Supreme Court of Canada
Appeal Heard: October 12, 2021 Judgment Rendered: May 13, 2022 Docket: 39270
Parties
Between:
Her Majesty The Queen — Appellant
and
David Sullivan — Respondent
‑ and ‑
Her Majesty The Queen — Appellant / Respondent on application for leave to cross‑appeal
v.
Thomas Chan — Respondent / Applicant on application for leave to cross‑appeal
and
Attorney General of Canada, Attorney General of Quebec, Attorney General of Manitoba, Attorney General of British Columbia, Attorney General of Saskatchewan, Attorney General of Alberta, British Columbia Civil Liberties Association, Empowerment Council, Systemic Advocates in Addictions and Mental Health, Criminal Lawyers' Association (Ontario), Canadian Civil Liberties Association, Women's Legal Education and Action Fund Inc. and Advocates for the Rule of Law — Interveners
Indexed as: R. v. Sullivan
2022 SCC 19
File No.: 39270.
2021: October 12; 2022: May 13.
Present: Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ.
On appeal from the Court of Appeal for Ontario
Headnotes
Constitutional law — Charter of Rights — Fundamental justice — Presumption of innocence — Reasonable limits — Section 33.1 of Criminal Code preventing accused from raising common law defence of self‑induced intoxication akin to automatism — Whether s. 33.1 violates principles of fundamental justice or presumption of innocence — If so, whether infringement justified — Canadian Charter of Rights and Freedoms, ss. 1, 7, 11(d) — Criminal Code, R.S.C. 1985, c. C‑46, s. 33.1.
Constitutional law — Remedy — Declaration of invalidity — Whether declaration of unconstitutionality issued by superior court pursuant to s. 52(1) of Constitution Act, 1982, can be considered binding on courts of coordinate jurisdiction.
Criminal law — Appeals — Appeals to Supreme Court of Canada — Jurisdiction — Accused convicted of indictable offence at trial — Court of Appeal setting aside conviction and ordering new trial — Crown bringing appeal to Supreme Court of Canada — Accused applying for leave to cross‑appeal order of new trial and requesting stay — Whether Court has jurisdiction to hear accused's appeal — Criminal Code, R.S.C. 1985, c. C‑46, s. 691.
Summary
After having voluntarily taken an overdose of a prescription drug and falling into an impaired state, S attacked his mother with a knife and injured her gravely. He was charged with several offences, including aggravated assault and assault with a weapon. In unrelated circumstances, C fell into an impaired state after he voluntarily ingested magic mushrooms containing a drug called psilocybin. He attacked his father with a knife and killed him, and seriously injured his father's partner. C was tried for manslaughter and aggravated assault. Both S and C argued at their respective trials that their state of intoxication was so extreme that their actions were involuntary and could not be the basis of a guilty verdict for the violent offences of general intent brought against them. C also argued that an underlying brain injury was the significant contributing cause of his psychosis, rather than his intoxication alone, such that he was not criminally responsible.
In the case of S, the trial judge accepted that S was acting involuntarily but decided that the defence of extreme intoxication akin to automatism was not available by virtue of s. 33.1 of the Criminal Code. S was convicted of the two assault charges. The trial judge in C's case dismissed C's constitutional challenge to s. 33.1, during which C had argued that previous decisions of the same court that declared s. 33.1 unconstitutional were binding on the trial judge. C's brain trauma was held to be a mental disorder but not the cause of C's incapacity, which was the result of the voluntary ingestion of magic mushrooms. C was convicted of manslaughter and aggravated assault.
The Court of Appeal heard appeals by S and C together and held that s. 33.1 violates ss. 7 and 11(d) of the Charter and is not saved by s. 1. S and C were therefore entitled to raise the defence of automatism. The Court of Appeal also addressed the issue of whether the trial judge in C's case was bound by precedent of a court of coordinate jurisdiction in the province to accept the unconstitutionality of s. 33.1. It held that the ordinary rules of stare decisis apply when superior courts in first instance consider whether to follow previous declarations of unconstitutionality. The trial judge was correct to decide that he was not bound by previous decisions and entitled to consider the issue afresh. In the result, S's convictions were set aside and acquittals entered. The Court of Appeal ordered a new trial for C because no finding of fact had been made in respect of non-mental disorder automatism. The Crown appeals to the Court from the Court of Appeal's decision in respect of both S and C, and C applies for leave to cross‑appeal the order of a new trial, seeking an acquittal or, in the alternative, a stay of proceedings.
Held: The appeals should be dismissed. C's application for leave to cross‑appeal should be quashed for want of jurisdiction.
In the companion appeal of R. v. Brown, 2022 SCC 18, [2022] 1 S.C.R. 374, the Court concludes that s. 33.1 violates the Charter and is of no force or effect pursuant to s. 52(1) of the Constitution Act, 1982. That conclusion is applicable to the Crown's appeals in the present cases. In the result, given that s. 33.1 is of no force or effect, S is entitled to acquittals. He established that he was intoxicated to the point of automatism and the trial judge found that he was acting involuntarily. As for C, the Court of Appeal's order for a new trial should be upheld. C may avail himself of the defence of non‑mental disorder automatism at a new trial, should it be applicable on the facts.
The ordinary rules of horizontal stare decisis and judicial comity apply to declarations of unconstitutionality issued by superior courts within the same province. A decision may not be binding if it is distinguishable on its facts or the court had no practical way of knowing it existed. If it is binding, a trial court may only depart if one or more of the exceptions set out in Re Hansard Spruce Mills, [1954] 4 D.L.R. 590 (B.C.S.C.), apply.
Accordingly, a trial judge is not strictly bound by a prior declaration by a court of coordinate jurisdiction by virtue of s. 52(1) of the Constitution Act, 1982. A s. 52(1) declaration of unconstitutionality reflects an ordinary judicial task of determining a question of law. Determining whether an impugned law is inconsistent with the provisions of the Constitution and, if so, whether and to what extent the law is of no force or effect is no different than other questions of law decided outside the constitutional context. Judges cannot in a literal sense strike down legislation when they review the consistency of the law with the Constitution under s. 52(1). A declaration of unconstitutionality simply refutes the presumption of constitutionality; it does not alter the terms of the statute. Questions of law are governed by the normal rules and conventions that constrain courts in the performance of their judicial tasks, including applying the ordinary principles of stare decisis. A judicial declaration made under s. 52(1) by a superior court is therefore binding on other courts within the confines of the law relating to precedent.
The principle of constitutional supremacy cannot dominate the analysis of s. 52(1) to the exclusion of other constitutional principles. The legal effect of a s. 52(1) declaration by a superior court must be defined with reference to constitutional supremacy, the rule of law, and federalism. Pursuant to s. 96 of the Constitution Act, 1867, superior courts operating within a province only have powers within the province. Federalism prevents a s. 52(1) declaration issued within one province from binding courts throughout the country. Horizontal stare decisis applies to courts of coordinate jurisdiction within a province and a constitutional ruling will bind lower courts through vertical stare decisis. Stare decisis is the appropriate framework to apply to litigation of constitutional issues, because it balances stability and predictability against correctness and the orderly development of the law. The Crown may consider an appeal when faced with conflicting trial decisions relating to a law on which the prosecution continues to rely, but is not bound to appeal declarations of unconstitutionality in criminal matters. However desirable uniform treatment of the substantive criminal law might be within or even across provinces, a decision to appeal remains within the discretion of the relevant attorney general, to be decided in keeping with its authority to pursue the public interest and the constitutional and practical constraints relating to its office.
