Her Majesty the Queen v. Sullivan Her Majesty the Queen v. Chan

[Indexed as: R. v. Sullivan]

Ontario Reports

Court of Appeal for Ontario

Watt, Lauwers and Paciocco JJ.A.

June 3, 2020

151 O.R. (3d) 353 | 2020 ONCA 333

Case Summary

Charter of Rights and Freedoms — Appeals — Raising Charter issue first time on appeal — Two accused in separate incidents charged with violence-based offences committed while under the influence of drugs — Both accused relying on non-mental disorder automatism, contrary to s. 33.1 of the Criminal Code — One accused arguing at trial that s. 33.1 violated ss. 7 and 11(d) of Charter — Both accused appealing convictions on Charter issue — On successful appeal, second accused allowed to have his convictions set aside despite not raising constitutional issue at trial — Both accused acquitted of violence-based offences — Canadian Charter of Rights and Freedoms, ss. 1, 7, 11(d) — Criminal Code, R.S.C. 1985, c. C-46, s. 33.1.

Charter of Rights and Freedoms — Fundamental justice — Mens rea — Two accused in separate incidents charged with violence-based offences committed while under the influence of drugs — Both accused relying on non-mental disorder automatism, contrary to s. 33.1 of the Criminal Code — Trial judge finding s. 33.1 violated ss. 7 and 11(d) of Charter, but saved under s. 1 — Trial judge correctly found prima facie violation of Charter but erred in s. 1 analysis — Rational connection test and minimal impairment test not met and overall proportionality not achieved — Section 33.1 declared to be of no force or effect — Both accused acquitted of violence-based offences — Canadian Charter of Rights and Freedoms, ss. 1, 7, 11(d) — Criminal Code, R.S.C. 1985, c. C-46, s. 33.1.

Charter of Rights and Freedoms — Presumption of innocence — Mens rea — Two accused in separate incidents charged with violence-based offences committed while under the influence of drugs — Both accused relying on non-mental disorder automatism, contrary to s. 33.1 of the Criminal Code — Trial judge finding s. 33.1 violated ss. 7 and 11(d) of Charter, but saved under s. 1 — Trial judge correctly found prima facie violation of Charter but erred in s. 1 analysis — Rational connection test and minimal impairment test not met and overall proportionality not achieved — Section 33.1 declared to be of no force or effect — Both accused acquitted of violence-based offences — Canadian Charter of Rights and Freedoms, ss. 1, 7, 11(d) — Criminal Code, R.S.C. 1985, c. C-46, s. 33.1.

Courts — Stare decisis — Two accused in separate incidents charged with violence-based offences committed while under the influence of drugs — Both accused relying on non-mental disorder automatism, contrary to s. 33.1 of the Criminal Code — One accused arguing that trial judge bound by 20-year-old Superior Court decision declaring s. 33.1 unconstitutional — Judge not strictly bound by earlier decisions in same court — Criminal Code, R.S.C. 1985, c. C-46, s. 33.1. [page354]

Criminal law — Appeal — First time on appeal — Two accused in separate incidents charged with violence-based offences committed while under the influence of drugs — Both accused relying on non-mental disorder automatism, contrary to s. 33.1 of the Criminal Code — One accused arguing at trial that s. 33.1 violated ss. 7 and 11(d) of Charter — Both accused appealing convictions on Charter issue — On successful appeal, second accused allowed to have his convictions set aside despite not raising constitutional issue at trial — Both accused acquitted of violence-based offences — Canadian Charter of Rights and Freedoms, ss. 1, 7, 11(d) — Criminal Code, R.S.C. 1985, c. C-46, s. 33.1.

Criminal law — Appeal — New trial versus acquittal — Two accused in separate incidents charged with violence-based offences committed while under the influence of drugs — Both accused relying on non-mental disorder automatism, contrary to s. 33.1 of the Criminal Code — Accused successfully appealing convictions by having s. 33.1 declared unconstitutional — New trial rather than acquittal ordered for one accused as trial judge made no finding that accused acted involuntarily — Criminal Code, R.S.C. 1985, c. C-46, s. 33.1.

Criminal law — Defences — Automatism — Intoxication — Two accused in separate incidents charged with violence-based offences committed while under the influence of drugs — Both accused relying on non-mental disorder automatism, contrary to s. 33.1 of the Criminal Code — Trial judge finding s. 33.1 violated ss. 7 and 11(d) of Charter, but saved under s. 1 — Trial judge correctly found prima facie violation of Charter but erred in s. 1 analysis — Rational connection test and minimal impairment test not met and overall proportionality not achieved — Section 33.1 declared to be of no force or effect — Both accused acquitted of violence-based offences — Canadian Charter of Rights and Freedoms, ss. 1, 7, 11(d) — Criminal Code, R.S.C. 1985, c. C-46, s. 33.1.

Criminal law — Mental disorder — Charter of Rights and Freedoms — Two accused in separate incidents charged with violence-based offences committed while under the influence of drugs — Both accused relying on non-mental disorder automatism, contrary to s. 33.1 of the Criminal Code — Trial judge finding s. 33.1 violated ss. 7 and 11(d) of Charter, but saved under s. 1 — Trial judge correctly found prima facie violation of Charter but erred in s. 1 analysis — Rational connection test and minimal impairment test not met and overall proportionality not achieved — Section 33.1 declared to be of no force or effect — Both accused acquitted of violence-based offences — Charter of Rights and Freedoms, ss. 1, 7, 11(d) — Criminal Code, R.S.C. 1985, c. C-46, s. 33.1.

C was a high school student who ingested magic mushrooms in his mother's home. His reaction to the drug was much more severe than usual. He ran to his father's house and stabbed him repeatedly. He also stabbed his father's partner. The father died of his injuries. In a separate incident, S attempted to commit suicide by consuming a heavy dose of a drug prescribed to stop smoking. That resulted in S stabbing his mother several times. The mother survived the attack but died of unrelated causes. Both C and S relied on non-mental disorder automatism as their primary defence, even though s. 33.1 of the Criminal Code removed such a defence to a violence-based offence where the state of automatism was self-induced by voluntary intoxication. C applied to have s. 33.1 declared unconstitutional, arguing that the Superior Court had ruled to that effect some 20 years earlier and that the trial judge was bound by [page355] that decision. The trial judge agreed that it was prima facie a violation of ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms but that it was demonstrably justified under s. 1. S argued that s. 33.1 did not apply to him because his intoxication was not voluntary, but the trial judge rejected that argument. Both C and S argued in the alternative that they were experiencing mental disorder automatism at the time of the attacks. The alternative argument failed and both men were convicted of the violence-based charges they faced. They appealed on the ground that s. 33.1 was unconstitutional.

Held, the appeals should be allowed.

Per Paciocco and Watt JJ.A.: The trial judge was not bound by precedent to accept the unconstitutionality of s. 33.1. Under the ordinary principles of stare decisis, the judge was not strictly bound to follow earlier decisions in the same court. The fact that cases at the superior court trial level may produce different outcomes for respective accused persons did not mean that the remedies were personal. The disparity in outcome simply reflected the developing state of the authority on the constitutional validity of a provision, as advanced by judges of competent jurisdiction.

The trial judge was correct in finding s. 33.1 to be in prima facie violation of both ss. 7 and 11(d) of the Charter. The Supreme Court of Canada in Daviault modified the common law rule that eliminated the defence of extreme intoxication because the common law rule was in breach of the Charter in three ways: the "voluntariness breach", the "improper substitution breach" and the "mens rea breach". The Daviault principles applied both to common law and to statutory rules. Regarding voluntariness, it was contrary to the principles of fundamental justice and the presumption of innocence to permit accused persons to be convicted for involuntary acts. Regarding improper substitution, it was contrary to the presumption of innocence to convict accused persons in the absence of proof of a requisite element of the charged offence, unless a substituted element was proved that inexorably or inevitably included that requisite element. A prior decision to become intoxicated could not serve as a substituted element because it did not include the requisite mental state for the offences charged. Regarding mens rea, it was contrary to the principles of fundamental justice to convict accused persons where the accused did not have the minimum mens rea reflecting the nature of the crime.

The trial judge committed several errors in concluding that the prima facie breach was saved under s. 1 of the Charter. Most significantly, the purposes ascribed by the judge to s. 33.1 were too broad and tainted each stage of his s. 1 analysis. Properly stated, there was an "accountability purpose" to hold individuals in a state of automatism due to intoxication accountable for their violent acts. There was also a "protective purpose" to protect potential victims from violence-based offences committed by those in a state of automatism due to self-induced intoxication. The accountability purpose was an improper purpose for a s. 1 evaluation. The protective purpose was pressing and substantial. On the issue of proportionality, the rational connection test was not met on either purpose. The minimal impairment test was not met because s. 33. 1 was not narrowly tailored, Parliament did not have valid reasons for rejecting alternatives, and deferring to Parliament was not appropriate in this case. Overall proportionality was not achieved between the deleterious effects of the measures and the salutary effects of the law.

Since C should have been provided with the opportunity to invoke the non-mental disorder automatism defence, his convictions were set aside and a new trial ordered. C was not entitled to an acquittal because the trial judge made no finding that he was not acting voluntarily. Instead, the judge found that as a result of psychosis induced by intoxication, C was incapable of knowing that his actions would be considered wrong according to moral standards of reasonable members of society. [page356]

Because s. 33.1 was declared unconstitutional in C's appeal, the violence-based convictions for S were set aside even though he did not raise the constitutional issue at his trial. That conclusion was properly conceded by the Crown given that his case was still in the system. The Crown also conceded that the trial judge found S to have been in a state of non-mental disorder automatism at the time of the attacks leading to his convictions for aggravated assault and assault using a weapon. However, S was also convicted of breach of recognizance charges and those convictions were affirmed. The uncontested facts supported the trial judge's conclusion that the terms of the recognizance had been communicated to S, who joined in an agreed statement of facts confirming his subjective knowledge.

Per Lauwers J.A. (concurring): The analytical framework established in the s. 7 jurisprudence required an assessment of three negative principles of fundamental justice: arbitrariness, overbreadth and gross disproportionality. The s. 7 rights of both C and S were limited by the operation of s. 33.1 in the sense that there was no connection between the law's two objectives, protective and penal, and the law's effects on those individuals. While Daviault provided guidance, it was not dispositive of the s. 1 analysis but rather was subject to modification by later doctrinal developments. Parliament's protective and penal objectives in enacting s. 33.1 were self-evidently pressing and substantial objectives. The trial judge correctly found that s. 33.1 was not rationally connected to the protective objective. However, the penal objective was not merely ancillary to the protective objective. The measures in s. 33.1 were rationally connected to the penal objective. Parliament took pains to tailor s. 33.1 to its stated objectives and the result of those efforts fell within the range of reasonable alternatives. However, it did not contain an exception for C and S and those similarly situated, so it was not minimally impairing. Section 33.1 could not be justified under s. 1 as a matter of simple justice and what the law requires the Crown to prove to secure a criminal conviction for the predicate violent offences. The required mental and voluntariness elements and the presumption of innocence could not be bypassed. There was no good reason for C and S to have been swept into the net of s. 33.1, which was overbroad because there was no rational connection between the law's protective and penal objectives and the law's effect on them.

