that’s wrong. I fully recognize that I may stand alone, or virtually alone, in opposing this motion. I felt a bit like David versus Goliath in that respect, the underdog facing an insurmountable obstacle, but as another underdog, namely Rocky Balboa, said, “I stopped thinking the way other people think a long time ago. You gotta think like you think.”

Colleagues, I want to give the last word to the women I feel should be part of this debate by reading a letter sent to all senators dated June 21, 2022. By the way, they have been standing by, ready to come here and express their strong concerns, since this bill was rapidly moved through the House of Commons and sent our way.

I see this letter as eloquent evidence in support of my belief that we should not be proceeding with a path forward that does not include them, and it is the main reason that I will vote against this motion. I will let them speak for me because they perfectly reflect my concerns.

Here is the letter:

I write on behalf of the National Association of Women and the Law (NAWL). Founded in 1974, NAWL is a feminist organization that promotes the equality rights of women through legal education, research, and law reform advocacy. While NAWL agrees that Parliament should act expeditiously to respond to the Supreme Court decision in Brown, it is deeply concerned with the seeming rush to pass Bill C-28, amending s.33.1 of the Criminal Code, before Parliament recesses for the summer. There was a lack of meaningful consultation prior to the bill being introduced and with the substance of the bill. In the best traditions of the Senate as the house of sober second thought, NAWL asks that Senators take the time to carefully examine the bill and refer it to its Legal and Constitutional Affairs Committee with sufficient time to hear from relevant stakeholders, including women’s groups, Crown prosecutors, and medical experts. . . . This is necessary in order for the Committee to consider revisions to problematic aspects of the bill, which we fear will pose nearly impossible hurdles for prosecution of intoxicated perpetrators of violence against women.

I attach our press release that provides some further details of our concerns, particularly with the requirement that prosecutors prove beyond a reasonable doubt both that the loss of control after the consumption of intoxicants was reasonable foreseeability and the foreseeability of harm. We also provide a chart of two alternatives to amend s.33.1, which our criminal and constitutional experts have developed in order to avoid the current weaknesses of Bill C-28. We presented these alternatives to the Department of Justice, in a meeting organized by DOJ lawyers only mere days before the Bill was tabled. As a result, these alternatives did not receive meaningful consideration and we cannot discern that they are reflected in Bill C-28 in any way. This is in stark contrast to the early consultation with NAWL before the introduction of the bill inserting section 33.1 into the Criminal Code. NAWL also testified before Parliament suggesting a number of amendments to what became the final text of s.33.1.

The defence of extreme intoxication is one that is almost always advanced by men perpetrating violence against women. Further, men responsible for violence against women are usually intoxicated. Even if it is a high evidentiary bar for a successful defence of extreme intoxication, the real-life impacts of the availability of the defence on charging and prosecution decisions cannot be underestimated. Parliament should act quickly to ensure that accused men who voluntarily become extremely intoxicated before committing gendered violence are held accountable. However, it should not act hastily and entrench a flawed bill into law. NAWL respectfully asks you to take the time to ensure that Bill C-28 will serve justice.

The letter, colleagues, was signed by Dr. Kerri A. Froc, Chair, National Steering Committee of the National Association of Women and the Law and co-signed by representatives of Luke’s Place Support and Resource Centre, Women’s Shelters Canada, Ending Violence Association of Canada, Canadian Femicide Observatory for Justice and Accountability, Alberta Council of Women’s Shelters, Sexual Assault Centre of Edmonton, Barbra Schlifer Commemorative Clinic, Persons Against Non-State Torture, London Abused Women’s Centre, Ontario Network of Sexual Assault/Domestic Violence Treatment Centres, Action ontarienne contre la violence faite aux femmes, WomenatthecentrE and Lanark County Sexual Assault & Domestic Violence Program.

I’m happy to let them have the last word in concluding my speech with their fervent desire to be heard.

Thank you, honourable senators.

Senator Patterson: Thank you for your speech.

As you know, one of the strong criticisms of the bill from the legal community — noted scholars I won’t name and women’s groups — is that there’s too high a burden on the Crown in this draft of the bill, and that we all believe there should be a fix, but the fix is seriously flawed.

I’m just wondering if you’re concerned that while we wait for the committee to meet and hear the witnesses we know weren’t heard or weren’t heard properly, then the 120 days — that because of this stiff evidentiary burden on the Crown, persons will get away with crimes of rape or murder through what is an easy burden for the defence and a difficult burden for the Crown.