[Recorded by Electronic Apparatus]
Thursday, June 15, 1995
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[English]
The Vice-Chair (Mrs. Barnes): I'd like to call this meeting to order. The order of the day is Bill C-72, an act to amend the Criminal Code (self-induced intoxication). It's a clause-by-clause consideration.
We have the parliamentary secretary to the Minister of Justice, Russell MacLellan, with us today, and some officials from the Department of Justice.
Mr. MacLellan.
Mr. Russell MacLellan (Parliamentary Secretary to the Minister of Justice and the Attorney General of Canada): Before we begin, I was wondering if I could table some documentation that was used by the department in its consideration of this bill.
There's one that was presented when the bill was tabled. It's called ``Self-Induced Intoxication as Criminal Fault''. It's an information note from the department. Also, we have Juristat service bulletins on wife assault, the findings of a national survey on drug use and crime, and the daily Statistics Canada November 18, 1993 edition, a violence against women survey. There is also a Department of Justice publication called Violence and Intoxication: A Review of the Social Science Literature.
All of the documentation is in both official languages. I wonder if we may distribute these to the members of the committee.
The Vice-Chair (Mrs. Barnes): Yes. Do you want a motion to append these documentations to the record?
Mr. MacLellan: Yes, please.
The Vice-Chair (Mrs. Barnes): Do I have consent to append these?
Some hon. members: Agreed.
The Vice-Chairman (Mrs. Barnes): We have unanimous consent.
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We will now move to the consideration of clause 1 of the bill.
On clause 1
The Vice-Chair (Mrs. Barnes): We have two amendments, LW-1 and LW-2.
Mr. Wappel (Scarborough West): I'm going to move LW-1, but depending on what happens to the other one, there may be a bit of a conflict.
LW-1 is a motion to amend clause 1 by replacing line 6 on page 3. The only change is the word ``general'' being substituted for the word ``basic''. It is very simple, and totally in accordance with the recommendation of the Canadian Bar Association.
There might be some technical reason why the Department of Justice chose the word ``basic'', and if so, fine, we can hear it. Otherwise, I think the bar made a compelling argument, particularly in view of the fact that the preamble uses the phrase ``general intent'' and, for consistency's sake, we should use that phrase as opposed to ``basic intent''.
That's the purpose of the motion.
Mr. MacLellan: I have no objection to this amendment.
The Vice-Chair (Mrs. Barnes): Is there any discussion?
Mr. Wappel, will you want the vote called on this now, before we go to LW-2? I wasn't clear on what you -
Mr. Wappel: Yes. We had might as well vote, because depending on what happens with LW-2, I'll have another one.
Amendment agreed to
The Vice-Chair (Mrs. Barnes): Now we'll move to LW-2.
Mr. Wappel: LW-2 deals with proposed subsection 33.1(3) on page 3.
I move that lines 21 through 26 inclusive on page 3 be deleted.
It's not an impassioned speech or anything like that; I simply wish to point out that it was my understanding that the purpose of this bill was to return the law to the way it stood before the majority decision in Daviault. I think we established when we were talking with the psychiatrists that in fact what happened was that before Daviault intoxication as a defence was available in the limited circumstance of specific-intent offences. Daviault opened the defence up to not only specific-intent offences, but also all general-intent offences.
What this bill proposes to do is retrench from Daviault, but apparently not all the way, because it provides that self-induced intoxication to a general-intent offence that, for all intents and purposes, involves bodily harm would not be allowed. This takes away part of the effect of Daviault, but it would still leave the defence open to general-intent offences that are not offences that cause bodily harm.
For the purposes of the record, if the intent of the legislation is to go back to pre-Daviault law, which is to restrict intoxication as a defence solely to specific-intent offences, then the only way we can do that is to take out proposed subsection 33.1(3), and then the law would apply to all general-intent offences.
