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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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