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EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, June 6, 1995

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[English]

The Chair: Order.

This morning we're continuing our consideration of Bill C-72, An Act to amend the Criminal Code with respect to self-induced intoxication.

This morning we are pleased to have with us the National Association of Women and the Law. We received the brief from the National Association of Women and the Law only this morning. It's in English only, but I believe we've passed a resolution that allows us to distribute the brief to members of the committee. The committee will translate it and provide the translation as quickly as possible.

As you know, this is consistent with the rules of the House in that witnesses before the committee can address the committee in either of the official languages, English or French. They have no obligation to translate the brief. It's up to the committee. The committee documents must be in both languages, but not the submissions of citizens of Canada who appear before the committee.

By the way, we have a replacement clerk this morning. Maybe he had to work after we left last night, at 1 a.m. We were working until 1 a.m. on gun control.

Mr. Ramsay (Crowfoot): I have a point of order, Mr. Chairman. On behalf of my Reform Party colleagues, I would like to thank you for the straightforward and fair manner in which you chaired us through Bill C-68. We commend you and we recognize you for that. Thank you.

The Chair: Thank you. I appreciate that.

Ellen Savage is our clerk for today.

I also understand that we have another group that came with the National Association of Women and the Law, a group called METRAC, represented by Susan Bazilli. She has prepared a brief as well. This is the Metro Action Committee on Public Violence Against Women and Children, from Toronto.

We expected to have only one witness group this morning. While we will be able to distribute your brief and you may say a few words, we won't have time for two complete submissions.

I would ask Women and the Law to give their brief first.

Ms Bazilli, if you wish to add any remarks you may. Then we'll have time for questioning.

From the National Association of Women and the Law we have Liz Sheehy, a professor of law at the University of Ottawa, and Lisa Addario, the director of legislation and law reform with the National Association of Women and the Law.

You have the floor, Ms Sheehy. Then we'll go for a short period of time to Ms Bazilli.

Ms Lisa Addario (Director of Legislation and Law Reform, National Association of Women and the Law): Thank you, Mr. Chair.

[Translation]

My name is Lisa Addario and I am director of legislation and law reform wath the National Association of Women and the Law.

[English]

The National Association of Women and the Law is a national, non-profit, feminist organization, and its members are lawyers, academics, students and women from a variety of backgrounds, with a variety of experiences, all of whom share a commitment to gender equality.

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The National Association of Women and the Law would like to commend the Minister of Justice for bringing forth the initiative to restore the common law position, pre-Daviault, that self-induced intoxication cannot be used to defend against charges for offences of a general intent, and the recognition that sexual assault is a sex equality issue that therefore requires that laws be formulated and interpreted in light of all of the provisions of the Canadian Charter of Rights and Freedoms.

As you might imagine, Mr. Chair, we're a little concerned at the lack of consultation that we understand is being done with women's organizations. In particular, further to your comments about the French brief, we understand that translation of this brief was promised to us and it was to be here today. Regrettably, it's not.

The Chair: The House of Commons said they would translate your brief and they didn't do it. Is that what you're saying?

Ms Addario: No, it was the Department of Justice.

The Chair: The Department of Justice was going to translate your brief.

Ms Addario: That's correct.

The Chair: That's a bit unusual. Usually we have a service in the House of Commons that does it. I hesitate to interrupt you, but do you have an arrangement with the Department of Justice whereby they translate your documents?

Ms Addario: Not usually, but for this particular brief they undertook to provide us with a translation.

The Chair: I see.

Ms Addario: Regrettably, we understand that it wasn't done for today.

The Chair: All right. As I said at the beginning of the meeting, I'll look into it, because we try to have both the French and English versions available for every meeting. But all citizens have the right to address the committee in their own official language, either French or English, so please proceed.

Ms Addario: All right.

The last point I'd like to make before I turn the floor over to Professor Sheehy, who has written our brief, is that the women's organization Action ontarienne contre la violence faite aux femmes has prepared a brief and would very much like the opportunity to appear before this committee. We would strongly urge you to hear them, and we commend their views to you.

The Chair: Would you make sure the name of that association, their contact person and their phone number is left with our clerk?

Ms Addario: I'd be pleased to.

The Chair: I don't know what we'll be able to do, because we've already scheduled quite a series of meetings. But we will be glad to contact them and see what can be done.

Ms Addario: Thank you, Mr. Chair.

With those brief comments, I'll now turn the mike over to Professor Sheehy.

Professor Liz Sheehy (Faculty of Law, University of Ottawa; National Association of Women and the Law): I don't propose to read my brief. It's 35 pages. I'm hoping you can have it read into the minutes.

What I would like to spend my time on right now is just a very brief outline of my five recommendations. At the end of that, I think Susan Bazilli would like to say a few words in addition to the substance of my recommendations.

If it's okay with everybody here, I would like to go straight to the main points I'd like to make without giving background and without giving all the context for this bill.

My first points have to do with the preamble in this bill. The preamble to this bill will be of critical importance to the courts when they are interpreting the meaning of this law and when considering its constitutionality. The first concern we have is that the preamble will be in the statute but will not be included in the Criminal Code itself. Its potential force as an interpretive tool may therefore be reduced because it will not be as accessible to judges and lawyers who work with the Criminal Code in court rooms.

So my first recommendation is that in order to keep the text of the preamble accessible to judges and to lawyers, its key features should also be drafted as a purpose statement so as to become part of the text of the law in the general part of the Criminal Code. As a recommendation, this doesn't involve removing the preamble but rather taking out some of the key features of the preamble and reproducing them as well in a purpose statement that would be part of the text of the actual Criminal Code.

In particular, the main points that we feel should be put into the purpose statement are a reference to the disadvantaging impact violence has on the participation of women and children in society. The purpose statement should also state Parliament's goal of ensuring security of the person and equal protection and benefit of the law as guaranteed by sections 7, 15, and 28 of the charter. Finally, it should state that it's Parliament's purpose to reflect society's view that the commission of offences of violence while in a state of self-induced, extreme intoxication is sufficiently morally blameworthy to justify the ordinary punishment for the offence.

