COURT FILE NO.: CR-15-9423
DATE: 20180626
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
THOMAS CHAN
Defendant
Andrew Midwood and Frank O. Schwalm for the Crown
David S. McFadden and L. Joleen Hiland for Mr. Chan
HEARD: May 22-23, 2018
ruling on constitutional challenge
to S. 33.1 of the criminal code
Boswell j.
I. OVERVIEW
[1] The trial of Thomas Chan engages, once again, the debate about the extent to which self-induced, extreme intoxication should be available as a defence to charges of violent criminality.
[2] The Crown alleges that Mr. Chan killed his father and gravely injured his father’s partner in a knife attack in December 2015. He is charged with murder, attempted murder and aggravated assault. In his defence, Mr. Chan says he was hallucinating as a result of having ingested the drug psilocybin (magic mushrooms). He says he was not acting voluntarily and lacked the intent to commit the alleged offences.
[3] Mr. Chan faces a significant hurdle because the law, as it presently stands, does not allow him to assert his self-induced extreme intoxication as a complete defence to the charges he faces. Specifically, section 33.1 of the Criminal Code of Canada (“Cr. C.”) precludes the defence of intoxication in relation to general intent offences of violence where the intoxication was self-induced. I will explain what that means momentarily, but for now the upshot of s. 33.1 for Mr. Chan is that he may rely upon his self-induced intoxication as a potential defence to the charges of murder and attempted murder, but it offers no defence to the included offence of manslaughter or to the offence of aggravated assault.
[4] In this application, Mr. Chan argues that s. 33.1 offends his presumption of innocence, as guaranteed by s. 11(d) of the Charter and his right to life, liberty and security of the person, as guaranteed by s. 7 of the Charter. He seeks a ruling striking down s. 33.1 as unconstitutional.
[5] Before addressing the arguments advanced by the litigants, I will take a moment to provide some brief context to the case against Mr. Chan.
THE BASIC FACTS
[6] It was the Christmas school break three years ago and Mr. Chan and some of his friends were spending an evening doing the sorts of things that college-aged guys often do. They started out drinking beer in the basement of his mother’s home in Peterborough. Then they went to a local bar to watch a hockey game. Ultimately they came back to his mother’s home where they ingested some magic mushrooms.
[7] Mr. Chan had what is commonly referred to as a “bad trip”. He began to hallucinate. In a statement he gave to the police later that night, he said he started to feel that everyone was turning on him. He got scared and ran to his father’s for help. Mr. Chan’s parents had separated when he was younger. His father, a local doctor, lived near his mother’s home with his new partner, Cheryl Witteveen.
[8] The Crown alleges that when Mr. Chan arrived at his father’s home, he stabbed both his father and Ms. Witteveen. His father died of his injuries, while Ms. Witteveen was gravely injured.
[9] Identity does not appear to be in issue. In other words, it does not appear to be disputed that Mr. Chan is the person who stabbed his father and Ms. Witteveen.
[10] In his police statement, Mr. Chan described being in his father’s kitchen and believing that his father and Ms. Witteveen were the devil and were coming after him. He said he thought he needed to defend himself. He said he guessed he just grabbed the closest thing to use in his defence, but he did not remember having a knife.
[11] No expert psychiatric evidence was filed on this application. I am, however, prepared to accept, for the purposes of this application, that Mr. Chan has an arguable case that his actions were not voluntary at the time he attacked his father and Ms. Witteveen.
THE ISSUES
[12] Section 33.1 came into force in July 1995. Since then, its constitutionality has been the subject of a number of trial court rulings, but none at the appellate level.
[13] In 1999, Wallace J., of this court, struck the section down on the basis that it violated an accused person’s right to the presumption of innocence and the right to life, liberty and security of the person. She found the section could not be saved by s. 1 of the Charter: see R. v. Dunn, 1999 CanLII 36525 (ON SC), [1999] O.J. No. 5452 (“Dunn”). Her decision was followed by Patterson J. a decade later in R. v. Fleming, 2010 ONSC 8022 (“Flemming”).
[14] Mr. Chan’s counsel assert that there is no good reason for this court to now depart from these prior rulings. They contend that there are clear legal principles that compel this court to follow the decisions in Dunn and Fleming which found s. 33.1 to be unconstitutional. In fact, they argue that their application is actually unnecessary given that the constitutionality of s. 33.1 has already been litigated and decided in this court.
[15] The first issue to be resolved is, accordingly, whether the constitutionality of s. 33.1 remains a live issue in this court.
[16] If the defence succeeds in persuading the court that it is compelled to follow Dunn and Fleming then the defence application must, of course, succeed. Otherwise, the next question to be determined is whether the impugned provision offends Mr. Chan’s right under s. 11(d) of the Charter to be presumed innocent and/or his right under s. 7 of the Charter to life, liberty and security of the person. If it does, then the court must assess whether the provision may yet be “saved” by s. 1 of the Charter on the basis that it is demonstrably justified in a free and democratic society.
[17] In summary, the issues may be listed as follows:
(a) Is the constitutionality of s. 33.1 still an open question in this court?
(b) If the answer to (a) is yes, does s. 33.1 offend Mr. Chan’s presumption of innocence as guaranteed by s. 11(d) of the Charter?
(c) Does s. 33.1 limit or impair Mr. Chan’s right to life, liberty and/or security of the person under s. 7 of the Charter?
(d) If the answer is (c) is yes, is the limit or impairment in accordance with the principles of fundamental justice?
(e) If either of Mr. Chan’s Charter rights are violated by s. 33.1, is the provision saved by s. 1 of the Charter?
[18] The litigants take opposing views on each of the questions before the court. I will summarize their positions with respect to each individual issue as the analysis proceeds.
[19] First, however, there is some ground that I need to cover in terms of the history of the intoxication defence.
II. HISTORY OF THE INTOXICATION DEFENCE
[20] To appreciate the place that the intoxication defence plays in the history of the criminal law, it is necessary to understand something about the difference between specific intent offences and general intent offences. To explain that difference, I will begin with an explanation of the conduct and fault elements of criminal offences.
