Hon. Paula Simons: Senator Gold, I want to thank you for that really interesting speech. It made me wish I had the privilege of being a student in one of your constitutional law classes. I hope you don’t mind, because we won’t have the chance to hear from other witnesses, if I ask you a question that may seem simple because I did not go to law school.

I want to understand what impact this would have at sentencing. If you’re being pre-emptively found to be criminally negligent, would that be something the judge would also consider at sentencing, or is it only to establish the criminal intent itself?

Hon. Denise Batters: Senator Gold, yes, until the Supreme Court of Canada case last month, the last time I heard or thought much about automatism was probably in a first-year criminal law class. But it’s a very serious topic that we’re dealing with today, so I’m glad that this bill is being brought forward in a timely manner.

My question is as a result of this motion. The Standing Senate Committee on Legal and Constitutional Affairs — of which I am a member and have been for quite some time — is going to be required to study this general topic and then report back by March, and then the government will have 120 days after that to respond to that particular report.

Perhaps you could explain, because it seems a bit strange to have the Legal Committee, long after the fact — many months after this bill has passed — prepare a report and then to have the government respond to it afterwards. Is it the intent that there may be a more in-depth study where perhaps amendments would result that would strengthen this bill? Maybe you could just explain that. Thank you.

Senator Gold: It’s an excellent question, and it does give me the opportunity to link that part of the process that we agreed to earlier today with the concerns that were expressed both in the chamber and outside the chamber.

I believe it was our colleague Senator Boisvenu who asked the minister why he didn’t just sort of fix it with the “notwithstanding” clause temporarily and then come back with a more comprehensive — I don’t want to put words in Senator Boisvenu’s mouth, but concerns have been expressed that what’s really needed here is a fresh look at the role of intoxication in criminal liability and greater attention on the rights of victims and the gendered nature of the crime.

This was a narrow decision creating a small gap. It’s like the leaky faucet in the third-floor bathroom; it’s not the whole house crumbling around us.

The purpose, I think, of giving our Legal and Constitutional Affairs Committee time to look at the broader area is precisely for senators to have the benefit — not necessarily exclusively, although I’m sure it will be a part of it — to look at this bill, if it passes, and also at the larger issue. They can then make recommendations and hear witnesses and contribute and do our part, which we do well, in trying to move the evolution of the law forward.

It’s also important to remember, colleagues, that it’s not simply that we “ask” the government to respond within 120 days. The motion is very clear that it refers to our Rules; the government has to respond within 120 days. If they don’t respond, the matter gets sent to a special committee under our Rules; it could even be considered a breach of the privilege of Parliament. It’s a serious business. I’m not aware of governments ever not honouring obligations of that kind.

We’re not talking about parliamentary reviews, about which I am often questioned, understandably, in Question Period. This is a serious attempt to allow for proper, sober study of a really important, complicated issue which, by virtue of the Supreme Court of Canada decision, needs proper time. I think we all agree, and I think Senator Plett said it better than me in an earlier discussion, that this just has to be fixed now.

Now, I believe it’s fixed properly. It is not the government’s view and it’s not my view that we’re sending it out there to fix all the flaws. Reasonable people can disagree. The debate will reveal the diversity of opinions; I respect that. If in fact the study in the Senate reveals that there’s a better way to fix this particular problem, it will be put forward. And I agree with Senator Lankin; I think this government would be responsive to attempts to improve it. It shares the objectives. It defended, as well as it could, as did LEAF and other intervenors, the current law.

Justice Kasirer, whom I respect as a jurist of enormous qualities, and the court, whom I respect equally, came to a different view. Indeed, many scholars for some decades have been saying, “We’re not so sure about section 33.1.” There have been questions about its constitutionality in the literature for a long time, but here we are. I hope that answers your question.

Senator Gold: Thank you for the question.

We have to be clear about one thing: The motion that structured our debate today also includes this future study of the broader issues, but we’re voting on the bill today. If you support the bill as it is, please vote for it. I think the bill is worthy of support, as I tried my best to demonstrate.

So, Senator Jaffer, with respect, this is not that different from things we have done. For instance, in May, we passed the bill but recognized that there were issues that were ripe for a decision. In that case, it was a joint parliamentary committee that was to look, study and come back.