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My second recommendation with respect to the preamble arises from a phrase that appears in the next two paragraphs. The next two paragraphs of the preamble refer to the issues that are raised by intoxicated offending.

Paragraph 3 of the preamble makes the important point that:

The first problem with this suggestion is that this part of the preamble may inadvertently lend support to the idea that the defence of extreme intoxication should not be removed if in fact extreme intoxication is causative of the violence.

A second problem is that this preamble may inadvertently reinforce a social belief that it's the alcohol, not the offender, that causes the violence.

So my second recommendation is that in this paragraph 3 of the preamble, reference instead should be made to the high incidence of intoxicated violence as a significant social problem, thereby avoiding allusion to the problem of the exact causal relationship between various intoxicants and violent behaviour.

My third recommendation also relates to the preamble. Paragraph 4 also contains a phrase that has the potential to undermine the thrust of this legislation. It states that Parliament is aware of scientific evidence that ``many intoxicants, including alcohol, may not cause a person to act involuntarily''. The language suggests, I think, that the Supreme Court's conclusions in Daviault may well be factually true, which makes the legislative bar, I think, less persuasive. In fact, it would be more accurate and compelling to acknowledge that there are conflicting expert opinions and that this is an issue that cannot be resolved as a provable fact. No one can know with certainty what degree of consciousness, will or self-control is possessed by someone who is in a state of alcoholic blackout or who is in a hallucinogenic state, given that the key feature of many of those states is, in fact, memory loss.

Similar difficulties arise with respect to determining the state of mind, or capacity, as I've just mentioned, of those who ingest certain drugs. Given that this is an irresolvable, non-factual dilemma, it's exactly the kind of issue that ought to be resolved by Parliament as a matter of social policy, rather than being described as an issue of factual expertise.

So my third recommendation is that the preamble should instead say:

My fourth recommendation relates to the description of the new fault element in proposed subsection 33.1(2) of the legislation. That proposed subsection states that the person is criminally at fault:

This language presents several risks. First, it seems to affirm the proposition from Daviault that the bill is at the same time trying to challenge that one can, as a matter of provable fact, become so intoxicated as to lose consciousness but to continue to act out criminally, thus lending weight to the argument that to deny the defence is to infringe on an accused person's constitutional rights.

The second problem this language presents is that it may amount to an invitation to require a crown attorney to prove, on a standard of proof beyond a reasonable doubt, that intoxication so affected the accused. As a matter of practice, that would be quite impossible for a crown attorney to prove.

So my fourth recommendation is that proposed subsection 33.1(2) should either simply refer to a state of extreme intoxication, without giving all of that detailed elaboration, or they could insert the word ``allegedly'' to suggest that this legislation is not affirming that this is in fact a factual truth. A third way to resolve it would be to reword proposed subsection 33.1(2) to indicate that it applies where the accused has satisfied the court on a balance of probabilities, and then move on to that language. This third possibility would have the effect of conveying that the legislation is simply incorporating the requirements set out in Daviault by the Supreme Court of Canada, without affirming that these are true propositions.

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My fifth, and last, recommendation has to do with the application of this new law. As all of you are aware, the new law will not remove the defence of intoxication for specific-intent offences. All it does is restore the common law with respect to general-intent offences of violence against a person.

While there are very significant charter barriers to changing the law regarding the available defence of intoxication for offences, such as murder, specifically, other specific-intent offences are left untouched by this bill, where it seems anomalous to allow evidence of intoxication to be used as a defence to the charge.

For example, Andrée Côté, in her paper La violence contre les femmes et la réforme du droit criminel: Recommendations en vue d'une réforme égalitaire du droit criminel - it's a paper she prepared for Action ontarienne contre la violence faite aux femmes - has pointed out specifically that sections 151, 152, and 153 are all the offences that involve sexual contact with children. They are all specific-intent offences for which the intoxication defence will continue to be available after this bill.

Given that this bill is aimed at offences of violence, in particular offences of violence against women and children, it seems somewhat anomalous to leave this particular aspect, the offences of this nature, untouched.

We understand that, with respect to this kind of problem, it will eventually be looked at under the reform of the general part of the Criminal Code. We just want to make the point here that, although we support this legislation and we are not recommending a change to it - we'd like to put it on the table now - when the general part will get amended we shall need a new subsection to ensure that the defences of this nature will be included along with this bill.

So the fifth recommendation is that a new subsection be added when the general part will be revised, and that new subsection could read:

This kind of amendment would leave open the possibility that in the future Parliament might legislatively designate certain specific-intent offences as also being off limits for an intoxication defence.

That is the sum of my recommendations.

I would like to pass the floor to Susan Bazilli.

Ms Susan Bazilli (Director, Metro Action Committee on Public Violence Against Women and Children): The first thing I want to say is that I completely endorse the brief that has been prepared by Elizabeth Sheehy.

I'm presenting here on behalf of METRAC as well as the Barbara Schlifer Commemorative Clinic in Toronto and the Feminist Working Group on the Criminal Injustice System.

For the last several months a number of women's groups have been told that we were to appear before the committee; however, in the last several weeks, in trying to get in touch with the clerk of the committee, we were not given any confirmation of when we were to appear. The last I heard was that we were to appear this week. Yesterday afternoon I was told that I was never intended to appear before the committee. So there has been some confusion, and we are concerned about a number of women's groups, including the Canadian Association of Sexual Assault Centres and Regroupement, a coalition of women's shelters in Quebec, which were all on the original list to appear before the committee. We're concerned that they've been lost somewhere along the way.

The Chair: Just to clarify that for you, the problem has been that the gun control legislation was a huge bill with many amendments, and we couldn't predict exactly when we would finish it. We had decided that we would return to Bill C-72 immediately upon completion of that one. But since it was very difficult, considering the number of amendments, we didn't know how many amendments we'd get. We didn't know how long the debate would take. That's the reason. As well, we're not too sure what other matters may be put on our agenda between now and the time for adjournment.

