Hon. Pierre-Hugues Boisvenu: Senator Gold, I would encourage you to read the order-in-council that created that commission. The government’s role is not independent. It is a stakeholder in the commission, as the order states.

I would like to address another issue that also affects the victims of Portapique. Now I understand why the Minister of Justice has not yet appointed an ombudsman for victims of crime. It’s because he is afraid that by having an ombudsman in place, these victims will file official complaints.

Here is my question. We have been waiting for nine months for the ombudsman to be appointed. We waited 11 months in 2017. Will the Minister of Justice appoint the ombudsman before June 30, 2022?

Hon. Pierre-Hugues Boisvenu: My question is for the Government Representative in the Senate.

I too want to ask about the Prime Minister’s and the RCMP Commissioner’s intervention in the Portapique shooting investigation.

Superintendent Campbell said the Nova Scotia RCMP held back certain details so as not to jeopardize the investigation.

We know that the Prime Minister has an annoying habit of interfering in judicial matters. Case in point — as my colleague, Senator Plett just mentioned — the SNC-Lavalin file, which resulted in the dismissal of a very good justice minister, Ms. Wilson-Raybould. Do you, as a lawyer, believe that political intervention in this matter may jeopardize the investigation and result in the victims paying the price for this foul-up?

Hon. Pierre-Hugues Boisvenu: Senator Gold, thank you very much for your hard work in defending this bill, which seems to me to be completely out of step with the Canadian reality for women who are victims of domestic violence.

I rise today as the critic of Bill C-28, An Act to amend the Criminal Code (self-induced extreme intoxication), which was introduced by the Honourable David Lametti, Minister of Justice and Attorney General of Canada.

We all know that Bill C-28 is a legislative response to the recent Supreme Court of Canada decision in Brown and would rewrite section 33.1 of the Criminal Code to make it constitutional and to add the concept of negligence. This means that if a person voluntarily and recklessly consumes an excessive amount of drugs and alcohol, and it was reasonably foreseeable that this would cause them to lose control of themselves and their actions, that person would be considered guilty of negligence and could be held criminally responsible for their actions.

Honourable senators, I have reservations about the Government of Canada’s decision to hastily introduce a bill at the last minute after the Supreme Court of Canada’s decision to strike down section 33.1 of the Criminal Code. That section prevented an accused person from using self-induced extreme intoxication as a defence in order to obtain a verdict of not criminally responsible or an acquittal. To me, this bill appears to respond only partially to the Supreme Court’s decision and comments.

Honourable colleagues, remember medical assistance in dying. In 2015, the Supreme Court handed down an important ruling calling on Parliament to rewrite the Criminal Code provisions on medical assistance in dying. The current government introduced Bill C-14 and had to reintroduce Bill C-7 because C-14 didn’t meet the criteria in the Supreme Court decision. Bill C-7, now law, was passed but still doesn’t fulfill the requirements in the Supreme Court decision. Now, seven years later, a committee has been tasked with ensuring that future amendments are consistent with the Supreme Court’s ruling. I think this bill is like the others in that we are likely to be back here again in a year or two having to amend it to make it consistent with the Supreme Court’s decision and comments.

In its decision, the Supreme Court found that section 33 of the Criminal Code violated the Charter of Rights and Freedoms. I would like to quote a very important part of the decision:

Since s. 33.1 allows the court to convict an accused without proof of the constitutionally required mens rea [notion] it violates s. 7 of the Charter. Section 33.1 also directs that an accused person is criminally responsible for their involuntary conduct. Because involuntariness negates the actus reus of the offence, involuntary conduct is not criminal, and the law recognizes that voluntariness for the conviction of a crime is a principle of fundamental justice.

The decision continues as follows:

Section 33.1 also breaches the right to be presumed innocent until proven guilty guaranteed by s. 11(d) of the Charter. To convict the accused, the Crown must prove all the essential elements of an offence beyond a reasonable doubt.

Honourable senators, I’m sure you understand that despite my obvious disappointment with the Supreme Court decision, which I believe poses a risk to the safety of women living in a context of domestic violence, I will not go over the reasons that led the Supreme Court to strike down section 33.1 of the Criminal Code. Nevertheless, I would like to underscore the strong public disapproval of this decision and its impact on victims of crime, despite whatever relevant aspects it might include.

We know that women are the most likely to be affected by this decision, since they are the primary victims of homicide and sexual assault in the context of domestic violence.

Let’s look at the case the Supreme Court ruled on. A young man, who had consumed a large quantity of drugs, broke into a woman’s home and beat her severely, leaving her with permanent injuries. The man has since been acquitted of the crime he committed against an innocent woman. In response to the decision, the victim stated the following:

It’s important to remember that [this decision] has negative consequences for the victims of aggravated assault in this country, some of whom have lost their lives as a result of these attacks.

With this ruling, a sex offender could use self-induced intoxication as a defence for sexually assaulting a woman after getting high or drunk as a result of his own actions. Similarly, an abusive husband could be found not criminally responsible or even be acquitted of killing his wife after becoming intoxicated.

I would remind you that in a large proportion of crimes involving family or domestic violence, the component of intoxication is almost always present. The statistics are troubling. Quebec makes up 22% of the population of Canada, but in 2018, it accounted for 45% of the cases in Canada where the perpetrator was found not criminally responsible. I fear that the Supreme Court ruling will just open up a new loophole with respect to the possibility of using the verdict of not criminally responsible to acquit abusive men.

I want to point out that this ruling sends a bad message to women and victims of crime, and it undermines Canadians’ trust in our justice system.

