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.

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.

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.

Hon. Scott Tannas: Honourable senators, I rise briefly to speak on Bill C-28. I did not speak during the motion debate earlier. I’m going to make a few comments about that, and then I’ll move quickly to my thoughts on the bill.

The programming motion was agreed to by all leaders, as was said. To be clear, the programming motion arose out of very recent concerns that were being expressed by senators and by people outside of this chamber as to the bill. As a result, leaders agreed that it would be unwise, and perhaps unfair — certainly, from my point of view — to ask for leave to suspend our Rules. So we came up with the programming motion as an alternative. We participated in that process today, a process that allowed all senators to debate and decide on the path to deal with this bill — all senators.

The Senate went ahead, and we made our decision to use established tools within the Rules and without pressuring any dissidents to sit quietly and grant leave. I think that is what an independent Senate needs to look like today. I’m proud of the work that we did, even though it took time. I’m proud of the work that we did earlier today, and I want to thank everyone for their participation.

Now, on to the bill. Like many of us, I regret that we could not spend more time on the bill. I listened carefully to the speeches. I also followed our own research team and the information that they provided us, which was very clear. It is clear to me that this bill is urgent, that it is a serious matter and that it is not a political issue. We are not trying to rush somebody’s policy through for partisan reasons. There is a real and serious issue here, and there’s further evidence of that.

Honourable senators, the government moved in a little over a month from the decision of the Supreme Court to present this motion. That’s light speed in government world, and it goes to the seriousness and the urgency with which the government takes this.

We all know that once the bill was tabled in the House of Commons a little less than a week ago, the plan for a speedy passage through a unanimous motion ran into some difficulty as they listened to voices of concern and objections that began to emerge. A compromise motion included not a pre-study but a post-study, a novel idea, that the House Standing Committee on Justice and Human Rights would undertake. We have just empowered our own Legal Committee to do something similar.

Honourable senators, I think the events, the decisions and the compromises have actually worked out in an interesting fashion. We have the opportunity to plug the hole now and go with what the government recommends in their considered research. This was not a wild idea. I dare say, hundreds of people have put their best minds toward what we have been recommended to pass. We can plug the hole right now, but we will also have the opportunity to make sure that we have the appropriate permanent solution in place, and that we have a process to follow up to ensure that what we find in the post-study is actually listened to, looked at and responded to.

It will be up to us to make sure that our follow-up is acted upon. That will take some will, some diligence and some follow-up on our behalf over a long period of time where, I’m sure, we will be engaged with other things. However, I know there are people in the room here that will make sure that we follow up on it.

I support this with all my heart. I trust that the government has done their best and that they have presented us with what they believe is the best answer to this problem. I support them, but I think this is one of those moments where we take some advice from Ronald Reagan, who once said, “Trust, but verify.” We trust the government, pass this bill and we will look to verify — and act if we need to do so — in the future.

Thank you, colleagues.

Senator Tannas: Absolutely.

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

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Senator Plett: I would like to ask the senator one quick question, if he will take it.

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?

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Senator Tannas: I was not talking about consultations. I was talking about the Department of Justice and their ability to assess the situation and recommend a remedy.

I’m not at all sure, and that’s why I think it’s important that we have the committee post-study. I’m not at all sure that the consultation process was complete or that this is 100% the answer. But I am not convinced that it is not the answer sufficiently that I would want to say we should reject this bill and send it back to the drawing board for weeks or months. I think we should do the “and.” It doesn’t have to be “this” or “that.” It’s “and.” Take this, plug the hole, decide whether this is the right remedy for the long term, permanent, and we will do that in a proper amount of time, listening to all the voices, including experts and people who, for other reasons, want to have a say. That’s the path we have, and I’m satisfied with it.

Hon. Paula Simons: Honourable senators, I rise today to speak to Bill C-28, An Act to amend the Criminal Code (self-induced extreme intoxication). I want to remind us what we’re actually talking about here.

On a January night in 2018, Matthew Brown, a student at Mount Royal University in Calgary and the captain of the Mount Royal hockey team, went to a party. He had quite a bit to drink and then took some magic mushrooms.

That mixture put Mr. Brown into what the trial judge later described as “substance intoxication delirium,” a condition that was so extreme as to be “akin to automatism.” While capable of physical movement, Mr. Brown had no willed control over his actions.

He stripped off all his clothes on a cold Calgary January night and ran barefoot into the snow while friends chased after him. Fifteen minutes later he broke into the home of a professor at Mount Royal University, but Brown did not know her. This was a random attack, not an attack with a motive. He beat the professor with a broomstick, breaking her hand. Then he continued running, smashing his way into a second home a kilometre away an hour later. The couple who lived there called police, and police found him there delirious on the bathroom floor.

Mr. Brown had no criminal record, no history of mental illness. He had taken magic mushrooms before but never experienced anything like this reaction. At trial, a judge in Calgary found him not guilty, saying he could not have formed the necessary intent to commit a crime. The Alberta Court of Appeal disagreed, yet last month the Supreme Court of Canada ruled unanimously that Brown should not be held responsible for the violent actions he had committed and, further, that section 33.1 of the Criminal Code was unconstitutional.

