[Recorded by Electronic Apparatus]
Tuesday, June 6, 1995
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[English]
The Chair: Order.
Ms Meredith (Surrey - White Rock - South Langley): Are there other copies of the brief?
The Chair: I'm asked if there are other copies of the brief. I don't know. It's being circulated now. The brief is bilingual.
We will continue our examination of Bill C-72, An Act to amend the Criminal Code with respect to self-induced intoxication.
We have with us, from the Canadian Bar Association, Michelle Fuerst, the Chair of the National Criminal Justice Section; Sheldon Pinx, whom we saw recently - it seems, Mr. Pinx, that I saw you just a couple of weeks ago -
Mr. Sheldon E. Pinx (Vice-Chair, National Criminal Justice Section, Canadian Bar Association): You did. We were here.
The Chair: - and Joan Bercovitch, Senior Director, Legal and Governmental Affairs.
We have your brief, for which we thank you. Since it's being distributed to all members of the committee, if you can simply refer to it or speak to it, rather than read it all, that will be helpful. However, if you insist, you can read it, I suppose. Otherwise, if you don't read it, we'll attach it to the proceedings of today's meeting so that it will be part of the record.
I give you the floor to give us your views with respect to Bill C-72.
Ms Joan Bercovitch (Senior Director, Legal and Governmental Affairs, Canadian Bar Association): I'll just introduce Ms Fuerst and Mr. Pinx. They are, as you mentioned, the chair and vice-chair of the National Criminal Justice Section of the Canadian Bar Association.
The Canadian Bar Association is a national organization representing over 34,000 lawyers across Canada. Central to the mandate of the CBA is improvement in the law and in the administration of justice. Our submission to you this afternoon is consistent with that objective.
Ms Michelle K. Fuerst (Chair, National Criminal Justice Section, Canadian Bar Association): As many of you know, the Canadian Bar Association has been supportive of the initiative to reform the general part of the Criminal Code, and it has been our understanding that self-induced intoxication would be addressed as part of that general reform process.
We remain of the view that it would be preferable to deal with the issue of self-induced intoxication as part of that overall review of general principles of criminal law. But, having said that, we of course are aware of the public concern that has been expressed in light of the decision of the Supreme Court of Canada in Daviault about the apparent expansion of the defence of intoxication.
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We do believe, as the Supreme Court of Canada emphasized in its decision, that if the case law were given an opportunity to develop, it would become apparent that a complete acquittal based on intoxication would be the exception rather than the rule. Nonetheless, we do recognize that there are public policy concerns that are such that Parliament may well wish to deal with the issue of criminal intoxication now rather than waiting. Our comments to you today are made within that context.
I should say at the outset that our position is that the distinction between crimes of specific intent and crimes of general intent must be preserved unless and until a more comprehensive reform of the criminal law takes place. Indeed, this was recognized by the majority decision of the Supreme Court of Canada in Daviault, and we believe it is a principle that is recognized in Bill C-72.
By preserving intoxication as a defence to crimes of specific intent but in effect disallowing it as a defence for general intent crimes of violence, the law is largely being returned to its pre-Daviault state and public policy concerns are addressed.
We believe the approach taken by Bill C-72 is appropriate in that we believe there indeed is a link between intoxication and crimes of violence, and what Bill C-72 does is it designates the violent nature of an offence as the criterion for limiting intoxication in the context of general intent crimes.
It may be that in light of the Supreme Court of Canada's views, as they were expressed in the majority decision in Daviault, Bill C-72 could be challenged under the charter, but we do note, having reviewed the Daviault decision, that section 1 of the charter did not seem to be canvassed before the Supreme Court of Canada. The majority decision in that case in fact expressed the view that it was not necessary to consider a section 1 justification for the legislation because the court was dealing with a common-law rule as opposed to a statutory provision.
What we believe is that a compelling argument could be made to justify the kind of statutory provisions that are contained in Bill C-72 pursuant to section 1 of the charter.
The comments we have made in our brief are really suggestions for clarification of language, and we have made these suggestions because we believe they will cure the bill of certain ambiguities of expression that currently exist.
Those are the general opening comments we had wanted to make and we're happy to address any specific questions that members of the committee may have.
The Chair: Very good. We'll follow our traditional method of questioning; that is, we start with ten-minute rounds for each of the three political parties, starting with the Bloc Québécois, and then we have five-minute rounds in which we exchange between the government and opposition members.