ESSENTIAL ELEMENTS OF CRIMINAL OFFENCES
[21] For centuries the common law has required, to establish criminal liability, proof that a prohibited act was not only carried out, but that it was carried out intentionally. The dual elements of “acts” and “intentions” came to be commonly referred to as the actus reas and mens rea of an offence. These elements are also frequently referred to as the conduct and fault elements of an offence.
[22] For all intents and purposes, criminal offences in Canada always include a conduct and fault element. These dual elements are considered to be “a fundamental concept of our criminal law”: R. v. Daviault, 1994 CanLII 61 (SCC), [1994] 3 S.C.R. 63 (“Daviault”), at para. 11.
[23] Though conduct and fault are typically treated as distinct elements, both contain mental aspects. The mens rea, or fault element of an offence, refers to the guilty mind, or wrongful intention of the accused. It functions to prevent conviction of the morally innocent: see R. v. Theroux, 1993 CanLII 134 (SCC), [1993] 2 S.C.R. 5, at para. 20. At the same time, the actus reus of an offence includes a presumption of voluntariness, which is a mental element as well. The actus reus of an offence is not completed if the accused person was not acting voluntarily at the relevant time: R. v. Theroux, as above; R. v. Parks, 1992 CanLII 78 (SCC), [1992] 2 S.C.R. 871.
SPECIFIC AND GENERAL INTENT OFFENCES
[24] Regrettably, the Criminal Code often fails to specify exactly what the fault element is in relation to particular offences. It is more often than not left to judges to determine the applicable mens rea of any given offence.
[25] For better or worse, our law recognizes both “specific” and “general” intent offences. Jurists often struggle with these terms and the differences between them. They are, however, well established categories in our law and will be around at least until Parliament undertakes a comprehensive overhaul of the Criminal Code.
[26] Over the years, judges and academics have done their best to describe and clarify the difference between specific and general intent offences. Most recently, Justice Moldaver did so in R. v. Tatton, 2015 SCC 33. He explained that specific intent and general intent offences are distinguished by the complexity of the thought and reasoning processes that make up the mental element of the offence in issue.
[27] General intent offences require little mental effort. The element of intent in these types of offences is usually inferred from the simple performance of the illegal act. In other words, general intent is typically established by the common sense inference that people generally intend the usual and ordinary consequences of their actions. Assault is often offered as an easy example. An assault requires that an offender intentionally – as opposed to accidentally – apply force to another. There is no requirement that the force be applied for a particular purpose, such as to cause injury.
[28] On the other hand, specific intent offences involve more significant mental activity. That activity may involve an ulterior purpose, for instance break and enter with the intent to commit an indictable offence. Or it may involve the intent to bring about certain consequences, for instance the intent to kill.
[29] Fortunately, the jurisprudence is settled on the intent required for the offences in issue in this case. Murder is a specific intent offence. It requires proof of an intent to kill, or to cause bodily harm that the accused knows is likely to kill but is reckless as to whether death ensues. Attempted murder is also a specific intent offence. It requires proof of an intent to kill. Manslaughter and aggravated assault, on the other hand, are general intent offences. They include an element of assault accompanied by an objective foresight of bodily harm.
[30] With this modest description of specific and general intent offences in place, I will move on to a brief history of the intoxication defence.
THE INTOXICATION DEFENCE
[31] Intoxicants have been around for a very long time. There is some evidence that beer, for instance, was being brewed in China some 5,000 years ago.[^1] It seems axiomatic that people consume intoxicants for their mind-altering qualities. Sometimes people over-indulge and when they do, their minds may be altered in arresting ways.
[32] The law recognizes that intoxicants may affect mental processes and, in sufficient quantities, may affect the formation of intent or even the voluntariness of actions. Not everyone agrees, however, about the extent to which intoxication should be permitted as a defence to a criminal charge. Some people believe that intoxication should never excuse criminal behaviour. These people are more than content to substitute a morally blameworthy intent to become intoxicated for a morally blameworthy intent to commit the offence in issue. Others believe that where an accused was so intoxicated that he was incapable of forming the intent to commit a crime, he should not be convicted. They argue that the accused, in such circumstances, is morally innocent because he lacked the guilty intent that is so fundamental a part of any criminal offence.
[33] The extent to which intoxication may be offered as a defence, or otherwise considered in the assessment of guilt under Canadian law, has slowly evolved over many decades.
[34] The law as it currently stands can trace its roots to a 1920 decision of the English House of Lords: Director of Public Prosecutions v. Beard, [1920] A.C. 479 (“Beard”). In Beard, Lord Birkenhead LC explored the history of the defence of drunkenness in England. He observed that until the early nineteenth century, voluntary drunkenness was never an excuse for criminal conduct, based on the rationale that “a man who by his own voluntary act debauches and destroys his will power shall be no better situated in regard to criminal acts than a sober man.”
[35] Over the years, the rule was relaxed, such that by the time Beard was decided, the law in England was that evidence of extreme drunkenness – intoxication rendering an accused incapable of forming the specific intent required by an offence – could be taken into account in assessing guilt. Subsequent cases interpreted Beard to mean that (1) the defence of extreme intoxication was available only with respect to specific intent offences; and (2) it was only available if there was evidence to show that the accused was so intoxicated as to lack the capacity to form the requisite intent.
[36] The Beard rules were first adopted in Canada in MacKaskill v. The King, 1931 CanLII 58 (SCC), [1931] S.C.R. 330. Later cases continued to follow it, including Leary v. The Queen, 1977 CanLII 2 (SCC), [1978] 1 S.C.R. 29 (“Leary”). From 1978 through 1994, the “Leary Rule” continued to control the intoxication defence. The defence was available only with respect to specific intent offences and only where the accused could demonstrate that he was so intoxicated as to be incapable of forming the requisite intent.
[37] Over time, the Leary Rule began to be seriously questioned. First, concerns were expressed about the appropriateness of limiting the intoxication defence to instances where the accused was so sodden as to lack the capacity to form the specific intent to commit the offence in issue. A number of Supreme Court justices began to express the view that the real question was whether the Crown was able to establish, to the reasonable doubt standard, that the accused had the intent in fact to commit the offence in issue. Intoxication would be but one factor for the trier of fact to consider in that assessment of fact: see the dissenting reasons of Laskin J., as he then was, in Perrault v. The Queen, 1970 CanLII 170 (SCC), [1971] S.C.R. 196; and later, the dissenting reasons of Dickson, J., as he then was, in Mulligan v. The Queen, [1977] 1 S.C.R. and in Leary.
