RULING ON DEFENCE APPLICATION FOR AN ORDER AFFIRMING THAT S. 33.1 OF THE CRIMINAL CODE IS OF NO FORCE AND EFFECT

Overview

[1] The applicant, Cameron McCaw, stands charged that on July 13, 2015, he sexually assaulted the complainant in this matter, K.B., contrary to s. 271 of the Criminal Code. He reelected trial by judge alone and pleaded not guilty to the charge.

[2] At the outset of the trial, Mr. McCaw brought an application seeking an order from this Court, affirming that s. 33.1 of the Criminal Code is of no force and effect in Ontario, as having been previously determined to be of no force and effect pursuant to s. 52(1) of the Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Constitution Act]. In the alternative, Mr. McCaw sought an order, pursuant to s. 52(1) of the Constitution Act, declaring s. 33.1 of the Criminal Code invalid and of no force and effect, as being inconsistent with ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms [Charter] in a manner not justified under s. 1.

[3] Mr. McCaw filed an affidavit sworn by Richelle Cickello, a law clerk from Simcoe Chambers, in support of his application. Ms. Cickello deposed that at his trial Mr. McCaw will testify that he consumed “several intoxicating substances and performed the sexual acts alleged without having intended to do so” i.e. in a state of extreme intoxication, akin to automatism, so as to cast doubt on the voluntariness of his actions. When I asked for particulars I was advised that Mr. McCaw will testify that he consumed alcohol, marihuana and GBD, the date rape drug. Mr. McCaw wishes to rely at trial on a defence of automatism via self-induced extreme intoxication but the operation of s. 33.1 of the Criminal Code would make this defence unavailable to him.

[4] The law is clear that as a general rule, constitutional challenges should be disposed of at the end of a case. Accordingly, I considered whether or not I should direct that the trial proceed and reserve my decision on the application until the end of the trial. Mr. Frost, who represents Mr. McCaw on the trial, advised that he needed to know what my ruling would be before deciding whether or not to call Mr. McCaw at trial. Ms. Garcia also took the position that she needed to know my decision before the trial proceeded because if I ruled in favour of the application she intended to call further evidence as part of the Crown’s case. She also wanted to know what my decision was before cross-examining Mr. McCaw. As the positions of counsel made sense and to ensure the fairness of this trial, I agreed to proceed as proposed by counsel. In my view this case falls within the exception to the general rule as articulated by Sopinka J. in R. v. DeSousa, [1992] 2 S.C.R. 944 at p. 955, as my determination of the application is not dependent on the facts to be elicited during the trial.

[5] As a preliminary matter, Ms. Garcia argued that Mr. McCaw was obliged to file evidence in support of his application in the form of an affidavit sworn by him as well as expert reports from the pharmacologist he has retained and the forensic psychiatrist he intends to retain. I did not accept that position, as in my view, all I needed to know was what substances Mr. McCaw intended to testify he had consumed in support of his position that he was acting as an automaton. Further evidence would only have given the Crown a chance to cross-examine Mr. McCaw in advance of his evidence at trial. It would not have provided any assistance to me in deciding this application.

[6] On June 4, 2018 I advised counsel and Mr. McCaw that I had decided to grant the relief sought by the applicant in his application. This included the relief sought in the alternative which I considered in the event it was determined on appeal that I was in error in granting the principle relief claimed. This ruling means that it will be open to the applicant at trial to demonstrate on a balance of probabilities that because of extreme self-induced intoxication, he did not intend to sexually assault K.B., resulting in an acquittal.

[7] I stated that I would provide written reasons for my decision and these are my reasons.

The Issues

[8] This application raises the following issues:

a) Is the Crown estopped from arguing that s. 33.1 of the Criminal Code is constitutional?

b) Is s. 33.1 of the Criminal Code of no force and effect by virtue of a prior finding pursuant to s. 52(1) of the Constitution Act by a court of competent jurisdiction in the case of R. v. Dunn, [1999] O.J. No. 5452 (S.C.); and,

c) In the alternative, should s. 33.1 of the Criminal Code be declared invalid and of no force and effect, pursuant to s. 52(1) of the Constitution Act?

[9] The applicant submitted that this application is not required, as previous trial courts have already ruled in favour of "striking down" s. 33.1 of the Criminal Code, having found s. 33.1 unconstitutional and of no force and effect in the province of Ontario. It was only if I decided to reject this submission that the applicant sought an order that s. 33.1 be declared of no force and effect as being contrary to ss. 7 and 11(d) of the Charter in a manner not justified under s.1.

[10] The respondent submitted that s. 33.1 is still in force, and the matter remains open to litigation. The respondent contended that s. 33.1 does not infringe on the applicant's s. 7 and s. 11(d) Charter rights and is not unconstitutional. In the alternative, the respondent submitted that if this Court finds that s. 33.1 breaches the Charter, then it is saved by s. 1 as a reasonable limit on those rights.

The Facts

[11] Transcripts from the preliminary inquiry were filed in support of the application. After argument of the application, I heard the evidence of D.C. Patching, who was the Scenes of Crime officer who collected evidence and took pictures of the scene of the alleged assault; the complainant, K.B.; her former boyfriend, S.L., who was Mr. McCaw’s roommate at the time of the alleged sexual assault and another friend of Mr. S.L.’s, M.H., as part of the Crown’s case. The Crown’s case is not closed.

[12] At the time of the alleged assault, Mr. McCaw lived at XXX Marlee Avenue, apartment X. He shared this two-story apartment with Mr. S.L. Mr. S.L. and Ms. K.B. attended a pool party on July 11, 2015. Ms. K.B. testified that she consumed several alcoholic beverages while at the party from approximately 5:00 pm to 11:00 pm. Mr. S.L., Ms. K.B. and M.H. returned to Mr. S.L. apartment at approximately 11:00 pm, where they met up with Mr. McCaw. According to Ms. K.B. they all had a few more drinks. When they later stepped out to the parking lot in front of the building to have a cigarette, Ms. K.B. testified that she began to feel extremely intoxicated and had to be carried back into the apartment where she was deposited on the couch in the living room. According to Mr. S.L. and M.H., Ms. K.B. passed out on the couch and was fully clothed at the time.

[13] Mr. S.L., Mr. M.H. and Mr. McCaw left the apartment and attended a bar located on the lower level of the apartment building where they continued drinking. After some time, Mr. M.H. left the bar and went to his home, while Mr. S.L. and Mr. McCaw returned to their own apartment.

[14] The essence of Ms. K.B.’s evidence of what followed is that after she passed out on the couch in the living room of Mr. S.L.`s apartment, she awoke to find Mr. McCaw touching her sexually and kissing her and then engaging in sexual intercourse with her. Ms. K.B. testified that she initially thought that this person was her boyfriend and so she did not resist. She realized that this person was not her boyfriend when he said "I'm going to come inside you". Ms. K.B. then saw that it was Mr. McCaw who was on top of her. Mr. McCaw moved off of Ms. K.B. and she ran to Mr. S.L.’s bedroom on the second floor of the apartment. Mr. S.L. and Ms. K.B then left the apartment. As they exited, they saw Mr. McCaw sitting in an arm chair in the living room. He appeared to be sleeping and was holding a pair of scissors in his hands.

[15] Ms. K.B. reported the sexual assault to police at approximately 5:00 am on July 12, 2015. She identified Mr. McCaw as the assailant and provided his address. Police attended at the apartment and arrested Mr. McCaw shortly thereafter.

[16] Given my ruling, after these Crown witnesses testified, it was agreed that the trial would be adjourned until September 2018 so that Mr. McCaw could arrange to be assessed by a forensic psychiatrist who would provide a report, presumably in support of his defence.

Bill C-72 and Section 33.1 of the Criminal Code

[17] Section 33.1 of the Criminal Code was enacted in July 1995. It bars the defence of self-induced intoxication in cases that involve an element of an assault. The provision applies only to offences of general intent. It does not interfere with the common law rule that a state of "advanced intoxication" can raise a reasonable doubt as to the mens rea of specific intent offences.

[18] The preamble of Bill C-72 (which enacted s. 33.1) states that:

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 recognized 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 voluntariness required to commit a criminal offence of general intent is never a defence at law;

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; [Emphasis added]

[19] Section 33.1 provides as follows:

When defence not available -- s. 33.1(1)

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

Criminal fault by reason of intoxication -- s. 33.1(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.

Application -- s. 33.1(3)

(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.

The History of s. 33.1 of the Criminal Code

[20] Historically, at common law, intoxication could provide a defence to a charge of specific intent - like murder - but it could not provide a defence to a charge of general intent - like sexual assault. In cases of general intent offences, the specific mens rea for the particular offence; typically the intentional application of force or touching, was deemed met by the intentional act of becoming intoxicated. In this way the intention to become intoxicated acted as a substitute basis for liability.