Varying standards have been invoked to define when departure from prior precedent is appropriate, for example if it is plainly wrong, when there is good reason for doing so or in extraordinary circumstances. These qualitative tags are susceptible of extending to almost any circumstance and do not provide precise guidance. These terms should no longer be used. Judicial comity as well as the rule of law principles supporting stare decisis mean that prior decisions should be followed unless the Spruce Mills criteria are met. Trial courts should only depart from binding decisions issued by a court of coordinate jurisdiction in three narrow circumstances: the rationale of the earlier decision has been undermined by subsequent appellate decisions; some binding authority in case law or some relevant statute was not considered; or the earlier decision was not fully considered, for example if it was taken in exigent circumstances. Where a judge is faced with conflicting authority on the constitutionality of legislation, the judge must follow the most recent authority unless one or more of these three criteria are met. These criteria do not detract from the narrow circumstances in which a lower court may depart from binding vertical precedent.
An application of the doctrine of horizontal stare decisis to C's case illustrates how these criteria should work in practice. R. v. Dunn (1999), 28 C.R. (5th) 295, did not engage with an earlier Ontario decision that upheld the constitutionality of s. 33.1 and Dunn did not apply the criteria to determine whether it was permissible to depart from that precedent; therefore it was a decision per incuriam and did not need to be followed. The earlier decision considered the appropriate statutes and authorities in reaching the conclusion that s. 33.1 infringed ss. 7 and 11(d) of the Charter but was upheld under s. 1 and there is no indication that it was rendered in exigent circumstances. Therefore, that decision should have been followed by the trial judge in the constitutional ruling in C's case. On appeal, however, the Court of Appeal was not bound to follow any first instance superior court decision.
There is no statutory route for C to appeal the Court of Appeal's order of a new trial. Section 695 of the Criminal Code does not provide the Court with the jurisdiction to hear a cross-appeal by C. Sections 691 and 692 of the Criminal Code set out the jurisdiction of the Court to hear criminal appeals brought by criminal accused and represent the whole of an accused's express statutory right to appeal when their conviction has been affirmed or their acquittal set aside by the Court of Appeal. In cases like C's, where an accused, having been convicted of an indictable offence at trial, is granted a new trial, s. 691 does not provide a route of appeal to the Court. As for a stay of proceedings, it may only be granted in the clearest of cases, where prejudice to an accused's rights or to the judicial system is irreparable and cannot be remedied. The record before the Court is insufficient to conclude that C's right to a fair trial is prejudiced.
Cases Cited
By Kasirer J.
Applied: R. v. Brown, 2022 SCC 18, [2022] 1 S.C.R. 374; Re Hansard Spruce Mills, [1954] 4 D.L.R. 590; distinguished: R. v. J.F., 2008 SCC 60, [2008] 3 S.C.R. 215; R. v. Warsing, [1998] 3 S.C.R. 579; explained: R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96; Nova Scotia (Workers' Compensation Board) v. Martin, 2003 SCC 54, [2003] 2 S.C.R. 504; considered: R. v. Dunn (1999), 28 C.R. (5th) 295; R. v. Fleming, 2010 ONSC 8022; R. v. McCaw, 2018 ONSC 3464, 48 C.R. (7th) 359; R. v. Decaire, [1998] O.J. No. 6339; referred to: R. v. Scarlett, 2013 ONSC 562; Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101; Canada (Attorney General) v. Hislop, 2007 SCC 10, [2007] 1 S.C.R. 429; R. v. Poulin, 2019 SCC 47, [2019] 3 S.C.R. 566; Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721; R. v. P.(J.) (2003), 67 O.R. (3d) 321; Ravndahl v. Saskatchewan, 2009 SCC 7, [2009] 1 S.C.R. 181; Coquitlam (City) v. Construction Aggregates Ltd. (1998), 65 B.C.L.R. (3d) 275, aff'd 2000 BCCA 301, 75 B.C.L.R. (3d) 350, leave to appeal refused, [2001] 1 S.C.R. ix; Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11, [2013] 1 S.C.R. 467; R. v. St‑Onge Lamoureux, 2012 SCC 57, [2012] 3 S.C.R. 187; Schachter v. Canada, [1992] 2 S.C.R. 679; Windsor (City) v. Canadian Transit Co., 2016 SCC 54, [2016] 2 S.C.R. 617; R. v. Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130; Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16, [2015] 2 S.C.R. 3; Okwuobi v. Lester B. Pearson School Board, 2005 SCC 16, [2005] 1 S.C.R. 257; Ontario (Attorney General) v. G, 2020 SCC 38, [2020] 3 S.C.R. 629; R. v. Albashir, 2021 SCC 48, [2021] 3 S.C.R. 531; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; Reference re Secession of Quebec, [1998] 2 S.C.R. 217; Wolf v. The Queen, [1975] 2 S.C.R. 107; Reference re Same‑Sex Marriage, 2004 SCC 79, [2004] 3 S.C.R. 698; Parent v. Guimond, 2016 QCCA 159; R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773; Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4, [2015] 1 S.C.R. 245; David Polowin Real Estate Ltd. v. Dominion of Canada General Insurance Co. (2005), 76 O.R. (3d) 161; Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331; Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77; Guindon v. Canada, 2015 SCC 41, [2015] 3 S.C.R. 3; R. v. McCann, 2015 ONCA 451; R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167; R. v. Dunn (2002), 156 O.A.C. 27; R. v. Jensen (2005), 74 O.R. (3d) 561; R. v. Cawthorne, 2016 SCC 32, [2016] 1 S.C.R. 983; R. v. Power, [1994] 1 S.C.R. 601; R. v. Green, 2021 ONSC 2826; R. v. Kehler, 2009 MBPC 29, 242 Man. R. (2d) 4; R. v. Wolverine and Bernard (1987), 59 Sask. R. 22; The Owners, Strata Plan BCS 4006 v. Jameson House Ventures Ltd., 2017 BCSC 1988, 4 B.C.L.R. (6th) 370; R. v. Hinse, [1995] 4 S.C.R. 597; R. v. Shea, 2010 SCC 26, [2010] 2 S.C.R. 17; Saumur v. Recorder's Court (Quebec), [1947] S.C.R. 492; Kourtessis v. M.N.R., [1993] 2 S.C.R. 53; R. v. Carosella, [1997] 1 S.C.R. 80; R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309; R. v. O'Connor, [1995] 4 S.C.R. 411.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, preamble, ss. 1, 7, 11(d), 24(1).
Constitution Act, 1867, s. 96.
Constitution Act, 1982, s. 52(1).
Criminal Code, R.S.C. 1985, c. C‑46, ss. 16, 33.1, 691, 692, 695.
Rules of the Supreme Court of Canada, SOR/2002‑156, r. 29(3).
Supreme Court Act, R.S.C. 1985, c. S‑26, s. 40.
Authors Cited
Brun, Henri, Guy Tremblay et Eugénie Brouillet. Droit constitutionnel, 6e éd. Cowansville, Que.: Yvon Blais, 2014.
Canada. Department of Justice Canada. Principles guiding the Attorney General of Canada in Charter litigation, Ottawa, 2017.
Garner, Bryan A., et al. The Law of Judicial Precedent. St. Paul, Minn.: Thomson Reuters, 2016.
Gélinas, Fabien. "La primauté du droit et les effets d'une loi inconstitutionnelle" (1988), 67 Can. Bar Rev. 455.
Gervais, Marc‑Antoine. "Les impasses théoriques et pratiques du contrôle de constitutionnalité canadien" (2021), 66 McGill L.J. 509.
Hogg, Peter W., and Allison A. Bushell. "The Charter Dialogue Between Courts and Legislatures" (1997), 35 Osgoode Hall L.J. 75.
Hogg, Peter W., and Wade K. Wright. Constitutional Law of Canada, 5th ed. Supp. Toronto: Thomson Reuters, 2021 (updated 2021, release 1).
Kerwin, Scott. "Stare Decisis in the B.C. Supreme Court: Revisiting Hansard Spruce Mills" (2004), 62 Advocate 541.
Leckey, Robert. Bills of Rights in the Common Law. Cambridge: Cambridge University Press, 2015.