R. v. Daviault, 1994 61 (SCC), [1994] 3 S.C.R. 63, [1994] S.C.J. No. 77, 118 D.L.R. (4th) 469, 173 N.R. 1, 64 Q.A.C. 81, 93 C.C.C. (3d) 21, 33 C.R. (4th) 165, 24 C.R.R. (2d) 1, 24 W.C.B. (2d) 586; R. v. Oakes, 1986 46 (SCC), [1986] 1 S.C.R. 103, [1986] S.C.J. No. 7, 26 D.L.R. (4th) 200, 65 N.R. 87, 14 O.A.C. 335, 24 C.C.C. (3d) 321, 50 C.R. (3d) 1, 19 C.R.R. 308, 16 W.C.B. 73, apld

Canada (Attorney General) v. Bedford, [2013] 3 S.C.R. 1101, [2013] S.C.J. No. 72, 2013 SCC 72, 366 D.L.R. (4th) 237, 452 N.R. 1, 312 O.A.C. 53, 303 C.C.C. (3d) 146, 7 C.R. (7th) 1, 297 C.R.R. (2d) 334; Carter v. Canada (Attorney General), [2015] 1 S.C.R. 331, [2015] S.C.J. No. 5, 2015 SCC 5, 17 C.R. (7th) 1, 327 C.R.R. (2d) 334, 66 B.C.L.R. (5th) 215, [2015] 3 W.W.R. 425, 320 C.C.C. (3d) 1, 366 B.C.A.C. 1, 468 N.R. 1, 384 D.L.R. (4th) 14, 120 W.C.B. (2d) 561; Harper v. Canada (Attorney General), [2004] 1 S.C.R. 827, [2004] S.C.J. No. 28, 2004 SCC 33, 239 D.L.R. (4th) 193, 320 N.R. 49, [2004] 8 W.W.R. 1, 27 Alta. L.R. (4th) 1, 348 A.R. 201, 119 C.R.R. (2d) 84; R. v. Bouchard-Lebrun, [2011] 3 S.C.R. 575, [2011] S.C.J. No. 58, 2011 SCC 58, 423 N.R. 48, 275 C.C.C. (3d) 145, 97 W.C.B. (2d) 366, 340 D.L.R. (4th) 193, 89 C.R. (6th) 1; R. v. Dunn, 1999 36525 (ON SC), [1999] O.J. No. 5452, 28 C.R. (5th) 295, 44 W.C.B. (2d) 47 (S.C.J.); R. v. Leary (1977), 1977 2 (SCC), [1978] 1 S.C.R. 29, [1977] S.C.J. No. 39, 74 D.L.R. (3d) 103, 13 N.R. 592, [1977] 2 W.W.R. 628, 33 C.C.C. (2d) 473, 37 C.R.N.S. 60, 1 W.C.B. 195; R. v. Morrison, [2019] 2 S.C.R. 3, [2019] S.C.J. No. 15, 2019 SCC 15, 432 D.L.R. (4th) 637, 429 C.R.R. (2d) 228, 375 C.C.C. (3d) 153, 52 C.R. (7th) 273, consd

R. v. Mills, 1999 637 (SCC), [1999] 3 S.C.R. 668, [1999] S.C.J. No. 68, 180 D.L.R. (4th) 1, 248 N.R. 101, [2000] 2 W.W.R. 180, 75 Alta. L.R. (3d) 1, 244 A.R. 201, 139 C.C.C. (3d) 321, 28 C.R. (5th) 207, [page357] 69 C.R.R. (2d) 1, 44 W.C.B. (2d) 124; R. v. Penno, 1990 88 (SCC), [1990] 2 S.C.R. 865, [1990] S.C.J. No. 96, 115 N.R. 249, 42 O.A.C. 271, 59 C.C.C. (3d) 344, 80 C.R. (3d) 97, 49 C.R.R. 50, 29 M.V.R. (2d) 161, 11 W.C.B. (2d) 200, distd

Other cases referred to

Alberta v. Hutterian Brethren of Wilson Colony, [2009] 2 S.C.R. 567, [2002] S.C.J. No. 66, 2009 SCC 37, 310 D.L.R. (4th) 193, [2009] 9 W.W.R. 189, 390 N.R. 202, 9 Alta. L.R. (5th) 1, 81 M.V.R. (5th) 1, 460 A.R. 1; Canada (Attorney General) v. PHS Community Services Society, [2011] 3 S.C.R. 134, [2011] S.C.J. No. 44 2011 SCC 44, 244 C.R.R. (2d) 209, 310 B.C.A.C. 1, 421 N.R. 1, 336 D.L.R. (4th) 385, 272 C.C.C. (3d) 428, 96 W.C.B. (2d) 322, 86 C.R. (6th) 223, 22 B.C.L.R. (5th) 213, [2011] 12 W.W.R. 43; Canada (Attorney-General) v. Hislop, [2007] 1 S.C.R. 429, [2007] S.C.J. No. 10, 2007 SCC 10, 278 D.L.R. (4th) 385, 358 N.R. 197, 222 O.A.C. 324, 153 C.R.R. (2d) 173, 37 R.F.L. (6th) 1; Canada (Human Rights Commission) v. Taylor, 1990 26 (SCC), [1990] 3 S.C.R. 892, [1990] S.C.J. No. 129, 75 D.L.R. (4th) 577, 117 N.R. 191, 3 C.R.R. (2d) 116; Doucet-Boudreau v. Nova Scotia (Minister of Education), [2003] 3 S.C.R. 3, [2003] S.C.J. No. 63, 2003 SCC 62, 232 D.L.R. (4th) 577, 312 N.R. 1, 218 N.S.R. (2d) 311, 45 C.P.C. (5th) 1, 112 C.R.R. (2d) 202; Frank v. Canada (Attorney General), [2019] 1 S.C.R. 3, [2019] S.C.J. No. 1, 2019 SCC 1, 428 D.L.R. (4th) 451, 426 C.R.R. (2d) 209; Gordon v. Canada (Attorney General), [2016] O.J. No. 4330, 2016 ONCA 625, 351 O.A.C. 44, 364 C.R.R. (2d) 17, 287 C.L.R.B.R. (2d) 1, [2016] CLLC para. 220-058, 404 D.L.R. (4th) 590 (C.A.), leave to appeal refused, [2016] S.C.C.A. No. 444, [2016] S.C.C.A. No. 445; Hansard Spruce Mils Ltd. (Re), 1954 253 (BC SC), [1954] B.C.J. No. 136, [1954] 4 D.L.R. 590 (S.C.); Lavigne v. O.P.S.E.U., 1991 68 (SCC), [1991] 2 S.C.R. 211, [1991] S.C.J. No. 52, 81 D.L.R. (4th) 545, 126 N.R. 161, 48 O.A.C. 241, 91 CLLC para. 14,029, 4 C.R.R. (2d) 193; Libman v. Quebec (Attorney General), 1997 326 (SCC), [1997] 3 S.C.R. 569, [1997] S.C.J. No. 85, 151 D.L.R. (4th) 385, 218 N.R. 241, 46 C.R.R. (2d) 234; Little Sisters Book & Art Emporium v. Canada (Minister of Justice), [2000] 2 S.C.R. 1120, [2000] S.C.J. No. 66, 2000 SCC 69, 193 D.L.R. (4th) 193, 263 N.R. 203, [2001] 2 W.W.R. 1, 145 B.C.A.C. 1, 83 B.C.L.R. (3d) 1, 28 Admin. L.R. (3d) 1, 150 C.C.C. (3d) 1, 38 C.R. (5th) 209, 79 C.R.R. (2d) 189, 5 T.T.R. (2d) 161, 48 W.C.B. (2d) 76; Longley v. Canada (Attorney General) (2007), 88 O.R. (3d) 408, [2007] O.J. No. 4758, 2007 ONCA 852, 231 O.A.C. 244, 165 C.R.R. (2d) 190, 288 D.L.R. (4th) 599 (C.A.); McKinney v. University of Guelph, 1990 60 (SCC), [1990] 3 S.C.R. 229, [1990] S.C.J. No. 122, 76 D.L.R. (4th) 545, 118 N.R. 1, 45 O.A.C. 1, 2 C.R.R. (2d) 1; Montreal (City) v. 2952-1366 Quebec Inc., [2005] 3 S.C.R. 141, [2005] S.C.J. No. 63, 2005 SCC 62, 258 D.L.R. (4th) 595, 340 N.R. 305, 32 Admin. L.R. (4th) 159, 201 C.C.C. (3d) 161, 18 C.E.L.R. (3d) 1, 36 C.R. (6th) 78, 134 C.R.R. (2d) 196, 15 M.P.L.R. (4th) 1, 67 W.C.B. (2d) 397; Mustapha v. Culligan Canada Ltd., [2008] 2 S.C.R. 114, [2008] S.C.J. No. 27, 2008 SCC 27, 55 C.C.L.T. (3d) 36, 293 D.L.R. (4th) 29, 375 N.R. 81, 238 O.A.C. 130; Newfoundland (Treasury Board) v. Newfoundland & Labrador Association of Public and Private Employees, [2004] 3 S.C.R. 381, [2004] S.C.J. No. 61, 2004 SCC 66, 244 D.L.R. (4th) 294, 326 N.R. 25, 242 Nfld. & P.E.I.R. 113, 24 Admin. L.R. (4th) 201, 125 C.R.R. (2d) 4; Nova Scotia (Workers' Compensation Board) v. Martin, [2003] 2 S.C.R. 504, [2003] S.C.J. No. 54, 2003 SCC 54, 231 D.L.R. (4th) 385, 310 N.R. 22, 217 N.S.R. (2d) 301, 4 Admin. L.R. (4th) 1, 28 C.C.E.L. (3d) 1, 110 C.R.R. (2d) 233; Ontario v. Criminal Lawyers' Association of Ontario, [2013] 3 S.C.R. 3, [2013] S.C.J. No. 43, 2013 SCC 43, 363 D.L.R. (4th) 17, 300 C.C.C. (3d) 137, 291 C.R.R. (2d) 265, 447 N.R. 111, 308 O.A.C. 347, 4 C.R. (7th) 1, 108 W.C.B. (2d) 211; P.S.A.C. v. Canada, 1987 89 (SCC), [1987] 1 S.C.R. 424, [1987] S.C.J. No. 9, 38 D.L.R. (4th) 249, 75 N.R. 161, 87 CLLC para. 14,022 at 12189 , 32 C.R.R. 114; R. v. Bernard, 1994 61 (SCC), [1988] 2 S.C.R. 833, [1994] S.C.J. No. 77, 118 D.L.R. (4th) 469, 173 N.R. 1, 64 Q.A.C. 81, 93 C.C.C. (3d) 21, 33 C.R. (4th) 165, 24 C.R.R. (2d) 1, 24 W.C.B. (2d) 586; R. v. Big M. Drug Mart Ltd., 1985 69 (SCC), [1985] 1 S.C.R. 295, [1985] S.C.J. No. 17, 18 D.L.R. (4th) 321, 58 N.R. 81, [1985] 3 W.W.R. 481, 37 Alta. L.R. (2d) 97, 60 A.R. 161, 18 C.C.C. (3d) 385, 85 CLLC para. 14,023, [page358] 13 C.R.R. 64; R. v. Boutilier, [2016] B.C.J. No. 71, 2016 BCCA 24, 332 C.C.C. (3d) 315, 128 W.C.B. (2d) 425, 348 C.R.R. (2d) 294, 382 B.C.A.C. 25 (C.A.); R. v. Brenton, [2001] N.W.T.J. No. 14, 2001 NWTCA 1, 199 D.L.R. (4th) 119, 49 W.C.B. (2d) 548 (C.A.); revg for other reasons 1999 4334 (NWT SC), [1999] N.W.T.J. No. 113, 180 D.L.R. (4th) 314, [2000] 2 W.W.R. 269, 28 C.R. (5th) 308, 69 C.R.R. (2d) 323, 44 W.C.B. (2d) 48 (S.C.); R. v. Butler, 1992 124 (SCC), [1992] 1 S.C.R. 452, [1992] S.C.J. No. 15, 89 D.L.R. (4th) 449, 134 N.R. 81, [1992] 2 W.W.R. 577, 78 Man. R. (2d) 1, 70 C.C.C. (3d) 129, 11 C.R. (4th) 137, 8 C.R.R. (2d) 1, 15 W.C.B. (2d) 159; R. v. Cedeno, [2005] O.J. No. 1174, 2005 ONCJ 91, 195 C.C.C. (3d) 468, 27 C.R. (6th) 251 (C.J.); R. v. Chan, [2018] O.J. No. 4731, 2018 ONSC 3849, 365 C.C.C. (3d) 376 (S.C.J.); R. v. Chaulk, 1990 34 (SCC), [1990] 3 S.C.R. 1303, [1990] S.C.J. No. 139, 119 N.R. 161, [1991] 2 W.W.R. 385, 69 Man. R. (2d) 161, 62 C.C.C. (3d) 193, 2 C.R. (4th) 1, 1 C.R.R. (2d) 1, 11 W.C.B. (2d) 558; R. v. Creighton, 1993 61 (SCC), [1993] 3 S.C.R. 3, [1993] S.C.J. No. 91, 105 D.L.R. (4th) 632, 157 N.R. 1, 65 O.A.C. 321, 83 C.C.C. (3d) 346, 23 C.R. (4th) 189, 17 C.R.R. (2d) 1, 20 W.C.B. (2d) 435; R. v. Decaire, [1998] O.J. No. 6339 (Gen. Div.); R. v. Dow, [2010] Q.J. No. 8999, 2010 QCCS 4276, 219 C.R.R. (2d) 267, 2010EXP-3083, J.E. 2010-1704, 261 C.C.C. (3d) 399, 90 W.C.B. (2d) 624; R. v. Ferguson, [2008] 1 S.C.R. 96, [2008] S.C.J. No. 6, 2008 SCC 6, 228 C.C.C. (3d) 385, [2008] 5 W.W.R. 387, 371 N.R. 231, 290 D.L.R. (4th) 17, 425 A.R. 79, 54 C.R. (6th) 197, 87 Alta. L.R. (4th) 203, 168 C.R.R. (2d) 34, 78 W.C.B. (2d) 303; R. v. Fleming, [2010] O.J. No. 5988, 2010 ONSC 8022; R. v. Heywood, 1994 34 (SCC), [1994] 3 S.C.R. 761, [1994] S.C.J. No. 101, 120 D.L.R. (4th) 348, 174 N.R. 81, 50 B.C.A.C. 161, 94 C.C.C. (3d) 481, 34 C.R. (4th) 133, 24 C.R.R. (2d) 189, 25 W.C.B. (2d) 438; R. v. Honish, 1993 156 (SCC), [1993] 1 S.C.R. 458, [1993] S.C.J. No. 12, 149 N.R. 214, 135 A.R. 334, 78 C.C.C. (3d) 96, 44 M.V.R. (2d) 24, 18 W.C.B. (2d) 481; affg [1991] A.J. No. 1057, 1991 ABCA 304, [1992] 3 W.W.R. 45, 85 Alta. L.R. (2d) 129, 120 A.R. 223, 68 C.C.C. (3d) 329, 36 M.V.R. (2d) 295, 8 W.A.C. 223, 14 W.C.B. (2d) 570 (C.A.); R. v. J. (K.R.), [2016] 1 S.C.R. 906, [2016] S.C.J. No. 31, 2016 SCC 31, 130 W.C.B. (2d) 668, 30 C.R. (7th) 1, 337 C.C.C. (3d) 285, 400 D.L.R. (4th) 398, 486 N.R. 1, 390 B.C.A.C. 1, 358 C.R.R. (2d) 204; R. v. Jensen, [2000] O.J. No. 4870 (S.C.J.); R. v. K. (1970), 1970 431 (ON SC), [1971] 2 O.R. 401, [1970] O.J. No. 1761, 3 C.C.C. (2d) 84 (H.C.J.); R. v. Legere (1995), 1995 1551 (ON CA), 22 O.R. (3d) 89, [1995] O.J. No. 152, 77 O.A.C. 265, 95 C.C.C. (3d) 555, 26 W.C.B. (2d) 173 (C.A.); R. v. Luedecke (2008), 93 O.R. (3d) 89, [2008] O.J. No. 4049, 2008 ONCA 716, 269 O.A.C. 1, 61 C.R. (6th) 139, 236 C.C.C. (3d) 317 (C.A.); R. v. Malmo-Levine; R. v. Caine, [2003] 3 S.C.R. 571, [2003] S.C.J. No. 79, 2003 SCC 74, 233 D.L.R. (4th) 415, 314 N.R. 1, [2004] 4 W.W.R. 407, 191 B.C.A.C. 1, 23 B.C.L.R. (4th) 1, 179 C.C.C. (3d) 417, 16 C.R. (6th) 1, 114 C.R.R. (2d) 189, 59 W.C.B. (2d) 116; R. v. McCaw, [2018] O.J. No. 4134, 2018 ONSC 3464, 48 C.R. (7th) 359, 416 C.R.R. (2d) 99, 149 W.C.B. (2d) 476 (S.C.J.); R. v. Michaud (2015), 127 O.R. (3d) 81, [2015] O.J. No. 4540, 2015 ONCA 585, 339 O.A.C. 41, 341 C.R.R. (2d) 89, 82 M.V.R. (6th) 171, 22 C.R. (7th) 246, 328 C.C.C. (3d) 228, 126 W.C.B. (2d) 70 (C.A.); leave to appeal refused, [2015] S.C.C.A. No. 450; R. v. Mills, 1999 637 (SCC), [1999] 3 S.C.R. 668, [1999] S.C.J. No. 68, 180 D.L.R. (4th) 1, 248 N.R. 101, [2000] 2 W.W.R. 180, 75 Alta. L.R. (3d) 1, 244 A.R. 201, 139 C.C.C. (3d) 321, 28 C.R. (5th) 207, 69 C.R.R. (2d) 1, 44 W.C.B. (2d) 124; R. v. N. (S.), [2012] Nu.J. No. 3, 2012 NUCJ 2, 99 W.C.B. (2d) 841; R. v. Oakes, 1986 46 (SCC), [1986] 1 S.C.R. 103, [1986] S.C.J. No. 7, 26 D.L.R. (4th) 200, 65 N.R. 87, 14 O.A.C. 335, 24 C.C.C. (3d) 321, 50 C.R. (3d) 1, 19 C.R.R. 308, 16 W.C.B. 73; R. v. Parks, 1992 78 (SCC), [1992] 2 S.C.R. 871, [1992] S.C.J. No. 71, 95 D.L.R. (4th) 27, 140 N.R. 161, 55 O.A.C. 241, 75 C.C.C. (3d) 287, 15 C.R. (4th) 289, 17 W.C.B. (2d) 111; R. v. Rabey, 1980 44 (SCC), [1980] 2 S.C.R. 513, [1980] S.C.J. No. 88, 114 D.L.R. (3d) 193, 32 N.R. 451, 54 C.C.C. (2d) 1, 20 C.R. (3d) 1, 15 C.R. (3d) 225, 5 W.C.B. 50; R. v. Scarlett, [2013] O.J. No. 644, 2013 ONSC 562 (S.C.J.); R. v. Stone, 1999 688 (SCC), [1999] 2 S.C.R. 290, [1999] S.C.J. No. 27, 173 D.L.R. (4th) 66, 239 N.R. 201, 123 B.C.A.C. 1, 134 C.C.C. (3d) 353, 24 C.R. (5th) 1, 63 C.R.R. (2d) 43, 42 W.C.B. (2d) 232; R. v. Swain, 1991 104 (SCC), [1991] 1 S.C.R. 933, [1991] S.C.J. No. 32, 125 N.R. 1, 47 O.A.C. 81, 63 C.C.C. (3d) 481, 5 C.R. (4th) 253, 3 C.R.R. (2d) 1, 12 W.C.B. (2d) 582; R. v. [page359] Tatton, [2015] 2 S.C.R. 574, [2015] S.C.J. No. 33, 2015 SCC 33, 386 D.L.R. (4th) 193, 122 W.C.B. (2d) 218, 323 C.C.C. (3d) 166, 20 C.R. (7th) 221; R. v. Théroux, 1993 134 (SCC), [1993] 2 S.C.R. 5, [1993] S.C.J. No. 42, 100 D.L.R. (4th) 624, 151 N.R. 104, 54 Q.A.C. 184, 79 C.C.C. (3d) 449, 19 C.R. (4th) 194, 19 W.C.B. (2d) 212; R. v. Turcotte, [2013] J.Q. no 10269, 2013 QCCA 1916, [2013] R.J.Q. 1743, 2013EXP-3732, J.E. 2013-2027, EYB 2013-229100, 6 C.R. (7th) 43, 111 W.C.B. (2d) 294, leave to appeal refused, [2014] S.C.C.A. No. 7; R. v. Vaillancourt, 1987 2 (SCC), [1987] 2 S.C.R. 636, [1987] S.C.J. No. 83, 47 D.L.R. (4th) 399, 81 N.R. 115, 68 Nfld. & P.E.I.R. 281, 10 Q.A.C. 161, 39 C.C.C. (3d) 118, 60 C.R. (3d) 289, 32 C.R.R. 18, 3 W.C.B. (2d) 133; R. v. Vickberg, 1998 15068 (BC SC), [1998] B.C.J. No. 1034, 16 C.R. (5th) 164, 54 C.R.R. (2d) 83, 38 W.C.B. (2d) 235 (S.C.); R. v. Whyte, [1988] 2 S.C.