How the government of the day, regardless of the party that forms government, responds to our recommendations will depend upon the quality of our recommendations and the receptivity of the government. This government is receptive to improving criminal law. It has shown itself receptive to responding immediately to the Supreme Court of Canada decision. I have every confidence that if this government is still in place when the reports come back, they will have a receptive ear.

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. Raymonde Gagné (Legislative Deputy to the Government Representative in the Senate): Honourable senators, I understand that there has been an agreement that, rather than cutting debate off at 9 p.m. it should be extended until 9:30 p.m., in order to accommodate senators wishing to speak. I would therefore ask for leave that the terms of the order adopted earlier today be applied as if the time specified in point 5 were 9:30 p.m.

Hon. Senators: Hear, hear!

Some Hon. Senators: Suspend.

(The sitting of the Senate was suspended.)

[English]

(The sitting of the Senate was resumed.)

Hon. Donald Neil Plett (Leader of the Opposition): Honourable senators, it is so good to see that, depending on whether it suits our purposes or not, our principles about leave as well as other things can change as they need to. We certainly appreciate that.

Not to put a damper on anything, but I have about a 75-minute speech here, so that puts us to what time? Sorry, colleagues, the rest of you may not be able to speak. You may as well go home, and Senator Gold and I will take care of the rest of the business.

I was reminded by my lovely wife today that I made a mistake earlier when I said that I had voted with Senator Gold. She said that I was supposed to remind him that, in fact, Senator Gold had voted with the opposition in the last vote, and not the opposition voting with him. I want that corrected for the record, please. Senator Gold, we appreciate that you voted with us.

Honourable senators, I rise to speak to Bill C-28, An Act to amend the Criminal Code (self-induced extreme intoxication). I have already said that I will support this bill. I am going to spend at least 10 minutes telling you why I shouldn’t. Then I will turn myself into a pretzel, like those who give leave one day and then don’t the next, and vote for something that I will be telling you for 10 minutes that we shouldn’t ever support.

This bill purportedly responds to the ruling of the Supreme Court of Canada in Brown and Sullivan last month, which found that section 33.1 of the Criminal Code was unconstitutional. The ruling by the Supreme Court came down on May 13, 2022. We heard nothing from the government on this matter for five weeks. I think the Prime Minister was on an airplane.

Suddenly, the bill was tabled just before the end of the session on June 17. No debate was scheduled on the bill for four full days, colleagues.

Then we were told that the bill we have before us, Bill C-28, must not only be adopted in extreme haste, but must essentially be adopted with no substantive legislative review at all. This, of course, is what our friend and colleague Senator Patterson was concerned about earlier today.

Honourable senators, for five weeks we heard absolutely nothing and then suddenly, as is customary with this government, panic set in. The government claims that in the five weeks from the court decision to last week, it was busily consulting on this bill. It claims that since the court rendered its decision it has consulted with about 30 groups. That is quite a large number.

Minister Lametti claimed, during our brief meeting in Committee of the Whole with him this week, that these groups almost unanimously approve of the government’s response to this bill. This is surprising, colleagues, on several levels.

First, it is surprising that the government was able to consult in a fulsome way with 30 groups in just one month, but that is what they say they did.

On other bills, this appears to have been completely beyond the government’s capacity. Just this past Monday, the Senate passed Bill S-7, which was also a government response to a court ruling from October 2020. Bill S-7 was introduced in response to a decision by the Court of Appeal of Alberta that struck down a section in the Customs Act. On that matter, the government was given 18 months by the court to introduce legislation in response to its ruling. Yet not only was that deadline missed but, as senators found out when the bill was studied at committee, the government had actually consulted with absolutely no one prior to introducing the bill. That was an extremely complex bill involving extremely complex legal issues.

Now we have this bill, which also deals with an extremely complex legal issue. Yet, if we are to take the minister’s word for it, in just one month the government was able to fulsomely consult with groups that unanimously approved the government’s course of action.

Honourable senators, I have to say that this stretches the imagination. I believe there is another explanation as to why the government took so long to introduce this legislation. It is quite simply due to the fact that its priorities are elsewhere. This is not a government that pays a great deal of attention to policy details. It throws borrowed money at problems and does not pay much attention to how money is spent.