Mancini, Mark. "Declarations of Invalidity in Superior Courts" (2019), 28:3 Const. Forum 31.
Marcotte, Alexandre. "A Question of Law: (Formal) Declarations of Invalidity and the Doctrine of Stare Decisis" (2021), 42 N.J.C.L. 1.
Parkes, Debra. « Precedent Unbound? Contemporary Approaches to Precedent in Canada » (2006), 32 Man. L.J. 135.
Pinard, Danielle. "De l'inhabilité des juges à modifier le texte des lois déclarées inconstitutionnelles", dans Patrick Taillon, Eugénie Brouillet et Amélie Binette, dir., Un regard québécois sur le droit constitutionnel: Mélanges en l'honneur d'Henri Brun et de Guy Tremblay. Montréal: Yvon Blais, 2016, 329.
Roach, Kent. Constitutional Remedies in Canada, 2nd ed. Toronto: Thomson Reuters, 2013 (loose‑leaf updated October 2021, release 2).
Roach, Kent. "Not Just the Government's Lawyer: The Attorney General as Defender of the Rule of Law" (2006), 31 Queen's L.J. 598.
Rosenberg, Marc. "The Attorney General and the Administration of Criminal Justice" (2009), 34 Queen's L.J. 813.
Rowe, Malcom, and Leanna Katz. "A Practical Guide to Stare Decisis" (2020), 41 Windsor Rev. Legal Soc. Issues 1.
Sarna, Lazar. The Law of Declaratory Judgments, 4th ed. Toronto: Thomson Reuters, 2016.
Sharpe, Robert J. Good Judgment: Making Judicial Decisions. Toronto: University of Toronto Press, 2018.
Waldron, Jeremy. « Stare Decisis and the Rule of Law: A Layered Approach » (2012), 111 Mich. L. Rev. 1.
Appeal Information
APPEAL from a judgment of the Ontario Court of Appeal (Watt, Lauwers and Paciocco JJ.A.), 2020 ONCA 333, 151 O.R. (3d) 353, 387 C.C.C. (3d) 304, 63 C.R. (7th) 77, 462 C.R.R. (2d) 231, [2020] O.J. No. 2452 (QL), 2020 CarswellOnt 7645 (WL), setting aside the convictions for aggravated assault and assault with a weapon entered by Salmers J., [2016] O.J. No. 6847 (QL), 2016 CarswellOnt 21197 (WL), and entering verdicts of acquittal. Appeal dismissed.
APPEAL and APPLICATION FOR LEAVE TO CROSS‑APPEAL from a judgment of the Ontario Court of Appeal (Watt, Lauwers and Paciocco JJ.A.), 2020 ONCA 333, 151 O.R. (3d) 353, 387 C.C.C. (3d) 304, 63 C.R. (7th) 77, 462 C.R.R. (2d) 231, [2020] O.J. No. 2452 (QL), 2020 CarswellOnt 7645 (WL), setting aside the convictions for manslaughter and aggravated assault entered by Boswell J., 2018 ONSC 7158, [2018] O.J. No. 6459 (QL), 2018 CarswellOnt 20662 (WL), and ordering a new trial. Appeal dismissed and application for leave to cross‑appeal quashed.
Counsel
Joan Barrett, Michael Perlin and Jeffrey Wyngaarden, for the appellant/respondent on application for leave to cross‑appeal.
Stephanie DiGiuseppe and Karen Heath, for the respondent David Sullivan.
Matthew R. Gourlay and Danielle Robitaille, for the respondent/applicant on application for leave to cross‑appeal Thomas Chan.
Michael H. Morris, Roy Lee and Rebecca Sewell, for the intervener the Attorney General of Canada.
Sylvain Leboeuf and Jean‑Vincent Lacroix, for the intervener the Attorney General of Quebec.
Ami Kotler, for the intervener the Attorney General of Manitoba.
Lara Vizsolyi, for the intervener the Attorney General of British Columbia.
Noah Wernikowski, for the intervener the Attorney General of Saskatchewan.
Deborah J. Alford, for the intervener the Attorney General of Alberta.
Jeremy Opolsky, Paul Daly, Jake Babad and Julie Lowenstein, for the intervener the British Columbia Civil Liberties Association.
Carter Martell, Anita Szigeti, Sarah Rankin and Maya Kotob, for the intervener the Empowerment Council, Systemic Advocates in Addictions and Mental Health.
Lindsay Daviau and Deepa Negandhi, for the intervener the Criminal Lawyers' Association (Ontario).
Eric S. Neubauer, for the intervener the Canadian Civil Liberties Association.
Megan Stephens and Lara Kinkartz, for the intervener the Women's Legal Education and Action Fund Inc.
Connor Bildfell and Asher Honickman, for the intervener the Advocates for the Rule of Law.
Reasons for Judgment
The judgment of the Court was delivered by
Kasirer J. —
I. Overview
[ 1 ] After having voluntarily taken an overdose of a prescription drug and falling into an impaired state, David Sullivan attacked his mother with a knife and injured her gravely. He was charged with several offences, including aggravated assault and assault with a weapon. In unrelated circumstances, Thomas Chan also fell into an impaired state after he voluntarily ingested "magic mushrooms" containing a drug called psilocybin. Mr. Chan attacked his father with a knife and killed him and seriously injured his father's partner. He was tried for manslaughter and aggravated assault.
[ 2 ] In their different circumstances, both Mr. Sullivan and Mr. Chan argued at their respective trials that their state of intoxication was so extreme that their actions were involuntary and could not be the basis of a guilty verdict for the violent offences of general intent brought against them. Mr. Chan argued in particular that an underlying brain injury was the significant contributing cause of his psychosis, rather than his intoxication alone, such that he was not criminally responsible pursuant to s. 16 of the Criminal Code, R.S.C. 1985, c. C‑46.
[ 3 ] In the case of Mr. Sullivan, the trial judge accepted the accused was acting involuntarily but decided that the defence of extreme intoxication akin to automatism was not available by virtue of s. 33.1 of the Criminal Code. Mr. Sullivan was convicted of the two assault charges. In the case of Mr. Chan, the trial judge dismissed a constitutional challenge to s. 33.1. Mr. Chan's brain trauma was held to be a mental disorder, but not the cause of the incapacity, which was the result of the voluntary ingestion of magic mushrooms. The trial judge in his case rejected his argument under s. 16. He was convicted of manslaughter and aggravated assault.
[ 4 ] Their appeals were heard together. The Court of Appeal for Ontario held that s. 33.1 violated ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms and was not saved by s. 1. As a result, both Mr. Sullivan and Mr. Chan were entitled to raise the defence of automatism. Based on the findings at his trial, Mr. Sullivan's convictions were set aside and acquittals entered. The Court of Appeal ordered a new trial for Mr. Chan because no finding of fact had been made in respect of non-mental disorder automatism in his case. The Crown has appealed both the decisions for Mr. Sullivan and Mr. Chan to this Court.
[ 5 ] In R. v. Brown, 2022 SCC 18, [2022] 1 R.C.S. 374, released concurrently with the reasons for judgment in these appeals, I conclude that s. 33.1 violates the Charter and is of no force or effect pursuant to s. 52(1) of the Constitution Act, 1982. That conclusion is equally applicable to the Crown's appeals in the cases at bar.
[ 6 ] As respondent, Mr. Sullivan has raised an issue relating to the character and force of a s. 52(1) declaration of unconstitutionality issued by a superior court. He argued before us that the trial judge had been bound by a previous declaration by a superior court judge in the province that held s. 33.1 to be of no force and effect. The issue raised by Mr. Sullivan provides an opportunity to clarify whether a declaration made under s. 52(1) binds the courts of coordinate jurisdiction in future cases due to the principle of constitutional supremacy, or whether the ordinary rules of horizontal stare decisis apply. As I shall endeavour to explain, stare decisis does apply and the trial judge was only bound to that limited extent on the question of the constitutionality of s. 33.1. The right approach can be stated plainly. Superior courts at first instance may not be bound if the prior decision is distinguishable on its facts or if the court had no practical way of knowing that the earlier decision existed. Otherwise, the decision is binding and the judge may only depart from it if one or more of the exceptions helpfully explained in Re Hansard Spruce Mills, [1954] 4 D.L.R. 590 (B.C.S.C.), apply.