[Translation]
Mr. Caron, you can begin if you wish, but, if you prefer, I can give you the floor later.
Mr. Caron (Jonquière): I will begin. I thank you for your brief. It is unfortunate that we did not have time to read it beforehand, but my questions will not necessarily bear on your recommendations. You stated right from the start that you agree with reforming the Criminal Code and that the changes considered in Bill C-72 could perhaps have been included in such a general reform. Do you think there would be major problems in passing immediately Bill C-72 and that we would have to come back to the matter of self-induced intoxication when the time comes to deal with a reform of the general provisions of the Criminal Code?
[English]
Ms Fuerst: It may well be that if a more comprehensive reform of the criminal law is undertaken in the course of which one is looking at general principles that underlie both offences and defences and general principles of criminal law, this would be an issue that one would come back to, especially because one could anticipate that in that context one might want to look at the nature of the distinction between general and specific intent offences.
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I don't necessarily think one is for closing the door on looking again at the issue of intoxication in the course of a broader reform process.
[Translation]
Mr. Caron: On page 8, at recommendation number 4, you state that Bill C-72 should be modified in order to include a complete list of crimes for which intoxication would not be a defence. I do not know if that is in your brief but could you give us some examples? It might be difficult to have a complete list of such crimes. Have you tried to draw up such a list?
[English]
Mr. Pinx: The organization hasn't sat down and gone through Criminal Code section by section to see which offences should or should not be included in this list we are recommending. But without question, there are many sections of the Criminal Code that when you read the language are sometimes a little bit unclear as to whether we're talking about crimes of specific intent, crimes of knowledge, or crimes of general intent.
In our view, it certainly would be helpful if a list were generated by Parliament to propose to you and others to look at as to whether or not we can perhaps narrow down those offences where we would propose that the defence not be available. Our reason was simply for certainty and clarification, so that it would be easier for the triers of fact - be it a judge or a jury - maybe to identify when this particular situation would arise and where the defence would not be available.
Ms Meredith: I'd like to follow up on the latest comments about the need to clarify where the defence is not available. Why would you not feel that a clarification of where the defence is available would be a better way of handling it and be very specific as to when it can be used?
Mr. Pinx: I think it's quite clear from the legislation itself that the legislation is attempting to confine itself to what they categorize when you read the preamble and the context of the legislation. Language such as general intent or basic intent is used.
I think it's quite clear what is the purpose of the legislation. It's not attempting to encompass or to grasp those offences involving specific intent crimes. So we begin with that premise, that those crimes that are specific intent crimes are not included in this particular piece of legislation. It's not to apply to those.
That having been said, we then move on to those other categories of offences in the Criminal Code, and there are many of them, where intent, in our view, is really not that clear as to what level of intent would be required for that crime. What we're looking for is really some assistance, to assist us in Parliament, perhaps saying for which offences you would say this particular defence would not be available.
So I think the easier question, quite frankly, is that this legislation is certainly confined to non-specific intent cases. Specific intent cases, I think, clearly are very limited these days in terms of what Parliament has really said is a specific intent crime. There are many more offences out there that would fall into the in-between categories in our view, and that's why we were looking for some assistance in that area.
Ms Meredith: I guess that's why I'm still confused, even after your explanation. If there aren't that many specific intent crimes - and I would suggest that first and second degree murder would be considered specific intent crimes - what other ones...? If there are fewer of those, then the more general or non-specific crimes.... Why wouldn't you say these are specific intent crimes we've identified and this bill would not encompass those?
Mr. Pinx: Certainly that's one way of going about it, but maybe I'm not making my point clear. There is a large category of offences in the Criminal Code where the distinction between specific intent and general intent, quite frankly, is not that clear. I think we can break out those crimes that are clearly specific intent crimes. Such offences as theft, murder and attempted murder are clearly crimes that have been defined over and over again as crimes of specific intent.
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Ms Meredith: Are you suggesting the specific intent crimes be identified as not being available?
Mr. Pinx: No.
Ms Meredith: So you are arguing the reverse.
I want to leave this because we only have 10 minutes. I'm still just as confused as I was at the beginning, so I'll remain in that confused state.
Ms Fuerst: Can I just add one thing? If you look at some other provisions in the Criminal Code, for example, that deal with some of the sexual offences, the approach that has been taken is to specify when a defence is not available. If you look at the defence of consent, for example, there are provisions in the code that clearly say when this defence will not apply.