It makes you wonder, colleagues, how there could be those of us — or you — who voted an hour ago for a completely out‑of‑control budget. There are even those who call themselves conservatives who voted for it. I find it extremely strange that we have conservatives who voted for that — conservatives who ran on a platform of being a conservative. Yet here they are.

I am not sure how many of you listen to Simon & Garfunkel. I am of that age. As Simon & Garfunkel sang, “Heaven holds a place for those who pray.” So, conservative colleagues, there is hope for you if you repent. A few years ago, Chuck Cadman promised to keep the Paul Martin government alive. After he voted he said that he then had to go and ask God for forgiveness. God forgave him, and he will forgive you.

And this government does a lot of signalling and proclaiming colleagues. I am sure that in relation to this decision by the Supreme Court, someone saw a potential political opportunity. It was an opportunity to look decisive. I do not intend to speak very much about the substance of the bill, as you may have already realized. That is better left to others. Senator Patterson has a lot more to say about that. But I do note that many senators in this chamber have, in only a short time, raised some very significant issues.

Senator Carignan referenced a learned professor at the University of Montreal, one who specializes in criminal defence who argues certain dimensions of extreme intoxication may not be covered by this bill at all. On Tuesday, Senator Cotter said:

. . . what I worry about here is that the proposal, as heartfelt as it is, will miss the mark and almost nobody will be able to be convicted under this provision.

Senator Cotter and I did not start off on the best of terms, but I certainly have come to respect the tremendous knowledge that he has and the expertise that he brings to the Legal Committee, and I respect that quote.

Senator Pate quoted Sean Fagan, counsel for the defence in the case in question, when she said, “. . . the law would be entirely ineffective due to the burden placed on prosecutors.” I recognize informed concern and skepticism when I see it, and it is informed concern and, I’m sure, some skepticism, Senator Pate. This is why I’m so concerned about the way in which the government is attempting to frogmarch this bill through both the House and the Senate, and even that it is doing so badly.

On Tuesday, the government’s vaunted hybrid system crashed. We all know that. We shut down here because we could no longer operate. Fortunately, our Leader of the Government has not to this point suggested that we continue with this horrible system of hybrid since. I have the fullest confidence in him that he will not come forward with that. I want it in Hansard that I trust Senator Gold that he will not bring this forward.

But the government’s House leader, Mark Holland, wants and was just given another year of this system that has already failed us so many times. Why? Because he says there might be another pandemic coming, honourable senators. There just might be. Dr. Ravalia, have you heard of a pandemic that is coming?

Senator Ravalia: No.

Senator Plett: Thank you. There is the science. There is no pandemic coming. And yet, Mark Holland says we need to have another hybrid year so that we can all stay home and do whatever we do from home. If we are honest, this new approach where people have to be in Parliament less and less is the government’s more important priority nowadays. That, honourable senators, is sad. Hybrid is obviously popular with both Liberal and NDP caucuses — but none of us here are in the Liberal or NDP caucuses, are we? I do not think so. We are all independents. We voted independent. Oh, no, we all voted in favour. Well, we did not all vote, but a lot of us voted in favour of an NDP-Liberal budget just a few minutes ago.

Nevertheless, it is popular for the same reason that it is popular with many in this chamber. One can sit at home, look into the camera for a few hours, read a couple of questions and pretend that one is a great servant of the public. It is clear who wins from hybrid sessions: parliamentarians. Parliamentarians who, quite frankly, do not want to show up for work.

I said today that when a person says, “with all due respect,” they are probably going to say something disrespectful. Senator Moncion remembers when I said it. And I do want to respect every senator here. I really do. And I do respect every senator here, but I do not believe that this is the way to conduct parliamentary business.

It is clear who wins from hybrid sessions, but Canadians, who are counting on us to undertake serious reviews of government legislation, lose. That is what we are seeing in relation to this very bill, Bill C-28. Even for this government, the process of Bill C-28 sinks to a new low. What the process around Bill C-28 illustrates is that of a government in chaos. In the face of multiple challenges that now confront our country, both domestically and internationally, we have a government consistently focusing on the wrong priorities.