R. 3, 1988 47 (SCC), [1988] S.C.J. No. 63, 51 D.L.R. (4th) 481, 86 N.R. 328, [1988] 5 W.W.R. 26, 29 B.C.L.R. (2d) 273, 42 C.C.C. (3d) 97, 64 C.R. (3d) 123, 35 C.R.R. 1, 6 M.V.R. (2d) 138, 5 W.C.B. (2d) 141; R. v. Williams, [2003] 2 S.C.R. 134, [2003] S.C.J. No. 41, 2003 SCC 41, 230 D.L.R. (4th) 39, 308 N.R. 235, 231 Nfld. & P.E.I.R. 1, 176 C.C.C. (3d) 449, 13 C.R. (6th) 240, 58 W.C.B. (2d) 351; R. v. Zundel, 1992 75 (SCC), [1992] 2 S.C.R. 731, [1992] S.C.J. No. 70, 95 D.L.R. (4th) 202, 140 N.R. 1, 56 O.A.C. 161, 75 C.C.C. (3d) 449, 16 C.R. (4th) 1, 10 C.R.R. (2d) 193, 17 W.C.B. (2d) 106; R.J.R.-MacDonald Inc. v. Canada (Attorney General), 1995 64 (SCC), [1995] 3 S.C.R. 199, [1995] S.C.J. No. 68, 127 D.L.R. (4th) 1, 187 N.R. 1, 100 C.C.C. (3d) 449, 62 C.P.R. (3d) 417, 31 C.R.R. (2d) 189, 28 W.C.B. (2d) 216; Reference re Motor Vehicle Act (British Columbia) Section 94(2), 1985 81 (SCC), [1985] 2 S.C.R. 486, [1985] S.C.J. No. 73, 24 D.L.R. (4th) 536, 63 N.R. 266, [1986] 1 W.W.R. 481, 69 B.C.L.R. 145, 23 C.C.C. (3d) 289, 48 C.R. (3d) 289, 18 C.R.R. 30, 36 M.V.R. 240, 15 W.C.B. 343; Sauvé v. Canada (Chief Electoral Officer), [2002] 3 S.C.R. 519, [2002] S.C.J. No. 66, 2002 SCC 68, 218 D.L.R. (4th) 577, 294 N.R. 1, 168 C.C.C. (3d) 449, 5 C.R. (6th) 203, 98 C.R.R. (2d) 1, 55 W.C.B. (2d) 21

Statutes referred to

An Act to amend the Criminal Code (self-induced intoxication), S.C. 1995, c. 32, Premable

An Act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another Act, S.C. 2018, c. 29

Canadian Charter of Rights and Freedoms, ss. 1, 7, 11(d), 24(1)

Constitution Act, 1867, 30 & 31 Vict., c. 3, s. 91

Constitution Act, 1982, Schedule B to the Canada Act, 1982 (U.K.), 1982, c. 11, s. 52(1)

Criminal Code, R.S.C. 1985, c. C-46, ss. 8(3), 9 [as am.], 16 [as am.], 33.1, (1), (2), (3), 88 [as am.], 145 [as am.], (3) [as am.], Part VIII [as am.], ss. 234, 267(a), 268, (1)

Authorities referred to

Hogg, Peter, Constitutional Law of Canada, 5th ed., vol. 2 (Toronto: Carswell, 2019) (looseleaf updated 2019)

La Forest, Gérard, "The Balancing of Interests under the Charter" (1992) 2 N.J.C.L 133

Law Reform Commission of Canada, Recodifying Criminal Law, Report 30, vol. 1 (1986)

Sharpe, Robert J., Good Judgment: Making Judicial Decisions, (Toronto: University of Toronto Press, Scholarly Publishing Division, 2018)

Stewart, Hamish, Fundamental Justice: Section 7 of the Canadian Charter of Rights and Freedoms (Toronto: Irwin Law, 2012)

APPEALS from the convictions entered on December 7, 2016 by Salmers J. of the Superior Court of Justice (C64566) and by [page360] Boswell J., [2018] O.J. No. 6459, 2018 ONSC 7158 for violence-based offences.

Stephanie DiGiuseppe, for appellant David Sullivan.

Danielle Robitaille, Matthew Gourlay and Lauren Binhammer, for appellant Thomas Chan.

Joan Barrett, Michael Perlin, and Jeffrey Wyngaarden, for respondent.

Roy Lee and Rebecca Sewell, for intervenor Attorney General of Canada.