[21] This state of the law, articulated more recently in R. v. Leary, [1977] S.C.J. No. 39 (S.C.C.), dated back to 16th century England. In Leary the Supreme Court of Canada endorsed the proposition that drunkenness was not available as a defence to negate the mens rea for a general intent offence. The Court held that the defendant, by becoming voluntarily intoxicated, committed the mens rea for a general intent offence. Accordingly, under the Leary approach, the recklessness of becoming drunk was deemed to be sufficient to supply the fault element for the commission of the particular general intent offence.

[22] This changed with the Supreme Court of Canada’s decision in R. v. Daviault, [1994] S.C.J. No. 77, which dealt with a case where the defendant was acquitted on account of his extreme intoxication by alcohol; akin to automatism, at the time of the sexual assault. Cory J. on behalf of the majority determined that the passage of the Charter made it necessary to re-evaluate whether a strict application of the common law rule in Leary withstood constitutional scrutiny. The majority of the Court decided that it did not, holding that the strict application of the Leary rule violated ss. 7 and 11(d) of the Charter (at para. 40). At para. 47 Justice Cory stated:

In summary, I am of the view that to deny that even a very minimal mental element is required for sexual assault offends the Charter in a manner that is so drastic and so contrary to the principles of fundamental justice that it cannot be justified under s. 1 of the Charter.

[23] Apart from mens rea, Cory J. further held that extreme intoxication could in some cases cast doubt on the voluntariness of the act itself. At para. 66, he stated that if the mental element involved relates to the actus reus rather than the mens rea, then the result must be the same as the actus reus - “requires that the prohibited criminal act be performed voluntarily as a willed act. A person in a state of automatism cannot perform a voluntary willed act, since the automatism has deprived the person of the ability to carry out such an act.”

[24] As summarized by Professor Gerry Ferguson in his article “The Intoxication Defence: Constitutionally Impaired and In Need of Rehabilitation.” The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference 57. (2012) at p. 133, the Supreme Court in Daviault held that:

The infringement [of the Charter] in the Leary rule arises from the fact that the fault of getting extremely intoxicated is treated as an adequate and essentially equal level of fault as the fault required for the offence committed, e.g., an intent to commit sexual assault. In Daviault, the Supreme Court held that those two fault levels are not equivalent and cannot be substituted one for the other. The Supreme Court further concluded that this infringement of sections 7 and 11(d) cannot be saved under section 1 of the Charter. Thus Daviault held that extreme intoxication akin to automatism or insanity must be recognized as a defence - the Charter compels it!

[25] In coming to his conclusion, Justice Cory considered studies that had been undertaken in Australia and New Zealand following decisions in those countries that were diametrically opposed to the Leary rule. Based on those studies he concluded that those decisions had not opened the floodgates as had been feared and in fact had not had an effect of any significance on the numbers of acquittals arising from evidence of severe intoxication, at para. 58. Cory J. observed, at para. 60, that it will only be on rare occasions that evidence of such an extreme state of intoxication can be advanced and perhaps only on still rarer occasions that it is likely to be successful.

[26] Justice Cory suggested a procedure for how a defendant could assert this defence, at para. 63. He held that the defendant should be called upon to establish this defence on a balance of probabilities since it is only the defendant who can give evidence as to the amount of alcohol consumed and its effect upon him. Furthermore, he held that expert evidence would be required to confirm that the defendant was probably in a state akin to automatism or insanity as a result of his drinking.

[27] In Daviault, at para. 61, Cory J. stated: "I would add that it is always open to Parliament to fashion a remedy which would make it a crime to commit a prohibited act while drunk." Notwithstanding the Daviault defence's narrow application, and the stringent reverse persuasive burden, there was a strong, negative, public reaction to the decision. Nine months after the release of Daviault, Parliament enacted s. 33.1.

[28] As can be seen, on the one hand s. 33.1’s application is narrower than Daviault in that it only applies to general intent offences involving an assault or any other interference with the bodily integrity of another person. In other words, Daviault is still applicable in other types of offences. As the Supreme Court of Canada said in R v. Bouchard-Lebrun, 2011 SCC 58, [2011] 3 S.C.R. 575, at para. 35, Daviault still represents the state of the law in Canada subject to the significant restriction set out in s. 33.1 and so would apply today, for example, to enable a defendant charged with a property offence to please extreme intoxications. However, where s. 33.1 applies, its effect is that extreme intoxication is not a defence in general intent offences under any circumstances.

[29] Mr. Neubauer argued that by doing so, s. 33.1 does not address the issues that Justice Cory had with the Leary rule when he decided that it was unconstitutional. Ms. Garcia argued that since s. 33.1 only applies to cases of assault, Daviault still applies for non-assault cases and that this represents an appropriate balance implemented by Parliament in accordance with s. 1 of the Charter. This is an issue I will come to.

The Cases that have Considered the Constitutionality of s. 33.1 of the Criminal Code

[30] Since the enactment of s. 33.1 of the Criminal Code, counsel advised me of nine reported decisions by Canadian courts that considered its constitutionality. In all but two cases these were Superior Courts of Justice. In every case the court found that s. 33.1 infringed ss. 7 and 11(d) of the Charter. The courts differed, however, as to whether s. 33.1 constituted a reasonably justifiable limit on these Charter rights, so as to be saved under s. 1 of the Charter.

[31] In R. v. Vickberg, [1998] B.C.J. No. 1034 (S.C.), R. v. Decaire, [1998] O.J. No. 6339 (S.C.G.D.), R. v. Dow, 2010 QCCS 4276, [2010] Q.J. No. 8999 (S.C.) and R. v. S.N., 2012 NUCJ 2, [2012] Nu.J. No. 3 (P.C.), the courts found that s. 33.1 could be saved by s. 1 of the Charter. In these cases the courts generally found that the objective of s. 33.3 is consistent with the preamble of Bill C-72.

[32] In the cases of R. v. Brenton, [1999] N.W.T.J. No. 113 (S.C.), R. v. Dunn, [1999] O.J. No. 5452 (S.C.), R. v. Jenson, [2000] O.J. No. 4870 (S.C.), R. v. Cedano, 2005 ONCJ 91, [2005] O.J. No. 1174 (P.C.) and R. v. Fleming, 2010 ONSC 8022, [2010] O.J. No. 5988 (S.C.), the courts found that the unconstitutionality of s. 33.1 could not be saved by s. 1 of the Charter. These courts characterized the objective of s. 33.1 as being far narrower. According to these courts, the objective was to eliminate self-induced intoxication as a defence even in cases where the intoxication rendered the accused an automaton.

[33] Despite the fact that in 1999, the Superior Court of Ontario in Dunn, supra, found that s. 33.1 of the Criminal Code infringes ss. 7 and 11(d) of the Charter, in a manner not justified under s. 1, courts in Ontario (including provincial and Superior) have been asked three more times to decide whether s. 33. 1 is constitutionally valid. All of the cases in Ontario, save for Decaire, supra, released in September 1998, before Dunn, have decided that s. 33.1 is constitutionally invalid and cannot be saved by s. 1 of the Charter.

[34] The issue raised before me; whether or not the first decision of this Court in Dunn, supra, is a binding decision upon me, does not appear to have been argued before in the context of s. 33.1 of the Criminal Code. In each of the other cases from this Court; namely Jenson and Fleming, the Court considered the issue anew and it was not argued that the Court was bound by the decision in Dunn. The exception is the provincial court decision in Cedano, supra, but there it is not surprising that the trial judge considered himself bound by the decisions of the Superior Court.

[35] Counsel advised that the issue of the constitutionality of s. 33.1 has not received consideration from any courts of appeal, including the Ontario Court of Appeal.

[36] Dealing first with the cases that have upheld s. 33.1 of the Criminal Code, the case of Vickberg, supra, a decision of the British Columbia Supreme Court released in April 1998, appears to have been the first case to consider the constitutionality of s. 33.1. The defendant raised the defence of automatism based on the over consumption of prescription drugs with respect to the charge of assault with a weapon; a general intent offence. The trial judge acquitted the defendant having found that he was a non-insane automaton at the time of the offence and this defence was available to the defendant because he had a reasonable doubt as to whether the consumption of pills by the defendant was voluntary. His comments on s. 33.1 were therefore obiter; at para. 71. Although he found that s. 33.1 of the Criminal Code violated ss. 7 and 11(d) of the Charter (at para. 84) he found, at para. 91, that the objective of this provision is to ensure that a person who commits an act of violence while in a state of self-induced intoxication is held legally responsible for this conduct, and he went on to conclude that following Daviault, Parliament had “selected, on a reasonable basis, the legislative means by which it can least impair the rights of an accused” at para. 97 and that as such the provision was saved by s. 1(at para. 100).

