Hon. Kim Pate: Honourable senators, I commend the Minister of Justice on his laudable intentions with this bill. I have no doubt that protecting victims of violent crime and sexual assault is an objective that we all share. Given the importance of this objective, it is vital that we not take any shortcuts, but rather give the bill the full consideration and analysis that it is due, particularly in light of the evolving information regarding the serious flaws in the government’s consultation process, and the significant and substantial concerns raised by numerous groups. It is greatly and deeply concerning — and, frankly, irresponsible — for the Senate to vote on this matter without first having heard from the relevant parties and becoming more fully informed on the implications of passing this bill.

In an understandable attempt to act expeditiously, the minister is rushing Bill C-28 through the legislative process with a somewhat staggering disregard for standard procedure and due process. This push has given way to what can only be considered a disconcerting lack of government transparency. The government claims it must act with urgency, but also acknowledges that cases involving intoxication amounting to automatism are incredibly rare.

Why is this, colleagues? A few home truths. Most accused who are charged with violent offences are poor, racialized and represented by legal aid lawyers. They can’t afford the incredible defence teams, the medical reports and the legal gymnastics that are required to make the types of arguments that were brought before the Supreme Court of Canada in this matter. That’s why the cases are rare, my friends.

They are also rare because they, staggeringly, strain the credulity of the claims. Yet, we have due process requirements, and those due process requirements require — as Senator Simons so aptly put it — that even those individuals with the greatest privilege have those opportunities to raise those cases.

Is this bill in the interests of public safety — I encourage us all to consider this — or, as many of us feel, a result of politically motivated social pressure? Let us be clear, honourable colleagues, the government knew the need for this legislation was coming. They knew whom to consult, they knew where they were and they could have conducted full consultations in preparation for whatever decision came down from the Supreme Court of Canada.

The supposed consultations which took place in the crafting of this bill may serve to highlight my point. The content of these consultations with women’s organizations, victims’ advocacy groups and criminal law experts have yet to be made available to our offices. Despite repeated requests, aside from one press release, we have received no details about the submissions, opinions or advice put forward by these groups or others.

The fact that we only keep hearing about repeated reference to one press statement from one group is indeed, honourable colleagues, instructive. The hurried nature of this process raises further questions about its efficacy. According to some of the witnesses listed by the minister, consultation was not only wholly inadequate, the participants didn’t even know the phone call they engaged in was considered a consultation. Significant procedural and due process concerns were actually raised by many of those groups, and apparently ignored or disregarded.

As correspondence and pleas over the past few days underscore, concerns raised by witnesses were evidently not meaningfully considered in the drafting of this bill. How are we meant to serve our purpose of providing sober second thought when we lack the information required to make a knowledgeable and carefully considered decision? The purpose of committee study is significant and multifold. Beyond the political, it allows us to learn about the impacts and implications of proposed legislation from experts who can highlight that which may not be intuitive to us individually and, more importantly, how it may affect the most vulnerable and marginalized people. In this case, sexual assault victims, almost always women.

We learn from these processes and, more importantly, we then alter our legislation accordingly. We don’t do it the opposite way. Bill C-28 is not yet law, and already we are aware of overlooked issues. As many of my colleagues have pointed out, one of the most noted concerns is the increased legal burden on the Crown to prove criminal negligence. The minister has acknowledged this question and highlights for us that, under the proposed law, the accused will need to first raise the issue of extreme intoxication. Still, the onus of disproving this highly subjective, specialized, scientific defence will rest with the Crown.

Our ability to further research the matter has been stifled. We are left to wonder how severe the impact of this problem will actually be. In fact, at this stage, we’re advised by many groups — apparently consulted by the Department of Justice — that don’t know whether proving objective foreseeability beyond a reasonable doubt will prove to be a prohibitive hurdle for prosecutors.

I want to take a moment to briefly highlight that these concerns are not mine alone. Informed stakeholders and experts have been vocal in expressing fear that it’s unclear at which point one becomes negligent for simply taking a drug, one that does not put the rest of their friends or family into a state of automatism. Can we truly prove that in consumption of an intoxicant, there may be an objectively foreseeable risk that the user will lose control and become violent? That, dear friends, is one of the suggestions in this legislation.

The onus to make these points will be on the Crown, despite the amendments recommended by groups like the National Association of Women and the Law and shelters. We have not considered those options. Allow us not to fail those groups, but instead to acknowledge the validity in these critiques. As responsible lawmakers, we have this responsibility.

Much has been made of the need for haste following the Supreme Court’s ruling, although we seem to overlook the fact that, even in the decision itself, the Court suggested we study — that we study — and then we legislate. For many of us, skipping these important steps amounts to an abdication of our responsibility, and for me, personally, it’s reminiscent of where we were three years ago on another important Charter issue: solitary confinement.

Instead of chasing this runaway train with a “woulda, coulda, shoulda” review after the fact, please, honourable colleagues, let us pause, double-check the track we’re on, correct it if necessary and continue responsibly.

Our primary role here in the Senate is to provide sober second thought, so before I yield my time, I ask you all: How can we provide sober second thought without the opportunity for thought itself? Meegwetch. Thank you.

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