It would at least be consistent with the approach that has been taken to date to specify when intoxication would not apply as a defence.
Ms Meredith: I guess I'm following that argument, and if it isn't clearly defined, do you list all those things that are not specific intent? They're in this big grey area. How would you make sure you caught them all? I do want to leave this and go on.
This morning witnesses indicated a real concern because we have this very large preamble that would not be included in the Criminal Code itself. They felt that would be a real deterrent, not only to police officers in knowing the intent and how to lay the charge or use the charge, but to lawyers as well. Would you agree with that?
They felt perhaps a short summary of the most important parts of the preamble should be written into the legislation as a statement of purpose. Would you agree with their position?
Mr. Pinx: I don't see how a statement of purpose is going to assist in the laying of charges. Charges are laid because the police have reasonable probable grounds to believe an offence has been committed.
We have to be mindful that this legislation is addressing the other side of the equation. It's the defence that is being addressed; it's not the offence, which is the laying of the charge. The laying of the charge is within the discretion of the police. In my view it would not necessarily have to incorporate the anticipated defences an accused might raise down the road at his or her trial. I think that distinction can be addressed in that fashion.
With respect to the second part of your question of whether we would gain something at the end of the day by having the preamble as part of the legislation, I think there are arguments pro and con for that particular situation. I think the important thing, as far as the bar association is concerned, is simply that at the end of the day we would hope when one looks at this particular section, two sections, or three sections, that it's clear to those who will be applying it when it should be applied. That is the most important thing. I think it's very close to achieving that purpose, if not already there, by the way it's drafted at this particular stage.
Ms Meredith: What would be the negative effects of having a summation of the preamble in the legislation? When you said there would be some negative and some positive aspects, what would the negative aspects be?
Ms Fuerst: The bar association in the past has taken the position that there should be a statement of principles for the Criminal Code. But that's a statement of principles that, in our view, should apply generally to the Criminal Code. If you're looking for an example or precedent to follow you can look at the Young Offenders Act, where there is a statement of principle, but it's a statement of principle that applies to all aspects of the Young Offenders Act and is to be used as an interpretive aid to all aspects of the Young Offenders Act.
I think what you're talking about is perhaps incorporating a statement of principles that has a more narrow kind of application, which raises the question: every time you mend the Criminal Code are you going to insert a statement of principle only in respect of that set of offences or that particular defence? We would prefer to see an overall statement of principle that applies globally.
Ms Meredith: So you would be looking for that in the overall review and rewriting of the general part of the Criminal Code.
Mr. Pinx: Exactly.
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Ms Meredith: Another thing that was brought up this morning was the use of automatism in defence and whether or not there is a scientific, supportable argument for that. How do you feel?
Mr. Pinx: In terms of -
Ms Meredith: They felt there wasn't any scientific evidence that could prove that when a person reached a state of intoxication they thus reach this point of automatism.
Mr. Pinx: I don't know whether the bar association at this early stage, and I say that - it can take a position one way or the other on that point. We certainly accept the opinion in the sense that certainly I assume Justice is well founded in their minds to make that statement.
Ms Meredith: It didn't come from Justice. It was the witness this morning.
Mr. Pinx: I think there's some reference to it in the preamble, if I'm not mistaken - something to that effect. There's a concern with respect to the scientific proof, I believe, or foundation for the Daviault-type defence, in any event.
Really, I think the answer to that question may come - and we stress may come - if this legislation is challenged, which it may very well be, and there is a section 1 argument that's going to be developed down the road, which is that it's a reasonable limit in the sense that we're prepared to live with this, and one of the reasons we are is to question, amongst other things, the scientific basis for this.
Is it really something that on balance warrants, so to speak, allowing a defence to go forward, when in fact maybe the scientific evidence isn't that strong? But those are issues that I think you may see argued down the road, and I think it would be really premature for us today to take a position one way or the other on that particular point.
Ms Meredith: Thanks.
Mr. Bodnar (Saskatoon - Dundurn): Basic intent is used in the statute and it's not a term that's widely used, at least not from what I know, and I see from your brief that you're not happy with it either. Is it perhaps a standard that is less than general intent, is it a little more than general intent, or is it general intent? What is it?
Mr. Pinx: We had many discussions about that very issue and the difficulty we had is that it is, in our view, in some respects a new term. We know that term came up in the opinions written by the Supreme Court in Daviault.