[38] The introduction of the Charter created further difficulties for the Leary Rule. A central concern was that an accused could be convicted of a specific intent offence if he was unable to demonstrate that his intoxication was so extreme that he was incapable of forming the requisite intent, even if his level of intoxication – when considered along with all the other evidence in the case - was capable of raising a reasonable doubt about whether he in fact formed the intention to commit the offence.
[39] Constitutional concerns ultimately led to the Supreme Court overruling the Beard/MacAskill/Leary rules in R. v. Robinson, 1996 CanLII 233 (SCC), [1996] 1 S.C.R. 683 (“Robinson”). These rules were found to be not only out-of-step with judicial and academic thinking, but also in breach of ss. 7 and 11(d) of the Charter. In their place, the court created a new common law rule: where a trial judge is satisfied that the effect of intoxication was such that it might have impaired the accused's foresight of consequences sufficiently to raise a reasonable doubt about the issue of intent, he or she must make it clear to the jury that the issue before them is whether the Crown has satisfied them beyond a reasonable doubt that the accused had the requisite intent.
[40] Two years before Robinson was decided, the Leary Rule had taken another significant hit; this time in relation to whether extreme intoxication could ever be raised as a defence to an offence of general intent. The case was Daviault and it gave rise to the legislative provision now in issue.
R. v. DAVIAULT
[41] Mr. Daviault liked a drink. He had seven or eight beers one afternoon. Then a disabled friend of his wife asked him for a favour: could he bring her a bottle of brandy? He took a 40 oz. bottle over to her. She drank a glass and fell asleep in her wheelchair. Mr. Daviault finished off the bottle over the next nine hours, then he pushed the complainant into her bedroom and sexually assaulted her.
[42] Mr. Daviault defended the charge of sexual assault on the basis that he was so drunk he was effectively an automaton, incapable of forming the intent to sexually assault the complainant, or even to act voluntarily. The Supreme Court agreed.
[43] The significance of Daviault is that sexual assault is an offence of general intent. Daviault therefore represents a significant departure from Leary. It extends the defence of extreme drunkenness to offences of general intent, provided that the accused tenders evidence to establish, on a balance of probabilities, that he was so intoxicated as to be in an automatistic state. Automatism is defined as “a state of impaired consciousness, rather than unconsciousness, in which an individual, though capable of action, has no voluntary control over that action”: R. v. Stone, 1999 CanLII 688 (SCC), [1999] 2 S.C.R. 290, at para. 39. A state of automatism undermines both the voluntariness of the accused person’s actions and the ability to form even the general intent to commit an offence.[^2]
[44] The public responded to Daviault with dismay. The government of the day fairly quickly introduced legislation to address the concern that an extremely intoxicated person could commit a violent offence and not be held criminally accountable for it.
SECTION 33.1
[45] The legislative response to Daviault was s. 33.1 of the Criminal Code. It provides as follows:
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).
(2) For the purposes of this section, a person departs markedly from the standard of reasonable care generally recognized in Canadian society and is thereby criminally at fault where the person, while in a state of self-induced intoxication that renders the person unaware of, or incapable of consciously controlling, their behaviour, voluntarily or involuntarily interferes or threatens to interfere with the bodily integrity of another person.
(3) This section applies in respect of an offence under this Act or any other Act of Parliament that includes as an element an assault or any other interference or threat of interference by a person with the bodily integrity of another person.
[46] Section 33.1 leaves extreme drunkenness on the table as a defence to specific intent offences as well as general intent offences not involving violence, but eliminates it as a defence to general intent offences where the bodily integrity of another person is interfered with.
[47] Rather than responding to Daviault by creating a stand-alone offence of extreme intoxication, Parliament chose to say that if a person intoxicates himself or herself to such an extent that he or she is unaware of, or incapable of consciously controlling, their behaviour, then he or she will have departed markedly from the standard of care expected in our society and he or she will be criminally at fault if he or she interferes with another person’s bodily integrity while in an intoxicated state.
[48] In other words, s. 33.1 essentially substitutes the voluntary over-consumption of intoxicants for the voluntariness and general intent of any offence subsequently committed, while in a state of intoxication, that interferes or threatens to interfere with the bodily integrity of another person.
[49] With the foregoing background as a primer, I turn to my analysis of the issues raised by the parties.
III. ANALYSIS
A. IS THE CONSITUTIONALITY OF S. 33.1 A CLOSED ISSUE IN THIS COURT?
[50] Cases have been heard, from coast to coast, challenging the constitutionality of s. 33.1 since its enactment. The results have been consistent on one level and inconsistent on another. Each time the section has been challenged, a finding has been made that it offends sections 7 and 11(d) of the Charter. But courts have disagreed about whether the provision is saved by s. 1.
[51] Cases where s. 33.1 has been found unconstitutional include:
(a) R. v. Dunn, as above;
(b) R. v. Jenson, [2000] O.J. No. 5988 (S.C.J.) (“Jenson”) where Then J. found the provision to be unconstitutional on the basis of reasons to be provided at a later date. The matter was ultimately resolved in a way that obviated the need for the provision of those reasons;
(c) R. v. Cedeno, 2004 ONCJ 91 (O.C.J.) which followed Jenson;
(d) R. v. Fleming, as above, which followed Dunn.
[52] Cases where s. 33.1 has been upheld under s. 1 of the Charter, notwithstanding a breach of ss. 7 and 11(d) include:
(a) R. v. Decaire, [1998] O.J. No. 6339 (Ont. Ct. Gen. Div.) (“Decaire”);
(b) R. v. Vickberg, 1998 CanLII 15068 (BC SC), [1998] B.C.J. No. 1034 (B.S.S.C.) (“Vickberg”);
(c) Dow v. R., 2010 QCCS 4276 (Q.S.C.) (“Dow”); and,
(d) R. v. S.N., 2012 NUCJ 2, 2012 NUCJ 02 (N.C.J.) (“S.N.”).
