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 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?

[English]

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?

[English]

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.

Hon. Marc Gold (Government Representative in the Senate): Honourable senators, it seems the older one is, the faster time moves. Here we are at the end of June, after another year of uncertainty. As happened in the previous year and due to the newest variant of COVID-19, 2022 had us working under many of the same constraints. But with experience came some degree of ease of management, and the knowledge acquired from 2020 forward allowed us to plot our course more easily.

Committees were still unable to meet as often as during pre‑pandemic years, and resources and manpower continued to be at a premium. But the work got done and we managed to accomplish much, in no small measure because of our dedicated Senate support staff. Without our pages, table officers and Senate clerks, there would be no business conducted in this chamber. At risk to their own health, they were physically present every sitting day, regardless of how sparsely filled the Senate seats might be. Thank you all for your loyalty and dedication.

While our committee schedule was cut back considerably, our committee clerks and attendants were present at each and every committee meeting, even if only one or two senators were in the room and all others were attending virtually. You also deserve our gratitude.

Thank you to our IT staff, who ensured that witnesses could connect from anywhere on the planet, that we, non-tech savvy senators, could participate in the chamber or in committee from our homes and that all involved could be seen and heard.

I want to offer a special shout-out to the interpreters. Some of us have spoken to those professionals about the unforeseen issues that they’ve suffered. We’ve also read and heard about the physical toll that this situation has taken on them. I want to thank each and every one of you on behalf of the Senate of Canada. Without your expertise and competence, we simply truly could not function.

Thank you as well to the men and women of the Parliamentary Protective Service. For you, this was a year like no other. You have our thanks for all you did and all you experienced.

Senator Furey, the Speaker of the Senate, is charged with all decisions relating to this place. You have navigated these troubled waters with the firm hand of an experienced captain, all the while understanding that the work must never stop. Your guidance during yet another year of operating in a hybrid fashion — or in February, when access to this building was sporadic and when human resources were at a premium — ensured that the business of the Senate on behalf of all Canadians didn’t take a break. Thank you, Your Honour, for taking on these challenges and responsibilities, which I’m quite certain weren’t in your original job description.

Hon. Donald Neil Plett (Leader of the Opposition): Honourable senators, the end of the parliamentary session presents us with an opportunity to reflect on the last few months. And you can believe me when I say it has been wonderful to find ourselves face to face in large numbers in person in this chamber. Hybrid Parliament was meant to be a temporary measure in response to unusual circumstances. Sadly, the government moved that our hybrid sittings carry on longer than anticipated. The resulting effects weren’t minimal and meant that our capacities were reduced. Our committee meetings were reduced, which, regrettably, led to less parliamentary oversight and decreased accountability.

I also want to thank our interpreters, who have gone above and beyond in providing exceptional service. Hybrid sittings have taken a toll on them, and we have heard this over and over again. The technical difficulties we faced caused them more grief than anyone else in this chamber. While they were often stretched thin in their personal capacities, when hearing their voices on the audio, no one would have known. Thank you for your perseverance this year.

Senator McCallum: Honourable senators, I rise today to speak to Bill C-28, An Act to amend the Criminal Code (self‑induced extreme intoxication).

As is true with many in this chamber and many in the general public, I, as a First Nations woman, have substantial concern and misgivings about the haste with which we are dealing with this legislation. I do not know if there are those in this chamber who can honestly say that the Senate has done due diligence on Bill C-28. I, for one, cannot make that assertion.

It is a very unusual and dangerous practice that we are engaging in, both here and in the other place. I understand that a House of Commons committee has been tasked with studying the subject matter of this bill in the fall. I also note Minister Lametti’s support for the Senate to undertake a similar committee study following a question by Senator Carignan during Committee of the Whole. However, I find it highly concerning that Parliament has agreed to do this process backwards. Studying the contents of a bill and thereby understanding the perspectives of the experts in this field only after that bill has become law is ill-advised.

One can argue that it treads dangerously close to impacting our collective privilege in fulfilling our senatorial duties. How can we vote competently on legislation if we have not been given the chance to adequately study and consider its merits and shortcomings?

This is especially true for me, colleagues, as a non-affiliated senator. Senator Plett, in his remarks on Motion 53, referenced it as not being time allocation as it had unanimity in its support. At no point was I consulted, informed or approached about the process around this bill or any other such legislative matters.

I can only assume the same was true for my non-affiliated colleagues. This long-standing subjugation of the unaffiliated has removed my voice and opinion from larger decisions of the Senate, including Bill C-28. I take exception to that.

Colleagues, I would like to state that I support the concept of this bill; I do not support the practice. Self-induced extreme intoxication should never be accepted as a viable defence for heinous and criminal acts. It is a loophole that needs to be closed. The closing of this loophole is intended, of course, to ensure guilty parties do not elude punishment on what constitutes a technicality. It is also, of equal importance, intended as a protection for the victims, who are largely women, from the criminal acts that tend to flow from self-induced extreme intoxication.