[ 7 ] In the result, I would dismiss the Crown's appeal in the case of Mr. Sullivan and confirm the acquittals entered by the Court of Appeal.
[ 8 ] As respondent in his appeal before this Court, Mr. Chan seeks leave to cross-appeal and, if granted, he asks that we substitute an acquittal for the order of a new trial. I would reject Mr. Chan's arguments on this point. In my view, Mr. Chan's application for leave to cross‑appeal must be quashed for want of jurisdiction. I would reject his alternative argument that this Court order a stay of proceedings in respect of the very serious violent charges brought against Mr. Chan because the requirements for a stay have not been made out. In the result, I would confirm the Court of Appeal's order of a new trial.
II. Background
A. David Sullivan
[ 9 ] All parties agree that Mr. Sullivan attacked his mother during an episode of drug-induced psychosis during which he had no voluntary control over his actions. Mr. Sullivan, then 43 years old, lived with his mother in a condominium unit. He has a history of mental illness and substance abuse. Evidence adduced at trial indicated that in the three months before the attack, he was convinced that the planet would be invaded by aliens that were already present in their condominium.
[ 10 ] Mr. Sullivan had been prescribed bupropion (under the name Wellbutrin) to help him quit smoking. Psychosis is a side effect of the drug. He had experienced psychosis from Wellbutrin at least once before, shortly before the events in this case. The evening prior to the attack, he ingested 30 to 80 Wellbutrin tablets in a suicide attempt. The drugs prompted a psychotic episode during which time, in the early hours of the morning, he woke his mother and told her an alien was in the living room. She followed him into the area and, while she was there, Mr. Sullivan went into the kitchen, took two knives, and stabbed his mother six times. She suffered serious injuries, including residual nerve damage that was slow to heal. She died before trial of unrelated causes.
[ 11 ] Several neighbours saw Mr. Sullivan acting erratically outside of the building after the attack. Agitated when the police arrived, Mr. Sullivan was talking about Jesus, the devil, and aliens. He was taken to the hospital, where he had multiple seizures. The psychotic episode resolved itself within a few days. At trial, a forensic psychiatrist gave evidence that Mr. Sullivan was likely experiencing a bupropion‑induced psychosis at the time of the attack on his mother.
B. Thomas Chan
[ 12 ] Thomas Chan violently attacked his father and his father's partner with a knife. Mr. Chan's father later died from his injuries. The father's partner was gravely and permanently injured.
[ 13 ] After returning home from a bar where they had consumed several alcoholic drinks earlier that evening, Mr. Chan and his friends decided to take magic mushrooms. Mr. Chan had consumed mushrooms before and enjoyed the experience. He ingested an initial dose and when he failed to feel the same effects as his friends, he took a second dose. Towards the end of the night, he began acting erratically. Frightened, he went upstairs where he woke up his mother, mother's boyfriend, and sister. Mr. Chan then left the home wearing only a pair of pants. His family and friends pursued him as he ran towards his father's home a short distance away. Mr. Chan broke into his father's house through a window even though he normally gained entry through finger-print recognition on a home security system.
[ 14 ] Once inside, he confronted his father in the kitchen and did not appear to recognize him. He shouted that he was God and that his father was Satan. He proceeded to stab his father repeatedly. He then stabbed his father's partner. When police arrived, he complied with their demands, although at one point he struggled with what a police officer described as "super‑strength".
III. Proceedings Below
A. David Sullivan
Ontario Superior Court of Justice, [2016] O.J. No. 6847 (QL), 2016 CarswellOnt 21197 (WL) (Salmers J.)
[ 15 ] At trial, the parties agreed, and the trial judge accepted, that Mr. Sullivan was acting involuntarily when he stabbed his mother. The trial judge found that Mr. Sullivan experienced a state of non‑mental disorder automatism, attributable to his ingestion of Wellbutrin. His state was caused by a drug for which psychosis is a known side‑effect.
[ 16 ] The Crown said s. 33.1 applied because Mr. Sullivan's psychosis was self‑induced and therefore could not be the basis for a defence that he lacked the general intent or voluntariness for the crimes of assault. There was disagreement about whether Mr. Sullivan's consumption of Wellbutrin was voluntary. Section 33.1 would only preclude the automatism defence if intoxication was "self‑induced". The trial judge found that Mr. Sullivan's intoxication was voluntary and that he knew or ought to have known that Wellbutrin would cause him to be impaired. Section 33.1 was applied. He was found guilty of aggravated assault, assault with a weapon, and four counts of breach of a non-communication order. It bears noting that Mr. Sullivan did not contest the constitutionality of s. 33.1 at trial. He received a global sentence of five years.
B. Thomas Chan
(1) Constitutional Ruling, [2018 ONSC 3849](https://www.minicounsel.ca/scj/2018/3849), 365 C.C.C. (3d) 376 (Boswell J.)
[ 17 ] Mr. Chan challenged the constitutionality of s. 33.1 in a pre‑trial application, arguing in particular that the trial judge was bound by previous decisions of the same court, notably R. v. Dunn (1999), 28 C.R. (5th) 295 (Ont. C.J. (Gen. Div.)), and R. v. Fleming, 2010 ONSC 8022, which found s. 33.1 to be unconstitutional.
[ 18 ] Boswell J. considered whether, by reason of the doctrine of horizontal stare decisis, he was bound by a constitutional declaration by another judge of the superior court in the province that s. 33.1 was of no force or effect because it was inconsistent with the Charter. Relying on R. v. Scarlett, 2013 ONSC 562, the trial judge held that he was not so bound. Decisions from courts of coordinate jurisdiction should be followed in the absence of cogent reasons to depart therefrom. A court is bound unless the previous decision is "plainly wrong" (paras. 55‑56). The trial judge reasoned that the case law on the constitutionality of s. 33.1 was "considerably unsettled" (para. 58). Although all courts had agreed that s. 33.1 violated ss. 7 and 11(d) of the Charter, courts were divided on whether it could be saved under s. 1. As a result, Boswell J. did not "feel constrained to follow one school of thought more than the other" (ibid.). In addition, none of the earlier constitutional decisions had had the benefit of the judgment of the Court in Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, on the relationship between ss. 7 and 1 (para. 58). He concluded that he was free to reconsider the question afresh.
[ 19 ] The trial judge then went on to decide that s. 33.1 violated ss. 7 and 11(d) of the Charter but was saved under s. 1.
(2) Judgment on the Merits, [2018 ONSC 7158](https://www.minicounsel.ca/scj/2018/7158) (Boswell J.)
[ 20 ] With the defence of automatism precluded by operation of s. 33.1, Mr. Chan argued that he was not criminally responsible by reason of brain trauma which, alone or in connection with the effect of the intoxicant, amounted to mental disorder under s. 16. The parties disagreed about whether Mr. Chan was suffering from a brain injury and, if so, whether it played a part in his violent conduct. Mr. Chan argued that but for the brain injury, he would not have been psychotic from consuming the mushrooms. The Crown argued that the primary cause of Mr. Chan's psychosis was his voluntary consumption of the mushrooms. The trial judge was required to consider, first, whether Mr. Chan was suffering from a mental disorder at the time of the offence and, second, if that mental disorder rendered him incapable of appreciating the nature and quality of his actions, or incapable of knowing they were wrong.