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So we were trying to work in that atmosphere. We intend to complete the bill and hear as many groups as possible, even though we weren't able to schedule them.

Ms Bazilli: I appreciate that, and I thank you very much for allowing me to appear, particularly to endorse the brief Liz Sheehy has presented and to let you know that the position of a number of the women's groups in the country is in the brief you have just heard.

The Chair: Very good.

Ms Bazilli: I don't intend to go through that at all other than to remind you of some of the chronology of the events, which you will see in the two cover pages of my brief.

Since September 30, when the Daviault decision came down, there has been a lot of outrage expressed by Canadians all across the country, and women's groups did a lot of organizing around this. On December 9, I co-ordinated a meeting for the Department of Justice as one of several consultations they held on this issue. The result of our consultation is the position you will find in Liz Sheehy's brief.

That consultation was held on December 9, and after that consultation a group of women's organizations in Toronto formed a coalition called the February 25th Day of Action, basically to send information packages out to women's groups across the country about what was happening and the fallout from the Daviault decision. Women's groups across the country knew this decision was going to be used as a continued excuse for male violence against women, which is clearly what we've seen by all the cases.

A press conference was held in Toronto with this coalition on February 23 and the bill was tabled on February 24, the day before our call for the national day of action.

We commend the minister for Bill C-72. We endorse the bill with the changes as put forward by Professor Sheehy. For your information I have appended - and you'll see those two large packages up there - all of the petitions, correspondence to the minister, press clippings, and correspondence that I received from women's groups across the country on this bill, so you will have some sense of the breadth and scope of concern from communities all across the country and for the strength of which we endorse this position. Thank you.

The Chair: Thank you very much.

We will go ahead with our period of questioning. According to our rules, we start with three ten-minute rounds, one for each of the three political parties associated with the committee. We follow that with five-minute rounds in which we alternate between government and opposition members.

[Translation]

Mrs. Gagnon, you have ten minutes.

Mrs. Gagnon (Québec): I'll pass, since the presentation is in English.

The Chair: Yes, if you want.

Mrs. Gagnon: I would just like to say that we agree with the bill. You have added subtle changes that should be considered, and that's what I'm going to do during the discussions that are going to take place around the table. It is a very interesting bill and I think we have to proceed with it.

The Chair: We can start with the Reform Party.

[English]

Mr. Ramsay, you have ten minutes.

Mr. Ramsay: Thank you, Mr. Chairman.

I'd like to welcome our witnesses to the committee.

Lisa, you mentioned a lack of consultation. We hear that a lot in other areas. What kind of consultation would you find adequate? Could you just tell the committee what you think the nature of the consultation ought to be?

Ms Addario: Perhaps I could clarify at the outset by saying that my specific comment with respect to the lack of consultation is the lack of women's groups that may be appearing before this committee, and Susan referred to the confusion about who was to appear and who wasn't. It was from there that my concerns were stemming about the lack of consultation.

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Consultation in general should certainly take place with the people who are most likely to be affected by the bill, and that's women. A breadth of organizations and groups throughout the country represent women's concerns. The National Association of Women and the Law is one of them. The Metro Action Committee on Public Violence against Women and Children is another.

There is a broad range of groups: the Canadian Association of Sexual Assault Centres; Action ontarienne contre la violence faite aux femmes; shelter workers; legal clinics; aboriginal women's organizations; organizations of women of colour; and organizations representing low-income women in particular, with respect to the various concerns they have. All of them have an important perspective this committee should hear.

It's this type of consultation that needs to be done in order for this committee to go forward in the knowledge that they have heard from Canadian women and can be confident they understand the nature of their concerns about this legislation.

Mr. Ramsay: Do you mean this should be done prior to the formulation of legislation?

Ms Addario: Prior to the formulation of legislation is ideal, absolutely.

Mr. Ramsay: I'm not the justice minister, but if I were, I might go forward with the idea that I know what needs to be done, that this is fairly clear-cut, that this is the type of thing everyone abhors, so what we have to do is put a statute in place as quickly as possible to eliminate this defence.

What I'm asking you is what you would contribute, if you had the opportunity, to the formulation of this legislation. What are the things you think the justice minister should have taken into consideration that he wasn't perhaps aware of when he formulated the legislation?

Ms Addario: If my answer to your question isn't specific enough, I hope you'll come back to me about it.

The implications of a piece of legislation for gender equality, with all due respect, Mr. Ramsay, are not straightforward and clear-cut. Would that they were so. What we know is that what is sometimes drafted and presumed to be in the best interests of women is often not used that way. We need look no further than what the Supreme Court of Canada said in the Daviault decision regarding the limitations of the application of this decision and how it's subsequently being used.

The justice minister needs to hear from front-line workers about how women who are being assaulted and women who have been abused have been treated by the justice system, and he needs to hear from them because they have the expertise in this area.

Mr. Ramsay: Okay.

I would like to ask Liz this. Do you feel this legislation in its present form will withstand a charter challenge?

Prof. Sheehy: Yes, I do. In my brief, in fact, I listed pages of reasons under each particular section that might be used to challenge this law. So I've given my section 7 analysis, my paragraph 11.(d) analysis, my section 15 analysis and my section 1 analysis of this legislation.

Yes, I do feel that in its present form it will pass constitutional challenge. The recommendations I'm making are to strengthen it against such a challenge.

Mr. Ramsay: Did you have an opportunity to present your feelings on the bill? Let me put it this way. You were aware the justice department was looking at the creation of this kind of a bill; did you have an opportunity to send in a brief or express your views on the bill prior to its creation and tabling?

Prof. Sheehy: I was part of the consultative process that gave some ideas originally to the Department of Justice, but none of us are involved at all in their drafting process. So I didn't know what they were going to do, and I certainly didn't see it until it was publicly released. I wouldn't have had any input into how they shaped their exact response. We gave our feedback as to what we thought would be ideal. The legislation being proposed here is not the ideal that feminists have proposed. However, I think it represents a very good compromise among the interests at stake in this issue - and there are a number of interests at stake.