[53] Defence counsel submitted that s. 33.1 has been struck down as unconstitutional in Ontario, based on Dunn, Jenson and Fleming. They argued that the principles of stare decisis and comity require that this court follow these prior decisions made by other Superior Court judges.
[54] Stare decisis is a Latin term meaning “to stand by things decided”. It is a doctrine of precedent, expressing the principle that courts of concurrent jurisdiction should respect and follow one another’s decisions on points already litigated. The principle of comity expresses a similar idea: that courts of concurrent jurisdiction should extend mutual courtesy and recognition of one another’s decisions. These principles contribute to stability and predictability in the law and thereby, in theory at least, reduce litigation.
[55] In support of their position, the defence cited a decision of Strathy J., as he then was, in R. v. Scarlett, 2013 ONSC 562 (“Scarlett”) where he held, at para. 43:
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., 1954 CanLII 253 (BC SC), [1954] 4 D.L.R. 590 (S.C.); R. v. Northern Electric Co. Ltd., 1955 CanLII 392 (ON SC), [1955] O.R. 431, [1955] 3 D.L.R. 449 (H.C.) at para. 31. 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.
[56] Scarlett was a case involving the constitutionality of the three year mandatory minimum sentence for possession of a loaded firearm contrary to s. 95 of the Criminal Code. The section had been struck down by Molloy J. in R. v. Smickle, 2012 ONSC 602. Justice Strathy concluded that Justice Molloy’s decision was not plainly wrong and, in the result, followed it. Similar conclusions were reached in R. v. Sarmales, 2017 ONSC 1869 and R. v. Hussein, 2017 ONSC 4202 about the principle of comity between judges of cognate jurisdiction. I am of the view that Scarlett is a correct statement of the law.
[57] The Crown offered a three-pronged reply to the defence submissions:
(a) First, they submitted that Wallace J., who wrote the decision in Dunn, overlooked a contrary result in Decaire where Festeryga J. upheld s. 33.1 under s. 1 of the Charter notwithstanding his conclusion that it breached ss. 7 and 11(d). In other words, Wallace J. did not address the principle of comity between judges of cognate jurisdiction. In the result, there are competing decisions in Ontario at the Superior Court level. This court is not compelled to follow one result more than the other;
(b) Second, they pointed out that there are also contrary decisions from superior courts of other provinces, including Vickberg, Dow and S.N. While not binding, these decisions should be afforded at least some persuasive value; and,
(c) Third, they contend that the Supreme Court decision in R. v. Bouchard-Lebrun, 2011 SCC 58 (“Bouchard-Lebrun”) cast doubt on the validity of any trial court decisions that have struck down s. 33.1.
[58] In my view, the law is considerably unsettled. While there appears to be a general consensus in the jurisprudence that s. 33.1 offends an accused person’s s. 7 and 11(d) Charter rights, there is anything but consensus on the issue of whether the provision is nevertheless justified in a free and democratic society and thereby saved under s. 1 of the Charter. Trial courts across the country have expressed different and opposing views on this issue. In the result I do not feel constrained to follow one school of thought more than the other. Moreover, the Supreme Court, in Canada (Attorney General) v. Bedford, 2013 SCC 72 (“Bedford”), recently made important refinements to the s. 7 analysis and, in particular, the relationship between s. 7 and s. 1 of the Charter. None of the earlier decisions on the constitutionality of s. 33.1 have had the benefit of Bedford. Under the circumstances, I consider myself free to reconsider the issue.
[59] I reach this conclusion without relying on Bouchard-Lebrun. I am not confident that Bouchard-Lebrun signals the Supreme Court’s views on the issue one way or the other.
[60] In Bouchard-Lebrun, the accused assaulted two individuals while he was in a psychotic condition brought on by the voluntary ingestion of a type of ecstasy known as “poire bleue”. He argued that he should be excused from criminal culpability on the basis that he was suffering from a mental disorder brought on by his ingestion of ecstasy. The defence argument engaged s. 16 Cr. C. The live issue on appeal was whether s. 33.1 limits the scope of the defence of not criminally responsible on account of mental disorder provided for in s. 16 Cr. C. The constitutionality of s. 33.1 was not in issue; only the interpretation and application of that provision were in issue: see para. 28.
[61] LeBel J. reviewed the background to s. 33.1 and then commented upon the section as follows, at para. 35:
In a general sense, the appellant can reasonably argue that Parliament implicitly endorsed Sopinka J.'s dissent in Daviault by enacting s. 33.1 Cr. C. However, the enactment of that provision did not revive the Leary rule. It did not actually codify the position taken by the dissenting judges in Daviault; rather, it limited the scope of the rule stated by the majority. This means that the principles set out in Daviault still represent the state of the law in Canada, subject, of course, to the significant restriction set out in s. 33.1 Cr. C. Daviault would still apply today, for example, to enable an accused charged with a property offence to plead extreme intoxication. Indeed, the fact that the appellant was acquitted at trial on the charges against him under ss. 348(1)(a) and 463 Cr. C. affords an eloquent example of this.
[62] The Crown essentially asserted that LeBel J. endorsed the constitutionality of s. 33.1 by omission. In other words, by not casting doubt on the constitutionality of the provision, he implicity endorsed it. I am not prepared to accept the Crown’s assertion. Justice LeBel specifically observed that the constitutionality of the provision was not in issue. Failing to criticize the section is not the same thing as endorsing its constitutionality. In my view, Bouchard-Lebrun cannot be read as providing either support for, or condemnation of, s. 33.1.
B. DOES s. 33.1 OFFEND s. 11(d) OF THE CHARTER?
[63] Section 11 is well familiar, but I set it out here for ease of reference:
- 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.
[64] All of the post-Daviault jurisprudence cited to me has been consistent in finding that s. 33.1 breaches s. 11(d) of the Charter. I see no good reason to depart from that jurisprudence.
[65] Generally speaking, s. 33.1 has repeatedly and consistently been held to offend an accused person’s presumption of innocence because it permits the conviction of an accused person even if the trier of fact has a reasonable doubt about whether the accused acted voluntarily or had the ability to form even the minimal intent required as an essential element of an offence.