That being said, the Minister of Justice decided to provide a legislative response through Bill C-28. Although I commend his desire to react swiftly to a ruling that is unjust to victims, I would like to note that swiftness is not a sign of effectiveness in justice, especially when we are talking about a bill that amends the Criminal Code in response to a recent Supreme Court ruling.

It will have taken us only one week to pass Bill C-28, and we will not have had the time to do our job, which is to study it thoroughly and ensure, as is our duty, that this bill fixes all the problems identified by the Supreme Court that I mentioned earlier.

Our objective is not to pass an imperfect bill that will be challenged in court and struck down by the Supreme Court, but rather to pass legislation that respects the Charter and protects victims of crime.

Yesterday, Hugues Parent, a law professor at the University of Montreal, wrote in La Presse that if this bill is passed in its current form, it is highly likely that section 31 will be easily circumvented. My colleague, Senator Carignan, asked Senator Gold questions about this. According to Mr. Parent’s analysis, Bill C-28 is based on extreme intoxication akin to automatism, which occurs only in very rare cases. He suggests that defence lawyers will not have much trouble circumventing section 33.1 when defending an accused who was in a state of psychosis, a behaviour that is much more common after excessive consumption of drugs, which he refers to as insanity, not automatism.

The Legal and Constitutional Affairs Committee, which could make any necessary changes, will not have the opportunity to properly examine this major and worrisome flaw in the bill. That poses an additional threat to women’s safety.

The National Association of Women and the Law, Women’s Shelters Canada and Luke’s Place Support and Resource Centre for Women and Children indicated in a letter to senators that the government’s lack of consultation on this bill was worrisome. They also indicated that they were consulted only a few days before the bill was introduced, that the government didn’t follow up on the alternative measures they proposed, and that those measures weren’t included in Bill C-28. I repeat: Their proposals were not considered, even though their clients are the ones who are most affected by this bill. If I were a woman today, I would be outraged and concerned that this bill doesn’t take the concerns of these organizations into account.

Honourable senators, I would like to quote an excerpt from that letter that really spoke to me. It reads, and I quote:

The defence of extreme intoxication is one that is almost always advanced by men perpetrating violence against women.

They use the word “always.”

Further, men responsible for violence against women are usually intoxicated.

That is what I was saying earlier in my speech.

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.

This excerpt is simply a continuation of what the Supreme Court of Canada said when rendering its decision. Indeed, by striking down section 33.1, the highest court in the land has suggested to Parliament an opportunity to make legislation that protects women and victims. I would like to quote from that ruling, as follows:

Protecting the victims of violent crime — particularly in light of the equality and dignity interests of women and children who are vulnerable to intoxicated sexual and domestic violence — is a pressing and substantial social purpose.

I didn’t see any urgent measures in Bill C-28 other than rewriting section 33.1. There is no mention of victims or women. The Supreme Court said that there was a pressing and substantial social purpose, but that purpose is not addressed in Bill C-28, since this legislative response doesn’t provide any concrete measures to protect victims of violent crime, the majority of whom are women. The proposed measures are simply an attempt to quickly close the loophole created by the Supreme Court of Canada’s decision without regard for the underlying problem of violence against women in Canada.

I think the minister would have been wise to temporarily use section 33 of the Canadian Charter of Rights and Freedoms, known as the notwithstanding clause, in order to introduce a bill in the fall that delivers on what victims groups are asking for and to announce legislation to better protect victims of domestic violence. I would have liked to hear the minister tell us that this bill is a first step and reassure women, the primary victims of domestic violence, that he would bring forward fundamental measures in the fall to ensure that they are protected in the Criminal Code. The minister left this aspect out entirely.

I remind senators that 173 women were killed in 2021 and 160 were killed in 2020, for a total of 333 women, which is 30% higher than three years ago. That is more than 30% higher, which means we can expect this figure to rise in the coming years.

I’m sure you can understand how uncomfortable it makes me feel, as an advocate for victims of crime and for women who are victims of violence, that this bill does not tackle this scourge directly. Why didn’t the minister seize this opportunity to put forward concrete measures, as Quebec did by introducing electronic bracelets for criminals about to leave prison? Quebec created specialized courts for cases involving domestic and sexual violence. Why didn’t the minister announce similar measures right away? What’s the government waiting for to take action?

I have been talking to you about violence against women for five years now. Don’t tell me the minister wasn’t aware of the situation. The other place even passed Bill C-233 in June. Introduced by Liberal MP Anju Dhillon, C-233 will authorize the use of electronic monitoring devices across Canada. Why didn’t the minister add the legislative measures proposed by Ms. Dhillon to his bill? Both measures could have been adopted at the same time. If the measures in Bill C-233 had been included in Bill C-28, I think the majority of victims’ and women’s groups would have applauded that. What we are in the process of doing now is making women even more worried about the future.

Although I acknowledge the federal government’s willingness to act in this case, I think this bill is flawed and, more importantly, it doesn’t go far enough and fails to reach its target of better protecting women in Canada.

Despite my criticisms, I intend to support the passage of this bill for lack of an alternative. However, I will continue to fight so that we can improve this situation next fall and so that women can get the protection they deserve. Thank you.

Hon. Pierre-Hugues Boisvenu: Would Senator Tannas take a question?

[English]

Senator Boisvenu: Senator Tannas, you said in your speech that you support this bill based on the research apparently conducted by a number of experts. Can you tell us why the minister wasn’t able to tell us what other jurisdictions were consulted before this bill was introduced?

[English]

Hon. Pierre-Hugues Boisvenu: Honourable senators, I had planned on making a speech at third reading, but I will not. Contrary to what I said at second reading, and having listened to my colleagues who support Indigenous communities, I will be voting against this bill.

[English]