Not only are its priorities wrong, it executes them badly. Look at Bill C-11. It turned into a complete fiasco in the House of Commons, and that happened for a second time, with the government having learned absolutely nothing from the fiasco that surrounded the previous Bill C-10. Consider Bill S-7, which we passed in this chamber earlier this week but only after it had to be virtually rewritten by the Standing Senate Committee on National Security and Defence. Then, we have the pending fiasco on Bill C-21, which is nothing more than a gratuitous attack on lawful sport shooters, even as gun crime in our cities continues to rise. Then we see what the Prime Minister and Minister Blair did with the Commissioner of the RCMP just to promote that legislation.

Honourable senators, the list goes on and on. In all of this mismanagement, it is Canadians who end up losing. Canadians, honourable senators, deserve so much better. We owe Canadians so much more. I only hope and trust that very soon they will have a competent government, and I will not blow our horn any more — I did that before dinner — but I truly hope that we will have a competent government that finally and actually puts Canadians first.

Honourable senators, that has not been done by this government. It does not matter how you put it. It does not matter what caucus you are from in this chamber. We have a government that has put themselves first, not Canadians. We need to turn that around. We need to approve Bill C-28 today. Why? Not because of this government, not because of their competence, not even because this is a good bill; but as has been said by others, it is a bill that is a step in the right direction. It is a bill that protects women, girls and children from heinous crimes that we have talked about over and over again.

That, honourable senators, is why at the end of tonight, whether we like it, whether we support this government — and I do not think that there is any illusion that I do — but this is a bill that I truly, honestly believe in my heart of hearts deserves unanimous consent. I hope you will support that tonight. Thank you.

Senator Plett: Senator McCallum, thank you very much for your question and thank you for your concern.

Senator McCallum, you know that I have the utmost respect and regard for you as a senator, for you as an Indigenous leader and for you as an advocate for Indigenous women and girls.

Do I believe that this will stop violence against women and children? Without question, I do not believe it will stop that. Do I believe that it is one measure toward stopping it? Yes, I do. Do I believe that targeting sport shooters and hunters will prevent murder? No, I don’t.

I am really trying to make sure that I get at the heart of your question. Do I have a concern for Indigenous women and children, and for the violence perpetrated against them?

Let me just simply, Senator McCallum, say this: I have a concern for every woman, every child that experiences some of the violence and the horrific things that have been perpetrated upon them, as we talked today about Senator Boisvenu and his daughter. It is regardless of whether they are Indigenous, Aboriginal, White, Black — I’m sorry, I do not differentiate between any races, between any ethnicities. Violence against women and children is horrific no matter what colour you are.

[Translation]

Senator Plett: Absolutely.

Hon. Mary Jane McCallum: Senator Plett, you made remarks like, “No one will be convicted,” “entirely ineffective,” and “sinks to a new low.”

I am very concerned about this bill and have a right to feel very concerned. Do you feel there will continue to be violence against women once the bill is passed? My specific concern is violence against Indigenous women, considering there has been no progress toward resolving the issues connected to the missing and murdered Indigenous women and girls.

What I want to ask all of the Senate tonight is: Don’t we matter as women? It boggles my mind that the patriarchy is deciding this issue, but it is violence against women we are looking at. I am so very concerned about it. Thank you.

Hon. Brent Cotter: Honourable senators, the remarks this evening and throughout the day on this topic have been outstanding. Senator Gold gave one of his finest speeches, and it will be remembered here. I agree with much of it. His recitation of the history of these issues was outstanding.

This is a narrow but important issue, and a hole in the law that the Supreme Court of Canada itself acknowledges.

Let me begin by speaking about this personally. Much of my career has been skipping from issue to issue off of the tops of the waves rather than digging deeply into issues, with some exceptions, and this is one.

As a young lawyer doing legal aid work, I defended a young man with intellectual impairments who was charged with rape, as it was then called. He was extremely intoxicated, so much so that, many hours after his arrest, he blew 0.21 on the Breathalyzer — nearly three times the legal limit for driving a car. The defence was that he was too intoxicated to form the intent to commit the crime of sexual assault.