[66] In Daviault, Justice Cory concluded that the requirement of proof of both physical and mental elements of a crime has “long been a fundamental concept of our criminal law”. He found that the Leary Rule offended that long-standing fundamental concept. In particular, he concluded that the Leary Rule acted in such a way that even if an accused person raised a reasonable doubt about his ability to form the minimal intent required by a general intent offence, he could still be convicted of that offence. The Leary Rule effectively substituted voluntary intoxication for the mens rea and voluntariness of the offence in issue.
[67] Several years before Daviault was decided, a majority of the Supreme Court held, in R. v. Vaillancourt, 1987 CanLII 2 (SCC), [1987] 2 S.C.R. 636 (“Vaillancourt”) that the substitution of one essential element for another may be constitutionally valid, but only in limited circumstances. In particular:
…only if upon proof beyond a reasonable doubt of the substituted element it would be unreasonable for the trier of fact not to be satisfied beyond a reasonable doubt of the existence of the essential element. If the trier of fact may have a reasonable doubt as to the essential element notwithstanding proof beyond a reasonable doubt of the substituted element, then the substitution infringes s. 7 and 11(d). (Para. 32).
[68] In Daviault, Justice Cory held that voluntary intoxication does not inexorably lead to the intent to commit violent offences. In the result, the use of voluntary intoxication as a proxy for the mens rea for assault violated an accused person’s rights under s. 7 and 11(d) of the Charter.
[69] He observed at para. 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.
[70] Reasoning similar to that expressed by Cory J. in Daviault is reflected in Decaire at paras. 7 and 8; Vickberg, at para. 84; Dow, at paras. 111-116; Dunn, at paras. 19-24; and Fleming, at paras. 12 and 19-24.
[71] I am in agreement with the prior jurisprudence in relation to the breach of s. 11(d). Pursuant to s. 33.1, Mr. Chan could be convicted of manslaughter and aggravated assault even if he was so intoxicated by psilocybin that he was not acting voluntarily, nor capable of forming even the minimal intent required for the offence of assault. In the result, the Crown is relieved of proving an essential element of the offences and the presumption of innocence is violated.
[72] Essentially, s. 33.1 revives the Leary Rule in a limited way. It restricts it to offences where there is an element of assault or any other interference or threat of interference by a person with the bodily integrity of another person. Though it may be of limited application, s. 33.1 does the very thing that a majority of the Supreme Court held was unconstitutional in Daviault: it substitutes the intent to become voluntarily intoxicated for the general intent to commit an assault and the voluntariness of committing the actus reus of an assault. In doing so, it remains in violation of s. 11(d).
[73] I will move on to the s. 7 analysis.
C. DOES s. 33.1 IMPAIR OR LIMIT A RIGHT GUARANTEED BY s. 7 OF THE CHARTER?
[74] Section 7 guarantees arguably the most fundamental individual rights in our society: life, liberty and security of the person. It contains a qualifier, however. Individuals are not to be deprived of these basic rights, save in accordance with the principles of fundamental justice.
[75] There are, accordingly, two steps involved in establishing a s. 7 violation. First, an applicant who alleges that a particular statutory provision violates his or her s. 7 right must show that the provision limits his or her right to life, liberty or security of the person. Second, he or she must demonstrate that the limit is not in accordance with the principles of fundamental justice: Thompson v. Ontario (Attorney General), 2016 ONCA 676 at para. 31.
[76] The Crown argued that Mr. Chan failed to identify how s. 33.1 limits or impairs his right to life, liberty or security of the person. I agree with the Crown. Mr. Chan did not explicitly identify how s. 33.1 limits his s. 7 right. That said, it strikes me as obvious that it impacts on his liberty interests.
[77] Of course, almost every law or regulation enacted impacts on the liberty interests of those persons subject to it. Section 7 does not, however, protect liberty interests in the widest sense of that term. Former Chief Justice Dickson specifically held, in R. v. Edwards Books and Art Ltd., 1986 CanLII 12 (SCC), [1986] 2 S.C.R. 713, that “liberty” as used in s. 7 is “not synonymous with unrestrained freedom” (para. 150).
[78] It would appear clear, however, that the liberty interests protected by s. 7 extend to those cases where the impugned legislation gives rise to the possibility of imprisonment: see Re B.C. Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 S.C.R. 486 (“Motor Vehicle Reference”).
[79] In Mr. Chan’s case, the inability to raise a reasonable doubt about the voluntariness of his actions, or about his capacity to form the general intent to commit an assault will leave him with little or no defence to the charges of manslaughter and aggravated assault. A conviction for either of those offences clearly raises the prospect of imprisonment.
[80] I have no hesitation in finding that s. 33.1 limits or impairs Mr. Chan’s liberty interest.
[81] The next question is whether the impairment is consistent with the principles of fundamental justice.
D. IS THE IMPAIRMENT OF MR. CHAN’S LIBERTY INTEREST IN ACCORDANCE WITH THE PRINCIPLES OF FUNDAMENTAL JUSTICE?
[82] As former Chief Justice McLachlin said, at para. 96 of Bedford, the “s. 7 analysis is concerned with capturing inherently bad laws: that is, laws that take away life, liberty, or security of the person in a way that runs afoul of our basic values. The principles of fundamental justice are an attempt to capture those values.”
The Positions of the Parties
[83] Mr. Chan argued that s. 33.1 Cr. C. is a bad law. He submitted that it violates his s. 7 right by eliminating the fault element of the offence of assault and substituting in its stead, the morally blameworthy intention to consume intoxicants to excess. Further, it precludes him from challenging the voluntariness of his actions in relation to assaultive conduct committed while he was extremely intoxicated; substituting instead, the voluntariness of his consumption of magic mushrooms.
[84] Mr. Chan relied on the reasoning in Daviault and every trial court decision since s. 33.1 was enacted, where its constitutionality has been challenged. Those decisions hold that it is constitutionally impermissible to substitute one fault for another, except in very rare circumstances which do not exist here. The result of such a substitution is to relieve the Crown of its obligation to prove the fault element in relation to the offences of manslaughter and aggravated assault. Allowing the Crown to obtain a conviction without establishing both the conduct and fault elements of such offences is contrary to the principles of fundamental justice, as is convicting a person for conduct that was not physically voluntary.