[37] The decision of Decaire, supra, released in September 1998, was the first time this Court considered the issue. In that case the defendant was charged with attempted murder, break and enter to commit theft and two counts of assault. He alleged that he was heavily intoxicated by alcohol at the time of the alleged offences. Justice Festeryga referred to the obiter comments of the trial judge in Vickberg and after noting that the defence in the case before him had conceded that s. 33.1 met the first step of the Oakes test, he went on to find that s. 33.1 was saved by s. 1 of the Charter.

[38] In Dow, supra, the Quebec Superior Court dismissed a motion by the defence to declare s. 33.1 unconstitutional in a case where the defendant consumed only alcohol. It is important to note that the comments on the constitutionality of s. 33.1 were obiter since the trial judge did not accept the defendant’s evidence.

[39] In a strongly worded decision, Senior Judge Sharkey of the Nunavut Court of Justice upheld the constitutionality of s. 33.1 in S.N., supra. Having found the provision unconstitutional, Sharkey J. held that the real object of s. 33.1 is the protection of women from alcohol-related or intoxicated violence, and, in turn, the preservation of women’s equality rights to full participation in Canadian society (at para. 48); and in his further s. 1 analysis, he found that s. 33.1 was saved by s. 1 of the Charter.

[40] In Dunn, supra, Justice Wallace of this Court considered a case where the defendant was charged with aggravated assault and he claimed he had consumed a large amount of alcohol at the time of the incident. This is the decision that Mr. Neubauer argues is binding upon me. Although he acknowledged that the decision makes no mention of s. 52 of the Constitution Act, he argued that in effect Wallace J. struck down s. 33.1 of the Criminal Code and that it is no longer of any force and effect. Ms. Garcia however argued that it is not clear that Justice Wallace made a declaration that s. 33.1 is unconstitutional and that all she decided was that the defendant could raise the defence of extreme intoxication in the case before her; i.e. claim a constitutional exemption.

[41] In para. 1 of her decision, Wallace J. stated the issue before her as follows:

His [Mr. Dunn’s] counsel submits the Criminal Code’s enactment, in 1995, of s. 33.1 (which removed the defence of self-induced intoxication akin to automatism), is unconstitutional; she argues the section is an unreasonable limit on Mr. Dunn’s rights, guaranteed by ss. 7 and 11(d) of the Charter, she says it cannot be ‘demonstrably justified in a free and democratic society’ as promised by the Charter’s s. 1. The Crown asks the Court to uphold s. 33.1’s validity.” [Emphasis added]

[42] Justice Wallace then went on to consider the issues; concluding that s. 33.1 infringed the defendant’s s. 11(d) and s. 7 Charter rights (at paras. 21 and 35). In coming to this decision Wallace J. came to the conclusion that the Preamble to Bill 72 misstates and overstates the safeguards interest of society in two respects (at paras. 30-32) and that despite the section’s wording and its stated objectives, the most society gains from s. 33.1 is the removal of one defence for violent, intoxicated automatons (at para. 33). At para. 54 she concluded that s. 33.1 went further than s. 1 of the Charter permits and that it “imposes more than reasonable limits on individual rights and freedoms, and those limits cannot be ‘demonstrably justified’ in our free and democratic Canadian society”. At para. 55 she concluded simply by stating: “The motion is allowed”. I will come back to the significance of this and what I should take from this decision as to the remedy that Justice Wallace granted.

[43] The next case chronologically that was drawn to my attention and upheld s. 33.1 was a decision released three days later by Vertes J. of the Northwest Territories Supreme Court; Brenton, supra. In that case the defendant had shared a marijuana cigarette, and the trial judge found that he had a reasonable doubt as to whether the defendant was in a state of automatism due to self-induced intoxication. Because of s. 33.1, which the trial judge found was constitutional, he convicted the defendant of sexual assault and other assault offences.

[44] Vertes J. allowed the appeal. He reviewed the constitutionality of s. 33.1 and considered the cases of Vickberg, Decaire and Dunn, and he came to the same conclusion as Justice Wallace in Dunn. Although he adopted some of her reasons, he did his own analysis of the objective of s. 33.1, whether it breached the Charter and whether it is saved by s. 1. He concluded that it is not.

[45] The next case that considered the issue is Jensen, supra, but as Ms. Garcia submitted, Then J.’s endorsement is very short and offers no analysis in how he decided to come to the same decision as the judges did in Dunn and Brenton. The defendant appealed and although the issue of the constitutionality of s. 33.1 was before the Court of Appeal, the Court did not need to deal with it; R. v. Jenson, [2005] O.J. No. 1052. At para. 24 the Court stated:

Based on the foregoing reasons, we would dismiss the conviction appeal. As we did not call on the respondent to address the appellant's first two grounds of appeal, the respondent did not pursue its additional issue raised on this appeal concerning the constitutionality of section 33.1 the Criminal Code. Accordingly, we did not call on either the intervenor or the appellant to address that issue, as it is not relevant to our disposition of this appeal. Nothing in these reasons should be read as approving or disapproving of the trial judge's ruling on the constitutionality of s. 33.1.[Emphasis added]

[46] In Cedano, Duncan J. referred to the cases that had gone both ways by this point on the constitutionality of s. 33.1 and held (at para. 33) that the law on this point in Ontario appeared to be that s. 33.1 offended the Charter and was not saved by s. 1, referring to Jensen and the cases cited therein. He convicted the defendant, however, because he was not persuaded of the defence beyond a reasonable doubt, noting the defendant had not called an expert.

[47] Finally in Fleming, supra, released in October 2010, on an application at the outset of a jury trial, Patterson J. of this Court considered the earlier authorities on the issue of the constitutionality of s. 33.1 and to a large extent adopted the reasons of Wallace J. in Dunn, concluding that the defence of extreme intoxication had an “air of reality” and would be put to the jury. The defendant was relying on his drinking or consumption of drugs.

Is the Crown Estopped from Arguing that s. 33.1 is Constitutional?

[48] The applicant argued in his material that the declarations of the unconstitutionality of s. 33.1 in the previous Ontario decisions (Dunn, Fleming, and Jensen) were not appealed by the Crown, leaving the declarations of the Superior Court of Justice decisions binding on the Crown.

[49] The respondent took the position that this is incorrect. Ms. Garcia submitted that the Crown specifically appealed the issue of constitutional invalidity to s.33.1 in the Jensen case and I have already included the passage from the decision of the Court of Appeal that confirms this and sets out why the issue was not argued in that court. I agree with Ms. Garcia that nothing in the decision of the Court of Appeal should be read as approving or disapproving of the trial judge's ruling on the constitutionality of s. 33.1.

[50] Ms. Garcia conceded that the Crown has not appealed the rulings on the constitutionality of s. 33.1 in the other cases although she submitted that this was because of a “lack of a route” to do so and because of the way in which the case resolved itself. For example in Fleming, she argued that although there was a ruling of invalidity of s.33.1, Mr. Fleming was ultimately convicted of sexual assault by the trial judge. In doing so, the judge rejected the defence of intoxication, even as it applied in the absence of s.33.1. Ms. Garcia submitted that the Crown is not positioned to appeal a case that was decided in its favour based on the merits, because the issue became moot; the Crown has, in effect, nothing to appeal. The same thing happened in Dunn.

[51] It was further submitted by the Crown that even if there was a case that was available to the Crown to appeal, and it did not appeal - this should not necessarily handcuff the Crown in all future proceedings on the issue. Cases are appealed (or not) for a myriad of reasons, often unrelated to the core legal decisions of the file.

[52] Mr. Neubauer submitted that the Crown could have appealed the decisions in Dunn and Fleming but chose not to do so. He argued that the Crown’s opportunity to re-litigate this issue has passed. He relied on s. 676 of the Criminal Code and the decision of R. v. Laba from the Supreme Court of Canada; [1994] 3 S.C.R. 965 at paras. 17 and 20. There the Court concluded that under s. 40(1) of the Supreme Court Act, R.S.C., 1985, S. S-26, the Court has jurisdiction to grant leave to appeal against a ruling on the constitutionality of a law that “cannot be piggybacked onto proceedings set out in the Criminal Code”. Although not referred to by counsel, I note that the examples of why a finding otherwise would be an “absurd consequence” in para. 21 suggest that a second judge could disagree with the first judge about the constitutionality of a section of a piece of legislation. These were examples and the issue before me was not argued. Even if these comments are binding on me, in my view they have been overruled by R. v Ferguson, 2008 SCC 6, [2008] S.C. J. No. 6, which I will review in connection with the next issue before me.