Lindsay Daviau and Deepa Negandhi, for intervenor Criminal Lawyers Association (Ontario).

Jill R. Presser, Cara Zwibel, and Eric S. Neubauer, for intervenor Canadian Civil Liberties Association.

Megan Stephens and Lara Kinkartz, for intervenor Legal Education and Action Fund (LEAF).

The judgment of the court was delivered by

PACIOCCO J.A.: —

OVERVIEW

[1] Mr. Thomas Chan and Mr. David Sullivan share similar, tragic experiences. In separate incidents, while in the throes of drug-induced psychoses and without any discernible motive, both men attacked and stabbed loved ones. Mr. Chan, who became intoxicated after consuming "magic mushrooms", killed his father and grievously injured his father's partner. Mr. Sullivan, who had become intoxicated after consuming a heavy dose of a prescription drug in a suicide attempt, repeatedly stabbed his elderly mother. Both men allege that they were in a state of automatism at the time of the attacks.

[2] Automatism is defined as "a state of impaired consciousness, rather than unconsciousness, in which an individual, though capable of action, has no voluntary control over that action": R. v. Stone, 1999 688 (SCC), [1999] 2 S.C.R. 290, [1999] S.C.J. No. 27, at para. 156, per Bastarache J. Involuntariness is therefore the essence of automatism. The "mind does not go with what is being done": R. v. Rabey, 1980 44 (SCC), [1980] 2 S.C.R. 513, [1980] S.C.J. No. 88, at p. 518 S.C.R., citing R. v. K. (1970), 1970 431 (ON SC), [1971] 2 O.R. 401, [1970] O.J. No. 1761 (H.C.J.), at p. 401 O.R.

[3] Persons in a state of automatism may have the benefit of a "defence" when they engage in otherwise criminal conduct, even though automatism is not a justification or excuse: R. v. Luedecke (2008), 93 O.R. (3d) 89, [2008] O.J. No. 4049, 2008 ONCA 716, at [page361] para. 56. Instead, automatism is treated as negating the crime. It is referred to as a defence because the accused bears the burden of establishing automatism. In Luedecke, at para. 56, Doherty J.A. explained the underlying principles:

A person who is unable to decide whether to perform an act and unable to control the performance of the act cannot be said, in any meaningful sense, to have committed the act. Nor can it be appropriate in a criminal justice system in which liability is predicated on personal responsibility to convict persons based on conduct which those persons have no ability to control.

[4] There are two branches to the defence of automatism. The mental disorder defence, codified in s. 16 of the Criminal Code, R.S.C., 1985, c. C-46, applies where involuntariness is caused by a disease of the mind, since those who are in a state of automatism are incapable of appreciating the nature and quality of their acts or of knowing at the time of their conduct that it is morally wrong ["mental disorder automatism"]. If successful, a mental disorder automatism defence will result in a not criminally responsible verdict, with the likelihood of detention or extensive community supervision.

[5] The alternative branch, the common law automatism defence, applies where the involuntariness is not caused by a disease of the mind ["non-mental disorder automatism"]. Where a non-mental disorder automatism defence succeeds, the accused is acquitted.

[6] Mr. Chan and Mr. Sullivan each relied on non-mental disorder automatism as their primary defence. The hurdle they each faced is that their non-mental disorder automatism claims arose from their intoxication, and each man was charged with violent offences. Yet, s. 33.1 of the Criminal Code ["s. 33.1"] removes non-mental disorder automatism as a defence where the state of automatism is self-induced by voluntary intoxication and the offence charged includes "as an element an assault or any other interference or threat of interference by a person with the bodily integrity of another person" [a "violence-based offence"].

[7] Mr. Chan tried to overcome the impediment s. 33.1 presented to his non-mental disorder automatism defence by applying to have the section declared to be of no force or effect under s. 52(1) of the Constitution Act, 1982, Schedule B to the Canada Act, 1982 (U.K.), 1982, c. 11, as contrary to the Canadian Charter of Rights and Freedoms. The trial judge agreed with Mr. Chan that s. 33.1 is in prima facie violation of ss. 7 and 11(d) of the Charter but upheld the constitutionality of s. 33.1 under s. 1 of the Charter, as a demonstrably justifiable limit on the Charter rights Mr. Chan invoked. [page362]

[8] Mr. Sullivan argued that s. 33.1 did not prevent him from relying on the non-mental disorder automatism defence because his intoxication was not voluntary, having resulted from a suicide attempt. The trial judge rejected this contention and found s. 33.1 to apply.

[9] Both Mr. Chan and Mr. Sullivan defended themselves, in the alternative, by claiming that if they were not experiencing non-mental disorder automatism at the time of their respective attacks, they were experiencing mental disorder automatism. Neither Mr. Chan nor Mr. Sullivan's mental disorder defences succeeded, and both men were convicted of the violence-based charges they faced.

[10] They now appeal. They both raise additional grounds of appeal, but their appeals have in common that they both challenge convictions claiming that s. 33.1 unconstitutionally deprived them of access to the non-mental disorder automatism defence. Mr. Chan does so by challenging the trial judge's rulings. Mr. Sullivan raises the constitutional validity of s. 33.1 for the first time on appeal, as his case is still in the system. The Crown concedes that if Mr. Chan's s. 33.1 challenge succeeds, Mr. Sullivan would also be entitled to the benefit of that ruling. We therefore heard their appeals together and I address them together in this joint decision.

[11] For the reasons below, I would find that s. 33.1 is indeed unconstitutional and I would declare it to be of no force or effect.

[12] Since Mr. Chan was convicted only of offences that include an element of assault, and those convictions depended upon s. 33.1, I would allow his appeal in its entirety and order a new trial.

[13] Mr. Sullivan's violence-based convictions must also be set aside, for the same reason. The Crown agrees that, in these circumstances, verdicts of acquittal should be substituted for Mr. Sullivan's violence-based convictions, and I would do so. Mr. Sullivan also appeals four breach of recognizance convictions for contacting his sister while in custody, contrary to a non-communication order. As I will explain, I would reject his appeal of these convictions.

[14] I will begin with Mr. Chan's appeal, since this is where the bulk of the arguments relating to the constitutional validity of s. 33.1 were made.

THE CHAN APPEAL: MATERIAL FACTS

[15] The consumption of "magic mushrooms", containing the active ingredient psilocybin, triggered Mr. Chan's extreme intoxication. After an evening watching a hockey game at a pub, Mr. Chan, a high school student, and three friends ingested magic [page363] mushrooms in the basement of Mr. Chan's mother's home, where he lived. Mr. Chan had used magic mushrooms before, and the experience had always been pleasant and uneventful. Within a half-hour of consuming the magic mushrooms, his friends were high, but Mr. Chan was not. He took an additional quantity of mushrooms.

[16] Forensic toxicologist, Dr. Daryl Mayers, testified that psilocybin is a "pretty safe" drug in terms of toxicity. On this occasion, it was anything but. A few hours after ingesting the drugs, Mr. Chan's behaviour changed. He expressed that he was scared, began speaking in gibberish, and at some point, ran upstairs to his mother's room where she and her boyfriend, Mr. Jeff Phillips, were sleeping. Mr. Chan turned on the lights and refused to turn them off. He began calling his mother and sister "Satan" and "the Devil" and claimed to "see the light". Mr. Chan ran outside, where it was below freezing and snowing, wearing only a pair of pants.

[17] Mr. Chan then ran to his father's [Dr. Chan's] house, which was just around the corner. Outside of his father's house, he tried to fight with one of his friends who had followed him, and he smashed a car window. Several neighbours reported that they heard a male voice yelling phrases such as, "This is God's will" and "I am God".

[18] Mr. Chan broke into his father's house through a window even though he customarily gained entry by using finger-print recognition on the home security system. He confronted Dr. Chan in the kitchen. Dr. Chan said, "Thomas, it's Daddy. It's Daddy", but Mr. Chan did not appear to recognize him and stabbed him repeatedly. Dr. Chan died of his injuries.

[19] Mr. Chan then began attacking Dr. Chan's partner, Ms. Lynn Witteveen. Ms. Witteveen said, "Thomas, it's Lynnie, it's Lynnie. I love you", but she did not think he recognized her. Mr. Chan stabbed her in the abdomen, arm, back, and chest. At some point after Ms. Witteveen called 9-1-1, Mr. Chan also stabbed her right eye and slashed her neck.

[20] When the police arrived, Mr. Chan immediately complied with their demands to raise his hands and drop to the ground. After the police handcuffed him, he began to struggle. Police Constable Heenan described him as having "super-strength".

[21] Mr. Chan offered alternative arguments to support his claim that s. 33.1 is unconstitutional. First, he urged that since s. 33.1 was declared to be unconstitutional in R. v. Dunn, 1999 36525 (ON SC), [1999] O.J. No. 5452, 28 C.R. (5th) 295 (S.C.J.), it no longer had force or effect in Ontario, and that the trial judge was bound to disregard it. In the alternative, he asked the trial judge to find that the provision [page364] violates ss. 7 and 11(d) of the Charter and cannot be demonstrably justified under s. 1.

[22] As described, the trial judge denied Mr. Chan's Charter challenge. Since s. 33.1 applied, Mr. Chan's non-mental disorder automatism defence was unavailable.

[23] Mr. Chan's mental disorder defence was also denied. The trial judge found that although Mr. Chan's rugby career had left him with cognitive deficits linked to a mild traumatic brain injury, and although Mr. Chan was incapable at the time of the attack of knowing that his actions were morally wrong, his psychosis was the direct result of self-induced intoxication through the ingestion of psilocybin. Since the psychosis was not caused by a disease of the mind, the mental disorder defence would not apply.

[24] In his reasons for judgment in finding Mr. Chan guilty of the grave charges he faced, the trial judge remarked [at para. 141], "Mr. Chan is not a danger to the public. He is a good kid who got super high and did horrific things while experiencing a drug-induced psychosis."

THE CHAN APPEAL: THE ISSUES

[25] Mr. Chan appeals his convictions. He argues that the trial judge erred in denying his Charter challenge to s. 33.1, both because the trial judge was bound by the declaration of unconstitutionality in Dunn, and that, in any event, s. 33.1 cannot be demonstrably justified under s. 1 of the Charter. He asks that acquittals be entered if either of these grounds of appeal succeed.

[26] Alternatively, Mr. Chan argues that the trial judge erred in rejecting the mental disorder defence and asks us to set aside his convictions and to either substitute findings of not criminally responsible by reason of mental disorder or order a new trial.

[27] The Crown contends that the trial judge was correct in the ultimate conclusions he reached but erred in finding s. 33.1 to be in prima facie violation of the Charter.

[28] Mr. Chan's appeal therefore raises the following issues:

A. Was the trial judge bound by precedent to accept the unconstitutionality of s. 33.1?

B. Was the trial judge correct in finding s. 33.1 to be in prima facie violation of the Charter?

C. If s. 33.1 is in prima facie violation of the Charter, can it be saved by s. 1 of the Charter?

D. If s. 33.1 cannot be saved by s. 1 of the Charter and is of no force or effect, should Mr. Chan's acquittal be ordered? [page365]

E. Did the trial judge err in rejecting Mr. Chan's mental disorder defence?

[29] I agree with the trial judge that he was not bound by prior authority to treat s. 33.1 as having no force or effect. I also agree with the trial judge that s. 33.1 violates ss. 7 and 11(d) of the Charter. However, the trial judge erred in finding that these violations are demonstrably justifiable under s. 1. Mr. Chan's appeal must be allowed.

[30] Mr. Chan asks us to substitute verdicts of acquittal. I would not do so and would order a new trial. Given this, I need not determine whether the trial judge erred in rejecting the mental disorder defence. This ground of appeal is largely fact driven, and if it arises again, that issue should be decided by the trial judge at the re-trial.

A. Was the Trial Judge Bound by Precedent to Accept the Unconstitutionality of Section 33.1?

[31] Mr. Chan argues that once a superior court judge declares a law to be unconstitutional, that declaration is binding on other superior court judges, unless the Crown has successfully appealed that decision. He recognises that this position is inconsistent with the ordinary principles of stare decisis, which hold that lower courts are required to follow only binding precedent of higher courts but are not strictly bound to follow earlier decisions in the same court: Robert J. Sharpe, Good Judgment: Making Judicial Decisions, (Toronto: University of Toronto Press, Scholarly Publishing Division, 2018), at pp. 153-155.