I did my best. The case went to the Saskatchewan Court of Appeal. The legal issues were complex, or at least they were at that time, and the Court of Appeal took a year to make a decision. They upheld the young man’s conviction — rightly, in my opinion.

This got me thinking about two things. First was the role of lawyers in defending people in these situations — a topic for another day. Second was the problematic nature of the law if people who put themselves in such a state can be absolved for what they did when they were very intoxicated.

Unlike other areas of the law, I have followed the evolution of the law in this area of extreme intoxication more closely than others. I found that Senator Gold’s recounting of that law brought me back to those cases and memories of that evolution.

It brings me, in some ways, to this place and this issue today. I have a tangent that I would share, but I feel Senator Plett stole the quota of tangents for the evening, and I’m going to let this one go and start my remarks at another point.

I have immense respect for Minister Lametti. In my view, he’s doing an excellent job in a very challenging portfolio, and I greatly admire the work of his Department of Justice team. In that sense, I’m in accord with the remarks of Senator Tannas.

On Bill C-28, I think they worked diligently on short notice, under significant public and political pressure, and they did the best they could. Let me be fair to the minister and his team: They may be working on a problem that is virtually intractable. Let me try to explain.

What we love or value in general terms, we often hate in its specifics. Here is what I mean: First, we have a foundational principle in our criminal law of hundreds of years’ standing, reinforced by our Charter of Rights that, with rare exceptions, we only punish people for offences when they have a guilty mind or, as Senator Dalphond said in his more erudite manner, mens rea. In simpler terms, we only use the criminal law to punish people for doing a bad thing if we conclude that they intended to do the bad thing, and nearly all of us are fine with this. Senator Gold presented this in a more elegant way.

Second, in an instance like the cases that bring us here, courts have found that the person who did the bad thing had no ability to intend to do the bad thing. Hence their acquittal, and hence our problem.

Let me add a bit to this. In Brown, Sullivan and Chan, all nine judges of the Supreme Court of Canada came to the same conclusion. It’s not some aberrant flight of fancy. In fact, in my view, Justice Kasirer’s decision, writing for the whole of the Supreme Court, is principled, honourable and heartfelt. He understood the significance of what he and his colleagues were deciding, and in an extraordinary effort — unusual in court decisions — offered ideas for ways forward for Parliament to fill the gap that they knew they were creating in the criminal law.

This is a classic example of what Professor Peter Hogg, perhaps Canada’s greatest constitutional lawyer — even, if I may say so, greater than the Leader of the Government in the Senate, perhaps a subject of debate on another day, I’m sure — referred to as a dialogue between the courts and the legislatures in relation to the Charter of Rights — in this case, Justice Kasirer’s dialogue; it is now our turn.

The question is: Is Bill C-28 the right parliamentary response in this dialogue? Many of us have spoken and will speak to the perceived or anticipated shortcomings of Bill C-28 as a response to what I will call self-induced criminally negligent extreme intoxification leading to harm to victims. In discussion with Minister Lametti, as Senator Plett noted, I raised one of these points myself regarding the ability to effectively prosecute the offence.

To be fair, the dilemma is difficult. We are reluctant — as Senator Gold noted — to create an offence that is limited to merely criminalizing negligent intoxification. Some have suggested, including the Supreme Court, that this provides a discount for intoxification. On the other hand, a bill like Bill C-28 honourably seeks to link the criminal negligence to the risk of harm and essentially the harm itself so that the perpetrator, if convicted, will be punished in line with the severity of the harm caused, not just the intoxication.

Here is my concern: By pursuing the very goal it seeks to achieve, Bill C-28 poses the risk that the necessary evidentiary connection, not constitutional, to that bigger offence and punishment — the linkage to that bigger guilty mind, the intention not just to become extremely intoxicated, but even objectively to risk harm — will be potentially unachievable.

Let me say a little bit more on that. Senator Gold described, rightly, that this will be an objective standard. I have no idea what the statistics are about magic mushrooms, but I want to tell you that it is almost unimaginable to me that lots of people having ingested a lot of magic mushrooms rush out and harm other people. My guess is that on all kinds of these substances the statistics are shockingly low that people take them and then engage in violence. If that is true, it powerfully undermines the argument that convictions will be achieved.