[53] Ms. Garcia conceded that s. 40(1) of the Supreme Court Act does afford the Crown an avenue of appeal and in my view that is clearly the case. That said, I did not find that the Crown was estopped in making its arguments on the constitutionality of s. 33.1 of the Criminal Code before me and as I will come to, I considered all of them in reaching my decision.

Is s. 33.1 of the Criminal Code Already of No Force and Effect?

[54] The applicant submitted that s. 33.1 of the Criminal Code is no longer in effect, and the continued re-litigation of this provision runs contrary to well-established constitutional principles. The position of Mr. Neubauer is that when a court of competent jurisdiction declares a provision invalid pursuant to s. 52 of the Constitution Act, the constitutionality of the provision is no longer a live issue, and the declaration renders the provision of no force and effect in that province. He argued that the earlier decisions are binding as a result of s. 53, not as a result of judicial comity. Mr. Neubauer submitted that this Court should simply affirm that s. 33.1 is of no force and effect in Ontario, without considering further constitutional arguments.

[55] Ms. Garcia, however, submitted that a Superior Court of Justice lacks the authority to strike down a section of the Criminal Code, such that it would be binding on other jurists of the Superior Court of Justice who have equal authority. She argued that rulings of the Superior Court of Justice are persuasive and should be followed in the absence of cogent reasons to depart from them but decisions of courts of coordinate jurisdictions are not absolutely binding on one another.

[56] In considering this issue, for the reasons that follow, I accepted the position of the applicant and accordingly affirmed that since the release of the decision in Dunn, s. 33.1 of the Criminal Code is of no force and effect in Ontario

[57] Section 52(1) reads as follows:

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.

[58] In considering this issue, the key decision is R. v Ferguson, supra, the defendant appealed a decision from the Alberta Court of Appeal which overturned the sentencing ruling of the trial judge who granted a constitutional exemption to the defendant from the mandatory minimum sentence as he found the mandatory sentence constituted cruel and unusual punishment, violating s. 12 of the Charter. In considering the issues on appeal, Chief Justice McLachlin, writing for the Court, considered what remedy a trial judge is entitled to grant once finding that a particular provision violates the Charter. At para. 35 she held that:

Two remedial provisions govern remedies for Charter violations; ss. 24(1) of the Charter and s. 52(1) of the Constitution Act, 1982. … Section 24(1) has generally been seen – at least until now – as providing a case-by case remedy for unconstitutional acts of government agents operating under lawful schemes whose constitutionality is not challenged. The other remedy section, s. 52(1) of the Constitution Act, 1982, confers no discretion on judges. It simply provides that laws that are inconsistent with the Charter are of no force and effect to the extent of the inconsistency.

(1) The Constitution of Canada is the supreme law of Canada, and any law this is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.

When a litigant claims that a law violates the Charter, and a court rules or ‘declares’ that is does, the effect of s. 52(1) is to render the law null and void. It is common to describe this as the court ‘striking down’ the law. In fact, when a court ‘strikes down’ a law, the law has failed by operation of s. 52 of the Constitution Act, 1982.

[59] McLachlin C. J. went on to consider whether or not a constitutional exemption under s. 24(1) of the Charter should be granted in a case where the alleged constitutional violation involved a mandatory minimum sentence. She gave four reasons for concluding that it should not: 1) the weight of authority thus far was against the availability of constitutional exemptions for mandatory minimum sentencing laws (at para. 48); 2) a constitutional exemption would confer on judges a discretion to reject the mandatory minimum sentence prescribed by Parliament; 3) the remedial scheme of the Charter (which I will come back to); and 4) the fact that constitutional exemptions would buy flexibility for the courts at the cost of undermining the rule of law .

[60] In considering the remedial scheme of the Charter, McLachlin CJ stated:

[58] As I notes at the outset, remedies for breaches of the Charter are governed by s. 24(1) of the Charter and s. 52(1) of the Constitution Act, 1982.

[59] When a law produces an unconstitutional effect, the usual remedy lies under s. 52(1), which provides that the law is of no force or effect to the extent that it is inconsistent with the Charter. […]

[60] Section 24(1), by contrast, is generally used as a remedy, not for unconstitutional laws, but for unconstitutional government acts committed under the authority of legal regimes which are accepted as fully constitutional […]

[61] It thus becomes apparent that ss. 52(1) and 24(1) serve different remedial purposes. Section 52(1) provides a remedy for laws that violate Charter rights either in purpose or in effect. Section 24(1), by contrast, provides a remedy for government acts that violate Charter rights. ….We are here concerned with a law that is alleged to violate a Charter right. This suggests that s. 52(1) provides the proper remedy.

[64] The highly discretionary language in s. 24(1), ‘such remedy as the court considers appropriate and just in the circumstances’, is appropriate for control of unconstitutional acts. By contrast, s. 52(1) targets the unconstitutionality of laws in a direct non-discretionary way: laws are of no force or effect to the extent that they are unconstitutional.

[65] The presence of s. 52(1) with its mandatory wording suggests an intention of the framers of the Charter that unconstitutional laws are deprived of effect to the extent of their inconsistency, not left on the books subject to discretionary case-by-case remedies. […] in cases where the requirements for severance or reading in are met, it may be possible to remedy the inconsistency judicially instead of striking down the impugned legislation as a whole […] Where this is not possible - as in the case of an unconstitutional mandatory minimum sentence - the unconstitutional provision must be struck down. The ball is thrown back into Parliament's court, to revise the law, should it choose to do so, so that it no longer produces unconstitutional effects. In either case, there is a s. 52 remedy that renders the unconstitutional provision of no force or effect to the extent of its inconsistency. To the extent that the law is unconstitutional, it is not merely inapplicable for the purposes of the case at hand. It is null and void, and is effectively removed from the statute books.

[70] As noted in the last section, a constitutional exemption under s. 24(1) is a personal remedy. The remedy proposed by Constable Ferguson is thus distinct from a s. 52 remedy that reads in an exception for a well-defined class of situations […] When a constitutional exemption is granted, the successful claimant receives a personal remedy under s. 24(1), but the law remains on the books, intact. As Wilson J. put it in Osborne, the legislation remains as enacted ‘in its pristine over-inclusive form” (p. 77). The mere possibility of such a remedy thus necessarily generates uncertainty; the law is on the books, but in practice, it may not apply. As constitutional exemptions are actually granted, the law in the statute books will in fact increasingly diverge from the law as applied.

[74] I conclude that constitutional exemptions should not be recognized as a remedy for cruel and unusual punishment imposed by a law prescribing a minimum sentence. If a law providing for a mandatory minimum sentence is found to violate the Charter, it should be declared inconsistent with the Charter and hence of no force and effect under s. 52 of the Constitution Act, 1982 [All emphasis in original]

[61] In R. v. Lloyd, 2016 SCC 13, [2016] S.CJ. No. 13 (S.C.C.), McLachlin C.J. for the majority held at para. 15 that the law is clear that superior court judges of inherent jurisdiction are empowered to make formal declarations that a law is of no force or effect under s. 52(1) of the Constitution Act.

[62] There are what appears to be two competing lines of authority in this Court that I must now consider, although as I will discuss, their differences may not be as great as suggested by counsel. The Crown relies on R v. Scarlett, 2013 ONSC 562, [2013] O.J. No. 644 (S.C.), a decision of Chief Justice Strathy as he then was, which was followed by Justice Code in R. v. Hussein, 2017 ONSC 4202. The applicant relies on R. v. Sarmales, 2017 ONSC 1869, [2017] O.J. No. 1649 and R. v. Ali, [2017] O.J. No. 3883

[63] In Scarlett, the defendant argued that the minimum penalty for possession of a loaded firearm of three year’s pursuant to s. 95(2) (a)(i) of the Criminal Code had been declared inconsistent with the Charter by Molloy J. of this court in R. v. Smickle, 2012 ONSC 602, and that it was of no force and effect. Justice Strathy accepted that submission at para. 2, but went on to conclude that three year’s was an appropriate sentence in any event. Arguably in obiter, Strathy J. considered the effect of the Smickle decision and after noting that the jurisdiction exercised by Molloy J. was pursuant to s. 52(1) of the Constitution Act, he referred to Ferguson and some of the parts of that decision that I have set out. Strathy J. stated at para. 41 that the Supreme Court of Canada in Ferguson observed that “a declaration of invalidity established the invalidity of a legislative provision for all future cases” [Emphasis in original].