[32] Mr. Chan points out that it in Nova Scotia (Workers' Compensation Board) v. Martin, [2003] 2 S.C.R. 504, [2003] S.C.J. No. 54, 2003 SCC 54, at para. 28, the Supreme Court of Canada recognized that "[t]he invalidity of a legislative provision inconsistent with the Charter does not arise from the fact of its being declared unconstitutional by a court, but from the operation of s. 52(1)". The result, he says, is that s. 52(1) governs the binding effect of superior court declarations of unconstitutionality, and the principles of stare decisis do not. Section 52(1) provides that "any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect". Therefore, once a superior court judge makes a s. 52(1) declaration, all other superior court judges within the province are bound to treat it as such. On that basis, he contends that since s. 33.1 was found to be unconstitutional in Dunn prior to Mr. Chan's prosecution, and that decision was not appealed and set aside, the trial judge erred in relying on s. 33.1, as it was of no force or effect. [page366]

[33] As the decision in R. v. McCaw, [2018] O.J. No. 4134, 2018 ONSC 3464, 48 C.R. (7th) 359 (S.C.J.) reveals, superior court case law in Ontario is split on whether this is correct. There does not appear to be appellate authority directly on point, although in an obiter comment made in another context, in R. v. Boutilier, [2016] B.C.J. No. 71, 2016 BCCA 24, 332 C.C.C. (3d) 315, at para. 45, Neilson J.A. commented that a declaration is "a final order in the proceeding directed at the constitutionality of [the impugned provision], binding on the Crown and on other trial courts of [the] province" (emphasis added).

[34] With respect, I cannot agree. I am persuaded that the ordinary principles of stare decisis apply, and that the trial judge was not bound by the Dunn decision. The authorities relied upon by Mr. Chan do not purport to oust these principles. In Nova Scotia (Workers' Compensation Board), at para. 28, Gonthier J. was simply explaining that a provision that is inconsistent with the Constitution "is invalid from the moment it is enacted, and a judicial declaration to this effect is but one remedy amongst others to protect those whom it adversely affects". He was not attempting to alter the principles of stare decisis where s. 52(1) declarations have been made.

[35] Similarly, in none of the other passages relied upon by Mr. Chan was the Supreme Court of Canada purporting to oust the principles of stare decisis where s. 52(1) declarations have been made. The passages he refers to proclaim that after a s. 52(1) declaration is made, the law: is invalid "for all future cases"; "cannot be enforced"; and is "null and void, and is effectively removed from the statute books", such that "[t] he ball is thrown back into Parliament's court": see respectively Nova Scotia (Workers' Compensation Board), at para. 31; Canada (Attorney-General) v. Hislop, [2007] 1 S.C.R. 429, [2007] S.C.J. No. 10, 2007 SCC 10, at para. 82; and R. v. Ferguson, [2008] 1 S.C.R. 96, [2008] S.C.J. No. 6, 2008 SCC 6, at para. 65. These passages describe the effects of a s. 52(1) declaration that has been affirmed or made by the Supreme Court of Canada, the apex court. Those passages cannot be taken as describing the effect of declarations made by lower courts. After all, declarations made by trial courts are subject to appeal, and if overturned on appeal, will have no effect. Even on Mr. Chan's theory, superior court declarations are not binding outside of the province in which they are made. In these circumstances, it cannot be said that a superior court declaration determines the validity or enforcement of the statute "for all future cases", effectively removes the impugned provision from the statute books, or throws the ball back into Parliament's court. These things happen only if the Supreme Court of Canada affirms or makes a s. 52(1) declaration. [page367]

[36] Nor can Mr. Chan find assistance in McLachlin C.J.C.'s observation in Canada (Attorney General) v. Bedford, [2013] 2 S.C.R. 1101, [2013] S.C.J. No. 72, 2013 SCC 72, at paras. 43-44, that "the common law principle of stare decisis is subordinate to the Constitution". Bedford recognized that the principles of stare decisis cannot be relied upon to perpetuate a statute, where that statute is unconstitutional when viewed again through a new lens. Specifically, a trial judge can depart from binding precedent when "a new legal issue is raised, or if there is a significant change in the circumstances or evidence": Bedford, at para. 44. However, Bedford does not hold that the principles of stare decisis are ousted whenever constitutional issues are at stake.

[37] There is good reason why not. Whereas Bedford compromises stare decisis to promote accurate constitutional outcomes, the compromise on stare decisis proposed by Mr. Chan has the potential to discourage accuracy. For example, three superior court judges in succession could find a provision to be constitutional, but the fourth judge's ruling to the contrary would be the only one to have full force or effect in the province. Unless that fourth decision is appealed, it becomes the law in the province. The Crown can no longer rely on the provision; therefore, decreasing the prospect that the issue of constitutional validity would make it before the provincial appellate court. The development of the law would be driven by coincidence in the sequence of trial level decisions and the fortuity of discretionary decisions about whether to appeal, when it should be determined by the quality of the judicial ruling.

[38] The application of the principles of stare decisis to s. 52(1) declarations made by superior court judges does not mean that a superior court declaration will have no effect in other cases. Other superior court judges should respect an earlier declaration of unconstitutionality, absent cogent reason to conclude that the earlier declaration is plainly the result of a wrong decision: R. v. Scarlett, [2013] O.J. No. 644, 2013 ONSC 562, at para. 43; Hansard Spruce Mils Ltd. (Re), 1954 253 (BC SC), [1954] B.C.J. No. 136, [1954] 4 D.L.R. 590 (S.C.), at p. 592 D.L.R. It is obvious that a superior court judge cannot determine that there is cogent reason to conclude that the earlier decision is plainly wrong without the benefit of argument, facilitated by fair notice to the parties. Therefore, where a party seeks to rely on a statutory provision that has been declared to be unconstitutional by a superior court judge, a subsequent trial judge should apply that earlier declaration of invalidity and treat the statutory provision as having no force or effect, unless the underlying constitutional issue has been raised by the Crown before them through submissions that the earlier decision is plainly wrong. In this way, the principles of stare decisis can operate, while recognizing that [page368] the effect of a s. 52(1) declaration is not confined to the litigation in which the declaration is made.

[39] The application of the ordinary principles of stare decisis to s. 52(1) declarations in no way collapses the structural distinction between s. 52(1) and s. 24(1) of the Charter, or amounts to a constitutional exemption, as Mr. Chan argues. The fact that cases at the superior court trial level may produce different outcomes for respective accused persons does not mean that the remedies are personal. The disparity in outcome simply reflects the developing state of the authority on the constitutional validity of a provision, as advanced by judges of competent jurisdiction.

[40] The trial judge was correct in finding that he was not bound by Dunn. He was also correct in considering the issue anew, as the issue of the constitutionality of s. 33.1 was put before him, and the authority he encountered was inconsistent. He had no choice, in the circumstances, but to consider whether to deviate from Dunn.

[41] I would therefore reject this ground of appeal.

B. Was the Chan Trial Judge Correct in Finding Section 33.1 to be in Prima Facie Violation of the Charter?

[42] The trial judge was correct in finding s. 33.1 to be in prima facie violation of both ss. 7 and 11(d) of the Charter. Section 33.1 violates each of the constitutional principles that were identified by Cory J. for the majority in R. v. Daviault, 1994 61 (SCC), [1994] 3 S.C.R. 63, [1994] S.C.J. No. 77. In Daviault, the Supreme Court of Canada modified the common law rule that eliminated the defence of extreme intoxication because the common law rule was in breach of the Charter in three ways. I will describe these breaches as "the voluntariness breach", "the improper substitution breach", and "the mens rea breach". Although there has been some variation in articulation and emphasis, virtually all the judges who have considered this issue have found that the legislation breaches the Charter in one or more of these respects.

[43] I will begin by introducing the relevant constitutional principles in the context of the Daviault decision. I will then address and reject general arguments made before us that the constitutional principles recognized in Daviault do not govern whether s. 33.1 is in prima facie violation of the Charter. I will then analyse these principles in detail and explain why s. 33.1 contravenes ss. 7 and 11(d) of the Charter in these respects.

(1) The road to s. 33.1 -- Daviault

[44] Mr. Daviault was charged with sexual assault. The sexual act he was charged with committing occurred after Mr. Daviault had been drinking heavily. He claimed he was so extremely [page369] intoxicated that, at the time of the act, he was in a state of automatism. The decision in R. v. Leary (1977), 1977 2 (SCC), [1978] 1 S.C.R. 29, [1977] S.C.J. No. 39, imposed an impediment to Mr. Daviault's attempt to rely on his extreme intoxication as a defence. Under the "Leary rules" voluntary intoxication can be presented as a defence only to a "specific intent offence", but not a "general intent offence", and sexual assault is a general intent offence.

[45] There are policy reasons that support criminal consequences when general intent offences are committed by those who choose to become intoxicated. However, the primary distinction between general intent and specific intent offences lies in the complexity of the thought and reasoning process required to commit the relevant offence: R. v. Tatton, [2015] 2 S.C.R. 574, [2015] S.C.J. No. 33, 2015 SCC 33, at para. 21. The mental states required to commit general intent offences simply relate to the performance of the illegal act with no further ulterior purpose; therefore, they involve "minimal mental acuity": Tatton, at paras. 35, 41; Daviault, at p. 89, per Cory J.; and R. v. Bernard, 1994 61 (SCC), [1988] 2 S.C.R. 833, [1994] S.C.J. No. 77, at p. 863 S.C.R., per McIntyre J. These mental states tend to be so basic or rudimentary that, ordinarily, it is not realistic to believe that intoxication could prevent an accused who has committed the prohibited act from having the mental state the offence requires. Proof of intoxication is typically irrelevant in general intent offences, as the requisite mental state can usually be inferred from the mere commission of the act: Bernard, at p. 878 S.C.R., per McIntyre J.; Daviault, at p. 123 S.C.R., per Sopinka J. (dissenting on other grounds).

[46] In contrast, specific intent offences tend to require more complex mental elements over and above the minimal intent required for general intent offences: Daviault, at pp. 123-24 S.C.R., per Sopinka J. (dissenting on other grounds). The actus reus must be coupled with an intent or purpose going beyond the mere performance of the prohibited act; for example, striking a blow with the intent to kill: Bernard, at p. 863 S.C.R., per McIntyre J. For specific intent offences, the fact of intoxication may well be relevant in deciding whether the accused had the more complex specific intent and so, proof of self-induced intoxication is permitted.

[47] The majority in Daviault qualified this sharp general intent offence/specific intent offence divide by accepting the view expressed by Wilson J. in Bernard, at p. 887 S.C.R., that evidence of extreme intoxication involving an absence of awareness akin to a state of automatism is not irrelevant on issues of general intention. Such evidence can raise a reasonable doubt as to the existence of even the minimal intent required for a general intent offence such as sexual assault. Given that this is so, the Daviault [page370] majority concluded that the Charter requires both the admissibility of evidence of extreme self-induced intoxication, as well as access to the defence of automatism, even when the automatism is the result of self-induced intoxication. To do otherwise, would contravene the right to life, liberty, and security of person in a manner that does not accord with the principles of fundamental justice (Charter, s. 7) and the presumption of innocence (Charter, s. 11(d)). More specifically:

(1) The Voluntariness Breach -- It would be contrary to the principles of fundamental justice (Charter, s. 7) and the presumption of innocence (Charter, s. 11(d)) to permit accused persons to be convicted for their involuntary acts, as those acts are not willed and therefore not truly the acts of the accused: Daviault, at pp. 74, 91 S.C.R.;

(2) The Improper Substitution Breach -- It would be contrary to the presumption of innocence (Charter, s. 11(d)) to convict accused persons in the absence of proof of a requisite element of the charged offence, unless a substituted element is proved that inexorably or inevitably includes that requisite element. A prior decision to become intoxicated cannot serve as a substituted element because it will not include the requisite mental state for the offences charged: Daviault, at pp. 89-91 S.C.R.; and

(3) The Mens Rea Breach -- It would be contrary to the principles of fundamental justice (Charter, s. 7) to convict accused persons where the accused does not have the minimum mens rea that reflects the nature of the crime: Daviault, at pp. 90-92 S.C.R.

[48] The Daviault majority went on to find that the identified Charter violations could not be justified under s. 1 of the Charter. It held that there is no pressing and substantial purpose in preventing access to the "rare and limited defence" of automatism arising from self-induced intoxication, and the deleterious effects of doing so are not overcome by proportionate benefits: Daviault, at p. 103 S.C.R.