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Ultimately, our position is that this is a good bill and it should be supported before it's enacted, and as well, it should make it through a charter challenge.

Mr. Ramsay: We and the members of our party wanted to move this thing through quickly by striking a Committee of the Whole. We could have done it probably within 48 hours, but the justice minister did want to hear from witnesses such as yourselves.

You feel that if this bill went through as it is, even though you have amendments you recommend the committee consider, it would be a sufficient bill.

Prof. Sheehy: I do. What I've pointed out are weaknesses that could be seized upon and made something of in constitutional litigation. So I'm trying to make suggestions to further strengthen the bill against exactly those challenges, but I do think the bill is sound constitutionally.

Mr. Ramsay: To move on to a broader picture, you and your allied groups are concerned of course about the results of intoxication, of violence and sexual abuse, and so on. Have you addressed alcohol as being a strong contributing factor to this kind of abuse, particularly against women? If you have, do you support or have you made any recommendations as to what actions government should be taking at all levels to either educate or in any other ways reduce the abuse of alcohol?

Prof. Sheehy: As I make clear in my brief and in my recommendations, I don't think there is a straightforward causal relationship between, for example, alcohol and violence. There is evidence that suggests that alcohol disinhibits violence, and certainly in a culture that socially, legally and continually excuses and explains male violence in particular, alcohol is simply one other excuse that can be used to explain and justify that kind of violence. So I don't look at it in the way you're describing it as an issue.

The recommendations I'm making are very much directed at the way the criminal law looks at legal excuses and explanations, rather than alcohol as a social problem. I don't have the expertise to address alcohol in a more general way as a social problem.

Mr. Ramsay: Okay. You see, we're looking at both ends of this issue. What do we do when someone gets this intoxicated and commits a criminal offence, and what can we do to prevent it?

I spent quite some time as a peace officer, and I was in some isolated areas of the country. In a couple of places where there were no liquor outlets, when the liquor ran dry they didn't need me, because there was no violence and there was no need for my presence there. As soon as the liquor came back into the community, they needed me because of the violence that occurred. So I see a very direct relationship between the abuse, if I can put it in those terms, of alcohol and what that leads to.

I'm saying very clearly to you and to this committee that if we could reduce the abuse of alcohol, we would reduce abuse in lots of other areas, including this particular area.

Thank you.

Prof. Sheehy: I would like to respond to that with two quick points.

I think it's true that there are many communities, and some of them are aboriginal communities, that have begun to grapple with alcohol within their communities in very specific ways. That is an example we can take some instruction from. You're talking about communities that have begun to deal more directly with alcohol as a source of problems in their communities.

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The second point I'd like to make is that there is no question that alcohol abuse is also related to our social and economic conditions. I myself can't think of looking at alcohol abuse in the abstract without looking at our social and economic programs in this country.

Mrs. Barnes (London West): Welcome to the witnesses. I know you have a lot to say about violence against women issues, and I want to clarify a few points very quickly.

The first time in our session on this bill, we went through in quite lengthy detail the history of nearly a decade's worth of consultative process on part I of the Criminal Code, which includes the intoxication area. I want to get it straight on the record, again, that the consultation you're concerned with is specific to your groups, but in actual reality there has been a very lengthy time. There have been white papers; there have been committee reports. In November there was a consultation paper circulated, which you did allude to. You had a specific December 9 meeting, which I understand was a one-day meeting specifically on this bill.

Could you just say yes or no to that?

Ms Bazilli: Yes. It wasn't on this bill, though; we didn't have the bill yet. It was on the issue.

Mrs. Barnes: It was on the issue, correct.

Are you not also involved right now in the first day of a three-day consultative session with the Minister of Justice and various officials? Is this not day one of three days?

Prof. Sheehy: Yes.

Mrs. Barnes: Who chose those issues to be discussed over these three days?

Prof. Sheehy: Who set the agenda?

Mrs. Barnes: Yes, who set the agenda on that?

Prof. Sheehy: We did.

Mrs. Barnes: By ``we'' I take it you mean Susan Bazilli -

Prof. Sheehy: No, about 70 women.

Mrs. Barnes: So 70 women set the agenda. I'm making an assumption that this bill will be part of...or both issues. I don't know.

Prof. Sheehy: We don't know. We were in the process of setting the agenda when we came to address you.

Mrs. Barnes: The whole point is...you have how many women's groups here for three days?

Prof. Sheehy: I don't know. We were in the process of going around the room and getting the list of people when we left there.

Ms Bazilli: The consultation you are referring to is the second consultation in Canadian history.

Mrs. Barnes: Yes. And it's the start of a three-day period right now with women's groups, and the agenda is set by the women's groups.

Ms Bazilli: Right.

Mrs. Barnes: I just needed to get that clarified. So many people around this table have been taken up with gun control that I'm not sure that type of information is known right now.

I appreciate the fact that you've done constructive work. I know I will be looking at this in detail for the bill. Right now a lot of us haven't had time to absorb the detail in here.

The bottom line is that I think it's important for your testimony today to advise the committee whether or not you in fact support the bill; whether or not you in fact support rapid implementation of the bill; whether in fact you feel Daviault did create a problem area for women; whether this bill will in some way help those issues of violence against women; and whether or not you believe that. We've had situations where legal expertise comes and centres so much on what needs to be amended that some of the testimony doesn't say what is good and whether the purpose is being fulfilled.

From my point of view as a member, I saw a vacuum created after a legal decision. and this goes a way to filling the hole that's now there. I'd like to turn the rest of my time period over to you so you can respond in whatever ways you wish.

Ms Bazilli: In terms of supporting the bill, the first point?

Mrs. Barnes: Yes.

Ms Bazilli: My position is that I support the bill with the recommendations put forward by Liz.

Ms Addario: Speaking for the National Association of Women and the Law, I'm of the same view. Liz's recommendation should be incorporated into the bill.

Mrs. Barnes: Do you support the purpose of the bill?

Ms Addario: Yes, I do.

