Hon. Denise Batters: Honourable senators, my question is for the Leader of the Government in the Senate. Senator Gold, I want to ask you about the Trudeau cabinet scandal of the week — not this week’s scandal involving the PMO coercing the RCMP commissioner’s interference in a mass murder investigation for crass political gain. No, I want to ask about public safety minister Marco Mendicino’s self-serving habit of playing fast and loose with the facts — specifically, his repeated assertion that the Emergencies Act was invoked at the request of the police. This repeated assertion was flatly denied in testimony by the RCMP commissioner and the current and former Ottawa police chiefs, who all said they did not ask for the act to be invoked.

Senator Gold, I feel for you. Not being a member of cabinet, you are forced to take Minister Mendicino at his word — a word that has time and again proven to be utterly false. As you said at the time, you had no direct knowledge of the Trudeau government’s Emergencies Act decision because you don’t have the clearance, nor did any of the many senators who relied on the public safety minister’s word when debating the serious matter of invoking the Emergencies Act in this chamber.

Senator Gold, Minister Mendicino knowingly misled Parliament multiple times, and that is a resigning offence. When will this minister, who habitually obfuscates, finally do the right thing and resign?

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

Senator Plett: If I could indulge the chamber for just one second, we have, I think, five speakers left. I know we have 25 minutes. I would like to, with leave, simply ask this chamber that we not allow any questions but we allow all five of these speakers to speak and have their 10 minutes. It takes us where it takes us. I think it would be wrong for us to drop the last two speakers for the sake of 20 minutes.

Senator Lankin: Thank you, Senator McCallum. I’m not going to speak about the substance of the bill. I believe you’re really asking me about the process.

Yes, that is a key job for the Senate. In fact, it is a mandated approach suggested and ruled on by the Supreme Court of Canada in their 2014 decision, without a doubt. I also believe it is the job of the elected politicians in the House of Commons. I also believe it is the job of all people in all orders of government. I don’t think we are the only place, but I sometimes think we are the last place. We are certainly, with a constitutional point of view, responsible — it’s the Supreme Court point of view — for ensuring constitutionality and compliance with the Charter, for representing the voices of minority groups — in particular, Indigenous peoples — regional voices and technical drafting voices.

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Do we have enough time to do all that well and often? No. I’m going to move, again, from the systemic to the situational.

I am a feminist. I am a woman. Many of you know from previous remarks that I am a survivor of sexual assault. I want this law to be right, and I want everybody’s point of view to inform it. What will happen now is a stopgap over the summer until this is examined in a different way. I believe that is better than nothing, but I do not at all dismiss the importance that we all place on ensuring that we hear those voices.

We will hear them in a novel way, which will be after this provision but with the opportunity to amend it. Thank you.

The Hon. the Speaker: If you are opposed to the motion, please say “no.”

Some Hon. Senators: No.

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

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

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

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

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

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

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

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

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

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

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

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

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

Senator McCallum: How do the officials look after the minorities — the people whose votes don’t matter because there are not enough of them? They’re not a majority. Is it not the Senate that has to look after the minorities, the vulnerable and Indigenous peoples? How will they be looked after with this bill?

Thank you.

Some Hon. Senators: Hear, hear.

Senator Gold: Well, you would have made a very good law student because that’s a very good question. In fact, it is one of the things that went to the heart of the choice made by Parliament 20 years ago to choose this path — rather, I should say it chose, 20 years ago, not to create the offence of getting drunk negligently, to which I alluded briefly as one of the pathways.

The path of Bill C-28 preserves the offence with which you’re charged. So if you were found guilty of sexual assault despite the fact that you were really high or drunk, and you lost control because you were negligent in getting so high or drunk, you’re convicted of sexual assault with all the penalties and the stigma, if I can use that term, and the social disapprobation that attaches to that conviction.

Twenty years ago, the then-minister of justice Allan Rock — and this was much debated — was having to figure out which pathway to choose. He worried aloud, as did many scholars, that simply making a stand-alone offence of being criminally, negligently intoxicated would provide what he called a “drunk discount” to the offender. By definition, the penalty would have to be less than for the sexual assault that was actually committed, and the stigma would be less. Indeed, even Supreme Court Justice Kasirer — I quoted at length from the judgment and I could quote at even greater length — makes the same point, 20 years on. He referred to the literature. He said a stand-alone offence would not achieve Parliament’s dual purposes that are still relevant and valid, underlying section 33.1, and that is one of the reasons that, 20 years ago, that was not the option chosen. And it’s one of the reasons this government has chosen the second pathway that the court laid out. I hope that answers your question.

Senator Gold: I have no knowledge of what the government would do with regard to that. The short answer is that the court responded expeditiously with this legislation, which it believes, and I believe, satisfactorily fixes the broken sink or toilet or whatever architectural image I used. I have no reason to think that they will not proceed with trying to improve the law if those are the recommendations that come out of our study or the study in the other place.