Senator Gold and I had an informal discussion about Bill C-28 yesterday. It was a rich discussion. I will not say more about the content. It was enriching for me, at least, and it made me somewhat more hopeful — but I think that I would only say “somewhat” — that the bill will be able to be effective. It brought to mind a metaphor that I shared with Senator Gold. I wasn’t going to share it today, but I quite frankly can’t resist. I believe Senator Plett left one more metaphor on the table, and I would like to use mine now.

A Nova Scotian friend told me this story about two fellows riding in a rowboat. They are going down the river. Suddenly they realize, holy cow, they are about to go over a waterfall. One of them, the leader in the boat, says to the other, “Throw out the anchor.” The second guy says, “I would, but the anchor is not attached to the boat.” The first guy says, “Throw it out anyway, it might do some good.”

I am a little bit worried that this piece of legislation, as heartfelt as it is — and I prefaced that in my remarks to Minister Lametti — may not be effective.

Where do I ultimately stand on the bill?

First, I’m satisfied that it is constitutional. I have had advice on that from others. I am completely in agreement with Senator Gold. The bill will not be struck down. It touches all the bases the Supreme Court asks it to touch, and indeed the Supreme Court invites this as one option for consideration.

Second, I would have preferred more reflection to see whether other formulations are preferable. At the same time, I am aware of the urgency of the issue. Additionally, the willingness of all elected parliamentarians to embrace the option deserves meaningful consideration. I’m appreciative that plans are in place to enable senators to study the whole terrain of extreme intoxification in criminal law, including this section of the code. On balance, with some reluctance, I will support the bill and watch attentively its effectiveness. Thank you.

Hon. Raymonde Saint-Germain: Honourable senators, I rise today to share with you my observations about Bill C-28, An Act to amend the Criminal Code (self-induced extreme intoxication).

The context in which we must examine this bill forces me to grapple with two very different sentiments that I find difficult to reconcile. On the one hand, I am very frustrated at having so little time to analyze this bill. On the other hand, I am aware that maintaining the status quo has serious repercussions for victims, given the Supreme Court decision of May 13. I realize that action must be taken now, and I believe that Bill C-28 is an adequate response to this urgent need, although, in an ideal world, the bill would have benefited from more in-depth study.

Colleagues, we must assess the ramifications of not acting now to fill this legal void, as was suggested by the Supreme Court. I would like to quote from R. v. Brown, which reads:

While s. 33.1 [of the Criminal Code] is unconstitutional, there may well have been other paths for Parliament to achieve its legitimate aims connected to combatting extreme intoxicated violence. . . . And it was not impermissible for Parliament to enact legislation seeking to hold an extremely intoxicated person accountable for a violent crime when they chose to create the risk of harm by ingesting intoxicants.

I want to emphasize “. . . when they chose to create the risk of harm . . . . ”

[English]

Now let me address why Bill C-28 is the correct response and will, indeed, close the gap in the law created by the Supreme Court decision R. v. Brown. As a reminder, in its decision, the court struck down section 33.1 of the Criminal Code. In doing so, it ruled that preventing the use of extreme intoxication as a defence for violent crimes was unconstitutional and in violation of sections 7 and 11(d) of the Charter.

As a response, the government chose to re-enact and amend section 33.1. This amendment proposed in Bill C-28 would ensure — as I believe is the right thing to do — that someone who voluntarily consumes intoxicants such as illegal drugs, alcohol or prescription drugs, and does so in a criminally negligent manner and, as a result of an extreme state of intoxication, violently attacks others, this person could be held criminally responsible for those violent acts.

This change is similar in spirit to the previous version of section 33.1, but with an emphasis on the concept of negligence. This is very important: an emphasis on the concept of negligence.

As Minister Lametti pointed out to us here in this chamber on Tuesday:

. . . individuals would not be held criminally liable where the risk of violent loss of control was not foreseeable, or, where it was foreseen, where reasonable efforts were made to avoid that kind of harm.

This exemption is only valid in very rare cases. It will be up to the courts to determine the degree of negligence of an individual. In this context, criminal negligence is defined as not taking sufficient care to avoid a reasonably foreseeable risk of losing control and acting violently.