[ 21 ] Mr. Chan did not satisfy the applicable requirements under s. 16. The evidence disclosed a mild traumatic brain injury that was not the cause of his psychosis; rather, it was the voluntary ingestion of magic mushrooms that caused his acute psychotic state at the time of the killings. His argument that the brain injury rendered him not criminally responsible was rejected.
[ 22 ] Mr. Chan was convicted of manslaughter and aggravated assault. He was later sentenced to a global sentence of five years and six months.
(3) Application to Re-open Constitutional Challenge, [2019 ONSC 783](https://www.minicounsel.ca/scj/2019/783), 428 C.R.R. (2d) 81 (Boswell J.)
[ 23 ] After sentencing, Mr. Chan applied to re‑open the case to re‑argue the constitutional issue. He said that R. v. McCaw, 2018 ONSC 3464, 48 C.R. (7th) 359, released after his trial, was a binding decision that he had not had the opportunity to rely upon. In McCaw, Spies J. held that she was bound by R. v. Fleming, 2010 ONSC 8022, which had declared s. 33.1 to be of no force and effect, and that the accused was entitled to rely on the common law defence of automatism. The arguments in McCaw were not the same as those raised by Mr. Chan and his counsel at trial. Spies J. also opined that a declaration of invalidity issued pursuant to s. 52(1) was binding on courts of coordinate jurisdiction.
[ 24 ] Boswell J. dismissed Mr. Chan's application to re‑open the case. McCaw was not an accurate statement of the law. A declaration of invalidity pursuant to s. 52(1) is not an erga omnes ruling and does not bind courts of coordinate jurisdiction.
[ 25 ] For Boswell J., McCaw misinterpreted the statements by McLachlin C.J. in Ferguson that an unconstitutional law is invalid from the moment of enactment. Those statements were not intended to alter the law of stare decisis; they were made in the context of explaining why individual remedies under s. 24 of the Charter are appropriate even where a law is declared unconstitutional — the law was, after all, unconstitutional from the start, and yet it applied until a court said otherwise.
C. Court of Appeal for Ontario, [2020 ONCA 333](https://www.minicounsel.ca/oca/2020/333), 151 O.R. (3d) 353 (Paciocco J.A., Watt J.A. concurring; Lauwers J.A. concurring in part)
[ 26 ] The Court of Appeal allowed the appeals and held that s. 33.1 is unconstitutional and of no force or effect. The Crown now appeals that finding and, as noted, the constitutionality of s. 33.1 is not before this Court in light of the companion case of Brown.
[ 27 ] Speaking for the Court on this point, Paciocco J.A. addressed the issue of whether the trial judge in Mr. Chan's case was bound by prior decisions of superior courts that had declared s. 33.1 unconstitutional. He concluded that the ordinary rules of stare decisis apply when superior courts in first instance consider whether to follow previous declarations of unconstitutionality.
[ 28 ] In his view, the ordinary rules of stare decisis apply when superior courts in first instance consider whether to follow previous declarations of unconstitutionality issued by courts of the same level. A declaration of invalidity is not erga omnes in its effect and it does not bind courts of coordinate jurisdiction absolutely, nor does it bind courts outside the province. The relevant question is not whether a statute has been declared invalid but whether the question of constitutionality has been decided in a prior case and, if so, whether the court must follow that prior decision.
[ 29 ] If all s. 52(1) declarations were binding, wrote Paciocco J.A., accuracy would be compromised. For example, if the first court to consider a constitutional question — perhaps without detailed submissions from interveners — made an error, subsequent courts would be unable to correct it; the error would persist until appellate intervention.
[ 30 ] The principles in Spruce Mills and Scarlett were affirmed. Applied to the context of s. 52(1) declarations of unconstitutionality, a court may depart from such a declaration when: (1) a binding or highly persuasive authority undermines the prior declaration; (2) the prior declaration was made per incuriam; or (3) the prior declaration was not considered on its merits.
[ 31 ] Having declared s. 33.1 unconstitutional and of no force or effect, Paciocco J.A. entered acquittals for Mr. Sullivan on the basis that the trial judge had found he was in a state of automatism. A new trial was ordered for Mr. Chan because there was no factual finding at trial as to whether he was in a state of non‑mental disorder automatism.
IV. Issues
[ 32 ] As noted, the Crown appeals on the constitutionality of s. 33.1 cannot succeed for the reasons stated in Brown. The Court therefore need not address the constitutionality of s. 33.1 again here.
[ 33 ] There are two remaining issues in these appeals:
On what basis can a declaration issued by a superior court pursuant to s. 52(1) of the Constitution Act, 1982 be considered binding on courts of coordinate jurisdiction?
Does the Court have jurisdiction to hear Mr. Chan's cross‑appeal? If so, is he entitled to an acquittal? If not, is he entitled to a stay of proceedings?
[ 34 ] For the reasons that follow, I conclude on the first issue that the ordinary rules of stare decisis and judicial comity govern a s. 52(1) declaration of unconstitutionality issued by a superior court. On the second issue, I conclude that this Court lacks jurisdiction to hear Mr. Chan's cross‑appeal and that a stay is not warranted.
V. Analysis
A. Section 52(1) Declarations of Unconstitutionality and Horizontal Stare Decisis
[ 35 ] Presented in the General Part of the Constitution Act, 1982 under the heading "Primacy of Constitution of Canada", s. 52(1) provides:
52 (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.
[ 36 ] The parties disagree on the rules that apply after a superior court declares a law inconsistent with the Charter under s. 52(1). Mr. Sullivan argues that the ordinary rules of horizontal stare decisis do not apply to a s. 52(1) declaration. The Crown argues that s. 52(1) declarations of unconstitutionality are not qualitatively different from other determinations of law made in litigation and are therefore subject to the ordinary rules of horizontal stare decisis.
[ 37 ] Mr. Sullivan observes that at the time he was convicted at trial, s. 33.1 had already been declared of no force and effect by courts of coordinate jurisdiction in Ontario. He argues that his trial judge was bound by those declarations and should not have applied s. 33.1 to his case.
[ 38 ] Mr. Sullivan, along with a number of interveners, submit that a superior court only "discovers" that a law is unconstitutional; it does not "create" that fact through its decision. Thus, the moment s. 33.1 was first declared unconstitutional by any superior court, it became of no force and effect — and so it could not validly be applied in Mr. Sullivan's case. In this view, any court in Canada that is subsequently faced with the issue should take note of the fact that s. 33.1 has been declared invalid and apply that conclusion regardless of ordinary principles of stare decisis.
[ 39 ] Although it argues that the Court of Appeal made no mistake in holding that the ordinary rules of stare decisis apply, the Crown adds in the context of this case that the Court should clarify the law around those rules. In particular, it submits that this Court should disavow the use of the word "plainly wrong" to describe the standard for departing from a prior ruling of a court of coordinate jurisdiction.
[ 40 ] I agree that the matter can and should be decided here (Rules of the Supreme Court of Canada, SOR/2002‑156, r. 29(3)).
[ 41 ] On the substance of the matter, the Crown argues that while s. 52(1) declarations are erga omnes in nature, they do not bind courts of coordinate jurisdiction in an absolute sense. The Crown submits that ordinary stare decisis rules govern a trial court's treatment of declarations issued by courts of coordinate jurisdiction and, relatedly, that applying ordinary horizontal stare decisis respects federalism principles.
[ 42 ] The Attorneys General of British Columbia, Quebec and Canada intervene in support of the Crown's position. British Columbia, in particular, argues that the ordinary rules of stare decisis apply to s. 52(1) declarations and that the judgment in McCaw is wrong insofar as it holds that a s. 52(1) declaration is absolutely binding on courts of coordinate jurisdiction.
[ 43 ] For the reasons that follow, I agree with the Crown that the trial judge was not strictly bound by the prior declarations of coordinate superior courts that s. 33.1 was unconstitutional. The ordinary rules of horizontal stare decisis apply.