We're not sure, because if you look at the preamble I believe there is a reference to general intent there. If you then look to the proposed subsection 33.1(1) there's a reference to basic intent. We take the position, in terms of the bar association, that we've all grown up as lawyers, having been taught and practised with this concept of general intent. It's a concept that's been litigated and discussed and decided and commented upon by many cases.
Our recommendation was that if there is a distinction, it can't be really of that great significance. Why then not resort back to the term by which we all have grown to understand, I think, in simple terms what it means, that is general intent?
If I'm answering your question, Mr. Bodnar, it really is to say that I don't know if there really is a distinction. Certainly the legislation doesn't define the two terms and distinguish them, so one might argue then that if they're not defined and distinguished as different concepts, perhaps they're very close to being the same. If they are, then let's continue perhaps with the notion of general intent as opposed to basic.
Mr. Bodnar: Let's take proposed section 33.1. I'll just take you to proposed subsection 33.1(1) with a possible suggestion as to changes. If we take that section and just say:
- (1) It is not a defence to an offence referred to in subsection (3) that the accused, by reason of
self-induced intoxication, lacked the general intent. Just put a period there and eliminate the
balance of the paragraph, and then go to subsection (2) and say:
- (2) For the purposes of this section, a person departs markedly from the standard of care. We
have problems there.
What I'm trying to say is that that section is too complex. There's too much in there.
Mr. Pinx: Which one?
Mr. Bodnar: First of all, in proposed subsection (1), where you can just cut it off, ``lack the basic intent'', period, or ``the general intent''.
Mr. Pinx: The problem that's being raised, though, I think.... The drafters of the legislation have spent considerable time in being thoughtful, in our view, with respect to trying to frame this in a way that's addressing the concerns that have been raised by Daviault, and also, at the end of the day, trying to do so in a way that's going to be upheld as constitutional.
When you read Daviault, it really talks about two different principles simultaneously. One is the concept of intent; that's basic intent or general intent. The other part of it is the concept of automatism, which is the involuntary act, which is not really your intent, but rather the act being involuntary. So you need both, in our view. That's why I think both are there.
The Daviault case identified, depending upon which approach you take, that we're talking about either an absence of intent or an involuntary act. That's why the legislation has built into it both concepts, in our view, and we think both concepts would therefore have to be there for the purposes of addressing the concerns that Justice was trying to anticipate.
Mr. Bodnar: Another point was touched on, the one I think Ms Fuerst mentioned, the distinction between.... It's the next part on page 3 under proposed subsection (2). It says ``involuntarily interferes''. This may include a truly accidental situation where injury caused by accident could be caught by this section and create an offence.
That just doesn't seem right. It has not been a part of our criminal justice system.
If that is the case, if the section does that, how do you eliminate it? What change do you or can you make in the section to eliminate that? I ask this because what would not be an offence if you were not intoxicated now becomes an offence if you were intoxicated.
I don't know. I throw this out and wonder whether there is a solution to it. Or does one just hope for the good graces of our very bright judges not to convict in cases such as this?
Mr. Pinx: It's a point we addressed in our brief, if I'm not mistaken, that we certainly recognize that.
One of the things that could be done is to make it very clear that the application of this provision will not preclude the application of the defence of accident, in the genuine, real sense of accident. So that's one way in which you can talk about limiting the scope of, so to speak, the exclusionary principle, which is what this section is dealing with.
It's excluding a defence, but at the same time we might be able to limit the exclusion so it doesn't encompass the problem you've just presented.
Mr. Gallaway (Sarnia - Lambton): Because of the brevity of this bill, I wanted to ask this. I think the other points have been raised already. This morning we had a group who said they were completely surprised and shocked when Daviault was released by the Supreme Court. Do you see any parts of this bill that will allow the Supreme Court to take a course of action to make a decision that will be at odds with the general intent of Bill C-72?
Mr. Pinx: Are you saying, do we see the Supreme Court supporting it or rejecting it?
Mr. Gallaway: Rejecting it.
Mr. Pinx: We don't see that, because we believe that even if the argument can be made that it violates sections 7 and 11, assuming you can get by that hurdle, it will be saved by section 1. With a proper hearing and proper evidence being presented under section 1, we believe that at the end of the day the section would be held to be constitutional.
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Mr. Gallaway: In your brief you talk about the objective standard. It's on page 4, in paragraph 3, about the middle of it. You say:
- The question will not be whether the accused subjectively intended the consequences of an act,
but whether, viewed objectively, the accused exercised the appropriate standard of care. I
wonder if you could explain that to me a little further.
