Remarks to the Standing Committee on Justice and Human Rights, Bill C-28;

November 14, 2022 – Honorable Chairperson and Members of the Committee,

Thank you for inviting me here today to discuss Bill C-28.

Today, we are here on the traditional unceded, unsurrendered territory of the Algonquin Anishnabe people. I acknowledge our shared responsibility, and my personal responsibility, to work to address historical and ongoing colonialism, racism, and oppression of Indigenous peoples. This includes working together to dismantle the criminalization of Indigenous Peoples, and learning from the resilience and vibrancy of diverse Indigenous cultures.

As you may know, I was recently appointed Federal Ombudsperson for Victims of Crime. I am so thankful for this opportunity to serve victims and survivors of crime in Canada. And, I am brand new, just 3 weeks in, so please be patient with me as I get caught up to speed. I would like to thank the members of this committee for your tireless work on justice and human rights. I know that there have been many recent decisions by the Supreme Court, as well as government and private members’ bills that require your attention.

Office of the Federal Ombudsperson for Victims of Crime

The Office of the Federal Ombudsperson for Victims of Crime (OFOVC) is an independent resource for victims in Canada. Our Office was created to help the federal government honour its commitments to victims of crime. Victims contact our Office to learn more about their rights under federal laws, to learn more about federal services available to them, or to make a complaint about any federal agencies or federal legislation dealing with victims. We help to problem-solve and find solutions when victims’ rights have not been respected, and we collaborate with stakeholders across the country to identify emerging trends or issues that affect victims of crime. Based on this work, when appropriate, we offer recommendations to federal agencies and help to ensure that victims’ concerns are considered in the legislative process.

Supreme Court of Canada (SCC)

When the Supreme Court of Canada (SCC) ruled in R. v. Brown that Section 33.1 of the Criminal Code was unconstitutional, it had immediate and adverse effects on survivors of violent crime. The wording of the law and the language used by the SCC are difficult to understand and contributed to widespread misinformation about highly traumatic and personal experiences in the lives of Canadians. Organizations supporting women who have experienced gender-based violence (GBV), and many young survivors of sexual assault, in particular, believed that the government had allowed space for intoxication to become an allowable defence for violence imposed on the bodies of women and girls. This belief caused considerable distress, resurfacing of traumatic memories, and protests in high schools where young survivors shared personal experiences, sometimes without the resources to do that safely.

Bill C-28

As Ombudsperson for victims of crime, I believe there was an urgent need to act, and I am thankful for the way the whole government moved quickly to respond to the SCC ruling. I also appreciate the clear messaging from the Minister of Justice and Attorney General of Canada, the Honorable David Lametti, when we he said repeatedly, “Being drunk or high is not a defence for committing criminal acts like sexual assault.” I think this showed empathy and that it reflects a hopeful posture to act on other concerns raised by victims of crime.

I also understand that the unconventional approach to passing this legislation before it could be fully considered and weighed in our parliamentary committees has created an obligation to meaningfully engage in that process now.

The full continuum of intoxication caused by alcohol and other substances is a very present reality in many of the contexts that lead to criminal victimization. In the messy realities of these situations, people can slip in and out of their awareness of their behavior and their impact on others, making it difficult to establish objective criteria about culpability. Other witnesses have already explained that the defence of extreme intoxication is predominantly advanced by men perpetrating violence against women. As the government of Canada launches its National Action Plan to End Gender-Based Violence, I urge you to consider this legislation through that lens.

Recommendations

Our office has a few simple recommendations.

1. Clear language. Continued misinformation around this legislation will have consequences on women and girls. The wording of C-28 is complicated, and we recommend continued and clear messaging to the public.

[Ex. “…they departed markedly from the standard of care expected of a reasonable person in the circumstances with respect to the consumption of intoxicating substances.]

2. Meaningful consultation. The diverse perspectives of Canadians emerging in the committee need to shape the legislation. We recommend making revisions to the legislation if significant concerns are identified.
3. Monitoring. Intoxication is very common in contexts of violent crime, and you have heard significant concerns from women’s groups and survivors about the possibility of this defence being abused. We recommend a formal review after two years to evaluate how the defence has been used in court.

Thank you again for your time.

Appendix

Text of the Bill:

1 Section 33.1 of the Criminal Code and the heading before it are replaced by the following:

Self-induced Extreme Intoxication

33.1 (1) A person who, by reason of self-induced extreme intoxication, lacks the general intent or voluntariness ordinarily required to commit an offence referred to in subsection (3), nonetheless commits the offence if

• (a) all the other elements of the offence are present; and
• (b) before they were in a state of extreme intoxication, they departed markedly from the standard of care expected of a reasonable person in the circumstances with respect to the consumption of intoxicating substances.

Marked departure — foreseeability of risk and other circumstances

(2) For the purposes of determining whether the person departed markedly from the standard of care, the court must consider the objective foreseeability of the risk that the consumption of the intoxicating substances could cause extreme intoxication and lead the person to harm another person. The court must, in making the determination, also consider all relevant circumstances, including anything that the person did to avoid the risk.

Offences

(3) This section applies in respect of an offence under this Act or any other Act of Parliament that includes as an element an assault or any other interference or threat of interference by a person with the bodily integrity of another person.

Definition of extreme intoxication

(4)  In this section, extreme intoxication means intoxication that renders a person unaware of, or incapable of consciously controlling, their behaviour.

Published under authority of the Speaker of the House of Commons