[ 44 ] In the result, I agree with the conclusion reached by Paciocco J.A. that the ordinary principles of stare decisis and judicial comity govern s. 52(1) declarations issued by superior courts, for reasons that overlap with those I will now offer.
(1) Section 52(1) Declarations of Unconstitutionality Reflect the Exercise of Judicial Power to Decide Questions of Law
[ 45 ] I start with a simple point: in issuing a declaration that a law is inconsistent with the Constitution and thus of no force and effect pursuant to s. 52(1), a court exercises no more and no less than its ordinary judicial power to decide questions of law. The constitutional context does not change the character of the activity. As a leading commentator put it:
[translation] Judicial review for constitutionality concerns the impugned rule, not the text of written law that expresses it. The judge who reviews constitutionality interprets the rule of law set out by the legislature, and then declares its inconsistency with the constitutional norm. The judge has no power to repeal a legislative text. [Emphasis deleted.]
[ 46 ] Contrary to what Mr. Sullivan suggests, while s. 33.1 was declared to be inconsistent with the Constitution and of no force and effect, the text of that provision is not altered by the declaration. It is still on the books. A later court, called upon to consider the same question, must indeed decide what legal effect to give to the declared unconstitutionality of the provision. It may follow the earlier decision, or it may depart from it pursuant to the established principles of stare decisis. If it departs, it must explain why by reference to those principles. In any event, the declaration does not change the text.
[ 47 ] A second equally simple point flows from the first and also appears to have been neglected by Mr. Sullivan. In authoring a declaration of unconstitutionality, the court performs the judicial task of determining that a law is inconsistent with the Constitution and thus deprives the law of force and effect to the extent of the inconsistency. Beyond that, the court has no special powers, either to "strike down" legislation or to pass any kind of normative judgment, whether legislative or otherwise.
[ 48 ] Notwithstanding the heady constitutional context, these are ordinary judicial tasks raising questions of law. Under the heading "How Courts Work" in their treatise The Law of Judicial Precedent, Garner et al. express the view that "constitutional adjudication is not categorically different from other legal reasoning" (at p. 185). This proposition, while it may surprise those who would have constitutional review stand apart from ordinary legal reasoning, is by now uncontroversial.
[ 49 ] Having indicated my view that a s. 52(1) declaration of unconstitutionality is an ordinary judicial task that involves a question of law, I turn to explain why stare decisis governs such declarations.
(2) Stare Decisis Governs Declarations of Unconstitutionality
[ 50 ] Mr. Sullivan argues that an unconstitutional law is invalid from the moment it was first enacted, due to the operation of s. 52(1). As such, any declaration that a law is unconstitutional operates as the discovery of a pre-existing legal fact, not the creation of a new one. He says this position is supported by the Court's decision in R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, where McLachlin C.J. stated that a law that is inconsistent with the Constitution is "invalid from the moment of enactment" (para. 64).
[ 51 ] I respectfully disagree.
[ 52 ] Understanding the comments of this Court in Ferguson requires the reader to recall the context in which that case arose. Ferguson was about the interaction between individual s. 24(1) remedies and declarations of invalidity under s. 52(1) — specifically, about whether a constitutional exemption from a mandatory minimum sentence constitutes an individual remedy under s. 24(1) or a declaration of unconstitutionality under s. 52(1). McLachlin C.J.'s comment that a law is "invalid from the moment of enactment" was made in the context of explaining why individual remedies under s. 24 of the Charter are appropriate even where a law is declared unconstitutional.
[ 53 ] That said, Ferguson does not change the fact that the declaration remains an exercise of judicial power by which a court decides a question of law. Put simply, saying that a law is invalid from the moment of its enactment does not mean that a court's declaration to that effect is not governed by stare decisis.
[ 54 ] I am thus content to read Ferguson as a useful figure of speech rather than take what the Court said in literal terms. The Court's observation that an unconstitutional law is "invalid from the moment of its enactment" was not intended to displace the ordinary rules of stare decisis as they apply to constitutional determinations.
[ 55 ] Similarly, the principle from Nova Scotia (Workers' Compensation Board) v. Martin, 2003 SCC 54, [2003] 2 S.C.R. 504, that the "invalidity of a legislative provision inconsistent with the Charter does not arise from the fact of its being declared unconstitutional by a court, but exists prior to and independent of any judicial pronouncement" (para. 28), reflects the legal consequence of a declaration of unconstitutionality rather than a statement about how s. 52(1) declarations are governed. The invalidity of the law does pre-exist the court's declaration in a conceptual or theoretical sense, but the practical legal effect of that invalidity — that is, whether it is recognized by future courts as determinative of the outcome — is governed by stare decisis.
[ 56 ] I add that this explanation does not reduce the declaration to an individual remedy, as some interveners suggest. A declaration under s. 52(1) is not an individual remedy. It differs from individual s. 24 remedies in that its effect, through the doctrine of stare decisis, extends beyond the parties to the litigation. It is of a general character in the sense that it affects the legal landscape for future proceedings, but this does not mean the ordinary rules of stare decisis do not govern its precedential effect.
[ 57 ] In other words, in McCaw, Spies J. was right to conclude she was not free to ignore prior decisions but, with respect, was wrong to conclude that she was absolutely bound by them under s. 52(1). A s. 52(1) declaration by a court of coordinate jurisdiction is binding, but only to the extent that it is binding under the applicable principles of stare decisis.
[ 58 ] By contrast, in Mr. Chan's case, Boswell J. decided, as a matter of discerning applicable and binding precedent, that he was not bound by the prior declarations of unconstitutionality of s. 33.1. Whether he correctly applied stare decisis is addressed below.
[ 59 ] I would add — and here I likely part company with the Court of Appeal in the present case — that the same principles apply throughout Canada. Because a declaration of unconstitutionality reflects ordinary judicial power, there is in principle no reason to distinguish between constitutional and non-constitutional rulings for the purpose of determining the applicable principles of stare decisis. I therefore agree with the Crown that a declaration of unconstitutionality issued within one province does not bind courts in other provinces as a matter of law. What is the effect across Canada of a declaration of invalidity issued within one province? The ordinary rules of stare decisis, including considerations of comity, apply.
(3) The Role of Federalism and the Rule of Law
[ 60 ] The principle of constitutional supremacy cannot dominate the analysis of s. 52(1) to the exclusion of other constitutional principles. The legal effect of a s. 52(1) declaration by a superior court must be defined with reference to constitutional supremacy, the rule of law, and federalism.
[ 61 ] It is often said there are four fundamental organizing precepts of the Constitution: federalism, democracy, constitutionalism and the rule of law, and protection of minorities (Reference re Secession of Quebec, [1998] 2 S.C.R. 217, at para. 32). The constitutional principle of constitutional supremacy would be misread if it were to overwhelm those other principles in this context.
[ 62 ] Federalism prevents a s. 52(1) declaration issued within one province from binding courts throughout the country: s. 96 of the Constitution Act, 1867 grants jurisdiction to provincial superior courts only within the province. Whatever force a declaration has through stare decisis, that force is circumscribed by the territorial limits of the court's mandate.
[ 63 ] The better view is that s. 33.1 is not null and void, but inoperative by reason of a determination of law made by a court exercising valid judicial power. The law is still on the books; it is simply inoperative due to the constitutional determination. The text of the statute has not been altered. A court can only displace s. 33.1 through exercise of its judicial power. To the extent that any court determines that s. 33.1 is unconstitutional, it does so through an exercise of ordinary judicial power, and that exercise is governed by ordinary principles of judicial decision-making, including stare decisis.
[ 64 ] It follows there is no supplementary power held by courts when issuing a declaration of unconstitutionality beyond what is available to courts in ordinary judicial decision-making. If courts cannot repeal legislation in non-constitutional contexts, they cannot do so in constitutional ones. A declaration of unconstitutionality is categorically no different from the judicial power exercised in ordinary cases.