In my opinion, this is a good solution to the issue the Supreme Court decision has asked us to fix. The changes proposed by Bill C-28 are essential for public safety, particularly for the most vulnerable people in our society and, indeed, for everyone, because nobody is immune to falling victim to a violent assault. I would also add that it is needed for confidence in our justice system.

As presented to us today, the bill has the support of a majority of the stakeholders consulted before its conception, including groups for the defence and promotion of women like the Women’s Legal Education & Action Fund, or LEAF. In a statement published on June 17, Pam Hrick, Executive Director and General Counsel of LEAF, stated that Bill C-28 was, “. . . a thoughtful, nuanced and constitutional response” to the Supreme Court decision.

I think that I have made it clear that I support the adoption of this bill, and my support is consistent with my speech. I recognize the duty the government had to act quickly in order to close the gap in our law.

However, going back to the frustration I expressed earlier, I believe we need to find a balance between the necessity to adopt this time-sensitive government legislation now and the relevance of addressing the concerns raised by numerous senators during the Committee of the Whole and in their overall study of this bill ever since it was presented to us.

That is the balance that we need to find now between the necessity to adopt this time-sensitive legislation and then a further study of the relevance of the concerns raised by numerous senators and other stakeholders during the Committee of the Whole and in the media.

Colleagues, those concerns are valid. Even without the situation we find ourselves in, the Legal and Constitutional Affairs Committee should initiate a study. It is a question of public interest and general interest, and I have the utmost confidence in the strong legal minds who sit on that committee.

As such, it is essential for the Standing Senate Committee on Legal and Constitutional Affairs to be empowered to examine and report back on some strategic aspects of this bill, as we have done with the adoption of Motion No. 53.

We realize the distinction between the urgency of adopting this bill and the broader scope of this issue linked to intoxication. That is why the leaders of all the caucuses and groups, including me as facilitator, have made sure to put forward a non‑prescriptive motion that leaves a wide margin for action by the committee.

Now, after a careful study by both the Senate and the other place, the government will be requested to provide a complete and detailed response within 120 calendar days. Acting in such a manner is the right decision to make. It is the only means that immediately addressed the legal issue that Bill C-28 aims to fill while also giving the opportunity for the Senate to study and report on the broader issue of self-induced intoxication, including self-induced extreme intoxication in the context of criminal law.

We must also think that Bill C-28 could be used as a stopgap for this period between the adoption of the bill and a review from Parliament. That trial period could be useful in identifying the practical problems that could come up with the bill in its current form while not letting down the people most susceptible to violent assaults.

[Translation]

In closing, I think it would be irresponsible of us not to pass this bill today. We have a duty to act and to act now, in this case. That way we can ensure that the legislation properly protects our fellow citizens while closing a loophole for individuals who have committed violent crimes while intoxicated because of their own negligence. Thank you. Meegwetch.

[English]

Senator Saint-Germain: Yes, senator.

Senator Saint-Germain: Yes.

Senator McCallum: What are the consequences of not acting? I can’t wrap my head around the conversation that we’re having here. It seems to me that women are still being put at risk, and they’re still the ones who are going to bear the burden. What are the consequences?

Senator Saint-Germain: Thank you for the question, Senator McCallum. It is a key question, and I share your concern.

We all have to be very conscious that we need to act on many fronts. We need to take many actions for preventing violence against women, against racialized people and also against LGBT communities.

The consequence of not acting is that we will perpetuate this loophole in the law, given the Supreme Court decision, and then we will allow for perpetrators — those who would be in a position to commit violence or who have committed violence while they were under the influence of a substance — to still not be tried in a way that they would be considered responsible for the fact that they assaulted people when they were under the influence of a substance and they had voluntarily made the decision to use the substance.

So not acting will be protecting perpetrators rather than protecting their victims. That is why it is so important to fill this gap.

Once again, I stand by you, Senator McCallum, that we need to do more in order to prevent more violence against women, and against targeted and vulnerable people. Also, we need to act on the social front and to have more support after those violent acts have been perpetrated for the victims so they can heal in the best possible way.

Thank you again for your question.