[64] It is not clear why, having reviewed this law, which was binding on Justice Strathy, he went on to consider judicial comity at para. 43 of his decision where he stated:

The decisions of judges of coordinate jurisdiction, while not absolutely binding, should be followed in the absence of cogent reasons to depart from them: see Re Hansard Spruce Mills Ltd., […] R. v. Northern Electric Co. Ltd., […] Reasons to depart from a decision, referred to in Hansard Spruce Mills, include (a) that the validity of the judgment has been affected by subsequent decisions; (b) that the judge overlooked some binding case law or a relevant statute; or (c) that the decision was otherwise made without full consideration. These circumstances could be summed up by saying that the judgment should be followed unless the subsequent judge is satisfied that it was plainly wrong. I am not satisfied that the decision in Smickle is plainly wrong.

[65] I have no difficulty with this statement of the law, but do not understand how it could possibly be relevant in light of what Molloy J. did in Smickle and the decision of Ferguson from the Supreme Court of Canada. Both Hansard Spruce; [1954] B.C.J. No. 136 (B.C.S.C.) and Northern Electric, [1955] O.J. No. 649, (Ont. H.C.), referred to by Justice Strathy, dealt only with the question of stare decisis as it relates to judgments of trial judges of the same court. Those cases had nothing to do with a s. 52 declaration of invalidity.

[66] I also agree with Mr. Neubauer that para. 44 in Scarlett, which follows, is also confusing as Justice Strathy then makes what in my respectful opinion is a statement that is inconsistent to what he had already concluded from Ferguson; namely:

In a constitutional case, where a statute has been declared invalid by a judge of coordinate jurisdiction, there is strong reason for judicial restraint on the part of a subsequent judge, for the reasons identified by Chief Justice McLachlin in Ferguson. To create a judicial exemption [presumably a reference to a constitutional exemption pursuant to s. 24(1) of the Charter], based on the facts of the particular case before me, would create uncertainty and unfairness. [Emphasis added]

This is the passage the Crown relies upon as it suggests that it is a matter of judicial comity as to whether or not I decide to follow the decision in Dunn.

[67] In Sarmales and Ali, supra, the cases relied upon by the applicant, the constitutionality of s. 151 of the Criminal Code, which provides for a minimum sentence for a conviction of sexual interference, was in issue. In Sarmales, the very issue before me was before Justice Smith as de Sousa J., also a judge of this Court in R. v. M.(L.) 2016 ONSC 7082, had declared that s. 151 was unconstitutional and of no force and effect pursuant to s. 52(1) of the Constitution Act. The position of the Crown in Sarmales, like the Crown before me, was that the constitutionality of s. 151 remained in question until it was finally decided by the Ontario Court of Appeal for Ontario and ultimately the Supreme Court of Canada, and that the defendant therefore needed to file a Notice of Constitutional Question.

[68] Justice Smith did a detailed analysis of the relevant law with respect to s. 52 (1) of the Constitution Act. He began by a reference to R. v. Big M Drug Mart Ltd., [1985] S.C.J. No. 17 (S.C.C.) at para. 143 where the Supreme Court found that if a court finds any statute to be inconsistent with the Constitution, the overriding effect of the Constitution Act is to give the Court not only the power, but the duty, to regard the inconsistent statute, to the extent of the inconsistency, as being no longer ‘of force of effect’. He went on to consider Ferguson, Scarlett and Lloyd and at para. 15, stated the issue before him as “whether the constitutionality of the minimum sentence provision under s. 151 is still ‘in question’ after a Superior Court judge has declared the mandatory minimum sentence […] to be unconstitutional and of no force and effect”.

[69] Smith J. referred to the Scarlett decision in para. 12 of his decision and stated that he agreed with the Crown’s enunciation of the principles of stare decisis although he did not state that he needed to apply them to decide the case before him. However he did refer to Justice’s Strathy’s view that judicial restraint is further heightened where a court of concurrent jurisdiction has declared legislation struck pursuant to s. 52 of the Constitution Act. This raises the same concern about inconsistency of position that I have already identified in Scarlett.

[70] However, at para. 16, Smith J. clearly held that: “the Crown is bound by a declaration made by a Superior Court judge, with inherent jurisdiction, that a section of the Criminal Code is unconstitutional, is of no force and effect, and is effectively removed from the statue books”. [Emphasis added] He went on at para. 20 to state that once such a declaration is made the “offending section ceases to exist and is of no force and effect. This ruling is binding on the Crown and can only be altered on appeal”. Smith J. did not come back to the question of judicial comity and dismissed the Crown’s application.

[71] Justice Smith noted at para. 21, in further support of the conclusion that he had come to, that the contrary view would mean that if the Crown was unsuccessful on a constitutional challenge then it could simply decide not to appeal the ruling and seek to reargue the constitutional validity of the law on another case before a different judge, which would lead to the potential of a multiplicity of legal proceedings arguing the same issue, which would not be an efficient use of our limited judicial resources. That of course is exactly what has happened in the case of s. 33.1 of the Criminal Code. In my view the reasoning of Justice Smith is correct and is compelled by the law as set out by the Supreme Court of Canada in Ferguson.

[72] In Hussein, Code J. also considered the constitutionality of the one-year mandatory minimum sentence for the sexual offences the defendant was convicted of. He noted at para. 25 that three judges of this Court had struck down this mandatory minimum on the basis of a s. 12 Charter violation, which included M.(L.) and Sarmales and another case decided before M.(L). Justice Code set out an extensive extract from the Sarmales decision, noting that in that case defence counsel did not have to re-argue the constitutional issue and the case proceeded to sentence as if there were no mandatory minimum (at para. 27).

[73] However, at para. 28, Code J. set out his views on the principles of judicial comity and he relied on Scarlett at para. 43, which I have already set out. He concluded at para. 29 that:

I agree with the above decisions of my three colleagues in T. (B.J.), M.L., and Sarmales and, in any event, they should be followed for the reasons set out in Scarlett. Accordingly, the sentencing in this case will proceed on the basis that the one year mandatory minimums are of no force or effect. [Emphasis added]

[74] In my view Justice Code in fact decided the issue before him in the same way as the judges did in the three cases he referred to which include Sarmales, given the opening part of his statement at para. 29. He then went on “in any event”, essentially as an alternative position, to find that he would follow these cases because of judicial comity principles. However he did not go through a judicial comity analysis or consider the factors set out by Justice Strathy in Scarlett. He did not consider whether or not the other cases that decided this issue were “plainly wrong” or not. It seems then that despite the reference to Scarlett that Code J. decided his case based on the reasoning in Sarmales. He did not consider the inconsistency in the Scarlett decision that I have identified.

[75] In Ali, supra, Justice Sheard was faced with the same issue that confronted Smith J. in Sarmales. He considered the same cases including Hussein, supra, which had now also been decided and he came to the same conclusion as Justice Smith, including Smith J.’s findings at paras. 20 and 21 that I have already referred to - that once a declaration has been made by a judge that the law contravenes the constitution, the subject section ceases to exist and therefore there is no constitutional issue that remains in question (at para. 14). In addressing the Crown’s argument that M.L. was not binding because of judicial comity, he also held that he could not conclude that M.L. was “plainly wrong” and that the three circumstances identified in Scarlett did not apply. Again, in my view, this was an unnecessary and inconsistent statement to his approval of Sarmales.

[76] In my view, the weight of these four authorities supports the position taken by the applicant. If a judge of this Court finds that a provision of a statue is unconstitutional, by virtue of s. 52 of the Constitution Act and Ferguson, that provision is invalid for all future cases – it is “off the books.” Coming to this conclusion does not require a consideration of judicial comity. In my view, the question of judicial comity has no relevance to the issue before me.

[77] Accordingly, it follows that if a judge of this Court has already declared s. 33.1 of the Criminal Code as unconstitutional then s. 33.1 has effectively been removed from the Criminal Code and I am bound by that decision. If the applicant’s interpretation of Dunn is correct, then by virtue of that decision, as of its release in 1999, s. 33.1 of the Criminal Code was of no force and effect in the province of Ontario, and that remains the case unless and until that decision is overturned, or I suppose my decision to find that I am bound by Dunn is overturned by a higher court.

[78] The remaining question, then, in determining this issue is what was the effect of the Dunn decision, given there was no reference to s. 52 of the Constitution Act in the reasons of Justice Wallace and no formal declaration of unconstitutionality made. Ms. Garcia argued that it is not clear that Wallace J. granted a s. 52 remedy. Mr. Neubauer argued that in effect Justice Wallace granted such a remedy when she found that s. 33.1 was unconstitutional and invalid. He relies on the language of Ferguson, which I have set out, which he submitted means that the only appropriate remedy that could have been granted by Wallace J. when she found s. 33.1 to be unconstitutional was a declaration of unconstitutionality.