Senator Gold: We’re the masters of our own house. Senate committees deserve the reputation they have for doing serious work. It’s important, first, that the committee take the job seriously, as I know it will, and define the scope of it. It’s up to the committee to decide how broadly or narrowly it wants to look at it.

As Senator Lankin pointed out, the way this was structured — and it was thanks to the input from senators to modify this — it gives the opportunity for our committee to start its work but not to have to finish its work until it has the opportunity to review what others may have said. Different opinions may emerge. There may be points of contact. Who knows?

But our work can only be enhanced, I think, with not only the knowledge and input of witnesses, but also the information and conclusions that the other place arrives at.

But it would be up to the chair, the steering committee and the committee as a whole to decide how to proceed.

Hon. René Cormier: My question is for the Government Representative in the Senate. Senator Gold, on December 1, 2020, I moved a motion in this chamber that was adopted that very day. It called on the Government of Canada to increase the total funding for the Federal Initiative to Address HIV/AIDS to $100 million annually. The fact of the matter is that this funding is yet to materialize, or so reports a consortium of community and human rights advocacy organizations, including the HIV Legal Network and the Canadian AIDS Society. Unfortunately, in the meantime we have seen an increase in cases of HIV infection in Canada over the past few years.

Senator Gold, on the eve of the International AIDS Conference, which is being held in Montreal at the end of July, Canada being the host country this year, will the Canadian government finally commit to increasing the funding for the fight against HIV/AIDS to $100 million a year and when will it do so?

Hon. Marc Gold (Government Representative in the Senate): Thank you for the question, senator. The Government of Canada is proud that Canada is hosting the 24th International AIDS Conference, which, as you mentioned, is being held in Montreal from July 29 to August 2, 2022. The government remains firmly committed to end the AIDS endemic by 2030 and to support Canadians living with this disease. I am told that the government is investing $87 million annually to fight HIV and other sexually transmitted and blood-borne infections. The government is also providing $30 million to the Harm Reduction Fund to help prevent and control HIV and hepatitis C. The government continues to work closely with community groups and people with lived experience.

Senator Cormier: Thank you for your response, Senator Gold. Many organizations are calling on the Canadian government to increase its contribution to the Global Fund, which finances initiatives to fight HIV, tuberculosis and malaria around the world. Will Canada use its leadership as host of the International AIDS Conference to increase its contribution to this important fund, especially considering that AIDS is so prevalent in the world and continues to wreak havoc?

Senator Gold: Thank you for your supplementary question. I would like to point out that Canada has supported the Global Fund since its inception and, in fact, is its sixth largest donor. The government remains committed to supporting initiatives to fight HIV. The government also continues to assess numerous investments, and I would be pleased to contact the minister regarding Canada’s investment in this fund.

Senator Saint-Germain: Thank you for the question.

First, I want to reframe your assertion that a majority of legal advisers and groups would be very concerned about the inability of the Crown prosecutor to act in a way that would be efficient, and that there is too much burden on their shoulders. I disagree with that, and I could certainly turn to, including in this chamber, legal people who will see or tell you the opposite.

But my main concern is that if we are not responsible in acting now in order to fix this gap in the law, the perpetrators will not be convicted. That is a very serious issue with a very serious impact. So my view is that the best way to protect the victims in the short term is to act now and to vote for this bill.

Furthermore, the Legal and Constitutional Affairs Committee’s mandate is not only with regard to this bill; it is with regard to the broader question of the criminal justice system — intoxication, the extreme intoxication and what could be done. What could be done is not only in the judicial field, the courts and the law; it’s the whole system of consistent and complementary measures that would provide for the victims to be better protected and for there to be more prevention. Unfortunately, further to their victimization, there would need to be more healing and services — notably, social, psychological and medical services — available and timely to help them heal.

That is my view.

Once again, for now, what we have to discuss is this bill. Will it fix an issue that is timely? My answer is yes.

Senator Gold: I will make inquiries and try to report back. I will use my best efforts to encourage that this process — an important process, as you properly underlined — be commenced.

Hon. Judith G. Seidman: Honourable senators, my question is for the government leader. Bill C-45, the Cannabis Act, received Royal Assent on June 21, 2018, and came into force on October 17, 2018.

The act requires that, three years after coming into force, the Minister of Health conduct a review on the administration and operation of this act and its impact on public health.

In particular, the review must assess the health and consumption habits of young persons in respect of cannabis use, the impact of cannabis on Indigenous persons and communities and the impact of cultivation of cannabis plants in a dwelling house.

Senator Gold, eight months have passed since the three-year anniversary of the Cannabis Act and the minister has not yet initiated this review. When can we expect this important legislative review to begin?