[49] The Daviault majority did hold, at p. 101 S.C.R., however, that it is a reasonable limitation on the Charter rights identified to require accused persons to establish automatism with the assistance of expert evidence, on the balance of probabilities.

(2) Section 33.1 of the Criminal Code

[50] The Daviault decision, with its notion that extreme intoxication could provide a pathway to exoneration for sexual [page371] assault, created significant public outcry. Parliament responded by passing Bill C-72, An Act to amend the Criminal Code (self-induced intoxication), 1st Sess, 35th Parl, 1995 (assented to 13 July 1995), S.C. 1995, c. 32, which added s. 33.1 to the Criminal Code. Bill C-72 included an extensive preamble [the "Preamble"]:

WHEREAS the Parliament of Canada is gravely concerned about the incidence of violence in Canadian society;

WHEREAS the Parliament of Canada recognizes that violence has a particularly disadvantaging impact on the equal participation of women and children in society and on the rights of women and children to security of the person and to the equal protection and benefit of the law as guaranteed by sections 7, 15 and 28 of the Canadian Charter of Rights and Freedoms;

WHEREAS the Parliament of Canada recognizes that there is a close association between violence and intoxication and is concerned that self-induced intoxication may be used socially and legally to excuse violence, particularly violence against women and children;

WHEREAS the Parliament of Canada recognizes that the potential effects of alcohol and certain drugs on human behaviour are well known to Canadians and is aware of scientific evidence that most intoxicants, including alcohol, by themselves, will not cause a person to act involuntarily;

WHEREAS the Parliament of Canada shares with Canadians the moral view that people who, while in a state of self-induced intoxication, violate the physical integrity of others are blameworthy in relation to their harmful conduct and should be held criminally accountable for it;

WHEREAS the Parliament of Canada desires to promote and help to ensure the full protection of the rights guaranteed under sections 7, 11, 15 and 28 of the Canadian Charter of Rights and Freedoms for all Canadians, including those who are or may be victims of violence;

WHEREAS the Parliament of Canada considers it necessary to legislate a basis of criminal fault in relation to self-induced intoxication and general intent offences involving violence;

WHEREAS the Parliament of Canada recognizes the continuing existence of a common law principle that intoxication to an extent that is less than that which would cause a person to lack the ability to form the basic intent or to have the voluntariness required to commit a criminal offence of general intent is never a defence at law;

AND WHEREAS the Parliament of Canada considers it necessary and desirable to legislate a standard of care, in order to make it clear that a person who, while in a state of incapacity by reason of self-induced intoxication, commits an offence involving violence against another person, departs markedly from the standard of reasonable care that Canadians owe to each other and is thereby criminally at fault;

[51] Section 33.1 of the Criminal Code provides:

33.1(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 [page372] or the voluntariness required to commit the offence, where the accused departed markedly from the standard of care as described in subsection (2).

(2) For the purposes of this section, a person departs markedly from the standard of reasonable care generally recognized in Canadian society and is thereby criminally at fault where the person, while in a state of self-induced intoxication that renders the person unaware of, or incapable of consciously controlling, their behaviour, voluntarily or involuntarily interferes or threatens to interfere with the bodily integrity of another person.

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

(3) Analysis: The Daviault principles apply

[52] Arguments were presented before us that the principles identified in Daviault do not govern the constitutional validity of s. 33.1. I do not agree.

[53] First, I do not accept the Crown's contention that the Charter principles identified in Daviault apply only to common law rules, not statutory ones such as s. 33.1, or that Daviault "provides only that courts cannot water down the requirements of statutory offences by omitting the need for statutorily defined essential elements" (emphasis in original). The Daviault decision is not about the division of powers between Parliament and the courts. The sole reason that the Supreme Court of Canada reconfigured the common law Leary rules in Daviault was that, without reconfiguration, the Leary rules infringed principles of fundamental justice assured by s. 7 of the Charter, as well as the presumption of innocence under s. 11(d). Those principles of fundamental justice were not created in Daviault. They had already been recognized by other Supreme Court of Canada authority. Nor does the reach or definition of those Charter principles vary depending upon whether the law being tested is a common law or statutory rule. As s. 52(1) of the Constitution Act, 1982 makes clear, subject to s. 1 of the Charter, these constitutionally-protected principles must be respected by "any law", common law or statutory. If the law does not do so, it will be of no force or effect to the extent of the inconsistency.

[54] In Daviault, the Supreme Court of Canada occasionally referenced the limits on "judicially developed policy" or the ability of courts to eliminate elements of a crime. These are contextual allusions to the fact that the rules under challenge in that case were common law rules. In making these comments, the Daviault majority was not attempting to confine the reach of the constitutional principles relied upon. When Cory J. recognized that it was open to Parliament to legislate in this area, he was accepting that there are ways for Parliament to address extreme intoxication, but he was [page373] not suggesting that Parliament could do so in disregard of the constitutional principles described.

[55] To be clear, no one questions that Parliament has the authority to amend criminal offences, and that courts do not. The instant point is that when Parliament purports to make statutory changes, it must do so consistently with the Charter, and in determining whether this is so, the Charter principles identified in Daviault apply.

[56] Nor do I accept the argument advanced by the intervener, the Women's Legal Education Action Fund ("LEAF"), that s. 7 of the Charter requires "internal balancing" in identifying the relevant principles of fundamental justice for consideration. Specifically, LEAF argued that in determining whether there is a prima facie breach, we must balance the accused's interests and public interests, such as equality and the human dignity of women and children, who are disproportionally victimized by intoxicated offenders.

[57] Generally, there is no place for internal balancing in defining the principles of fundamental justice. As Lamer C.J.C. explained in R v. Swain, 1991 104 (SCC), [1991] 1 S.C.R. 933, [1991] S.C.J. No. 32, at p. 937 S.C.R., it is not appropriate to thwart the exercise of the accused's s. 7 rights by trying to bring societal interests into the principles of fundamental justice to limit those rights. If societal interests should limit those rights, it is for the Crown to show this under s. 1. This was the law when Daviault was decided and it remains the law, having recently been reaffirmed in Bedford, at paras. 124-27, and Carter v. Canada (Attorney General), [2015] 1 S.C.R. 331, [2015] S.C.J. No. 5, 2015 SCC 5, at paras. 78-80.

[58] I recognize that in R. v. Mills, 1999 637 (SCC), [1999] 3 S.C.R. 668, [1999] S.C.J. No. 68, the Supreme Court of Canada did conduct internal balancing of competing Charter-protected interests. This exercise was required because the issue in Mills was whether the legislative accommodation between the privacy and equality rights of sexual offence complainants, on the one hand, and the right of the accused to access information, on the other, infringed Mr. Mill's s. 7 right to full answer and defence. No such internal balancing is required in this case. It is not about the constitutionality of a legislated compromise between protected interests. Moreover, as about to be explained, the reach of the principles of fundamental justice at issue have already been authoritatively determined, and this has occurred in a body of law that has not engaged in internal balancing. I propose to rely on these principles and to consider the important interest identified by LEAF under s. 1.

[59] Finally, at trial, the Crown argued that "the court must follow the analysis in Bedford, meaning that the court must measure s. 33.1 against the principles of "arbitrariness, [page374] overbreadth and gross disproportionality": see R. v. Chan, [2018] O.J. No. 4731, 2018 ONSC 3849, 365 C.C.C. (3d) 376, at para. 92. None of the parties before us argued, as the trial Crown had, that Bedford has changed the way that s. 7 analysis is to be conducted, but the impact of Bedford and Carter was raised during oral argument and by my colleague in his concurring decision. I will therefore address the issue briefly.

[60] I do not share my colleague's view that we are bound by Bedford or Carter to apply the principles of "arbitrariness, overbreadth and gross disproportionality" to the issue of whether s. 33.1 limits s. 7 Charter rights. Arbitrariness, overbreadth and gross disproportionality are engaged if the s. 7 challenge is that the effect of the law is not connected to its objective ("arbitrariness"), that the law catches situations that have no connection to its objective ("overbreadth"), or that the law imposes consequences that are grossly disproportionate to its objective ("gross disproportionality"): Bedford, at paras. 97-105. These principles all stem from what Professor Hamish Stewart calls "failures of instrumental rationality": Fundamental Justice: Section 7 of the Canadian Charter of Rights and Freedoms (Toronto: Irwin Law, 2012), at p. 151, cited in Bedford, at para. 107. Many principles of fundamental justice have little or nothing to do with "instrumental rationality", in any of these senses.

[61] The principles of fundamental justice identified in Daviault, which the appellants now rely upon, do not address the link between the objective and effects of s. 33.1. Instead, these principles identify what is constitutionally required before a criminal conviction is permitted. In other words, they impose constitutional limits on criminal accountability. The principles affirmed in Daviault have not been modified in any way by subsequent authority, as the trial Crown suggested, nor do I read the Bedford and Carter cases as requiring consideration of arbitrariness, overbreadth and gross disproportionality in all s. 7 cases, as my colleague maintains. Those principles were considered in Bedford and Carter because, in substance, the challenges before those courts alleged failures of instrumental rationality: see Bedford, at para. 96; Carter, at para. 46. They were not considered in R. v. Morrison, [2019] 2 S.C.R. 3, [2019] S.C.J. No. 15, 2019 SCC 15, 432 D.L.R. (4th) 637, at paras. 74-91, where, as in this case, the challenge was to the compliance of a Criminal Code provision with the minimum level of constitutionally required fault. In my view, the trial judge was correct in rejecting the trial Crown's invitation to consider these principles, and in addressing only the principles identified in Daviault. I will proceed in the same manner. [page375]

(4) Analysis: Section 33.1 is in prima facie violation of the Charter

[62] I do not accept that the Supreme Court of Canada implicitly suggested that s. 33.1 is constitutionally valid because it did not cast doubt on the constitutionality of s. 33.1 when deciding R. v. Bouchard-Lebrun, [2011] 3 S.C.R. 575, [2011] S.C.J. No. 58, 2011 SCC 58. LeBel J. noted expressly that the constitutional validity of s. 33.1 was not before the court in that case: at para. 28. The issue was whether the trial judge erred by treating s. 33.1 as limiting the scope of the mental disorder defence in s. 16 of the Criminal Code, an entirely different question.¹ The trial judge was correct in rejecting the suggestion that Bouchard-Lebrun supports the constitutional validity of s. 33.1.

[63] With that said, I will now describe with specificity the ways I would find s. 33.1 to be in prima facie infringement of the Charter.

(a) The Voluntariness Breach: Section 33.1 infringes ss. 7 and s. 11(d) of the Charter, as it is contrary to the voluntariness principle of fundamental justice and permits conviction without proof of voluntariness

[64] Section 33.1 provides expressly that "[i]t is not a defence to [a violence-based offence] that the accused, by reason of self-induced intoxication, lacked the general intent or the voluntariness required to commit the offence" (emphasis added). The principles of fundamental justice require that voluntariness is an element of every criminal offence. It is therefore contrary to the principle of fundamental justice affirmed in Daviault, at p. 91, to remove the voluntariness element from an offence. It is also contrary to s. 11(d) to convict someone where there is a reasonable doubt about voluntariness.

[65] The Crown does not dispute the importance of voluntariness. It argues instead that the voluntariness inherent in voluntary intoxication supplies the required voluntariness element for the violence-based charges. With respect, the Crown's reliance on the voluntariness of intoxication is misplaced. The purpose of the principle of voluntariness is to ensure that individuals are convicted only of conduct they choose. What must be voluntary is the conduct that constitutes the criminal offence charged, in this case, the assaultive acts by Mr. Chan. Without those assaultive [page376] acts, his voluntary intoxication would be benign. The converse is not so. It is an offence to engage in assaultive acts, even without voluntary intoxication. Clearly, the prohibited conduct that constitutes the offences Mr. Chan is charged with are the assaults, not the self-induced intoxication, and it is the assaults to which voluntariness must attach to satisfy the Charter.