[79] I agree with Mr. Neubauer’s submission. Although Wallace J. made no express declaration that pursuant to s. 52 of the Constitution Act that she found s. 33.1 to be unconstitutional and of no force and effect, in my view that is clearly was she was being asked to do by the defendant. Accordingly, by granting the defendant’s motion, that is, in fact, what she did. There is no suggestion from the language in para. 1 or elsewhere in her decision that the defendant was seeking only personal relief; namely a constitutional exemption that would permit him an exemption from s. 33.1 in his case alone. Clearly his motion was for a ruling that s. 33.1 was unconstitutional and the Crown’s position was that it was “valid”. By granting the defence motion Wallace J. was clearly finding that s. 33.1 was not constitution and was not valid. Based on Ferguson, the only appropriate remedy was a declaration of invalidity pursuant to s. 52(1) of the Constitution Act.

[80] I note as well, as argued by Mr. Neubauer and observed in some of the cases, that if the Crown’s position were correct then in effect, any time a judge of this Court declared that a provision of a statute was unconstitutional, apart from judicial comity, that ruling would only apply to the parties in that case making the remedy akin to a constitutional exemption. It would essentially make the s. 52 and s. 24(1) remedies the same.

[81] Ms. Garcia argued that in all of the cases that have considered the constitutionality of s. 33.1 of the Criminal Code, the issue of its constitutionality has been argued. That is true but that appears to be because no defendant took the position that the applicant has in this case that a prior declaration of invalidity rendered the provision of no force and effect for all purposes.

[82] For these reasons I conclude that notwithstanding the fact that Justice Wallace made no formal declaration pursuant to s. 52(1) of the Constitution Act, that the effect of her decision was to find that s. 33.1 of the Criminal Code is unconstitutional and invalid. The constitutionality of s. 33.1 ceases to be a "live" issue for courts to litigate - unless and until the Crown successfully appeals that determination. Furthermore, as s. 33.1 is of no force and effect, it presents no barrier to the applicant advancing a defence of automatism via self-induced intoxication in this trial.

[83] Before leaving this issue I should note that the parties did not argue that I had jurisdiction to revisit the issue of the constitutionality of s. 33.1 for the types of reasons endorsed by the Supreme Court of Canada in Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] S.C.J. No. 72 at paras. 42-45. In any event, in the case at bar, the parties did not suggest that there was a new legal issue or that the evidence had fundamentally shifted the parameters of the debate on this issue, save for Ms. Garcia’s position that the scientific evidence considered by Parliament was not before the Supreme Court in Daviault, a fact I have considered.

[84] For these reasons I do not accept the Crown’s position that it is open to this Court to consider the issue of the constitutionality of s. 33.1 anew and conduct its own analysis. Accordingly, I made an order allowing the application, and affirming that s. 33.1 of the Criminal Code is of no force and effect in Ontario, as having been previously determined to be of no force and effect pursuant to s. 52(1) of the Constitution Act.

In the Alternative Should S. 33.1 of the Criminal Code be Declared Invalid and of No Force and Effect, pursuant to s. 52(1) of the Constitution Act?

[85] In light of my conclusion on the impact of Dunn, it was not necessary to consider the applicant’s alternative position. Nevertheless, I did so in the event that it is found that I have erred in concluding that I am bound by Dunn. This alternative position raises two alternative arguments as follows.

Should s. 33.1 be Declared Invalid Because of the Principals of Judicial Comity?

[86] The Applicant’s position in the alternative is that I am constrained by judicial comity from departing from Sarmales as that case decided the issue head on. The Crown made three arguments as to why I can and should depart from these decisions. Ms. Garcia argued that the three reasons for breaking from comity, as listed in Scarlett and Hansard Spruce Mills are applicable to the jurisprudence surrounding s. 33.1.

[87] First, under the first prong of Hansard Spruce Mills, Ms. Garcia submitted that subsequent decisions (from out of province and from higher Courts) have indeed cast doubt on the validity of the decisions declaring the section unconstitutional. She argued that the most compelling example is from the Supreme Court of Canada, which has twice declined the opportunity to consider the constitutional validity of s. 33.1 of the Criminal Code - but observed that it remains an issue.

[88] In R v. Bouchard-Lebrun, 2011 SCC 575, the Supreme Court noted at para. 14 that the trial judge found that the defendant had been suffering from toxic psychosis at the time he committed the offences, which he found was a defence on the counts of breaking and entering but not on the counts of aggravated assault because of the application of s. 33.1 of the Criminal Code. However, the Court observed at para. 28 that “the appellant [the defendant] raises no arguments regarding the constitutionality of s. 33.1 [of the Criminal Code] which means that only the interpretation and application of that provision are in issue". [Emphasis added]

[89] In R. v. Daley, 2007 SCC 53, [2007] 3 SCR 523, at para. 39, the Court stated that:

This provision [s. 33.1 of the Criminal Code] appears to amend the law such that extreme intoxication to the point of automatism or involuntariness is only available for offences that do not include as an element ‘an assault or any other interference or threat of interference by a person with the bodily integrity of another person’: s. 33.1 (3) of the Code. [Emphasis added]

The appeal in Daley, however involved the correctness of the trial judge’s charge to the jury, not the constitutionality of s. 33.1.

[90] Ms. Garcia argued that these remarks by the Supreme Court would not have occurred if the Court considered the issue to be settled law. I disagree. The issue of the constitutionality of s. 33.1 was not in issue before the Court in either case and there was no reference to cases like Dunn and s. 52 of the Constitution Act in the reasons of the Court. In my view, there would have been no reason for the Court to comment on an issue not before it and apparently not even drawn to its attention.

[91] Under the second prong of Hansard Spruce Mills, Ms. Garcia argued that in deciding the cases that found s. 33.1 unconstitutional, judges have failed to consider binding authorities. These are the cases that I will come to when I consider the s. 1 argument.

[92] Finally, under third prong, Ms. Garcia submitted that the decisions invalidating s.33.1 were made without full consideration. She referred particularly to the Jensen judgment, and I agree with her that because of the brevity of the endorsement and the lack of analysis, that Jensen cannot stand as an authority in support of the invalidity of s. 33.1. However, that is clearly not the case for the other cases I have referred to where judges of this Court found s. 33.1 to be unconstitutional. I should add that in fairness to Justice Then, he stated that his decision was merely designed to give an answer to the parties to the litigation, and if required he would produce more fulsome reasons later. As already noted, the case was ultimately decided in a way that did not require him to expand on his decision in this area.

[93] For these reasons, and the reasons I will come to, considering the principles of judicial comity I would still follow the decision in Dunn. There is no reasonable basis in my view to conclude that Dunn is “plainly wrong”.

Should s. 33.1 be declared invalid because it offends ss. 7 and 11(d) of the Charter?

[94] In the further alternative, the position of the applicant is that even if I were to consider the constitutionality of s. 33.1 of the Criminal Code de novo, the only reasonable conclusion is that the section is invalid because it offends ss. 7 and 11(d) and is not saved by s. 1 of the Charter.

[95] I begin my consideration of this issue with two basic propositions: 1) that the applicant has the burden of proving a Charter violation and 2) that legislation passed by Parliament is presumptively valid.

[96] Ms. Garcia made an extensive argument in her factum and in oral submissions that s. 33.1 does not offend either s. 7 or s. 11(d) of the Charter. Given the analysis in Daviault, and the unanimous agreement held by all courts that have previously considered this issue, I agree with Mr. Neubauer that a lengthy discussion of why s. 33.1 of the Criminal Code violates ss. 7 and 11(d) of the Charter is not necessary.

[97] Daviault is still good law and Justice Cory’s conclusion that the Leary rule violated the Charter in cases of extreme intoxication where the defendant was in a state akin to automatism, which is what s. 33.1 addresses, was not impacted by the enactment of s. 33.1 of the Criminal Code. Only the s. 1 analysis has changed. As described by Professor Ferguson, "The Intoxication Defence […]", supra at pp. 131 and 133:

Parliament's enactment of section 33.1 appears to be an "in your face" partial reversal of the Daviault ruling. Section 33.1 contradicts Daviault by declaring that extreme intoxication akin to automatism or insanity shall not be a defence to any general intent offence which includes as an element assault or interference with the bodily integrity of another. Thus, contrary to Daviault, section 33.1 states that extreme intoxication is not a defence to offences of assault or sexual assault.

[98] I will, however, provide some response to the Crown’s submissions on this issue.