Mrs. Barnes: I want to talk about women's violence as an equality issue. We've already seen, and I think your paper alludes to the fact, that potentially there could be charter challenges based on equality. What about violence against men, for instance?

Please address that for me.

Prof. Sheehy: Although the bill itself in the preamble identifies violence against women and children as part of the concern Parliament is directing itself at, in fact the legislation itself is gender neutral. It includes, of course, offences of violence against men and any violent actions committed by women offenders.

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As a piece of legislation, it's gender neutral and quite immune from charter challenge from that point of view - unless our courts suddenly took a very feminist interpretation, which looks quite unlikely after cases such as Symes and Thibaudeau.

I'd say that this legislation does not in any way offend section 15 rights, and in fact it goes some distance towards supporting at least women's section 15 equality rights.

Mrs. Barnes: In your brief on page 27, you note that the Supreme Court has recognized that sexual assault is the equality issue for women. You cite Osolin and Conway, and you go on to say that sexual violence targets women and results in our unequal access to security of the person and unequal participation in society. Because I know you have the expertise in this area, I would like you to expand on that for the purposes of the record.

Prof. Sheehy: My argument here is essentially that the courts have recognized that sexual assault is an equality issue, and I, in my other prior work on behalf of the Canadian Advisory Council on the Status of Women, and in this paper as well, have identified some of the implications for women that flow from the Daviault decision. These are all listed in this brief. I'll identify the page for you.

Pages 8 through 10 are summaries from my earlier work in which I've identified the specific implications of Daviault for women. I talk first about Canadian statistics that show that significant alcohol consumption is a serious social problem and that intoxication is strongly related to the occurrence and severity of offences of violence, including wife assault and sexual assault. I then talk about the disparate rates of alcohol abuse and engagement in offences of violence by men. I also talk about the statistics in terms of the reported decisions since Daviault, which indicate a total of ten acquittals based on extreme intoxication, eight of which involved offences of violence against women. Some of these are cases that came before Daviault and some are post-Daviault, but they're all using the same legal reasoning, the same legal principles. So of ten acquittals, we have eight involving violence against women.

My third point is that extreme intoxication as a defence works to reinforce and excuse male violence against women by attributing the blame to alcohol, minimizing the significance of the violence, focusing on expert accounts of men's alleged mental states, and claiming that, pursuant to charter values, someone in this state who admittedly has performed an act of physically assaulting, sexually assaulting, or even killing a woman is morally innocent.

The other point is that this defence will reinforce these men's own view that they did nothing wrong.

As well, this clearly presents an opportunity for planned alcohol use as a defence.

The next point is that this new defence will have an impact on the filtering of offences of violence against women. It will affect women's ability to identify and report violence against them, because the message from the Supreme Court is that this behaviour is not criminal if the man is extremely intoxicated. It will affect police decisions as to whether they file charges, and it will affect crown attorneys' decisions about the pursuit of charges.

The end result of Daviault, this filtering, may well be that even more violence against women will be removed from the criminal courts, thus effectively decriminalizing the behaviour. The problem is that when cases get filtered out, we don't even have the statistics. We don't even have the knowledge as to the actual impact of a case such as Daviault.

Those are some of the implications. As I said, the court has recognized that sexual assault is a sex equality issue. With that kind of analysis, you could certainly argue that the Daviault decision and its legal implications have a disparate impact upon women, which is a viable theory of sex discrimination. Basically, I'm arguing that in fact there would even have been some sort of charter basis for making the legislation sex specific.

The legislation is sex neutral, so I think it has absolutely no section 15 problems.

Mrs. Barnes: Would anybody like to add to that? Because that's what I'd like.

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Prof. Sheehy: Will this brief be read into the minutes? I decided to spare you all on the assumption that it could be.

The Chair: I was going to ask at the end of the meeting for the committee to agree that it be made part of the record with the other brief from METRAC.

Mrs. Barnes: Mr. Chair, that's affecting the way I question this witness, so I would really like to clarify that now. If it's going to be read in, it's -

The Chair: Does the committee agree that the two briefs be attached to the Minutes of Proceedings and Evidence?

Some hon. members: Agreed.

[Translation]

The Chairman: Madame Gagnon, you have the floor.

Mrs. Gagnon: You were talking about a lack of consultation. You said that you wished more women's groups would be heard during those consultations. Did you circulate among the groups who will not be coming the recommendations that you are making here this morning? Did you try to get the support of other women's groups on the recommendations you are making this morning?

[English]

Ms Bazilli: The first point about the brief is that francophone groups have not been able to receive it in French because we don't have a French translation. That is why it was very important for us to make the point about some of the francophone organizations who wanted to appear before the committee. They haven't been able to read it yet.

With regard to other women's organizations, a number of women's organizations have received a brief within the last two days, but at this point there hasn't been wide distribution of the brief.

Prof. Sheehy: But we hope that some of those groups may write in to the committee once they have access to this brief.

[Translation]

Mrs. Gagnon: That would be interesting, because if in all the women's groups there was a consensus on your recommendations, this would give them greater weight.

You said that we should give more emphasis to violence against women. You also said that the aboriginal people are aware of the problems and that they are using some means to educate people, if I understood correctly.

Do you think the government should launch an education campaign as we did in Quebec, for instance regarding drinking and driving? Do you think that that type of action would be welcomed by the public?

In fact, I do not know of any government program to educate the public on wife assault and on the fact that alcohol encourages violence.

[English]

Prof. Sheehy: My earlier response was with respect to the fact that I know some aboriginal communities have imposed bans on alcohol in their communities. I was saying that those are communities that we might take instruction from to see how they've identified alcohol as a problem and what they've done about it within their communities.

In terms of public education campaigns around wife assault and alcohol, I would like to see education campaigns around wife assault. I'm not sure whether linking the two in an education campaign is particularly useful.

