Hurried passage

Kerri Froc, a law professor at the University of New Brunswick and chair of the National Association of Women and the Law’s National Steering Committee, is disappointed that the federal government engaged in minimal consultation on the bill.

“There’s a certain irony to the government indicating that the extreme intoxication defence is very rare, but Parliament can spare no time to properly consult women’s organizations, listen to their concerns, and ensure that the bill is a workable solution and Charter compliant,” Froc says. “The amended 33.1 will likely not be effective, and will be mere window dressing rather than actually holding men accountable for their intoxicated violence against women.”

Froc says the bill makes it unlikely to secure a conviction in extreme intoxication cases. The Crown would have to prove beyond a reasonable doubt that the person would lose control and that there is a foreseeable harm.

“Our central concern is around the foreseeability aspect,” Froc says. “They’ll be able to advance the defence with very little constraint. It seems to be paying lip service to the protection of women when in reality it’s not going to do that much because of that very high burden on the Crown.”

The only person the new provision would capture is someone who had previously ingested the same substances, lost control, and became violent, says Froc.

“It’s a very narrow band of people that it would fit into, and it wouldn’t attach to any of the people who were before the Supreme Court, and probably wouldn’t even attach to Daviault in 1994,” she adds.

NAWL sent a letter to all senators suggesting alternate language, but there were no attempts at introducing amendments. Instead, the Leader of the Government in the Senate, Senator Marc Gold, employed a programming motion in which most senators voted to pass the bill at all stages in a single day. There were few speeches at second reading, though some were critical about rushing the bill through without hearing from stakeholders other than the minister.

“The government moved the goal posts during the proceedings on Bill C-28,” Froc says. “There were eight Senators that voted against the motion and without this unprecedented intervention, the ordinary processes of Parliament would have been followed.  

“It’s very disappointing from a government that purports to be feminist.”

Justice Minister David Lametti says that the government heard from provinces and territories and from all political parties that it was important to address the gap in the law left by the Sullivan/Chan and Brown decisions by the Supreme Court of Canada. The top court invalidated s. 33.1 of the Criminal Code, which prevented an accused from raising common law defence of self‑induced intoxication akin to automatism.

“Over the past five weeks, we’ve consulted with a diverse group of stakeholders, ranging from women’s groups, such as the Women’s Law Association of Ontario (WLAO), prosecutors, defence lawyers and academics,” Lametti says in an emailed reply. “What we heard is overwhelming support not only for the approach taken in Bill C-28, but also the swiftness with which we’ve tabled legislation to address the gap in the law.”

One of the groups consulted was the Women’s Legal Education and Action Fund (LEAF). Its executive director and general counsel Pam Hrick appeared with the minister at the press conference announcing the bill.

“It provides the framework that courts will need to apply to the defence effectively,” says Hrick. “The criminal negligence standard is workable in other contexts, which are some of the reasons why we support it as an approach that balances and gives effect to the rights of women and children while also understanding the competing considerations the Supreme Court was very clear about in terms of the rights of accused persons.”

Hrick also wants to emphasize that it is a small piece of the puzzle in the response to gender-based violence.

“While we need to look at improving existing systems like the criminal justice system, we also need to look at the broader picture in survivor-centre ways in address and prevent sexual violence outside of the criminal system,” Hrick says.

Lametti says he respects NAWL’s advocacy, but the approach taken in the bill followed the SCC’s guidance in Brown.

“We are confident that the proposed standard will be effective in holding people accountable for violence committed in a state of negligent extreme intoxication,” Lametti says. “It is important to remember that before s. 33.1 of the Code is even put at issue, the accused must first prove—using expert evidence—that they were in a state of extreme intoxication akin to automatism. This is a high bar.”

Also, Lametti adds, the SCC clearly stated that alcohol alone is unlikely to bring about the state of automatism, and that intoxication short of automatism is never a defence to violent crimes of general intent like sexual assault or manslaughter.

“The criminal negligence standard is not new to courts or prosecutors,” Lametti says. “We have confidence—backed by consultations with prosecutors—that they will be able to apply it effectively.”

Froc says that NAWL wasn’t given a fighting chance to bring their suggestions before Parliament.

“They consulted us on the fourteenth,” Froc says. “The notice to introduce the bill was given the next day, and then the bill itself was introduced on Friday [June 17th],” Froc says, adding that they only met with someone relatively junior in the Department of Justice and not the person who had carriage on the file.

“It was meant to check a box because they just produced a list of everyone they consulted with and gave it to senators as a way of showing they consulted extensively,” Froc says, adding that it didn’t even describe NAWL correctly.

According to Hrick, the bill deserved “thoughtful consideration” by parliamentarians, but it was up for them to decide if they have received enough information to make an informed decision to support the bill as presented.

Still, Lametti has promised to have the House of Commons and Senate legal committees hold hearings in the fall on the law’s implementation, which is a highly unusual practice.

To Froc, this demonstrates that closer scrutiny was necessary, rather than simply passing a bad law because the government felt they needed to do something to respond to the SCC.

Dale Smith is a contributor based in Ottawa.