[66] Case law is clear on this point. The Supreme Court of Canada has consistently affirmed that voluntariness must be linked to the prohibited conduct. As LeBel J. put it in Bouchard-Lebrun, at para. 45, it is unfair to convict "an accused who did not voluntarily commit an act that constitutes a criminal offence" (emphasis added). In R. v. Théroux, 1993 134 (SCC), [1993] 2 S.C.R. 5, [1993] S.C.J. No. 42, at p. 17 S.C.R., McLachlin J. (as she then was), in speaking of the elements of the crime, said "the act must be the voluntary act of the accused for the actus reus to exist". In his dissenting reasons from Rabey, at p. 522 S.C.R., Dickson J. (as he then was) spoke of the "basic principle that the absence of volition in respect of the act involved is always a defence to a crime" (emphasis added). This passage was subsequently quoted by LaForest J., writing for the majority, in R. v. Parks, 1992 78 (SCC), [1992] 2 S.C.R. 871, [1992] S.C.J. No. 71, at p. 896 S.C.R. The act involved in a violence-based offence is the act of violence. The principle of voluntariness is not satisfied by relying on the voluntariness of conduct other than the act that constitutes the criminal offence charged.

[67] The decision in R. v. Penno, 1990 88 (SCC), [1990] 2 S.C.R. 865, [1990] S.C.J. No. 96, relied upon by the Crown, does not establish otherwise. Penno dealt with a constitutional challenge to the offence of care or control of a motor vehicle while impaired. The constitutional challenge in that case was untenable because the accused argued that significant impairment should be a defence to the charge, even though impairment is an element of the offence. The court divided in explaining why that constitutional challenge had to fail. However, most of the judges found that since impairment is not only an element of the offence, but also the gravamen of the offence, the voluntariness principle is satisfied by requiring voluntary impairment. The current constitutional challenge differs. The gravamen of the offences Mr. Chan is charged with is not impairment, but his assaultive behaviour, and he is not attempting to convert an element of the offences charged into a defence. The inapplicability of Penno is underscored by the fact that in Daviault, at p. 102 S.C.R., Cory J. cited Penno but nonetheless decided that the Leary rules would contravene the principle of voluntariness.

[68] Moreover, Wilson J., the only judge to address the point in Penno, said that the reasoning in Penno does not apply for offences where intoxication is not made part of the actus reus but [page377] is relevant only to assess the presence of mens rea: at pp. 891-92 S.C.R. When speaking of offences where intoxication is not an element of the offence, she reaffirmed her position in Bernard that the defence of non-mental disorder automatism will be a defence: Penno, at pp. 889-90 S.C.R.

[69] I do not accept the Crown's attempt to overcome the problem that the principle of voluntariness presents by arguing that s. 33.1 creates a new and different mode of committing all Criminal Code offences that "include as an element an assault or any other interference or threat of interference by a person with the bodily integrity of another person'". In effect, the Crown's position is that s. 33.1 adds new, alternative elements to those offences, which permit conviction based on voluntary intoxication, even in the absence of the mens rea specified in the affected sections. On this basis, the voluntariness of the intoxication satisfies the voluntariness requirement.

[70] In support of this interpretation, the Crown relies on the language of s. 33.1(3), which provides:

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

(Emphasis added)

[71] I cannot agree. Read in context and in its entirety, s. 33.1 does not create a new mode of committing violent offences. The opening words of s. 33.1(3), "This section", are a reference to s. 33.1 as a whole, which begins by stating its function in s. 33.1(1): "It is not a defence to an offence referred to in subsection (3)" (emphasis added). The wording of s. 33.1 removes a defence. This is as expected, since Parliament enacted s. 33.1 as a direct response to a common law rule that recognized involuntariness as a defence.

[72] Moreover, if the function of s. 33.1 was to amend the elements of those offences, one would expect it to be in Part VIII of the Criminal Code, "Offences Against the Person and Reputation", where those offences are found. Instead, the section is placed alongside the defences addressed in the Criminal Code.

[73] Quite plainly, Parliament did not pass s. 33.1 as a "one fell swoop" amendment to a raft of offences. It was passed to eliminate the defence of non-mental disorder automatism for the offences referenced.

[74] Even if s. 33.1 could somehow be interpreted as creating a parallel cast of offences, this would not solve the voluntariness problem. The act prosecuted would remain the commission of the prohibited act specified in the offence charged. As explained, in this [page378] case, the prohibited act is Mr. Chan's assaultive behaviour, as the act of voluntary intoxication is benign without such behaviour.

[75] The trial judge was correct to find that s. 33.1 contravenes ss. 7 and 11(d) of the Charter because it bypasses the requirement of voluntariness, which is a principle of fundamental justice.

(b) The Improper Substitution Breach: Section 33.1 infringes the presumption of innocence guaranteed by s. 11(d) of the Charter by permitting conviction without proof of the requisite elements of the offence

[76] In Morrison, at para. 51, Moldaver J., for the majority of the Supreme Court of Canada, recently reaffirmed the s. 11(d) principle relied upon in Daviault:

Section 11(d) of the Charter protects the accused's right to be presumed innocent until proven guilty. Before an accused can be convicted of an offence, the trier of fact must be satisfied beyond a reasonable doubt that all of the essential elements of the offence have been proved. This is one of the principal safeguards for ensuring, so far as possible, that innocent persons are not convicted. The right to be presumed innocent is violated by any provision whose effect is to allow for a conviction despite the existence of a reasonable doubt.

(Citations omitted)

[77] As Daviault recognizes, at p. 91, substituting voluntary intoxication for the required elements of a charged offence violates s. 11(d) because doing so permits conviction where a reasonable doubt remains about the substituted elements of the charged offence. As the trial judge pointed out in this case, that is the unconstitutional effect of s. 33.1 on Mr. Chan. It purports to permit Mr. Chan to be convicted of manslaughter and aggravated assault without proof of the mental state required by those offences, namely, the intention to commit the assaults.

[78] Of course, if everyone who becomes voluntarily intoxicated necessarily has the intention to commit the charged offences, this constitutional problem would not arise. By proving Mr. Chan's voluntary intoxication, the Crown would inexorably or inevitably also be proving his intention to commit the assaults that supported his manslaughter and aggravated assault convictions. Permitting the Crown to rely on voluntary intoxication in these circumstances would not leave a reasonable doubt about the required elements of the charged offences: R. v. Vaillancourt, 1987 2 (SCC), [1987] 2 S.C.R. 636, [1987] S.C.J. No. 83, at p. 656 S.C.R.; R. v. Whyte, 1988 47 (SCC), [1988] 2 S.C.R. 3, [1988] S.C.J. No. 63, at pp. 18-19 S.C.R.; Daviault, at pp. 90-91; and Morrison, at paras. 52-53. This argument is not available to the Crown, since proving voluntary intoxication does not necessarily or even ordinarily prove the intention to commit assaults, let alone the assaults charged. The materials [page379] before us from the Standing Committee that was considering Bill C-72 emphasize the correlation between intoxication (particularly alcohol intoxication) and violence, and that link cannot be questioned. However, that link falls far short of showing that those who become intoxicated intend to commit assaults. By enabling the Crown to prove involuntary intoxication instead of intention to assault, s. 33.1 relieves the Crown of its burden of establishing all the elements of the crimes for which Mr. Chan was prosecuted, contrary to s. 11(d) of the Charter.

(c) The Mens Rea Breach: Section 33.1 infringes s. 7 of the Charter by permitting convictions where the minimum level of constitutional fault is not met

[79] Section 33.1 also infringes s. 7 of the Charter by enabling the conviction of accused persons who do not have the constitutionally required level of fault for the commission of a criminal offence. The Crown argues that the fault inherent in voluntary intoxication suffices where a person commits an act "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". I do not agree.

[80] In R. v. Creighton, 1993 61 (SCC), [1993] 3 S.C.R. 3, [1993] S.C.J. No. 91, at pp. 61-62 S.C.R., the Supreme Court of Canada held that where an offence provides no other mens rea or "fault" requirement, the Crown must at least establish "penal negligence" to satisfy the principles of fundamental justice. Put otherwise, penal negligence is the minimum, constitutionally-compliant level of fault for criminal offences. The general intent offences Mr. Chan was charged with have never been found to require more than the minimum level of fault. Nor is there any reason to conclude that they fall within the "small group of offences" that require a purely subjective standard of fault: Morrison, at para. 75. The standard of penal negligence is therefore the appropriate measure for testing the constitutional validity of s. 33.1, which modifies the fault standard for violence-based offences committed while voluntarily intoxicated.

[81] Indeed, s. 33.1 is built on a theory of negligence. As the Preamble confirms, and the Crown arguments before us suggest, the underlying theory of fault supporting s. 33.1 rests in the irresponsibility of self-induced intoxication and the "close association between violence and intoxication": see Preamble to Bill C-72. Section 33.1 also draws on the language of negligence, referring to a marked departure from reasonable standards of care.

[82] The instant question, then, is whether the fault imposed by s. 33.1 satisfies the penal negligence standard? It does not. [page380]

[83] In Creighton, at p. 59 S.C.R., the Supreme Court of Canada defines penal negligence as negligence that constitutes a marked departure from the standard of a reasonable person. The concept of negligence that girds this standard, which is common to the tort of negligence, operates as an objective measure that involves an assessment of the relationship between an act or omission and a damaging consequence: Mustapha v. Culligan Canada Ltd., [2008] 2 S.C.R. 114, [2008] S.C.J. No. 27, 2008 SCC 27, at paras. 6-15. "Negligence" is not based on whether the person intended or foresaw the damaging consequence, but on whether a reasonable person would have foreseen and avoided the risk that the damaging consequence could occur by not engaging in the allegedly negligent act or omission. If this is so, civil negligence is established. For penal negligence to exist so that criminal liability can be imposed, the relevant risk must be reasonably foreseeable such that it not only falls below standards of ordinary prudence to engage in the risky behaviour but doing so amounts to a marked departure from standards of ordinary prudence: Creighton, at p. 59 S.C.R. Section 33.1 fails to meet this standard in several ways.

[84] First, s. 33.1 does not require a foreseeability link between voluntary intoxication and the relevant consequence, the act of violence charged. In Bouchard-Lebrun, at para. 89, LeBel J. set out the elements of s. 33.1:

This provision applies where three conditions are met: (1) the accused was intoxicated at the material time; (2) the intoxication was self-induced; and (3) the accused departed from the standard of reasonable care generally recognized in Canadian society by interfering or threatening to interfere with the bodily integrity of another person.

(Citations omitted)

[85] Note that on this authoritative description of the elements of s. 33.1, there is no prescribed link between the voluntary intoxication and the violent act. It does not matter how unintentional, non-wilful, unknowing, or unforeseeable the interference with bodily integrity or threatening is. So long as these components each occur, s. 33.1 operates. This is problematic because without a foreseeable risk arising from the allegedly negligent act, negligence cannot be established, and without negligence, the minimum constitutional standard of penal negligence cannot be met.

[86] Second, even if s. 33.1 had required such a link, the charged violent behaviour is not invariably going to be a foreseeable risk of voluntary intoxication, yet s. 33.1 will nonetheless enable conviction. Cory J. made this point in the context of the sexual assault charge before him, in Daviault, at p. 91 S.C.R.:

It simply cannot be automatically inferred that there would be an objective foresight that the consequences of voluntary intoxication would lead to the [page381] commission of the offence. It follows that it cannot be said that a reasonable person, let alone an accused who might be a young person inexperienced with alcohol, would expect that such intoxication would lead to either a state akin to automatism, or to the commission of a sexual assault.

[87] Mr. Chan's case illustrates the point. A reasonable person in Mr. Chan's position could not have foreseen that his self-induced intoxication might lead to assaultive behaviour, let alone a knife attack on his father and his step-mother, people he loved.

[88] Third, the normative element of penal negligence -- that the allegedly negligent conduct be a marked departure from the standards of a reasonable person -- is absent. It is important to appreciate that the voluntary intoxication required by s. 33.1 does not require an accused person to intend to become intoxicated to the point of automatism, or even to become extremely intoxicated. It is enough to meet the elements of s. 33.1 that a person takes a substance intending to become intoxicated: R. v. Vickberg, 1998 15068 (BC SC), [1998] B.C.J. No. 1034, 16 C.R. (5th) 164 (S.C.), at para. 68. This is made clear in Bouchard-Lebrun where LeBel J., recognized, at para. 91, that the self-induced intoxication requirement of s. 33.1 is met even where a voluntary choice to become intoxicated produces abnormal effects. The implication is that a decision to become intoxicated to any degree is enough to trigger s. 33.1, even where the accused person cannot reasonably expect that, as a result of that intoxication, they may become unaware of their behaviour or incapable of consciously controlling their behaviour.