[85] The Crown submitted that Mr. Chan failed to identify which principle(s) of fundamental justice were violated by s. 33.1. The Crown alerted the court to what it described as the “legal framework for s. 7 analysis recently advanced in Bedford and as summarized by the Court of Appeal in Michaud”, inferring that the court needed to examine the legislation against the fundamental values of arbitrariness, overbreadth and gross disproportionality (the values in play in Bedford). But counsel did not otherwise advance arguments relating to these recognized values.
[86] Instead, the Crown submitted that there is no constitutional requirement for proof of general intent. Accordingly, the concept of unconstitutional substitution of an essential element has no relevance to this proceeding. Moreover, they contended that Parliament was within its authority to equate the moral blameworthiness of self-induced extreme intoxication with the moral blameworthiness of committing an act of violence with general intent. Section 7, they said, requires no more than some element of moral fault.
The Principles of Fundamental Justice
[87] The principles of fundamental justice are not defined or catalogued in the Charter. At one time, they were thought to be procedural rules only - synonymous with the rules of natural justice. The Supreme Court rejected that interpretation in Motor Vehicle Reference, as above, where Lamer J., as he then was, observed that the principles of fundamental justice may be procedural or substantive. They are, he said, “essential elements of a system for the administration of justice which is founded upon a belief in the dignity and worth of the human person and the rule of law.” (Para. 61).
[88] The Motor Vehicle Reference case established the first substantive principle of fundamental justice: an absolute liability offence that attracts penal consequences violates the principles of fundamental justice. (Para. 73). Said another way, penal liability requires proof of fault. This principle was said to be a part of the larger, ancient concept that the innocent should not be punished. (Para. 67).
[89] Identification of other, substantive principles of fundamental justice followed[^3], including:
(a) The right to pre-trial silence: R. v. Hebert, 1990 CanLII 118 (SCC), [1990] 2 S.C.R. 151;
(b) The requirement of a subjective foresight of death to support a murder conviction: R. v. Martineau, 1990 CanLII 80 (SCC), [1990] 2 S.C.R. 633;
(c) The requirement that a person’s conduct must be voluntary to attract liability: R. v. Stone, 1999 CanLII 688 (SCC), [1999] 2 S.C.R. 290;
(d) A law must not be overly vague: R. v. Nova Scotia Pharmaceutical Society, 1992 CanLII 72 (SCC), [1992] 2 S.C.R. 606;
(e) A law must not be arbitrary: Canada (A.G.) v. PHS Community Services Society, 2011 SCC 44;
(f) A law must not be overly broad: R. v. Heywood, 1994 CanLII 34 (SCC), [1994] 3 S.C.R. 761; and,
(g) The impact of a law must not be grossly disproportionate: Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1.
[90] In Carter v. Canada (Attorney General), 2015 SCC 5 (“Carter”), the Supreme Court noted that over the years, these last three principles have emerged as central in the s. 7 jurisprudence. In other words, “laws that impinge on life, liberty or security of the person must not be arbitrary, overbroad, or have consequences that are grossly disproportionate to their object.” (Para. 72). Certainly recent s. 7 jurisprudence appears to focus on those three particular fundamental principles: see Bedford; Carter; R. v. Michaud, 2015 ONCA 585; and R. v. R.L., 2018 ONCA 282.
[91] Mr. Chan did not assert, however, that s. 33.1 was arbitrary, overly broad or grossly disproportionate. Instead, he relied on two other identified principles of fundamental justice. First, that penal liability requires proof of fault. Second that his conduct must be voluntary to attract liability.
[92] As I noted, the Crown suggested that the court must follow the analysis in Bedford, meaning that the court must measure s. 33.1 against the principles of arbitrariness, overbreadth and gross disproportionality. There are two fundamental problems with the Crown’s suggestion. First, neither party made submissions to the court regarding those principles and how they might apply to s. 33.1. Second, establishing that s. 33.1 is arbitrary, overly broad, or grossly disproportionate to its purpose is one means of demonstrating that it violates s. 7 of the Charter. Mr. Chan chose instead to rely on the two principles I identified above to demonstrate the violation. I do not read Bedford or Carter as precluding him from doing so.
[93] I will proceed, in the circumstances, to evaluate s. 33.1 only as against the two principles of fundamental justice engaged by the defendant’s arguments.
The Violation of Section 7
[94] In my view, the conclusion that s. 33.1 violates the principles of fundamental justice identified by Mr. Chan is relatively straightforward.
Voluntariness
[95] To begin with, s. 33.1 precludes Mr. Chan from arguing that at the time he assaulted his father and his father’s partner with a knife, he was not acting voluntarily. That prohibition clearly violates the fundamental principle that a person’s conduct must be voluntary to attract liability.
[96] In s. 33.1 Parliament appears to be substituting the voluntariness of intoxicant consumption with the voluntariness of the criminal conduct that followed. The section uses the somewhat confusing mechanism of a “marked departure” from a “standard of reasonable care” in an effort to bridge the gap between consumption and criminal conduct. In my view, it remains a simple fact that where an accused person is precluded from arguing that he was not acting voluntarily at the time he committed the prohibited act, then his liberty interest is being impaired in a manner not in accordance with the principles of fundamental justice.
Fault
[97] In Daviault, Justice Cory confirmed that the requirement that the Crown must prove the dual elements of conduct and fault is a principle of fundamental justice. He observed that any law that would permit the Crown to establish guilt without proving these dual elements beyond a reasonable doubt would thereby limit an accused person’s liberty right in a way not in accordance with the principles of fundamental justice.
[98] All but one of the decided cases involving the constitutionality of s. 33.1 have essentially found that the provision gives the Crown a free pass on establishing the general intent of the offence in issue. As with voluntariness, it does so by substituting morally blameworthy self-induced intoxication for the morally blameworthy fault element of the offence in issue. Each prior ruling has, in the result, found a s. 7 breach. The one exception is Justice Then’s decision in Jenson, where a s. 7 breach was found, but the reasons for the decision were not ultimately delivered, in view of the particular resolution of that case.
