Committee of the Whole: Subject matter of Bill C-28, An Act to amend the Criminal Code (self-induced extreme intoxication)

By: The Hon. Jane Cordy, The Hon. Patricia Bovey

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Parliament and the Supreme Court of Canada, Ottawa

Senator Cordy: Minister, thank you for dealing with the Supreme Court of Canada decision in R v. Brown and R v. Sullivan in such an expeditious manner. I’m not a lawyer, but I believe this legislation is extremely important to protect victims, so thank you very much.

In the Brown case, the Supreme Court mentioned a couple of legislative paths that Parliament could take on extreme intoxication. You are proposing to take one of those paths with this bill. Can you explain why you decided not to go with a stand-alone offence of self-induced extreme intoxication?

Mr. Lametti: Thank you, senator, for the question. It is a good one and it brings me back to a discussion that I had with my team only a few days after the decision. Ms. Morency was also there presenting us with options.

Two options were given by the Supreme Court, as you said. One was a stand-alone offence of criminal intoxication. The other is the path we chose, which is to build a criminal negligence standard into the act itself but still charge the person with the same offence.

First, we heard from a number of groups, women’s advocacy groups in particular, that they wanted it to be the same offence, and that it had to carry the same gravitas or — I don’t want to say “stigma” — be in the same order of events with the same terminology. The person will be found guilty of sexual assault, say, or assault, and the criminal negligence part will be wrapped up in that.

Second, we are hoping that this will really help frame and reduce litigation down the road because they are known standards. We’re still working effectively within the same parameters as the original piece of legislation brought in by Minister Rock 20-odd years ago.

If we went to a different standard, a stand-alone offence, it would take the courts another 10 or 15 years to work out the parameters of that particular new provision. We hope to be able to eliminate that. That helps victims. That helps everybody, frankly, in the criminal justice system because it adds clarity. We’re working with known standards.

Senator Cordy: Thank you very much for that, minister. For those of us who are not lawyers, can you explain succinctly why the current law as now written was open to a constitutional challenge, and why you believe this new legislation will stand up to any possible constitutional challenges in the future?

Mr. Lametti: The original law as written was open to a constitutional challenge, again, because someone might have innocently entered into a state of intoxication leading to automatism and could still be found guilty of a very serious offence even though they — and I will put this in air quotes — “did nothing wrong.” A person following, for example, for the first time, a course of prescription medications and not knowing that his or her particular body would react in the way that it did.

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That’s very different from states where someone knows they have done this before. They have mixed this and that before and it has led to a violent outcome that, perhaps, did not lead to a criminal offence. That is a different situation. The court wanted to hive that off.

I will be honest, that is the way that our lawyers were interpreting the previous decision in front of the Supreme Court, and the Supreme Court said, “No, not good enough, you have to tighten it up.”

That is a part of the answer to your question — they wanted to take out that case of innocent intoxication, I suppose, that led to tragic consequences.

We feel this is constitutional in part because of that, but also in part because we’re actually following the guidance that the Supreme Court gave us. We have stuck to one of the two lanes that they gave us and we think that, therefore, this will withstand a constitutional challenge.

Senator Bovey: Thank you, minister, for being here. I want to follow-up on that question from Senator Cordy, if I may.

There is obviously a lot to do to build sexual assault victims’ confidence in the criminal justice system. Bill C-28 will certainly help, but won’t be enough. What else is the government willing to do to support victims?

Mr. Lametti: Thank you for that question, senator. It is an important one.

I would say quite a bit. You will recall just over a year ago we amended the Judges Act in order to better train our judges. Obviously, the principle of judicial independence is important to us. But we are requiring that all applicants at the Superior Court level and Federal Court level agree, as a precondition to their application to becoming a judge, to take training with respect, in particular, to sexual assault and social context training to make them better judges and to help understand cases.

We have also amended the Criminal Code to strengthen and address sexual assault laws in order to make them more fair, in order to make them, I think, more sensitive to victims but also lead to good results.

We are also investing a great deal of money as a government — free access to legal advice for sexual assault. We are working in programming to reduce intimate partner violence, prevent gender-based violence and help support survivors. There are significant investments there. In 2022, we invested almost $540 million to help prevent gender-based violence and to support survivors.

This piece of legislation is a small part of a larger effort to really work at education, society, judges and participants in the legal system, but also support people who need that support within our system, survivors in particular.

Senator Bovey: Thank you for that.

It is obvious that the Supreme Court decisions have captured the attention of Canadians and raised many questions, especially for young women and girls.

Last Friday, Minister Ien spoke about some of the false information floating around. You have talked about misunderstandings turning into misinformation. I wonder if you could elaborate a little more on some of the misinformation that you have seen and how this bill will address it.

Mr. Lametti: Thank you, senator. I was very moved by Minister Ien in that press conference. I can also say that it touched me as well. I have a 21-year-old. I have three. My youngest is a 21-year-old. She had a long discussion with her mother — also a law professor — based upon this provision as a result of this Supreme Court case.

What happened was — they were mistakes. Mistaken tweets, mistaken postings on social media that said, “Oh, this decision gives people a free pass to have drinks and then go out and assault people or sexually assault people.” Of course that was wrong. But it was hard to counter that trend with, frankly, the correct answer, which is, “No, this is a very small group of cases.” It is a handful of cases, as Senator Carignan said a moment ago, over the course of 20 years.

Acting as we are doing helps us, in a sense, put the genie back in the bottle because we can now say, “Look, we fixed that part, and the rest of it wasn’t touched and it is still intact.” We can clearly say, in social media and other kinds of media, that the whole spectrum has been covered. You do not have a free pass, depending upon whom you are speaking to, or you are protected, depending upon whom you are speaking to. It helps us better educate everybody.

But it is, frankly, scary, I have to admit. We are using this opportunity — in fact, we used the press conference with Minister Ien — as a way to get that message out, that not only are we acting to fill this gap, but people need to know that getting drunk or getting high is not a defence to assault or sexual assault, period.

Senator Bovey: Thank you.

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