[99] Sections 7 and 11(d) of the Charter provide the following:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
Any person charged with an offence has the right

(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.

[100] Ms. Garcia correctly argued that a s. 7 analysis must include a balancing of the public interest with the rights of the defendant. She referred to R. v. Penno, [1990] S.C.J. No. 96 and R. v. Cunningham, [1993] S.C.J. No. 47, where the Supreme Court of Canada made it clear that “the ‘principles of fundamental justice’ encompass the public's interest, as represented by the state, as well as the interests of the accused,” Penno at para. 60 and that “the principles of fundamental justice are concerned not only with the interest of the person who claims his liberty has been limited, but with the protection or society. Fundamental justice required that a fair balance be struck between these interests both substantively and procedurally,” (Cunningham at para. 17).

[101] Ms. Garcia referred to certain cases from the Supreme Court of Canada that have developed the view of "moral guilt" and "moral innocence". She submitted that with respect to elements of fault, the Supreme Court has held that there is no inconsistency with principles of fundamental justice where Parliament imposes criminal liability for harmful conduct that departs markedly from a standard of reasonable care. Ms. Garcia argued that this conclusion has been reached for a wide range of offences, including dangerous driving causing death, unlawful acts causing bodily harm and manslaughter. She argued that the same principle can be discerned in self-defence, duress and other exculpatory claims where Parliament and the courts have strictly limited the conditions in which they may be raised.

[102] The cases relied upon by Ms. Garcia, however, all punished actions or conduct that amounted to a market departure from the standard of reasonable care generally recognized in Canadian society. As Justice Cory pointed out in Daviault:

[45] It was argued by the respondent that the “blameworthy” nature of voluntary intoxication is such that it should be determined that there can be no violation of the Charter if the Leary approach is adopted. I cannot accept that contention. Voluntary intoxication is not yet a crime. [Emphasis added]

That observation is still correct.

[103] In addition, Ms. Garcia argued that there are two justifications for s. 33.1 and both are consistent with s. 7 of the Charter; first, what she described as her “empirical argument” and the second as her “normative argument”.

[104] With respect to her empirical argument, Ms. Garcia argued that the science behind self-induced intoxication is “dodgy at best” and she submitted that the body of evidence received by Parliament during the legislative proceedings involving Bill C-72 reflected both the interests of the individual and those of society and that Parliament struck an appropriate balance in enacting s. 33.1 when it eliminated the defence of extreme intoxication only if the intoxication was self-induced and the crime involved violence. It is her position that there is no demonstrable scientific basis on which to argue that extreme self-induced intoxication can negate the voluntariness of the actus reus or the element of fault in an offence of general intent.

[105] It is true that when Daviault was decided, the Court did not consider this type of evidence; although as I have already said, Justice Cory was of the view that a defence of extreme intoxication akin to automatism would only succeed rarely. In that regard he did rely on studies conducted in other jurisdictions; see paras. 57-58.

[106] I have three problems with this argument. First of all, although there may have been a majority view among the experts that alcohol alone could not induce a state of non-insane automatism; the issue of the impact of the intoxicants that I understand that Mr. McCaw will testify to consuming was not the subject of debate. As stated by the Hon. Allan Rock who was then Minister of Justice and Attorney General of Canada, on June 22, 1995, when amendments were proposed to Bill C-72:

Of key interest in my view was the uncontradicted testimony that there is absolutely no scientific evidence that alcohol acting alone can medically produce a state of automatism or a state akin to automatism. [Emphasis added]

[107] Secondly, in my view this is an issue that should be left to the trier of fact, in a particular case, to decide on all of the evidence. Finally, if Ms. Garcia’s position is correct, why leave the defence in place for cases of non-bodily harm?

[108] As for the normative or moral argument, Ms. Garcia submitted that even if extreme self-induced intoxication could (as a matter of fact) negate the voluntariness of the act or the element of general intent, intoxicated violence cannot be considered innocent in any case where the accused claims that his responsibility for that violence is attributable to extreme voluntary intoxication. This argument circled back to her “moral guilt” argument that I have already considered.

[109] The balance of the Crown’s submissions on the validity of ss. 7 and 11(d) of the Charter came from the dissenting reasons of Sopinka J. in Daviault, which obviously were rejected by the majority.

[110] It was also submitted that s. 33.1 does not violate the presumption of innocence; s 11(d) of the Charter, but as stated in the Crown’s factum that argument essentially restated the arguments made under s. 7.

[111] The submissions made by the Crown in my view do not address the problems identified by Justice Cory in Daviault, which equally afflicted the common law rule in Leary, and a defendant’s s. 7 and 11(d) Charter rights. The provision relieves the Crown of proving the specific mens rea for the charged offence and instead allows for proof of guilt on a different, and arguably lower, standard. It does this even where the state of the accused's intoxication is so extreme that it reasonably gives rise to a doubt about whether the accused intended the offending action. The prospect of a conviction in the face of a reasonable doubt offends both s. 7 and s. 11(d) of the Charter. As stated in Daviault:

[42] […] The consumption of alcohol simply cannot lead inexorably to the conclusion that the accused possessed the requisite mental element to commit a sexual assault, or any other crime. Rather, the substituted mens rea rule has the effect of eliminating the minimal mental element required for sexual assault. Furthermore, mens rea for a crime is so well recognized that to eliminate that mental element, an integral part of the crime, would be to deprive an accused of fundamental justice.

[112] The second difficulty with s. 33.1 is that it relieves the Crown of proving another necessary element of these offences - the voluntariness of the act. Again, as articulated in Daviault:

[43] […] if the Leary rule was to be strictly applied […] an accused in an extreme state of intoxication akin to automatism or mental illness would have to be found guilty although there was reasonable doubt as to the voluntary nature of the act committed by the accused. This would clearly infringe both ss. 7 and 11(d) of the Charter. In my view, the mental element of voluntariness is a fundamental aspect of the crime which cannot be taken away by a judicially developed policy […]

[44] […] The presumption of innocence requires that the Crown bear the burden of establishing all elements of a crime. These elements include the mental element of voluntariness. That element cannot be eliminated without violating s. 11(d) and s. 7 of the Charter.

[113] Importantly, the Supreme Court was not opening the gates for any level of intoxication to afford a defence; it would only be a defence where intoxication was extreme and produced a state akin to automatism. Further, to limit overly broad application of the defence, the Court placed upon a defendant a reverse onus - a burden of establishing the requisite degree of intoxication on a balance of probabilities. For these reasons, Cory J. stressed that it would be the rare case that such a defence would succeed.

[114] Accordingly, for these reasons, I conclude, as found in Daviault, and as unanimously held by courts considering the constitutionality of s. 33.1, that by allowing a conviction in circumstances where a court may have a reasonable doubt as to an essential element of the offence, or as to voluntariness, or both, the provision infringes both s. 7 and s. 11(d) of the Charter.

[115] In my view, this final alternative argument really depends on whether or not the provision imposes "reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society", so as to be saved by s. 1 of the Charter. The onus of proving a limit is reasonably and demonstrably justified rests upon the party seeking to uphold the limitation; in this case the Crown. The standard is a preponderance, or very high degree of probability.

[116] In R. v. Oakes, [1986] S.C.J. No. 7, the Supreme Court "established a set of principles, or guidelines, intended to serve as a framework for making a determination" whether legislation found to violate the Charter is a reasonable and demonstrably justified limit on Charter rights. The "test" involves a two-stage inquiry. At the first stage, the question is whether the law pursues an objective that is sufficiently important to justify limiting a Charter right. At the second stage the "party invoking s. 1 must show that the means chosen are reasonable and demonstrably justified" which involves a three-branch assessment, measuring: a) whether the legislation is rationally connected to its objective; b) whether the legislation minimally impairs the infringed right or freedom; and c) whether there is proportionality between the objective of the legislation and its deleterious effects; Oakes, supra at paras. 66, 69-71.

[117] Ms. Garcia submitted that the objectives of s. 33.1 are society's concern for protecting vulnerable persons, particularly women and children, from violent intoxicated offenders and holding perpetrators of intoxicated violence accountable for their actions. Mr. Neubauer’s position is that s. 33.1, properly interpreted, has a very narrow objective, which it seeks to achieve at too great a cost. He argued that the appropriate balance was struck in Daviault as it maintained the existing law and just carved out a narrow exception. Accordingly, as submitted by the applicant, the provision is not a reasonably and demonstrably justified limit on Charter rights, and cannot be saved under s. 1.