[99] I noted above that in Vaillancourt, the Supreme Court held that substituting one essential element for another may be constitutionally valid, but only if proof beyond a reasonable doubt of the substituted element would inexorably lead to proof beyond a reasonable doubt of the original essential element.
[100] There is no evidence before the court to support a finding that the ingestion of magic mushrooms is causally connected to violent behaviour. It is, in the circumstances, impossible to conclude that proof of the intent to ingest magic mushrooms would inexorably lead to proof of the general intent to commit assault.
[101] The Crown asserted that there is no constitutional requirement to prove general intent. That was a view expressed by Sopinka J. in his dissenting reasons in Daviault. He said specifically,
None of the relevant principles of fundamental justice require that the intent to perform the actus reus of an offence of general intent be an element of the offence. In my opinion the requirements of the principles of fundamental justice are satisfied by proof that the accused became voluntarily intoxicated. (Para. 99).
[102] In my view, the dissenting opinion of Justice Sopinka does not reflect the current state of the law in Canada.
[103] In the result, I conclude, as every judge before me who has considered this issue has concluded, that s. 33.1 violates Mr. Chan’s s. 7 right to liberty. It limits his liberty right in a way that is not in accordance with the principles of fundamental justice.
[104] The analysis now shifts to s. 1 of the Charter. Here the Crown bears the onus to establish that notwithstanding the manner in which s. 33.1 impairs Mr. Chan’s s. 7 right, the provision is reasonable and demonstrably justified in a free and democratic society.
E. IS s. 33.1 SAVED BY s. 1 OF THE CHARTER?
[105] The test to be applied under s. 1 is well-settled. It requires the court to apply what are commonly referred to as the “Oakes factors.” Specifically, the Crown must first show that the impugned law has a pressing and substantial objective and second, that the means chosen to attain the objective are proportional to it. Proportionality involves three questions: (1) are the means adopted rationally connected to the objective; (2) is the provision minimally impairing of the right in question; and (3) is there proportionality between the deleterious and salutary effects of the law? See R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103 and Carter, as above.
Context, Deference and Standard of Proof
[106] In RJR-McDonald v. Canada (Attorney General), 1995 CanLII 64 (SCC), [1995] 3 S.C.R. 199, the Supreme Court instructed that when applying the Oakes factors courts must take the following approach:
(a) First, the factors must be applied flexibly, having regard to the factual and social context of the specific case. As McLachlin CJC, as she then was, described:
The s. 1 inquiry is by its very nature a fact-specific inquiry. In determining whether the objective of the law is sufficiently important to be capable of overriding a guaranteed right, the court must examine the actual objective of the law. In determining proportionality, it must determine the actual connection between the objective and what the law will in fact achieve; the actual degree to which it impairs the right; and whether the actual benefit which the law is calculated to achieve outweighs the actual seriousness of the limitation of the right. In short, s. 1 is an exercise based on the facts of the law at issue and the proof offered of its justification, not on abstractions. (Para. 133);
(b) Second, some measure of deference is to be paid to Parliament. The amount of deference may vary depending on the context of the case, but generally, a law should not be struck down merely because the court can conceive of a better alternative. (Para. 135); and,
(c) Proof on the civil balance of probabilities standard is to be applied at all stages of the proportionality inquiry. Scientific demonstration is not required. Indeed, the Crown’s burden may be met by the application of common sense to known facts. (Para. 136).
The Difficulty of Justifying a s. 7 Breach
[107] I acknowledge that historically it has proven difficult for the government to justify a s. 7 violation under s. 1. The Supreme Court recently recognized this difficulty in Carter, citing its prior decisions in the Motor Vehicle Reference case, as above; New Brunswick (Minister of Health and Community Services) v. G. (J.), 1999 CanLII 653 (SCC), [1999] 3 S.C.R. 46; Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9; and Bedford, as above.
[108] Professor Hamish Stewart explained just how difficult the proposition is in his book, Fundamental Justice, as above at footnote 3, at page 310. He noted that a majority of the Supreme Court has never found an infringement of the s. 7 right to be justified under s. 1. The explanation, in his view, is found in the considerations cited by former Chief Justice Lamer in New Brunswick (Minister of Health and Community Services) v. G.(J.), as above, where he said, at para. 99:
First, the rights protected by section 7 – life, liberty and security of the person – are very significant and cannot ordinarily be overridden by competing social interests. Second, rarely will a violation of the principles of fundamental justice, specifically the right to a fair hearing, be upheld as a reasonable limit demonstrably justified in a free and democratic society.
[109] Having said all that, the Supreme Court expressly acknowledged in its recent decision in Bedford that it remains possible for the government to justify a s. 7 violation under s. 1. Former Chief Justice McLachlin observed, at para. 129:
Depending on the importance of the legislative goal and the nature of the s. 7 infringement in a particular case, the possibility that the government could establish that a s. 7 violation is justified under s. 1 of the Charter cannot be discounted.
[110] Subsequently, in Carter, the Supreme Court added that “in some situations the state may be able to show that the public good -- a matter not considered under s. 7, which looks only at the impact on the rights claimants -- justifies depriving an individual of life, liberty or security of the person under s. 1 of the Charter.” (Para. 95).
The Oakes Factors
[111] The first step in the s. 1 analysis is to determine if the object of s. 33.1 is pressing and substantial. This step requires, of course, that the object of s. 33.1 be identified.
The Object of s. 33.1
[112] Section 33.1 was an obvious response to the decision in Daviault. When it was first introduced in Parliament in March 1995, the serving Minister of Justice, The Hon. Allan Rock, described two fundamental purposes to the provision. First, it was to ensure the accountability of those who make themselves intoxicated and, while in that state, do harm to others. Second, it was noted that the overwhelming majority of victims of violence, particularly violence associated with intoxication, were women and children. Hence the provision was intended to protect the security of women and children and to promote their equality rights.
[113] The objects identified by the Minister of Justice are reflected in the preamble to the Bill.