[89] Indeed, the Crown before us goes further. It contends that a person who takes a prescription drug for health-related reasons, and who knows or should know that the drug carries the risk of intoxicating side effects, is under self-induced intoxication if intoxication happens to occur. Relying on non-s. 33.1 cases, the Crown also contends that a person will be voluntarily intoxicated, as in Mr. Sullivan's case, if they take an intoxicating substance not to become intoxicated, but in an attempted suicide: R. v. Turcotte, [2013] J.Q. no 10269, 2013 QCCA 1916, [2013] R.J.Q. 1743, leave to appeal refused [2014] S.C.C.A. No. 7; R. v. Honish, [1991] A.J. No. 1057, 1991 ABCA 304, 120 A.R. 223 (C.A.), at para. 9, aff'd 1993 156 (SCC), [1993] 1 S.C.R. 458, [1993] S.C.J. No. 12.

[90] I will leave aside whether the reach of s. 33.1 goes as far as the Crown suggests and focus exclusively on those who intend to become intoxicated, including those who intend for their intoxication to be no more than mild. The notion that it is a marked departure from the standards of the norm to become intoxicated, let alone mildly intoxicated, is untethered from social reality, particularly in a nation where the personal use of cannabis has just been legalized. Voluntary mild intoxication is not uncommon. Whatever [page382] one may think of voluntary mild intoxication, it is difficult to accept that it is a marked departure from the norm.

[91] Finally, even if moral fault can be drawn from voluntary intoxication, it is far from self-evident as a normative proposition that such intoxication is irresponsible enough to substitute for the manifestly more culpable mental states provided for in the general intent offences, such as intention or recklessness relating to sexual assault.

[92] It appears from s. 33.1(2) that Parliament attempted to overcome these challenges by using the language of marked departure and by referencing the standards of reasonable persons. Subsection 33.1(2) provides:

(2) For the purposes of this section, a person departs markedly from the standard of reasonable care generally recognized in Canadian society and is thereby criminally at fault where the person, while in a state of self-induced intoxication that renders the person unaware of, or incapable of consciously controlling, their behaviour, voluntarily or involuntarily interferes or threatens to interfere with the bodily integrity of another person.

(Emphasis added)

[93] I do not accept the submission made by the intervener, LEAF, that s. 33.1 satisfies minimum standards of constitutional fault because it describes an adequate standard of fault. Whether minimum standards of constitutional fault are met depends on the reach of the section, not the language Parliament uses to describe the level of fault it seeks to impose. For the reasons described, the reach of s. 33.1 does not comply with minimum standards of constitutional fault.

[94] This problem is not overcome by conceiving of the violent act itself as the marked departure, as expressed in the elements of s. 33.1, which were laid out by LeBel J. in Bouchard-Lebrun, at para. 89. This is because moral fault cannot come from a consequence alone. Instead, in the case of negligence, "the mental fault lies in failure to direct the mind to a risk which the reasonable person would have appreciated": Creighton, at p. 58 S.C.R. If a consequence that society judges to be a marked departure from the norm could ground criminal liability, the law would countenance criminal fault based on absolute liability, which would itself violate the Charter: see Reference re Motor Vehicle Act (British Columbia) Section 94(2), 1985 81 (SCC), [1985] 2 S.C.R. 486, [1985] S.C.J. No. 73.

C. If Section 33.1 is in Prima Facie Violation of the Charter, can it be Saved by Section 1 of the Charter?

[95] The trial judge was therefore correct in finding that s. 33.1 violates the Charter in three distinct ways: (a) a voluntariness breach of ss. 7 and 11(d); (b) an improper substitution breach of s. 11(d); and (c) a mens rea breach of s. 7. Since s. 33.1 is in prima [page383] facie violation of ss. 7 and 11(d) of the Charter in these ways, it is of no force or effect unless the Crown can demonstrate, pursuant to s. 1 of the Charter that s. 33.1 is a "reasonable limit" "prescribed by law as can be demonstrably justified in a free and democratic society". The trial judge found that the Crown met this burden, and therefore, dismissed Mr. Chan's Charter challenge to s. 33.1.

[96] With respect, I would find that the trial judge committed several errors in coming to this conclusion. Most significantly, the trial judge misstated the object of s. 33.1. The purposes he ascribed to s. 33.1 were too broad. These errors are critical because, as I will explain, the trial judge's mistaken determination of purpose tainted each stage of his s. 1 analysis, contributing to errors in his rational connection, minimal impairment, and overall proportionality analysis.

[97] I would also find that s. 33.1 cannot be justified under s. 1. Section 1 analysis is grounded in a contextual application of the framework set out in R. v. Oakes, 1986 46 (SCC), [1986] 1 S.C.R. 103, [1986] S.C.J. No. 7. In R.J.R.-MacDonald Inc. v. Canada (Attorney General), 1995 64 (SCC), [1995] 3 S.C.R. 199, [1995] S.C.J. No. 68, at paras. 126-130, the Supreme Court of Canada refined without altering the framework for establishing a reasonable limitation finding under s. 1. The Crown must demonstrate:

(1) Pressing and Substantial Purpose -- the "objective of the law limiting the Charter right [is] of sufficient importance to warrant overriding it"; and

(2) Proportionality -- the "means chosen to achieve the objective must be proportional", in the sense that,

(a) Rational Connection -- the "measures chosen [are] rationally connected to the objective";

(b) Minimal Impairment -- the measures chosen "must impair the guaranteed right or freedom as little as reasonably possible", and

(c) Overall Proportionality -- "there must be overall proportionality between the deleterious effects of the measures and the salutary effects of the law".

[98] Section 33.1 would be of no force or effect if the Crown has failed to demonstrate any of these components on a balance of probabilities. I would find that the Crown has not demonstrated the rational connection, minimal impairment, or the proportionality required to save the provision.

[99] In coming to this conclusion, I recognize that courts are to approach constitutional challenges, including s. 1 evaluations, with a "posture of respect" to Parliament: Mills, at para. 56. I [page384] also recognize Parliament's core competency in creating criminal offences. However, courts have core competency in identifying constitutional principles that determine the proper reach of criminal liability in our free and democratic society, and the responsibility to protect those principles from unconstitutional laws: Reference re Motor Vehicle Act (British Columbia) Section 94(2), at para. 15. As Vertes J. observed in R. v. Brenton, "deference is not the same thing as merely taking Parliament's choice at face value. That would be an abdication of [judicial] responsibility": 1999 4334 (NWT SC), [1999] N.W.T.J. No. 113, 180 D.L.R. (4th) 314 (S.C.), at para. 78, rev'd for other reasons [2001] N.W.T.J. No. 14, 2001 NWTCA 1, 199 D.L.R. (4th) 119. Even after due deference is accounted for, Parliament's choice in enacting s. 33.1 cannot be demonstrably justified in a free and democratic society.

(1) Pressing and substantial purpose

[100] The Crown argued before the trial judge, and on appeal, that s. 33.1 has two pressing and substantial purposes: (1) "holding individuals accountable for intoxicated violence"; and (2) "protecting the security of the person and equality rights of others, particularly women and children, from violent crimes at the hands of intoxicated offenders". The trial judge accepted that these stated purposes accurately reflect the object of s. 33.1 and that both are pressing and substantial purposes, satisfying the first Oakes requirement.

[101] I agree that Parliament did have an "accountability purpose" and a "protective purpose" in mind. However, the Crown expresses these purposes too generally, and the trial judge erred in following the Crown's lead. The accountability purpose and the protective purpose are more specific than the Crown and the trial judge conceive. Stated properly, the accountability purpose is to hold individuals who are in a state of automatism due to self-induced intoxication accountable for their violent acts. The protective purpose is to protect potential victims, including women and children, from violent acts committed by those who are in a state of automatism.

(a) The Crown's stated purposes do not accurately reflect the object of s. 33.1

[102] I accept that the purposes as stated by the Crown find support in the Preamble to s. 33.1. I also recognize that Parliament is entitled to identify its legislative objectives in a statutory preamble, and that those stated objectives must be considered by courts undertaking s. 1 analysis. However, there are constitutional principles that courts must respect in identifying the object of legislation under a [page385] s. 1 analysis. Parliamentary declarations of purpose must be measured against those principles so that the task of identifying whether the object of legislation is constitutionally sound is not delegated to Parliament. As Wagner C.J.C. stated in Frank v. Canada (Attorney General), [2019] 1 S.C.R. 3, [2019] S.C.J. No. 1, 2019 SCC 1, at para. 46, "the integrity of the justification analysis requires that the legislative objective be properly stated": see also Bedford, at para. 78; Carter, at para. 77. When those principles are applied here, it is apparent that the Crown's stated purposes cannot be accepted, and the purposes stated in the Preamble must be refined.

[103] First, the Supreme Court of Canada has repeatedly stressed "[t]he critical importance of articulating the measure's purpose at an appropriate level of generality": Frank, at para. 46. This is because "[t]he relevant objective is that of the infringing measure": Frank, at para. 46. As McLachlin C.J.C. explained in R.J.R.-MacDonald Inc., at para. 144, this must be so "since it is the infringing measure and nothing else which is sought to be justified".

[104] Put otherwise, since the Crown is obliged to demonstrate the need for the infringement under s. 1, the purpose it relies upon should relate to that infringement. Here, the infringing measure, s. 33.1, does not address the prosecution of intoxicated offenders generally. It applies only to those who commit violence-based offences while in a state of automatism due to self-induced intoxication. Properly stated, the object of s. 33.1 must be related to these offenders, and not to intoxicated violent offenders generally.

[105] In Sauvé v. Canada (Chief Electoral Officer), [2002] 3 S.C.R. 519, [2002] S.C.J. No. 66, 2002 SCC 68, McLachlin C.J.C. expanded on this point. She said that "[t]o establish justification, one needs to know what problem the government is targeting, and why it is so pressing and important that it warrants limiting a Charter right": Sauvé, at para. 24. In Frank, at paras. 129-30, Côté and Brown JJ., dissenting, but not on this point, counseled courts to look at the state of the law prior to the impugned legislation, and the scope that the legislature sought to regulate with the impugned law. It cannot be said that the government was targeting the general problem of intoxicated violence when it passed s. 33.1. When s. 33.1 was passed, the general problem of intoxicated violence had already been targeted by the Leary rules, as modified in Daviault, which s. 33.1 leaves untouched. Instead, the scope of s. 33.1 makes clear that it targets the one exception to the Leary rules created in Daviault, namely, violent offences committed by those who are in a state of automatism due to self-induced intoxication. It is an overstatement to claim that the mission of s. 33.1 is directed at intoxicated violence generally. [page386]

[106] It is important to avoid overstating legislative objectives, as the Crown and trial judge have done. McLachlin C.J.C. cautioned in R.J.R.-MacDonald Inc., at para. 144, that if the objective is stated too broadly, its importance may be exaggerated, and the entire s. 1 analysis compromised. As she pointed out in Alberta v. Hutterian Brethren of Wilson Colony, [2009] 2 S.C.R. 567, [2002] S.C.J. No. 66, 2009 SCC 37, at para. 76, "the first three stages of Oakes are anchored in an assessment of the law's purpose".

[107] The issue now under consideration demonstrates the importance of stating the purpose accurately. As Spies J. noted in McCaw, at para. 31, in all four of the cases to save s. 33.1 under s. 1, the courts accepted that the objective of s. 33.1 is consistent with the Preamble.² None of the six cases that struck down s. 33.1 did so.³ They each recognized that s. 33.1 is not targeted at alcohol-induced violence in general, but at the uncommon circumstance of violence committed by offenders while in a state of automatism as the result of self-induced intoxication.

[108] Just as it is perilous to overstate the objective of challenged legislation, it is perilous to understate that objective when approaching s. 1. It understates the objective of s. 33.1 to accept, as some courts have, that the real purpose of s. 33.1 is to remove the narrow defence in Daviault: see Dunn, at para. 34; Brenton, at paras. 102-103; and McCaw, at para. 129. Casting the object of s. 33.1 in this way masks the underlying reason why Parliament wanted to remove that narrow defence, and it improperly confuses the means of the legislation with its purpose, which the Supreme Court of Canada has held to be erroneous in R. v. J. (K.R.), [2016] 1 S.C.R. 906, [2016] S.C.J. No. 31, 2016 SCC 31, at para. 63.

[109] When McLachlin C.J.C. and Major J., said, in Harper v. Canada (Attorney General), [2004] 1 S.C.R. 827, [2004] S.C.J. No. 28, 2004 SCC 33, at para. [25](https://www.canlii.org