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

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

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

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]

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.