[ 65 ] Horizontal stare decisis applies to courts of coordinate jurisdiction within a province, and applies to a ruling on the constitutionality of a law as it applies to other questions of law. Vertical stare decisis applies as well: the constitutional ruling by an appellate court will bind lower courts within the province.
[ 66 ] Stare decisis brings important benefits to constitutional adjudication that balance predictability and consistency against correctness. That balance is at the heart of the rule of law. Stare decisis also encourages comprehensive litigation of legal issues when they are first presented to a court, since parties know that prior decisions will be treated as binding.
[ 67 ] In the absence of the supporting theory of stare decisis, res judicata on its own is not a helpful lens through which to understand the effect of a s. 52(1) declaration. Res judicata binds only the parties to the litigation, and does not bind future courts on the same legal question. Without stare decisis, two or more people who committed the same crime under the same set of facts could face radically different outcomes in the same jurisdiction, depending on which court heard their case and which constitutional determination it chose to follow.
[ 68 ] Stare decisis is the better framework to apply to litigation of constitutional issues, as it better guards against inconsistency between courts and excessive litigation on constitutional issues already decided. It also protects the integrity of the courts' general role in constitutional adjudication.
[ 69 ] Lastly, I note that some have been critical of the fact that the constitutional status of s. 33.1 has remained uncertain across the country for many years, decades even. The critics point out that prosecutions for serious offences have proceeded inconsistently across provinces and within Ontario because the Crown chose to proceed under s. 33.1 regardless of various declarations of unconstitutionality by courts of coordinate jurisdiction. They argue that the framework adopted here exacerbates the problem, since it allows uncertainty to persist despite binding judicial decisions on the subject.
[ 70 ] While one might well expect the authorities to consider an appeal when faced with conflicting trial decisions relating to a law on which the prosecution continues to rely, the attorney general is not bound to appeal declarations of unconstitutionality in criminal matters. The attorney general, as "guardian of the public interest", has broad discretion in determining whether to appeal in any given case. This includes appeals of decisions that have declared legislation unconstitutional: R. v. Power, [1994] 1 S.C.R. 601.
[ 71 ] Barring an abuse of that authority, the attorney general is not answerable for the exercise of its discretion in this Court. However desirable uniform treatment of the substantive criminal law might be within or even across provinces, a decision to appeal remains within the discretion of the relevant attorney general, to be decided in keeping with its authority to pursue the public interest and the constitutional and practical constraints relating to its office.
[ 72 ] Before us, it was argued that the peculiar circumstances of this case highlight that the constitutional status of s. 33.1 has remained uncertain for too long. I agree that the constitutional status of s. 33.1 has been uncertain for too long, that this has allowed unjust convictions, and that the situation is unsatisfactory. But this does not mean that the framework adopted here is flawed. The framework is correct: the proper mechanism for achieving certainty was an appellate decision on the constitutionality of s. 33.1. The uncertainty lay in the failure to appeal the questions of constitutionality to the appellate court earlier, not in the framework of stare decisis.
(4) Proper Approach to Horizontal Stare Decisis
[ 73 ] Horizontal stare decisis applies to decisions of the same level of court. The framework that guides the application of horizontal stare decisis is found in Re Hansard Spruce Mills, [1954] 4 D.L.R. 590 (B.C.S.C.), in which Wilson J. stated:
. . . I will only go against a judgment of another Judge of this Court if:
(a) Subsequent decisions have affected the validity of the impugned judgment;
(b) it is demonstrated that some binding authority in case law, or some relevant statute was not considered;
(c) the judgment was unconsidered, a nisi prius judgment given in circumstances familiar to all trial Judges, where the exigencies of the trial required an immediate decision without opportunity to fully consult authorities.
[ 74 ] The Spruce Mills criteria have been followed in numerous cases across Canada. However, the analytical framework has sometimes been elucidated using language that misrepresents the applicable standard. Courts have at times been said to be free to depart from prior decisions when the prior decision is "plainly wrong" or when there are "cogent reasons" for doing so. These formulations are insufficiently precise and should no longer be used.
[ 75 ] The principle of judicial comity — that judges treat fellow judges' decisions with courtesy and consideration — and the rule of law principles supporting stare decisis mean that prior decisions should be followed unless the Spruce Mills criteria are met. I reformulate these criteria as follows:
The rationale of an earlier decision has been undermined by subsequent appellate decisions;
The earlier decision was reached per incuriam ("through carelessness" or "by inadvertence"); or
The earlier decision was not fully considered, e.g. taken in exigent circumstances.
[ 76 ] First, a judge need not follow a prior decision where the authority of the prior decision has been undermined by subsequent appellate decisions. This is a natural consequence of the doctrine of vertical stare decisis: if a higher court has issued a binding ruling that is inconsistent with the prior decision, the judge must follow the binding ruling. A judge may also depart if subsequent appellate decisions, while not directly addressing the authority of the prior decision, have undermined its underlying rationale or reasoning.
[ 77 ] Second, a judge can depart from a decision where it was reached without considering a relevant statute or binding case law — without considering an authority "that would have been conclusive", as Laskin C.J. stated in Wolf v. The Queen, [1975] 2 S.C.R. 107 (at p. 113).
[ 78 ] Third and finally, a judge may depart where the exigencies of the trial required an immediate decision without the opportunity to fully consult authorities. This criterion speaks to the quality of the reasoning in a prior decision. As Spruce Mills recognized, if a prior decision was rendered hastily or carelessly, a court is less bound to follow it.
[ 79 ] These criteria define when a superior court at first instance may depart from binding judgment issued by a court of coordinate jurisdiction. These circumstances are narrow and carefully defined, as they must be to guard against courts substituting their personal views for a judicial predecessor's considered opinion without good reason.
[ 80 ] To be plain: these criteria do not detract from the narrow circumstances outlined in Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, at paras. 42‑45, in which a lower court may depart from binding vertical precedent. Indeed, these circumstances are even more circumscribed.
[ 81 ] I will now turn to whether it was appropriate for the trial judge in Mr. Chan's case to depart from Dunn and decide the constitutional question afresh.
[ 82 ] Application of the doctrine of horizontal stare decisis in Mr. Chan's case illustrates how the Spruce Mills criteria should work in practice. The trial judge in Mr. Chan's case was confronted with conflicting authority on the constitutionality of s. 33.1. He was required to identify the most recent binding decision and determine whether he was free to depart from it.
[ 83 ] Boswell J. cited the correct principles from Spruce Mills but, respectfully, erred in applying them. First, he concluded that the case law was "considerably unsettled" and that he could therefore depart from prior rulings declaring s. 33.1 unconstitutional. This is not the right approach. The existence of conflicting decisions does not exempt the trial judge from choosing which to follow. He was required to identify the most recent binding ruling and then assess whether any of the Spruce Mills criteria justified departure.
[ 84 ] Instead, Boswell J. should have looked to the substance of Dunn to determine whether it had been overruled by a higher authority or was per incuriam. In my view, Dunn is a decision per incuriam. Specifically, Dunn did not engage with an earlier Ontario Superior Court decision — R. v. Decaire, [1998] O.J. No. 6339 — that upheld the constitutionality of s. 33.1. Dunn was an earlier decision by a court of coordinate jurisdiction; it had declared s. 33.1 unconstitutional. But it failed to apply the Spruce Mills criteria and determine whether departure from Decaire was appropriate. Dunn was thus a decision per incuriam: it did not consider a binding or potentially binding decision of a court of coordinate jurisdiction. Accordingly, Boswell J. was not bound to follow Dunn. He was, however, bound to follow the prior decision that upheld the constitutionality of s. 33.1 — i.e., Decaire — and there is no suggestion in the record that Boswell J. was unaware of that decision. Nor was there any basis to depart from it under the Spruce Mills criteria.