[118] In my view, a determination of this issue largely depends on what the purpose of s. 33.1 of the Criminal Code was when it was enacted. As already stated, the cases that have upheld s. 33.1 have found that the purpose of the section is generally as stated in the Preamble, which essentially is to protect vulnerable persons from violence committed by intoxicated offenders and ensure they are held personally responsible for their actions. It is difficult to argue with the constitutionality of the provision if it was truly passed in order to protect the rights of women and children to security of the person and to address the alleged “close association between violence and intoxication” and the argument “that self-induced intoxication may be used socially and legally to excuse violence, particularly violence against women and children”.

[119] In Daviault, with respect to s. 1 of the Charter, Cory J. stated:

[47] […] I am of the view that to deny that even a very minimal mental element is required for sexual assault offends the Charter in a manner that is so drastic and so contrary to the principles of fundamental justice that it cannot be justified under s. 1 of the Charter. The experience of other jurisdictions which have completely abandoned the Leary rule, coupled with the fact that under the proposed approach, the defence would be available only in the rarest of cases, demonstrate that there is no urgent policy or pressing objective which need to be addressed. Studies on the relationship between intoxication and crime do not establish any rational link.

[120] Cory J. went on to find, at para. 66, that the same is true if it is the case that the mental element involved relates to the actus reus rather than the mens rea and that to convict in the face of such a fundamental denial of natural justice could not be justified under s. 1 of the Charter.

[121] The cases that have found s. 33.1 unconstitutional have found that its true objective was the reversal of Daviault and the elimination of a defence of self-induced extreme intoxication akin to automatism.

[122] The task of identifying the objective of impugned legislation is a difficult one; and care must be taken not to overstate the objective. As cautioned by McLaughlin J. in RJR-MacDonald v. Canada (Attorney General), [1995] S.C.J. No. 68 (S.C.C.):

Care must be taken not to overstate the objective. The objective relevant to the s. 1 analysis is the objective of the infringing measure, since it is the infringing measure and nothing else which is sought to be justified. If the objective is stated too broadly, its importance may be exaggerated and the analysis compromised.[Emphasis added]

[123] RJR-MacDonald is an illustrative example that I have found of assistance. In that case the challenged law banned the advertising of tobacco products and the infringement of the Charter was that it infringed freedom of expression. Had the objective been characterized as the protection of public health from the use of tobacco it would have been considered too broad. The Court found that the objective in fact was to prevent people in Canada from being persuaded by advertising and promotion to use tobacco products.

[124] This is similar to the issue before me. Ms. Garcia argues that the Preamble makes plain that Parliament was particularly concerned with the disadvantaging impact that violence has 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 equal protection and benefit of the law. She further submitted that the legislative history supports the proposition that the aim of the section is the protection of vulnerable persons. At the third reading of Bill C-72, then Minister of Justice and Attorney General of Canada, Allan Rock stressed Canadians' concern for the victimization of women and children at the hands of violent intoxicated offenders and society's strong moral view that persons who commit violent acts against others while voluntarily intoxicated should be held criminally responsible for their actions. Ms. Garcia also relies on the decisions of Decaire, Vickberg, S.N., and Dow that held that the objective of s. 33.1 is the protection of persons, including vulnerable persons, from intoxicated violence and accountability for violent crimes committed while intoxicated. As a result, she argues that the objective of s. 33.1 supports a finding that Parliament's objectives are pressing, substantial and warrant overriding ss. 7 and 11(d).

[125] Ms. Garcia argued that since Dunn, the Supreme Court of Canada in R. v Mills, [1999] 3 S.C.R. 668, emphasized the importance of the democratic process and the need for the courts to respect Parliament and the proposition that the courts must presume that Parliament intended to enact constitutional legislation and strive where possible to give effect to this intention; at paras. 56-57. In Mills the court also made it clear that Parliament can amend the common law; at para. 60. However the court also stated that the task in a case like the case at bar is to decide whether Parliament’s balance between competing Charter rights is a constitutional one; at para. 18.

[126] In order to identify the objective of s. 33.1, the scope of its infringement must be appreciated. In Daviault, the majority specifically contemplated, and refused to find, that the common law rule in Leary violated the Charter because it foreclosed on drunkenness being a defence to crimes of general intent. Rather, what Cory J. found was that its "strict application" violated ss. 7 and 11(d). A strict application of the rule in Leary did not allow extreme intoxication akin to automatism to afford a defence to general intent offences. Accordingly, the Court in Daviault located the infringement of ss. 7 and 11(d) at a very specific point: when the law allowed for the conviction of a person proven, on balance, to be an automaton at the time of the offence (Daviault, at paras. 38-47).

[127] If Ms. Garcia is correct in her view of the purpose of s. 33.1, then I agree that the protection of vulnerable persons and accountability for intoxicated violence is a pressing and substantial objective. As stated by Lamer C.J.C. in R. v Robinson, [1996] 1 S.C.R. 683, at para. 43:

There is no question that the protection of the public from intoxicated offenders is of sufficient importance to warrant overriding a constitutionally protected right or freedom.

[128] However, I agree with the submissions of the applicant that the purpose of s. 33.1 as set out in the Preamble, is over-stated and that, in fact, the objective of s. 33.1 was the far narrower objective of rendering unavailable a very specific defence that was allowed in Daviault. As stated by the Hon. Allan Rock on March 27, 1995, the nature of the change in the law brought about by Daviault and “its effect in subsequent cases and the concern it caused about the principle of accountability in criminal law lie behind the government’s decision to introduce Bill C-72;” House of Commons Debates, 35^th Parl, 1st Sess, No 224 Vol 9, (March 27, 1995).

[129] In this regard I agree with the observations of Justice Wallace in Dunn at paras. 30-22 that the Preamble overstates the objective of the provision. I agree, as she found and as found by Vertes J. in Brenton at para. 102 that the real purpose of the enactment of s. 33.1 of the Criminal Code was to remove the narrow defence allowed in Daviault. That defence would only apply in rare cases and be successful in even fewer cases. As made clear by the studies reviewed by Justice Cory, it would not have any real impact on cases involving violence against women and children.

[130] Having accepted this as the purpose of s. 33.1, then the s. 1 analysis is clearer. In assessing the importance of a legislative objective, the decision in Oakes directs that a number of things must be taken into account, namely: whether the objective is consistent with values in a free and democratic society; whether the objective relates to concerns which are pressing and substantial; and, whether the objective is directed to the realization of collective goals that are of fundamental importance (Oakes, supra at para. 69).

[131] Section 33.1's objective, the removal of the Daviault defence, is not sufficiently pressing and substantial to justify the great damage it does to fair trial interests. This was made clear by Justice Cory in Daviault in the passages I have already referred to.

[132] Having made this finding, it is not necessary to consider the balance of the Oakes test. I conclude, having considered this alternative argument that if s. 33.1 of the Criminal Code is still in force and effect, and that it should be declared as invalid as it is inconsistent with ss. 7 and 11(d) of the Charter, and is not saved by operation of s. 1 of the Charter.

Disposition

[133] For these reasons I made an order allowing the application, and affirming that s. 33.1 of the Criminal Code is of no force and effect in Ontario, as having been previously determined to be of no force and effect pursuant to s. 52(1) of the Constitution Act.

[134] In the alternative, pursuant to s. 52(1) of the Constitution Act, I declared s. 33.1 of the Criminal Code of no force and effect, as it is inconsistent with ss. 7 and 11(d) of the Charter, and is not saved by operation of s. 1 of the Charter.

SPIES J.

Released: August 02, 2018

COURT FILE NO.: CR16400006670000

DATE: 20180802

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN Crown/Respondent

– and –

CAMERON MCCAW Defendant/Applicant

REASONS FOR JUDGMENT

SPIES J.

Released: August 02, 2018

R. v. McCaw, 2018 ONSC 3464

Case Summary

RULING ON DEFENCE APPLICATION FOR AN ORDER AFFIRMING THAT S. 33.1 OF THE CRIMINAL CODE IS OF NO FORCE AND EFFECT

Overview

The Issues

The Facts

Bill C-72 and Section 33.1 of the Criminal Code

The History of s. 33.1 of the Criminal Code

The Cases that have Considered the Constitutionality of s. 33.1 of the Criminal Code

Is the Crown Estopped from Arguing that s. 33.1 is Constitutional?

Is s. 33.1 of the Criminal Code Already of No Force and Effect?

In the Alternative Should S. 33.1 of the Criminal Code be Declared Invalid and of No Force and Effect, pursuant to s. 52(1) of the Constitution Act?

Should s. 33.1 be Declared Invalid Because of the Principals of Judicial Comity?

Should s. 33.1 be declared invalid because it offends ss. 7 and 11(d) of the Charter?

Disposition

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 6

Legal Tests 2

Legislation 6