Senator Saint-Germain: Exactly.

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.

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 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.