If it's the will of the committee to remove proposed subsection 33.1(3) and thereby bring us right to pre-Daviault, then we have to do a little bit of touching up in proposed subsection 33.1(1), because proposed subsection (3) is mentioned in it. I'm not even going to talk about that, because if the government doesn't want to do anything on proposed subsection 33.1(3), then there's no point in going any further.
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I did want it on the record that this particular bill does not go back to the pre-Daviault state of the law. It takes us somewhere between pre-Daviault and Daviault. If that's what the government wants and if we understand that, then that's the way it will be, but if we want to get back to pre-Daviault and if we want to prohibit drunkenness as a defence to all but specific-intent offences, we have to remove proposed subsection 33.1(3).
The Vice-Chair (Mrs. Barnes): Mr. MacLellan, do you wish to comment?
Mr. MacLellan: Yes, thank you, Madam Chair.
I can understand what Mr. Wappel is requesting and I would like to be able to say that this is what we'd like to do as well. The problem is that we have to be very concerned about the Supreme Court of Canada. We have to deal with all offences if we make this change. What we're really doing here is dealing with violent offences.
If we go further, then we've more or less outdistanced the preamble and statistics, because a lot of the preamble is making a case for the intoxication. It's not just intoxication, but extreme intoxication bordering on automatism, with respect to violent offences. We just don't have the statistics that would indicate that extreme intoxication is a problem in non-violent offences such as property crimes. So we don't want to go that far at this time.
We are really dealing with Bill C-72 in response to Daviault. There's no question about that. But we want to do this well rather than stretch ourselves into an area we may not be able to defend. Also, I think this is really what Canadians want us to do. This is the area they want us to work on.
If we change this, we still have the moral basis. We still have a moral basis for what we're doing, but we don't really have a social basis. I think there are four areas we have to look at in dealing with Bill C-72. I think if we don't look at all four, we weaken the bill from a charter point of view.
The first area I think we have to look at is, as I mentioned, the moral basis. People who voluntarily become intoxicated to the point of losing conscious control or awareness and causing harm to others are criminally at fault.
The second basis would be the medical basis, where leading medical opinion indicates that many intoxicants, including alcohol, do not in fact cause the type of condition that is automatism or akin to automatism, testified to in cases that have recognized an extreme intoxication defence.
The third one, the one I think we would lose by stretching out too far, is the social science basis. Intoxicated violence is of pressing concern to most Canadians, particularly as it disadvantages women and children. It calls for a specific legislative solution. I think women's groups have asked for that specific legislative solution. For one thing, women's groups didn't want the criminal intoxication, because that did not address the concerns women have. This one does.
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The fourth thing we have to look at is the equality basis. The restriction of the defence of extreme intoxication is required to protect the rights of women and children as actual or potential victims of violence.
Madam Chair, we talk about the violence with respect to intoxication in the preamble to such a large extent. As I mentioned earlier, I honestly believe that if we go with the amendment and broaden it, we are going to lose the support of women's groups who see this bill, frankly, as a statement of violence against women.
The Vice-Chair (Mrs. Barnes): Mr. Langlois.
[Translation]
Mr. Langlois (Bellechasse): In the arguments you just put forward, Mr. MacLellan, you said that constitutionality was one of your concerns in writing this bill.
I find it also a bit difficult to follow Mr. Wappel, not his arguments per se, but the effect that his amendment could have. A cursory analysis leads me to believe that clause 1 of the bill, which is new section 33.1 of the Criminal Code, will not resist a constitutional test and that, as mentioned in the Oakes decision, the Supreme Court and the courts will wonder if this provision would be justified in a free and democratic society.
The different ``Whereas'' which are in a way checks and balances, are in the preamble to show the courts that this legislative measure can be justified in such a society, in spite of the fact that people will not be able to use as a defence something that the Supreme Court recognized as such. We have to be careful. I think that if we were to adopt Mr. Wappel's amendment, we would do away with a very important argument which could be used in court and ultimately in front of the Supreme Court in order to prove the validity of this new section 33.1 of the code. Was that something that the minister was worried about?
