Hon. Mobina S. B. Jaffer: Senator Gold, you’ve sponsored so many bills lately. You have been doing a yeoman’s job, and I want to compliment you on that.

My question is a serious one. You take all of our questions seriously; I don’t mean it that way. But I’m really concerned, because we are going to study this and we will also get the House of Commons report. So my first question is: What if our two reports are different? How is that going to be handled, and where would we go from there?

I know you would be guessing, in a way; I get that. But if we get a report from the House of Commons, and it’s not something we’re going toward, is it even worth it for us to do a report?

Senator Jaffer: My real anxiety is that the Senate can only make recommendations. This is such a different process than we’ve often had before. Normally, we get the bill, we study it in committee and it comes back for third reading. This time, it’s all different, and that’s okay, too. We can be creative. But if we make recommendations, will they be implemented? What happens with them? Will they just take up shelf space?

Hon. Mobina S. B. Jaffer: Honourable senators, I rise today to speak to Bill C-28, An Act to amend the Criminal Code (self-induced extreme intoxication).

Senators, I have to say to you that I am very concerned with the process we have followed on Bill C-28. This is such an important issue in criminal law. But I also understand that because of the big gap that we currently have in the criminal law as a result of the recent Supreme Court decisions in R. v. Brown and R. v. Sullivan, I understand we have to act quickly and I accept that.

Senator Gold, I have one request of you: If the Legal and Constitutional Affairs Committee will study Bill C-28 — which I have no doubt we will — and provide recommendations to the Senate and Minister of Justice, the Minister of Justice will take our recommendations seriously and respond to us in the time we have set aside. Hopefully, if there are any recommendations, we will implement them.

Honourable senators, I had a much longer speech prepared, but out of respect for my colleagues and everyone who was able to speak, I will raise a few issues that I seriously think need to be looked at. Perhaps the committee will not agree with me.

I asked the minister, as well; we do not know what negligence looks like for extreme intoxication. Senators Cotter, Simons and I asked this question of Minister Lametti when he was here. I must admit that I did not find his answer satisfactory.

For example, what do we do with young adults and teenagers who might not know their tolerance? Would we exonerate all of them under the defence of extreme intoxication because they could not be negligent? Must the accused know their own limits to be negligent?

Second, we do not know whether the burden to prove negligence for extreme intoxication is appropriate.

If Bill C-28 passes, the Crown will need to prove beyond reasonable doubt that there was negligence on the part of the defendant. However, as Senator Boisvenu pointed out, it most likely will lead to a battle between expert witnesses. How will a jury or even a judge answer these incredibly hard questions?

Third, we do not know if we should or should not add a presumption in Bill C-28 that alcohol alone cannot cause extreme intoxication. As such, we are applying a defence which has now lost its context.

Senators, there are many questions that the committee will look at, I’m sure, but what will it take before the courts to prove negligence in reaching a state of extreme self-induced intoxication? How will the prosecutor be able to prove beyond a reasonable doubt that the accused was negligent in not objectively foreseeing that his consumption would lead to extreme intoxication and to harm? Especially for young adults who do not know their limits, how will negligence be applied?

Senators, I have heard so much this evening and throughout the debate that we must fill the gap. Women’s groups want this. First of all, I respectfully say to you that women’s groups are not a homogenous group. Some women’s groups want it. It is not a homogenous group.

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Secondly, as a young lawyer, I tried to convince my client that if the judge found the accused liable, she would be protected. Four years later, he returned home and killed her. So to just say that we are protecting the vulnerable and women is not enough. By acting so fast, we will build a false idea within vulnerable groups that there is protection.

There is never protection if the resources are not there to protect the women. Thank you, honourable senators.