Mr. Gallaway: Expand on what you're saying in that sentence.
Mr. Pinx: What we're simply doing is paraphrasing what the bill basically says, which is that even though somebody may by self-induced intoxication achieve a state where they are not consciously in control of what they are doing at that particular point, either by way of intent or by way of a voluntary act, that they have failed to live up to a standard of care, as the section says, to the duty that we owe each other - and essentially I'm paraphrasing - in society to ensure that we do not violate the integrity of each other's bodies.
So basically what they're saying is that we all have a standard of care in society and they then take it one step further and say that it's not just a standard of care, but they describe it as a marked departure and say that if you fail to follow what we expect of you as a citizen in this country, which is not to get so intoxicated that you lose control and then commit a crime of violence, you fail to meet the standard of care that we have imposed upon the citizens of this country.
Ms Fuerst: It's a concept that the Supreme Court of Canada has recognized in other contexts, particularly in the context of driving behaviour.
Mr. Pinx: Dangerous driving cases, manslaughter, and things of that nature.
Mr. Gallaway: Okay. That's all I have, Mr. Chairman.
Ms Torsney (Burlington): Do you think this decision of this committee, or of the government, should be referred to the Supreme Court before passage of the bill?
Ms Fuerst: We can see some benefit to that, although as we've said in the brief, we have some residual concern about whether one can really ask the Supreme Court of Canada to look at something in a factual vacuum. But I think ideally we would see the virtue of doing that so that, again, there's some clarity in the law.
Ms Torsney: This morning the witnesses suggested that they would not trust the Supreme Court necessarily - trust may have been a strong word, but that they thought this decision was out of sync with what the Supreme Court should have done in the first place. They prefer that we just get it passed and go in and fight like hell on any decision that comes up so we can make sure that our view wins, and that's real democracy.
The other question I had for you, and I apologize if it was covered in your brief as well, but I thought it was good for the record, is with regard to the preamble. There aren't very many preambles in other parts. I know there's one in the rape shield and somewhere else. We're getting more and more requests to put preambles into legislation that we're passing. Why is the preamble required on this bill? What's the benefit of it in your opinion? Does it strengthen the legislation? What purpose does it serve, since this is part of the educational process?
Mr. Pinx: I think what it does in some respects is address the difficulty the public often has when dealing with criminal law in understanding it, because we sometimes as lawyers and draftspeople do not make things as clear as we would like them to be. The preamble in this particular case is very clear and the purposes, I think, are very, very clearly set out in terms of why we're bringing this legislation forward. Anybody reading it, I think, even lay people, non-lawyers, could read it and grasp what it is that has prompted this particular legislation to come forward.
I think it's valuable to us as a society to understand the laws that are being passed and in some respects why the laws are being passed, what the need is and what the concerns are that are being addressed by the parliamentarians. So I see it as a positive thing in simply the sense that I think the argument could be made that certainly a preamble is of some help in that context.
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Ms Fuerst: It's also sometimes of assistance to courts and to lawyers who are trying to deal with how the legislation applies and with what it means. You will often see lawyers or judges going to the House of Commons debates, for example. The rape shield law is a good example of where this has been done by courts who are seeking to try to understand just how broadly the legislation applies and what the intent of Parliament was.
Ms Torsney: Thank you.
Mr. Wappel (Scarborough West): Good afternoon.
I have a couple of questions. Does the National Criminal Justice Section agree with all of the preambles?
Mr. Pinx: It sounds like you have another question.
Mr. Wappel: You're trying to figure out why I - You know better than to try to figure out why I'm asking the question. That's dangerous.
Ms Cohen (Windsor - St. Clair): It depends on who's smarter, the lawyer or the witness.
Mr. Wappel: Well, we'll soon see.
Mr. Pinx: Do you have a particular section in mind, or -
Mr. Wappel: No, just in general - all of them.
Because of the importance of the preamble, I'm of course presuming that this has been discussed during discussion of the bill. Was there any concern expressed by any of your members over any of the paragraphs in the preamble? If so, which preamble and what concerns?
Mr. Pinx: If you take a look at page 2 of the bill, I believe the statement we addressed in our paper, in our submission, was:
- the Parliament of Canada considers it necessary to legislate a basis of criminal fault in relation
to self-induced intoxication and general intent in offences involving violence;
Mr. Wappel: That precise point is my next question. Other than that paragraph in the preamble, are there any other concerns that the CBA would like to draw to our attention with respect to the preamble?