Ms Bazilli: Not only would it not be useful, I think it also would be quite harmful, because one of the things we do know is while there is a link between violence against women and alcohol, it's not causal. So in fact we would do ourselves a great disservice by trying to make the link appear causal. Women who work in shelters as front-line workers know that when they get calls wherein men are involved who have been using alcohol, they can anticipate when the violence is going to happen. But a lot of cross-cultural studies around alcohol abuse show that there's no link between violence and alcohol abuse - sleep maybe, but not violence.

We've been informed particularly instructively by one of the cases post-Daviault in Saskatchewan, where a man, on a hunting trip with his buddies, went on a 32-hour drinking binge while taking his prescription medication. He was not violent at any time during his 32-hour trip and drinking binge until he shut his door at home, when he started beating up his wife. The violence was very specific to women in that case.

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We're caught between not wanting to make it causal because we don't believe it is, and knowing that women clearly experience a link in their lives. I think what we need to do is talk about education programs around the whole issue of violence against women and children, and those programs require dollars.

[Translation]

Mrs. Gagnon: You say that there are no programs and that very little education is done on violence against women.

[English]

Ms Bazilli: There certainly aren't enough programs that are effective on the issue of educating about violence against women. If there were, one would hope we wouldn't have to keep appearing before the committee on this issue.

[Translation]

Mrs. Gagnon: I think that the «Buckle up» and «Don't Drink and Drive» campaigns have had lasting effects. A great many people do buckle up now and people are also drinking less alcohol when they are driving. I think that the campaigns have had an impact. Do you think that that type of action would be desirable?

[English]

Ms Bazilli: It was useful because sanctions were applied to people who drank when they drove and who didn't buckle up their seat-belts. They were fined or they were charged.

In our country, the problem is that we have a criminal justice system that is not responsive to the issue of violence against women, so there are no sanctions for many men who engage in this kind of violent behaviour. Therefore, to see the Daviault decision from the eyes of women who were reporting violence meant that they knew there was no point in calling the cops: he was drinking.

On university campuses all across the country we're hearing stories of young men who were saying, well, if I drink now and do it, will I get off? Or what about if I do it, and then drink so much I'll be so drunk that I can just claim it as a defence?

So there were no sanctions in place. It's not like wearing a seat-belt.

The Chair: I want to ask a few questions. One is with respect to the process. This was a bill that had the support of all political parties in the House of Commons when it was presented. As a matter of fact, as Mr. Ramsay says, some members wanted to pass it immediately without even going to committee. They were willing to have it dealt with in Committee of the Whole and pass it quickly.

On the other hand, the minister felt there were certain aspects of it, especially the constitutionality, on which he would like to hear evidence. So it was referred to committee, but then we were faced with this dilemma. I go back to the consultation process you've proposed.

We knew when we received this bill in April - and we had already started with the gun control bill - we had a choice of either calling a lot of witnesses and not having the bill passed before the summer, or having it delayed until next fall. That is still a dilemma.

Everybody, even feminist groups, seemed to support the bill, from what we read in the letters. They all supported it, although they came from different backgrounds, and their recommendations were not too different.

In order to get the bill through quickly, we decided on a selection of witnesses, but not from all the groups. For example, we have called CASAC, the Canadian Association of Sexual Centres, to appear, although a date hasn't been fixed, and as well, un groupement québécois des maisons de transition. This afternoon we are hearing the Barreau du Québec, and tomorrow the Canadian Bar Association. They have a committee on these matters.

By the way, we were hoping to hear from LEAF today, but they decided not to appear.

Ms Bazilli: I would just like to set that straight: LEAF never requested to appear before the committee.

The Chair: I see.

Ms Bazilli: This is where some of the confusion came from. A list appeared with a number of names on it. LEAF was one of them and so was I, but LEAF had never requested to appear.

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The Chair: We try to hear from invited groups in addition to groups that ask, to get a balance. We know LEAF to be an organization that has done a lot of work in this field. We have lists of groups and we asked LEAF to come.

Of course, the minister has something to do with this as well as this committee, but we could greatly expand our list. I don't know if we would gain that much in new evidence, because we have overwhelming support, and we wouldn't get the bill passed quickly. We lose two or three months during the summer when Parliament isn't sitting.

We've invited these other groups to send in their briefs. I think we asked Ms Bazilli and METRAC to send in briefs. Some groups wanted to appear but we couldn't hear them all, so we asked them to send in their briefs.

I'm caught in this business of trying to get the bill through quickly that all parties support, including the feminist groups. Should we continue to hear witnesses or get the bill through? We don't have the final say on this because the minister might have something to say too, but I'd like to hear your views on that.

Ms Bazilli: I think part of what we were reacting to was the frustration of not being able to get the information. I've never received anything from the committee or the clerk and I've never had phone calls returned. So I just came. We don't want to delay the process.

The Chair: I think that was due to the fact that we were really up to our ears in the gun control bill. It was an overwhelming job. It was a huge bill with hundreds and hundreds of amendments.

Ms Bazilli: We don't want to delay the process. I'm glad that the Canadian Association of Sexual Assault Centres is on there, as well as Regroupement des organismes orienteurs du Québec and Action ontarienne contre la violence faite aux femmes.

The Chair: We also have the Canadian Psychiatric Association and the Addiction Research Foundation. We've already heard from two expert law professors in the field, Healy and Boyle. So we're trying to get a selection of witnesses but not delay the thing too much.

Ms Bazilli: We just want to put it on the record that we don't want to delay it. As long as there are enough representations from francophone women's organizations, who will have had the chance to see Liz's brief in French, and the Canadian Association of Sexual Assault Care Centres, I'm happy with that, speaking for METRAC and the other groups I'm representing. It all must speak for itself.

The Chair: We appreciate the suggestions you have made this morning.

There's another thing I wanted to ask you. In my experience, having dealt with men and men's groups over the years, there are many men who are violent and never take a drop of liquor. They're violent toward their spouses, their girlfriends, and other men. They are violent, and I think alcohol brings out the violence in them faster than it might otherwise be expressed. They might be under a certain amount of control without the alcohol. Once they have alcohol, their violence becomes manifest much quicker and to a greater extent.