[ 85 ] Finally, it bears recalling that McCaw was decided shortly after the constitutional ruling in Mr. Chan's case. The conclusion in McCaw that a superior court is absolutely bound by a prior declaration of unconstitutionality was wrong; the correct position is that such declarations are subject to the ordinary principles of stare decisis, including the Spruce Mills criteria.
[ 86 ] To summarize, a court is required by the principles of judicial comity and horizontal stare decisis to follow a binding decision of a court of coordinate jurisdiction unless one of the three Spruce Mills criteria are met. Where a judge is faced with conflicting authority on the constitutionality of legislation, the judge must follow the most recent authority unless one or more of those three criteria are met.
[ 87 ] I will now turn to Mr. Chan's cross‑appeal.
B. Is There Jurisdiction to Hear Mr. Chan's Cross‑Appeal?
[ 88 ] Mr. Chan argued in his application for leave to cross-appeal that s. 695 of the Criminal Code provides this Court with the jurisdiction to entertain his cross-appeal. I disagree.
[ 89 ] Sections 691 and 692 of the Criminal Code set out the jurisdiction of this Court to hear criminal appeals brought by criminal accused and represent the whole of an accused's express statutory right to appeal when their conviction has been affirmed or their acquittal set aside by the Court of Appeal. An accused may appeal as of right where the Court of Appeal has set aside an acquittal, or where a judge of the Court of Appeal dissented on a question of law (s. 691(1) and (2)). An accused may appeal with leave where the Court of Appeal, by affirming a conviction, dismissed an appeal from a conviction at trial (s. 692(1)(a)) or dismissed an appeal brought under Part XXI of the Criminal Code (s. 692(1)(b)). These sections represent a complete scheme for criminal appeals by accused persons.
[ 90 ] There is no other statutory route for Mr. Chan to appeal the Court of Appeal's order of a new trial. Section 40(1) of the Supreme Court Act, which grants this Court jurisdiction to grant leave to appeal "from any final or other judgment of the Federal Court of Appeal or of the highest court of final resort in a province", is not available to Mr. Chan because s. 40(3) excludes from its application:
(3) No appeal to the Court lies under this section from the judgment of any court acquitting or convicting or setting aside or affirming a conviction or acquittal of an indictable offence or, except in accordance with part XXI of the Criminal Code, in the case of any summary conviction proceedings.
In other words, where a person is convicted of an indictable offence but subsequently has that conviction set aside, the statutory right of appeal to this Court is governed by the Criminal Code, not s. 40(1) of the Supreme Court Act.
[ 91 ] Respectfully, R. v. J.F., 2008 SCC 60, [2008] 3 S.C.R. 215, does not assist Mr. Chan. The parties in J.F. did not make submissions on whether the accused had a right to cross-appeal to this Court and the Court did not address the question (see para. 7). In that case, the accused was granted leave to cross-appeal the new trial ordered by the Court of Appeal and the parties proceeded on the basis that the Court had jurisdiction to entertain it. This Court explicitly noted that no submissions were made on the issue of jurisdiction. The issue of jurisdiction was not decided in J.F. and the case cannot be read as settling the law on this point.
[ 92 ] During oral argument, counsel for Mr. Chan also referred the Court to R. v. Warsing, [1998] 3 S.C.R. 579. In that case, this Court heard a cross-appeal by an accused that challenged the Court of Appeal's order of a new trial. Mr. Chan argues that because the Court heard the cross-appeal in Warsing, it follows that this Court has jurisdiction to entertain his cross-appeal here. But again, as in J.F., no submissions were made on the issue of jurisdiction in Warsing, and so Warsing cannot be taken as having settled the law.
C. Disposition of the Appeals
(1) Mr. Chan
[ 93 ] Given the lack of jurisdiction to substitute an acquittal, it would be unwise to comment further on the substance of this aspect of Mr. Chan's application.
[ 94 ] Counsel for Mr. Chan submitted in oral argument that a stay of proceedings is warranted if there is no jurisdiction to hear the cross-appeal. Counsel argued that the prejudice flowing from a potential fourth trial on these charges would be an abuse of process that this Court could address via a stay. He pointed out that for a stay to be granted, the prejudice need not be proven with certainty; there need only be a risk of prejudice.
[ 95 ] Assuming without deciding that a stay could be ordered in such circumstances, I would decline to do so here. There is no basis on the record before the Court to conclude that a new trial would create a risk of prejudice sufficient to warrant a stay. A stay may only be granted in the clearest of cases, where prejudice to an accused's rights or to the judicial system is irreparable and cannot be remedied: R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309; R. v. O'Connor, [1995] 4 S.C.R. 411.
[ 96 ] Mr. Chan's arguments with respect to the prejudice he might suffer relate to a future trial, not the proceedings before this Court. The record before this Court is insufficient to determine whether prejudice would occur at a future trial or whether any such prejudice could be remedied at trial. Prejudice arising from the passage of time, from media coverage, from the ordeal of a further trial, or from related matters should be raised at the trial level, where a trial court can assess the actual degree of prejudice and devise appropriate remedies, including, in extreme cases, a stay of proceedings.
[ 97 ] I add that it remains an open question whether it would be in the public interest to proceed with Mr. Chan's prosecution. As guardian of the public interest, the Crown must consider whether it remains appropriate to seek a conviction. This is of particular significance in the context of the very serious charges at issue in Mr. Chan's case, and given the length of time that has passed since the offences. I decline to say more.
(2) Mr. Sullivan
[ 98 ] The trial judge found that Mr. Sullivan was acting involuntarily when he attacked his mother. The common law components of the defence of extreme intoxication akin to automatism are therefore established. The only bar to Mr. Sullivan relying on this defence was s. 33.1. Given that s. 33.1 has been found to be of no force or effect in the companion case of Brown, Mr. Sullivan is entitled to acquittals. The Court of Appeal was correct to enter acquittals and I would dismiss the Crown's appeal.
VI. Conclusion
[ 99 ] I would dismiss the appeals. The application for leave to cross-appeal by Mr. Chan should be quashed for want of jurisdiction.
Appeals dismissed and application for leave to cross‑appeal quashed.
Solicitors
Solicitor for the appellant/respondent on application for leave to cross‑appeal: Attorney General of Ontario, Toronto.
Solicitors for the respondent David Sullivan: Ruby Shiller Enenajor DiGiuseppe, Toronto.
Solicitors for the respondent/applicant on application for leave to cross‑appeal Thomas Chan: Henein Hutchison, Toronto.
Solicitor for the intervener the Attorney General of Canada: Attorney General of Canada, Toronto.
Solicitor for the intervener the Attorney General of Quebec: Attorney General of Quebec, Québec.
Solicitor for the intervener the Attorney General of Manitoba: Attorney General of Manitoba, Winnipeg.
Solicitor for the intervener the Attorney General of British Columbia: Attorney General of British Columbia, Victoria.
Solicitor for the intervener the Attorney General of Saskatchewan: Attorney General of Saskatchewan, Regina.
Solicitor for the intervener the Attorney General of Alberta: Justice and Solicitor General, Appeals, Education & Prosecution Services, Edmonton.
Solicitors for the intervener the British Columbia Civil Liberties Association: Torys, Toronto; University of Ottawa, Faculty of Law, Ottawa.
Solicitors for the intervener the Empowerment Council, Systemic Advocates in Addictions and Mental Health: Martell Defence, Toronto.
Solicitors for the intervener the Criminal Lawyers' Association (Ontario): Rosen & Company, Toronto; Brauti Thorning, Toronto.
Solicitors for the intervener the Canadian Civil Liberties Association: Neubauer Law, Toronto.
Solicitors for the intervener the Women's Legal Education and Action Fund Inc.: Megan Stephens Law, Toronto; WeirFoulds, Toronto.
Solicitors for the intervener the Advocates for the Rule of Law: McCarthy Tétrault, Vancouver; Jordan Honickman Barristers, Toronto.