Mr. Pinx: That's the only one we addressed in our submission.
Mr. Wappel: Are there any other concerns that the CBA would like to bring to our attention?
Mr. Pinx: Not at this time.
Mr. Wappel: I've been giving some thought to the point you made about the change in wording. Has there been any discussion with the justice department officials as to why they used the phrase ``basic intent''?
Ms Fuerst: I don't want to speak for those officials, but it's our understanding that this language comes from Daviault.
Mr. Wappel: From the majority decision, from a particular judge, or -
Mr. Pinx: I think Justice Cory, for one, used the phrase ``basic intent'' in his opinion.
Mr. Wappel: Was he writing for the majority?
Mr. Pinx: Yes.
Mr. Wappel: I'm just wondering if some argument could be made in terms of whether or not it's a noun or an adjective or a form of adjective. In the preamble you have the words ``general intent'' modifying the noun ``offences'', thereby taking an adjectival sort of connotation, whereas in the actual section you've got the word ``basic'' being the adjective used to describe the noun ``intent''. I'm just wondering if, from a drafting point of view, they somehow felt that would be a better way of doing it.
I completely agree with your submission that we should go with what's been long known, long tested and long understood within the profession. Simply because, with great respect, a particular judge decides out of nowhere to change a phrase because he feels like changing a phrase, it doesn't mean we should all jump to that tune, if I can put it that way. We will certainly ask the justice department why they decided to change that.
I also read with interest your concern with respect to proposed subsection 33.1(3) and noted also that you had no difficulty with the French version. Now, I am not an interpreter, nor a translator, nor am I bilingual. I do note, however, that in French - and it's not an exact translation, because apparently the art of drafting is now not to translate verbatim but to give the flavour - Nonetheless, I can't help but note that in the French, if it were to be translated directly into the English, it would be ``one of the constituent elements''. Clearly, ``an element'' and ``one of the constituent elements'' are two entirely different things.
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I am interested in why you recommended the word ``legal'' as opposed to saying ``that includes as a constituent element'', as an example.
Mr. Pinx: I think it's six of one and half a dozen of another. We simply wanted to make sure it was confined to the element of the offence. We chose the word ``legal''; there's no magic in that. ``Constituent element'' I think says exactly the same thing. Certainly we would be comfortable with either, providing it was clearly set out and defined in that context.
Mr. Wappel: Okay, because it would seem easier to sell to the officials if we're matching the two languages, and a certain degree of doing that is required.
Has the National Criminal Justice Section taken a position, as a section, on which side of Daviault they prefer; i.e., the majority or the minority decision?
Mr. Pinx: No.
Ms Meredith: I would like to follow up on what Ms Torsney brought up, which is where you feel that this legislation should go before the Supreme Court for a dry run, if you will. The witnesses this morning had great difficulty with that, although they saw some positive merits to it.
In my discussions with ordinary Canadians on the street, they have real difficulty with what they see as a change of responsibility in the courts, where they feel Parliament is elected and is responsible for making law and the courts are there to represent that law.
I have great difficulty with the fact that we as parliamentarians would draft a piece of legislation, pass it in the House, and then test it in the courts. Either we're here to make law or we're not. It's not up to Parliament to test it before enacting law. I have some concern that you would feel that it's more appropriate for legislation to go before the courts before there is a test out in society; in other words, that the courts are replacing Parliament in the law-making process.
Mr. Pinx: Certainly it was not the intent of our submission in some respects to try to undermine the authority of Parliament. The justice department, as we understand it, proposed that option as maybe one of the options they would look at: draft it, take it up to the Supreme Court, and maybe have it litigate the issue before it's then passed and applied to the cases that will flow into the courts.
We've got to be mindful of this. I don't think we are in any way trying to be disrespectful to you people as parliamentarians or to the process, but we have always had, as we understand it, a process of judicial review.
Many pieces of legislation ultimately end up in the Supreme Court of Canada, and, as we all know, some are upheld, some are struck down, sometimes their application is limited to certain situations and it's read down by the Supreme Court of Canada. This is because we live in a system where, at the end of the day, the Supreme Court of Canada has the right to determine whether or not our legislation will meet the standards as set out in the Charter of Rights and Freedoms.
So we're not trying to take away the right of this government to pass its legislation. We're simply saying that this might be the kind of legislation you may want to review and get a clear decision from the Supreme Court on before you in fact put it before the public.