[English]
Mr. MacLellan: Also, as Mr. Wappel has said, we're using intoxication as a defence in general, not in specific. We have to be careful of that.
We're saying we need this. We say this bill is important and we state in the preamble what it is we as members of Parliament have found from our hearings and from what we've read.
If we go into broadening it, then we have the problem of defending that in the preamble, as I see it. Frankly, I don't have any statistics that would indicate that extreme intoxication is a problem in non-violent matters. I think we would do the bill a great deal of harm and certainly we would risk the success of the bill in a charter challenge.
Really, this is a large area of what we hoped to achieve with these committee hearings; it's to provide a basis, a track record for why this bill is needed and why it does what we want it to do. We put that in jeopardy, frankly, if we accept the motion, as laudable as it is. I understand what Mr. Wappel wants, and hopefully when we address in legislation the recent review of the general part of the Criminal Code, then perhaps that could be specifically dealt with at that time.
Mr. Wappel: Again, that's great; I have the explanation and I hear where the government wants to go.
I just have two points. First, I don't think there is anything in the preamble that talks about - what was the phrase you used, Mr. MacLellan? - excessive intoxication. I forget what phrase you used. In the preamble we talk about extreme intoxication; the preamble talks about self-induced intoxication. It is true that from a legal point of view in proposed subsection 33.1(2) there is the legal aspect of getting into the lack of ability to form intent.
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I wouldn't want it to be thought that the preamble invokes such a very high standard that you have to get so absolutely, positively drunk that you simply don't know what's going on, because all we're talking about in the preamble is that self-induced intoxication itself - not extreme intoxication - is not an excuse in Canadian society, and most Canadians believe that's the case. That's what the preamble says.
Having said that, in view of what the parliamentary secretary says, I wonder if I might have unanimous consent of the committee to withdraw my amendment.
Amendment withdrawn
Clause 1 as amended agreed to
The Chair: We will move to the preamble. We have an amendment to the preamble, LW-3. Mr. Wappel.
Mr. Wappel: I understand the government has a proposed amendment that is very similar to LW-3 and I would be prepared to yield to the government, to use an American phrase.
The Chair: Do we have the government's amendment?
The Clerk of the Committee: Yes, we do.
The Chair: Do all members have a copy of this amendment?
The Clerk: It's being distributed.
Mr. Wappel: I would be pleased to move this if the parliamentary secretary is so inclined.
The Chair: Mr. Wappel, if you wish to move it, please read and explain it, as they've just received it.
Mr. Wappel: It deals with lines 24 and 25 of the preamble, which currently read:
- entific evidence that many intoxicants, including alcohol, may not cause a person to act
- Then the next line reads ``involuntarily''.
- entific evidence that most intoxicants, including alcohol, in and of themselves, will not cause a
person to act
- Then it finishes``involuntarily''.
The Chair: So moved. Mr. MacLellan, do you have anything to add?
Mr. MacLellan: I think it still reflects what the psychiatrists said, particularly with respect to the French. We've made significant changes to the French text.
The Chair: Are there any questions or comments with respect to this proposed amendment?
Amendment agreed to
The Chair: Shall the preamble as amended carry?
Some hon. members: Agreed.
The Chair: Shall the title carry?
Some hon. members: Agreed.
The Chair: Shall the bill as amended carry?
Some hon. members: Agreed.
The Chair: Shall the chair report the bill as amended to the House as the ninth report of the committee?
Some hon. members: Agreed.
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The Chair: We have a steering committee meeting Monday afternoon. Tuesday morning we will be dealing with the correctional investigator. You will recall one of the major things in his report was the incident at the women's prison, where his report contradicted the internal report of the Correctional Service on the stripping and searching of the women involved in that riot.
I want to thank the parliamentary secretary and the officials from the Department of Justice for their attendance here this afternoon.
The meeting is adjourned until Tuesday morning.