As Senator Gold has explained to us, section 33.1 was introduced in 1994 in response to public outrage in the case of a chronic alcoholic named Daviault, who committed a terrible sexual assault while extremely drunk.

At that time, there were complaints that that bill was being rushed because it was passed within just a few months. It has long been seen as problematic and perhaps unconstitutional.

So why did the court strike down the section of the code last month? Let me quote from their unanimous judgment, and I promise this is a different quotation than the one read to us by Senator Gold.

Section 33.1 breaches s. 7 of the Charter by allowing a conviction without proof of mens rea or proof of voluntariness. It is a principle of fundamental justice that proof of penal negligence, in the form of a marked departure from the standard of a reasonable person, is minimally required for a criminal conviction, unless the specific nature of the crime demands subjective fault. Section 33.1 requires an intention to become intoxicated but intention to become intoxicated to any degree suffices — it matters little that a person did not foresee their loss of awareness or control, and nothing is said about the licit or illicit nature of the intoxicant or its known properties. For this reason, while s. 33.1 applies to those who recklessly invite their loss of control, it also captures unexpected involuntariness, for example an unexpected reaction to a prescribed pain medication. It also imposes criminal liability where a person’s intoxication carries no objective foreseeability of harm. Furthermore, instead of asking whether a reasonable person would have foreseen the risk and taken steps to avoid it and whether the failure to do so amounted to a marked departure from the standard of care expected in the circumstances, s. 33.1 deems a marked departure to be present whenever a violent act occurs while the person is in a state of extreme voluntary intoxication akin to automatism. Since s. 33.1 allows the court to convict an accused without proof of the constitutionally required mens rea, 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 court’s ruling was clear. You can’t be convicted of a crime if you’re in a state of automatism, unconscious of your actions. That is not a legal loophole. It is a fundamental principle of justice. Again, this is not the same thing as having your judgment impaired by crack, meth or vodka.

As Senator Gold explained, the court stressed this defence is not available to those who just get really drunk or high. A person in a state of automatism has, for all intents and purposes, left their own body. It is an extremely rare condition and an extremely rare defence in law.

Nonetheless, there has been a huge public backlash to this ruling and a fear that the decision somehow gives a get-out-of-jail-free card to anyone who got drunk and committed a sexual or domestic assault, so we see this extraordinary rush to amend section 33.1. It is truly extraordinary.

Bill C-28 was introduced in the House of Commons last Friday. Suddenly, it is here before us, and we are asked to pass it immediately, without study by the Standing Senate Committee on Legal and Constitutional Affairs and with very truncated speeches. We’ve heard only from the minister — not from any of the bill’s critics; not from those who feel it goes too far; not from those who feel it doesn’t go far enough; and not from those who simply find its language unclear, confusing and open to challenge.

Bill C-28 offers a new definition of what it means for a person to depart markedly from the standard of care. First, the court must consider the objective foreseeability of the risk that the consumption of an intoxicating substance could cause extreme intoxication. Second, it must consider all relevant circumstances, including anything that person did to avoid the risk.

The premise then is to treat the consumption of drugs such as magic mushrooms as a type of criminal negligence. I fear, though, that we could find ourselves caught in a kind of ex post facto logical loop.

If you take recreational prescription drugs recklessly, end up in a state of automatism and do not commit a violent act against another person, presumably you are every bit as negligent, morally speaking. So then are you only guilty if you hurt someone due to a rare reaction? The temptation, I fear, may be to argue backwards: that the fact that you did hurt someone is itself the proof of your negligence.

Now, Mr. Brown drank a lot, but that did not trigger any violence. Then he took some mushrooms, as he had done before without ill effect. Yet that night, that combination of alcohol and psilocybin caused him to commit terrible acts. Was his bizarre neurochemical reaction reasonably or objectively foreseeable? Could a reasonable Canadian have predicted it?

In law there is an adage that the risk to be perceived defines the duty to be obeyed. What was the risk to be perceived in this case, and what was the duty? I don’t know if Bill C-28 strikes the right balance between protecting the rights of victims and the rights of the accused to a fair trial. Perhaps you don’t either. How could we, given the bill has had virtually no debate in the House, that we were never able to call expert witnesses, and there has been no time for meaningful, public press debate?

This unseemly haste, my friends, is not a mark of political courage but of political cowardice, and every single party in the other place is implicated. Nobody wanted to deal with the political risks of tackling these hard questions in earnest; and, if we’re frank, nobody much wanted to delay their summer holidays. Instead, our friends over there tossed us this hot potato. This Senate is full of former judges, former prosecutors, former police detectives, former constitutional law professors. We count amongst us doctors, people who have worked in the corrections system, a professor of psychiatry, human rights advocates, experts in domestic violence and victims’ rights and feminist law reform. Oh, and half of us are women. And yet, this chamber — so uniquely qualified to analyze and study this bill — has been robbed of our chance to do the job we were designed for. We have been robbed of our chance to do a proper study of this bill before the fact, not after. Talk about ex post facto logic.

We are being asked to irresponsibly pass a bill on speculation in the hopes that, if there are problems, we can fix them later. For the sake of everybody who may be brought to trial in the interim, this is something I cannot support. Thank you. Hiy hiy.