Ms Meredith: My concern is that your justice system is of no value if it doesn't carry the support of the people for whom it is in place. When you have the people suggesting that when society, through their elected members, indicate a position, and then that position is overturned by the courts, by a select number of people who are unelected, unaccountable to the Canadian public - they are very concerned about that trend as they see it.
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I guess I am concerned that the justice minister would be looking at continuing that trend and certainly supporting it by putting this legislation before the Supreme Court before it's passed into law.
Ms Fuerst: But I think you have to bear in mind when you're dealing with Daviault that the court wasn't overturning a law that was created by the people through its Parliament. In fact, if the court was overturning anything, it was undoing decades-old principles of law.
I suppose one way to look at it would be to say that where the Supreme Court of Canada has made a strong, principled statement, as they have in Daviault, and there is no legislation that presently addresses the matter, perhaps again for the sake of clarity, it would be appropriate to ask them to look at the issue now in the context of a piece of legislation created by Parliament.
If you read Daviault, Justice Cory in the majority decision clearly indicates that there is a principle of law that has to do with the respect for parliamentary supremacy. He distinguishes between that and in effect deciding that a common-law rule doesn't meet constitutional prerequisites.
So that's really the basis upon which we feel that there could well be good reason to go to the Supreme Court of Canada now with a piece of legislation.
Ms Meredith: But don't you think it undermines the intent? In the Daviault decision, they suggested it was up to Parliament to establish the law under which they could operate. Yet what we're doing is making that law, but we're sending it back to the people who said, hey, it's your job to make that law for us so we can continue. What we're saying as parliamentarians is, we'll make the law, but we want you to check it out. We're reneging on our responsibilities, as I see it, if we send it back to the court.
Mr. Pinx: The concern you're raising, as I see it, is really twofold. One is the appearance and the second is timing. There's no question that this kind of legislation will reach the Supreme Court of Canada. I don't think any of us have any doubt about that. So the timing of it is really one of the issues: when?
The second part of it is the appearance of it, which is you having the authority to pass this legislation. Should you be handing it over to the Supreme Court for their seal of approval? We can't answer more than the way Michelle and I have attempted to, which is to say that's certainly one avenue you may choose to do because you might say that maybe the timing would be better to have it cleared and clarified now as opposed to later. But that's something, obviously, you people will decide down the road.
Ms Meredith: Thank you.
The Chair: I have a couple of questions. It appears that the Daviault judgment applied generally to all crimes, whereas Bill C-72 has a very narrow focus. It only makes corrections with respect to certain crimes of violence against the person. I wonder whether you thought that was sufficient. We have the power to draw this net a bit larger and have this corrective legislation apply to a wider range of offences. What's your view on that?
Mr. Pinx: I think we have taken the position of supporting essentially the principles behind this legislation, and we're simply saying that we are comfortable in restricting the particular defence - that is, restricting its availability to the scenarios as set out by the particular legislation.
In simple terms, by confining it to cases involving violence against individuals, we believe that the legislation is being responsive, I think, to the concerns that are being raised by the public at large.
The Chair: Let's look at proposed subsection 33.1(3), which is the limiting subsection. As lawyers, I want to ask you how you view this wording. I find it very cumbersome. It says:
- 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.
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In my first question I used the words ``crimes of violence towards a person'', but the way this reads is ``interfere with the bodily integrity of another person''. I don't know whether that formula of words has been used before. Maybe it has.
For example, it would certainly exclude such offences as arson. There have been cases where people set fires when they're drunk, either intentionally or because they're negligent.
What about this wording? I find this poor drafting. I don't know what you think about it. I'd like to ask the bar association. Does it really accomplish it? Even if you wanted to get just certain offences of violence, is this the best way of saying it?
Ms Fuerst: I think that's one of the reasons we have suggested that it might be better to itemize offences rather than to try to come up with language that has some more general, encompassing application.
The Chair: So you would prefer itemized offences?
Mr. Pinx: Yes, as to which offences they have in mind, or the defence would not be available.
The Chair: Have you considered the possibility of dealing with this whole problem by having a separate offence, such as an offence of extreme drunkenness, or would you rather have that left to when the general review of the code is done? Which would be better, this kind of approach in solving the problem with Daviault or having specific offences? A specific offence of extreme drunkenness is more or less something like that.