Honourable senators, given the extremely short time frame between the Supreme Court of Canada’s ruling on this matter and the introduction of this legislation in the House being a little over a month, it should come as no surprise that the issue of inadequate consultation has been a big one. I note that the issue of inadequate consultation is also not a new one.

As it pertains to Bill C-28, this issue has been raised by one of the groups that had actually been consulted, the National Association of Women in the Law, or NAWL. They contest that they, as well as many other interested stakeholders, have faced a lack of meaningful consultation. They also rightly state that the Senate, through the Standing Senate Committee on Legal and Constitutional Affairs, would greatly benefit from hearing from medical experts, women’s groups and Crown prosecutors whose job it is to prosecute on behalf of victims.

When questioned on this shortcoming by Senator White during Committee of the Whole, Minister Lametti responded by saying:

We did the consultations we could do in the time that we had from the date of the Supreme Court decision. We reached out.

You must admit, honourable senators, that this is a less‑than‑confidence‑inspiring response.

Honourable senators, beyond the issue of consultation, it has been raised that there are serious concerns that Bill C-28 represents a flawed piece of legislation. This concern, at its core, is that Bill C-28 will not accomplish what it seeks to. This is due to the fact that the burden of proof, which regrettably falls on the Crown and the victim, is a threshold that is nearly impossible to meet.

The National Association of Women in the Law registered a very valid concern around the stringent requirements for prosecutors to prove beyond a reasonable doubt both that the loss of control after the consumption of intoxicants was reasonably foreseeable, as well as the foreseeability of harm. In their words, through their June 21 press release, NAWL indicates:

Indeed, NAWL is concerned that this reform will prove impossible for the prosecution to implement. And that in the end, the heavy burden of men’s extremely intoxicated violence will fall predominantly on the women they harm. This is because the Crown must prove beyond a reasonable doubt that a reasonable person could have foreseen that the accused’s consumption of a given intoxicant could cause loss of voluntary control, even though reasonable people may not actually know the effects of the intoxicants they are consuming, particularly with respect to quantities and combinations of intoxicants. Further, the Crown must now also prove that the reasonable person could have foreseen that the consumption of the intoxicants could lead them to become violent and harm others, even though there appears to be little scientific evidence to support the claim that any particular drug makes violence more likely.

As some of you will know, this concern has also been echoed to senators’ offices by the Alberta Council of Women’s Shelters, known as ACWS, an organization that supports over 50 shelters across the province of Alberta for women, children and seniors facing domestic abuse. In their words, they are working “. . . to end domestic violence through culture-shifting violence prevention programs, collective data and research, and front-line training.”

Colleagues, our Senate committee would have done well to learn from groups like NAWL and ACWS and Indigenous organizations, due to their expertise and boots-on-the-ground work.

If such organizations register concern with the process and content of this legislation, we would be wise to heed their words.

As Minister Lametti stated before the Senate:

You may have been aware of the reaction to the Supreme Court decision. It was pretty much universal across Canada. . . .“You need to act quickly.”

Honourable senators, it is a fine line that exists between acting quickly and acting negligently. I am worried that we find ourselves on the wrong side of that line when it comes to Bill C-28. We have heard senators during Committee of the Whole make remarks to the minister by saying such things as, “The law would be entirely ineffective due to the burden placed on prosecutors,” and:

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

Honourable senators, I believe this bill is yet another form of violence against women, and particularly Indigenous women. And do I trust the government? Do Indigenous women trust the government? I would say no. Why would we place our trust in such an institution?

Let us ensure we do the right thing for Canadians and not the convenient thing for parliamentarians as we prepare to vote on Bill C-28. Thank you. Kinanâskomitin.

Senator Gold: Senators Gagné and LaBoucane-Benson are the best Government Representative Office, or GRO, colleagues I could hope for — talented parliamentarians, sounding boards, arbiters of debate, patient voices of reason and wisdom and just good friends to me. Thank you for your professionalism, common good sense and friendship. Of course, we all three admit and know that our jobs are made much easier — in fact, made possible — by the incredible team that we have working with us in the GRO. Teams of professionals who advise us, write for us, do research for us, and if they’re listening — and I hope they’re doing more fun things than listening to me talk at this hour — thank you so much.

To my leadership colleagues, Senator Plett, Senator Saint-Germain, Senator Tannas and Senator Cordy, we may not always agree. Tonight, though, was pretty good. Sometimes we disagree quite passionately, or vehemently on occasion, but I want to thank all of you for all the hours that you have put in and that have we spent together, hammering out how to best do the work for which we were summoned. Sometimes it feels as though we spend more time talking to each other than to any other person in our lives — at least that’s what my wife complains about — but it’s really worth it in the end to accomplish what we’ve accomplished and what we’re expected to accomplish on behalf of Canadians.

And speaking of my wife, to my dear wife, Nancy, thank you for putting up with me, supporting me and being without me, as I am without you, in these long sittings, so I couldn’t do it without you. Thank you, my darling.

In order for us to all come back in good form next September, let me conclude by wishing you all a peaceful summer. Spend it with those who matter most to you. Thank you for everything.