We don't seem to have many community rehabilitation programs for men who are well known to have problems with violence and may not have been convicted. There's very little there to help them. It's hard to get them into programs. It's hard to get them to go to the Royal Ottawa Hospital or wherever, where they might get psychiatric help. There doesn't seem to be that sort of community support, help or rehabilitation-type program in the community for people who have not yet committed an offence but need this kind of help.

What's your experience, and what would your recommendation be in that respect? We can convict these people of offences under a law such as this, but in the long run, if you want to prevent it you have to go back to the source and the cause and try to stop it from taking place, not simply rely on penalties to convict where violence has taken place.

Ms Bazilli: You said they haven't been convicted, but it doesn't mean an offence hasn't been committed.

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The Chair: Oh, of course not.

Ms Bazilli: They haven't been charged.

The Chair: Exactly.

Ms Bazilli: I think this is an issue we as a society have to look at really seriously. We have to look at it seriously in the context of what we're doing to the social and economic fabric of our country and what are the priority issues in which we want to put our resources.

There are some programs that are being developed in some parts of the country, but I would submit that only when they're done in consultation with the women who are themselves affected by the violence from those men will they be helpful. Certainly we are not here to give any credence or support to any law and order agenda. This bill is not about locking more men up in prison.

What we're talking about is finding ways of not recognizing in law excuses for male violence. Incarceration is obviously no answer to an alcohol abuse problem. I think we need to look at it. There aren't enough resources. There has been a lot of criticism by women's groups of some of the male treatment programs that do exist. We have to look at that criticism and the outcome.

We really have to look at our resources in terms of the future, because we know violent behaviour patterns start at such a young age that prevention also must deal with massive education programs for the young as well as trying to deal with the end cause.

Ms Meredith (Surrey - White Rock - South Langley): I would like to go on record as making a couple of statements, and then I'll get into some questions. One, I think it is very important that we realize this bill is not just about violence against women, but about violence in general, when intoxication is used as a defence.

The other is that we keep referring to alcohol, and it is not just alcohol, it is all drugs that get drawn into this legislation - thank heavens. What we have seen, at least in the area I come from, is cocaine psychosis becoming a defence. I would like to see that stopped.

What I would like to clarify here - and I will address my comments and questions to you - is that I got the impression from your presentation that you do not buy into the business of automatism, that you don't feel there's enough scientific proof to support that theory. Did I read you right?

Prof. Sheehy: What I would say more specifically is that I think it's not an issue that is capable of scientific proof. In my opinion it's actually a social and moral issue rather than an issue of fact. I disagree with the way the courts have treated it, as if it is an issue of fact. My view is we ought to be saying socially that this is a moral and social issue, not a factual issue, not an issue for the psychiatrists to decide for us.

Ms Meredith: I appreciate that, because one of the questions I asked our previous witnesses was if they could provide us with scientific studies that would support the theory, and I don't think we have received anything in the committee yet that would do that.

Prof. Sheehy: That supports which theory?

Ms Meredith: Of automatism, that it isn't that.

Prof. Sheehy: The judges' theory.

Ms Meredith: Yes.

Prof. Sheehy: Well, I know the judges did have some access to some expert evidence. The point is there are at least as many experts, if not more, on the other side who say this theory doesn't work. Certainly, when you're talking about the kind of violence we're talking about here, it is not random violence.

So the automatism theory on these specific facts, you know, cases where someone very specifically targets their partner rather than anybody else they have spent the last 10 hours with, I think indicates that automatism as a theory still doesn't negate the idea that the person can be willing and conscious at an important enough level to identify who it is they want to take out their rage upon. So even if you buy automatism, it doesn't mean there shouldn't be criminal responsibility.

Ms Meredith: But I think the fear is that now there are acts of random violence where this could also be used, that it isn't specifically picking your target, it might be just picking a person and then using this as an excuse afterwards.

The other thing I picked up from your comments is this. If you felt this present legislation we're dealing with should have any change at all, what I read from you is that the preamble should be re-drafted, if you will, to make it shorter and more specific and brought into the legislation as what I think you referred to it as a statement of purpose.

Do you feel that is the most important thing, or the thing that is missing the most in this? Because the bill itself is very short.

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Prof. Sheehy: I guess it would be one of the two things I consider to be most important. The other is the way the fault element is drafted. That is a concern for me - the fault element of the actual law - where there is this reference to this state of automatism. I actually worry that this is a problem in the way it's drafted at this point in time.

Ms Meredith: So then there would be two issues. One is to redraft that particular reference, and the second one is to have a statement of purpose.

Prof. Sheehy: If you asked me to prioritize what I think are the two most important issues, I'd say those two. Between the two, I'd be hard pressed to tell you which I think is more important.

Ms Meredith: But you would suggest that both of those need to be addressed if this bill is going to be effective.

Prof. Sheehy: Yes.

Ms Meredith: Thank you.

Ms Torsney (Burlington): I have a couple of questions, some of which you may have already covered in your brief, but I wanted to get them on the record since part of this is to make sure people are educated about the process.

Firstly, is this the way to go, or should we have created a criminal intoxication offence instead?

Secondly, should we implement this right away or should we refer it to the Supreme Court for a non-binding advisory opinion?

Thirdly, as you've noted and as Ms Meredith has noted, there is an extensive preamble and we're increasingly being asked to put preambles into bills that we are doing. I think the rape shield and perhaps one other are the only ones that currently have preambles. Could you elaborate on why the preamble is required, does it clarify or strengthen the bill, and what purpose does it ultimately serve?

So I guess those were three broad areas and a couple of subsections.

Prof. Sheehy: I probably can't answer this very effectively in three minutes or whatever, but I'll at least point you -

Ms Torsney: Oh, the chair will be lenient.

The Chair: She's allowed five minutes to put her question. You can go beyond the five minutes, but not beyond 12 p.m.

Prof. Sheehy: With respect to your first question, which was about the other option of creating a new criminal offence, I think this is a vastly superior option to creating a new criminal offence. On pages 35 to 37 of my brief, I give what I think are the ways in which this is a superior option.