Mr. Pinx: I think the bar association, through its work on the reform of the Criminal Code, did recommend that we try to deal with all defences or defences that would not be available at a time when there is a general review of all the Criminal Code provisions. So in that sense I think, as Michelle stated at the outset of her submission, it would certainly be preferable to deal with this in the overall context of the reform of the Criminal Code.
Did you want to add something?
Ms Fuerst: Yes. We have considered the concept you're proposing, of something like the creation of an offence of dangerous drunkenness, let's say. It's actually something we addressed in the bar association's task force report when we looked at recodifying general principles of the criminal law. It seems that this kind of approach is better utilized if you are looking at an overall reform of general principles.
There are a lot of issues that would still have to be addressed and we acknowledge them, including, for example, what you do if you have charged somebody without a substantive criminal offence and also this new offence of dangerous drunkenness or whatever you want to call it. By leading evidence of his drunken condition, for example, does the accused thereby excuse himself from conviction of one offence but lead the judge or the jury to convict him of the other offence?
So we acknowledge there are some difficulties with that approach and we think it's an approach that might be better left to the more general reform.
Mr. Pinx: One of the problems we looked at in that context was, as a simple example - and we're not going to be exhaustive in dealing with this alternative offence - if you have it as a back-up charge. You have the substantive offence, let's say a break and enter, and you have the drunken break and enter or whatever language they choose to follow. Proof beyond a reasonable doubt would be required. If the accused raised a reasonable doubt with respect to his drunkenness, with respect to the substantive charge, he could be acquitted.
Then what do you tell the jury with respect to the second charge? Does raising a reasonable doubt on the first charge amount to proof beyond a reasonable doubt on the second?
So we just leave that as one example to you of the problems in proceeding with that alternative offence formula. That is only one example; there are others we could give you.
It's a very complex and difficult matter to address, in our view.
The Chair: Thank you.
I forgot to ask members of the committee whether, since the bar did not read their brief, you would agree to have it attached to the record of today's meeting.
Some hon. members: Agreed.
The Chair: I'll call on Mr. MacLellan next and I'd ask the vice-chair if she would take the chair for a while.
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Mr. MacLellan (Cape Breton - The Sydneys): For the record, I think you've explained it fairly well, but it's important to have your comments on the general effectiveness of the route the minister has taken.
You mentioned in your brief you felt that over a period of time the defence of drunkenness would not really be a defence. Do you feel what the minister has done is a step further ahead, rather than just letting it go and waiting for that to happen? Do you think this is a better way of doing it? I know you'd rather we waited until we had dealt with all of the general section of the Criminal Code, but public pressures and such being as they are....
Ms Fuerst: The point has been made already that there is a necessity for the public to both respect and understand the criminal law. If it appears the public does not respect or understand what is happening as a result of the Daviault decision, our ultimate position is we recognize that's a concern Parliament may want to address now rather than later.
Mr. MacLellan: But rather than doing nothing, so to speak, which was the other extreme, as opposed to the extreme drunkenness defence - there were really the three options - this is a better remedy.
Mr. Pinx: I think that's a question you'll have to answer as parliamentarians at the end of the day. We are simply, hopefully, trying to assist you with our comments and maybe make this a better piece of legislation than it already is.
Mr. MacLellan: I just want to ask you a question on your third recommendation:
- The National Criminal Justice Section recommends that amendments be made to proposed
subsection 33.1(3) so that it is readily apparent that the defence of intoxication remains
available for all specific intent offences.
Mr. Pinx: Our concern is when you read the language of proposed subsection 33.1(3), where it says:
- 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.
We're saying out of an abundance of caution, why not make it clear? Why not simply say this is not applicable to cases involving specific intent crimes and say it in one sentence? What will be lost, in our view, is very little, if anything. What might be gained is simply a very clear statement as to what this is about and what it's not about.
Mr. MacLellan: Do you feel the separation and distinction between ``general intent'' and ``specific intent'' may not be maintained to the degree you feel it should be if we don't do this?
Mr. Pinx: Our concern is we don't know what judges and courts are going to do when they apply these provisions to the facts of a given case. That's what we're trying to anticipate, as well as whether a court down the road could apply this in a way it was not intended to be applied. We're just saying we can perhaps prevent that problem with the simple statement that this is not applicable to crimes of specific intent.
The Vice-Chair (Mrs. Barnes): I have no other people on my list.
I thank you very much for your testimony and your brief. I appreciate your being here with us today.
The meeting is adjourned until tomorrow at 3:30 p.m. in this room.