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Bill C-28, An Act to amend the Criminal Code (self‑induced extreme intoxication) - Second Reading

Honourable senators, I rise today to speak to Bill C-28, An Act to amend the Criminal Code (self‑induced extreme intoxication).

As is true with many in this chamber and many in the general public, I, as a First Nations woman, have substantial concern and misgivings about the haste with which we are dealing with this legislation. I do not know if there are those in this chamber who can honestly say that the Senate has done due diligence on Bill C-28. I, for one, cannot make that assertion.

It is a very unusual and dangerous practice that we are engaging in, both here and in the other place. I understand that a House of Commons committee has been tasked with studying the subject matter of this bill in the fall. I also note Minister Lametti’s support for the Senate to undertake a similar committee study following a question by Senator Carignan during Committee of the Whole. However, I find it highly concerning that Parliament has agreed to do this process backwards. Studying the contents of a bill and thereby understanding the perspectives of the experts in this field only after that bill has become law is ill-advised.

One can argue that it treads dangerously close to impacting our collective privilege in fulfilling our senatorial duties. How can we vote competently on legislation if we have not been given the chance to adequately study and consider its merits and shortcomings?

This is especially true for me, colleagues, as a non-affiliated senator. Senator Plett, in his remarks on Motion 53, referenced it as not being time allocation as it had unanimity in its support. At no point was I consulted, informed or approached about the process around this bill or any other such legislative matters.

I can only assume the same was true for my non-affiliated colleagues. This long-standing subjugation of the unaffiliated has removed my voice and opinion from larger decisions of the Senate, including Bill C-28. I take exception to that.

Colleagues, I would like to state that I support the concept of this bill; I do not support the practice. Self-induced extreme intoxication should never be accepted as a viable defence for heinous and criminal acts. It is a loophole that needs to be closed. The closing of this loophole is intended, of course, to ensure guilty parties do not elude punishment on what constitutes a technicality. It is also, of equal importance, intended as a protection for the victims, who are largely women, from the criminal acts that tend to flow from self-induced extreme intoxication.

Honourable senators, given the extremely short time frame between the Supreme Court of Canada’s ruling on this matter and the introduction of this legislation in the House being a little over a month, it should come as no surprise that the issue of inadequate consultation has been a big one. I note that the issue of inadequate consultation is also not a new one.

As it pertains to Bill C-28, this issue has been raised by one of the groups that had actually been consulted, the National Association of Women in the Law, or NAWL. They contest that they, as well as many other interested stakeholders, have faced a lack of meaningful consultation. They also rightly state that the Senate, through the Standing Senate Committee on Legal and Constitutional Affairs, would greatly benefit from hearing from medical experts, women’s groups and Crown prosecutors whose job it is to prosecute on behalf of victims.

When questioned on this shortcoming by Senator White during Committee of the Whole, Minister Lametti responded by saying:

We did the consultations we could do in the time that we had from the date of the Supreme Court decision. We reached out.

You must admit, honourable senators, that this is a less‑than‑confidence‑inspiring response.

Honourable senators, beyond the issue of consultation, it has been raised that there are serious concerns that Bill C-28 represents a flawed piece of legislation. This concern, at its core, is that Bill C-28 will not accomplish what it seeks to. This is due to the fact that the burden of proof, which regrettably falls on the Crown and the victim, is a threshold that is nearly impossible to meet.

The National Association of Women in the Law registered a very valid concern around the stringent requirements for prosecutors to prove beyond a reasonable doubt both that the loss of control after the consumption of intoxicants was reasonably foreseeable, as well as the foreseeability of harm. In their words, through their June 21 press release, NAWL indicates:

Indeed, NAWL is concerned that this reform will prove impossible for the prosecution to implement. And that in the end, the heavy burden of men’s extremely intoxicated violence will fall predominantly on the women they harm. This is because the Crown must prove beyond a reasonable doubt that a reasonable person could have foreseen that the accused’s consumption of a given intoxicant could cause loss of voluntary control, even though reasonable people may not actually know the effects of the intoxicants they are consuming, particularly with respect to quantities and combinations of intoxicants. Further, the Crown must now also prove that the reasonable person could have foreseen that the consumption of the intoxicants could lead them to become violent and harm others, even though there appears to be little scientific evidence to support the claim that any particular drug makes violence more likely.

As some of you will know, this concern has also been echoed to senators’ offices by the Alberta Council of Women’s Shelters, known as ACWS, an organization that supports over 50 shelters across the province of Alberta for women, children and seniors facing domestic abuse. In their words, they are working “. . . to end domestic violence through culture-shifting violence prevention programs, collective data and research, and front-line training.”

Colleagues, our Senate committee would have done well to learn from groups like NAWL and ACWS and Indigenous organizations, due to their expertise and boots-on-the-ground work.

If such organizations register concern with the process and content of this legislation, we would be wise to heed their words.

As Minister Lametti stated before the Senate:

You may have been aware of the reaction to the Supreme Court decision. It was pretty much universal across Canada. . . .“You need to act quickly.”

Honourable senators, it is a fine line that exists between acting quickly and acting negligently. I am worried that we find ourselves on the wrong side of that line when it comes to Bill C-28. We have heard senators during Committee of the Whole make remarks to the minister by saying such things as, “The law would be entirely ineffective due to the burden placed on prosecutors,” and:

. . . what I worry about here is that the proposal . . . will miss the mark and almost nobody will be able to be convicted under this provision.

Honourable senators, I believe this bill is yet another form of violence against women, and particularly Indigenous women. And do I trust the government? Do Indigenous women trust the government? I would say no. Why would we place our trust in such an institution?

Let us ensure we do the right thing for Canadians and not the convenient thing for parliamentarians as we prepare to vote on Bill C-28. Thank you. Kinanâskomitin.

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