One of the problems with creating a new criminal offence is that certain groups will be vulnerable to selective law enforcement. Whenever you create a new criminal offence, there's a real issue of who will be caught within the web. When you're talking about intoxicated violence, there's no question that certain groups of men are going to be targeted by that kind of new offence.

The other point I probably can't make very simply here, but the whole idea of creating a new criminal offence was premised on the idea of abandoning the old common law distinction between specific intent and general intent offences. That abandonment, I think, would have opened up even more offences for the intoxication defence, which I think would have even worsened the situation that we have. So in my view, the other way in which this is a superior option is that it does not do that. It retains the positives that we do have, and it builds in this exception.

The idea of keeping this legislation as opposed to creating a new offence is also important in the sense that it doesn't create.... The new offence would have had to have a name. It was going to be something like ``criminal intoxication'' or ``criminally negligent intoxication'', but names like that lose what we're talking about here. We're talking about manslaughter. We're talking about assault. We're talking about sexual assault. I think it's very important socially, politically, and even for statistics-keeping, that we be clear about what we're talking about. This option, Bill C-72, retains the offence and simply limits the availability of the defence.

This option also avoids the problem of causation, which would have been inherent in any creation of a new offence of criminal intoxication. All of the various options that were presented had something about criminal intoxication causing harm, causing violence. I think we would have had an enormous problem in trying to prove causation in the courts, and I think there is expert evidence all over the place on this issue.

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A new offence would have also created other very difficult prosecutorial problems, such as requiring prosecutors to prove the degree or state of the accused person's intoxication, which again is going to be very difficult for a prosecutor to do. A new or included offence would have also had its own set of charter vulnerabilities.

I've referred in my brief to the work of Patrick Healy. He has done a very thorough job of identifying all of the charter problems associated with this idea of creating a new or included criminal offence.

Finally, by limiting the new defence rather than creating a new criminal offence, Parliament has avoided the difficulty of trying to come up with the sentencing scheme, and that would have been a real problem. There is a lot of disagreement, of course, about what the appropriate sentence should be for someone who's intoxicated, and by creating a new offence and perhaps creating a lower regime for sentencing, we really would have been creating a social idea that it's less morally blameworthy to commit these offences while intoxicated.

To wrap up this point, I think all of the options before Parliament in response to Daviault are fraught with charter difficulties. There is no question about that. All of them are difficult. It seems to me that Parliament has done a very good job and has taken a lot of time, because although this response to Daviault may look quick, in fact the government has been looking at reform of intoxication over the last 10 years, has commissioned a number of papers, and has looked at the work of the Law Reform Commission. It has put a lot of thought into evaluating the strength, weaknesses and constitutionality of all of the options before it.

I think when you look at the situation and you see how fraught with difficulty each option was, it is quite appropriate for Parliament to finally make a decision, with that kind of background and with that wisdom of all of those years of research and thinking about the question, and it's my hope that the Supreme Court of Canada will give due deference to Parliament's judgment on an issue that is complex and very difficult.

Your second question was on the reference. I find that a difficult question. I guess one of the benefits of a reference would be that it wouldn't be at an individual woman's expense. We will find out what the terrain is without it having to cost one individual woman whose case is going to work its way up through the courts. It would also mean we wouldn't have a long period of conflicting decisions across the provinces as to the constitutionality of legislation and individual judges making their own decisions. So in some ways the reference has strong points.

The problem with the reference, of course, is that you won't have the same factual context in which a court can look at the case and appreciate the kinds of contextual issues we're talking about in giving our background to this legal problem.

I don't know if my colleagues would like to add anything to the reference.

Ms Bazilli: I have two points about the reference. I agree with everything Liz said; it is problematic. I mean, do we let it wind its way through the system? On the other hand, I have absolutely no faith in the Supreme Court, which allowed the Daviault decision to put us in this position, to then decide on this bill.

Secondly, I think it's fundamentally undemocratic that we go through all of this process, including the last 10 years that Liz spoke of, and then send it to the court and let it decide on it. I think the government has an obligation to support its own legislation, and if there's a constitutional challenge, the government must intervene and argue forcefully for the legitimacy of its own law.

Prof. Sheehy: Your third question was in respect of the preamble, and you were asking whether this preamble strengthens the bill or if it serves an important purpose.

I think it does serve an important purpose. It flags for the courts the specific problems this bill is intended to address. It identifies the public policy concerns behind the bill. It identifies the constitutional rights that are at issue in this bill, which is also very important. It gives an indication that Parliament has considered all of the conflicting interests and rights here and this is its considered response to those conflicts.

I think it is important that in the preamble it identifies issues of violence and violence against women and children, because in fact I do think it is a specific issue that has prompted this legislation.

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In fact, the cases that have come out of Daviault and the public response has been, to a large extent, focused on the issues of violence against women and kids. So I think that's appropriate. But at the same time, the law itself is gender neutral and covers all citizens in its application, so I think the preamble really strengthens the bill in a very important way.

So, yes, I do think that it's important and that it serves some very specific purposes, both in terms of public education and in terms of informing the courts, both in terms of applying the bill and in terms of considering its constitutionality.

The Chair: I want to sincerely thank you. Both briefs will be attached to the record of today's meeting.

Mr. Lee (Scarborough - Rouge River): You referred to both briefs, and I've read one. The other one -

The Chair: The other one was presented to us by Susan Bazilli on behalf of the Metro Action Committee on Public Violence Against Women and Children, known as METRAC, from Toronto.

Mr. Lee: You have it there.

The Chair: We only have one copy but we will get it photocopied so you can all have a copy. We will also have it translated into French.

Mr. Lee: I assume it's a very good brief and worthy also of translation and being appended to the record.

Thank you, Mr. Chairman.

Ms Bazilli: The bulk of my brief is the same text as Liz's brief; therefore, you need only translate the first two pages. We will be sending to the committee the translated version so that you don't need to start the process of having my brief translated. We will be mailing to you our translated version.

The Chair: Okay.

We are adjourned until 3:30 p.m.