[114] There has been some debate in prior decisions as to the objects or purposes of s. 33.1. In some instances, courts have accepted that its objects are as stated by the Minister of Justice and as set out in the preamble to Bill 72. See, for instance, Dow v. R., R. v. Vickberg and R. v. S.N., all as above. Other courts have taken the view that the preamble is mere window dressing and that the real purpose of the provision is to do away with an unpopular defence: see R. v. Dunn, as above.
[115] In my view, the objectives of s. 33.1 are as stated in its preamble.
[116] There is no doubt that the provision was a response to Daviault. And there is no doubt that it eliminated an unpopular defence. But to characterize the section as nothing more than a knee-jerk reaction to an unpopular decision tends to trivialize Parliament’s concerns.
[117] As I noted above, the debate about the extent to which self-induced intoxication may be used as a defence to criminal conduct is an ancient one. Since MacAskill, in 1931, the law appeared settled. The decision in Daviault changed that. Parliament intervened.
[118] Violence against women in our society remains a pressing concern. And the extent and intensity of the backlash against the Daviault decision supports the conclusion that accountability for those who commit acts of violence is a significant and pressing social concern whether or not the alleged perpetrator of the violence was intoxicated.
[119] As Justice Cory highlighted in Daviault, the scientific research literature does not support a conclusion that consumption of intoxicants like alcohol causes violence. But there is certainly a linkage between intoxication and violence. This is especially so in cases of domestic violence.
[120] In Robinson former Chief Justice Lamer held, 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. I am also of the view that there is a rational connection between the "capacity" restriction of the defence contained in the impugned common law rule and its objective.
[121] In my view, the protection of women and children from intoxicated violence and ensuring the accountability of those who commit offences of violence while intoxicated are pressing and substantial concerns.
The Rational Connection
[122] If an objective of s. 33.1 is to ensure the accountability of those who become voluntarily intoxicated and harm others while in that state, then the section is clearly rationally connected to that objective.
[123] Somewhat less clear is whether the section does much to protect women and children from violence. The fact is, the provision removes a defence that is rarely resorted to. I have a hard time believing, as a matter of common sense, that many individuals are deterred from drinking, in the off chance that they render themselves automatons and hurt someone.
[124] The court is somewhat disadvantaged because the Crown elected to file virtually no evidence on the application. They submitted some Parliamentary Hansards reflecting debate when the legislation was tabled in Parliament. They also submitted a few selected transcripts of submissions made to the Standing Committee on Justice and Legal Affairs when the provision was being considered. Most of this material reflects submissions and not evidence. There is arguably some minimal evidence provided in submissions by two physicians made to the Standing Committee linking intoxication and sexual violence. But that is the extent of it.
[125] In S.N., as above, Sharkey, J. referred to evidence presented to the Standing Committee by an Addiction Research Foundation scientist who testified that “alcohol use was prevalent in incidents of violence in more than 50% of Canadian cases.” (Para. 63). Frankly, I do not find that statistic in any way surprising. I am satisfied that there is a strong linkage between intoxication and violence.
[126] Having said that, the self-induced automatism defence arises very rarely and is successful even more rarely. I am unable to conclude what the actual connection is between the objective and what the law will actually achieve in terms of reducing violence against women and children.
[127] Nevertheless, accountability is a pressing and substantial concern and the section is rationally connected to that objective. I must conclude that it meets the rational connection test.
Minimal Impairment
[128] This aspect of the proportionality test is designed to ensure that the Charter right involved is impacted as little as possible. Essentially, if the objective could be achieved, or at least promoted, with a less impactful provision, then the legislation in issue will be unnecessarily limiting on the Charter right.
[129] In this instance, Mr. Chan’s s. 7 and 11(d) rights are fundamentally impacted by s. 33.1 and in a way not in keeping with at least two principles of fundamental justice.
[130] In the big picture, one might argue that, given the rarity of the automaton defence, the rights of accused persons in general are minimally impaired. But on an individual level, the impairment is substantial.
[131] There are three features to the legislation, however, that are at least partially mitigating.
[132] First, the limitation of the right applies only to general intent offences and not to specific intent offences. Specific intent offences are not always, but tend to be, more serious than general intent offences. This, in my view, is a significantly mitigating feature.
[133] Second, the limitation applies only to offences that interfere with, or threaten to interfere with the bodily integrity of another person. It does not apply to property-based offences.
[134] Third, the limitation only applies to self-induced intoxication. There is a moral blameworthiness attached to getting oneself so intoxicated as to lose control of one’s faculties. Individuals caught within the net of this provision are not entirely morally blameless.
[135] Interestingly, in this case, there is evidence that Mr. Chan suffered a number of concussions playing sports in high school. It is not clear to me whether the evidence was meant to suggest that Mr. Chan’s hallucinations were not the result of self-induced intoxication per se, but rather the result of an underlying psychiatric or physiological problem triggered by the ingestion of an intoxicant. This issue was not argued before me and I will therefore not address it, other than to observe that it could perhaps be addressed within the definition of “self-induced intoxication” as that term is used in s. 33.1.
[136] Counsel in this case, like others before them, referred to possible alternative provisions that might meet the government’s objective with less impairment of the ss. 7 and 11(d) rights of the accused.
[137] The Hansards filed by the Crown demonstrate that Parliament considered – and rejected – a number of alternate provisions. For instance, a new offence of criminal intoxication, or a special verdict of not criminally responsible because of intoxication.
[138] Professor Stewart suggests that where the principle of fundamental justice in issue relates to the fault element of an offence, “courts will generally hold that redefining the offence with a constitutionally sufficient fault element, or creating a new offence that more directly achieves the objective of the legislation, is a less impairing alternative.” (Fundamental Justice, at p. 303).
[139] The only alternative suggested in argument that would tend to meet the criteria highlighted by Professor Stewart is a new, stand-alone offence of criminal intoxication. It is clear that Parliament considered and rejected this approach. They did so for what appear, in my view, to be valid reasons. They include, amongst others:
(a) The maximum penalty for the new offence of criminal intoxication would have to be at least the equivalent of the maximum penalty for the existing offence that is committed while intoxicated (aggravated assault for instance). Otherwise, the appearance would be that a discount is available for intoxicated offenders. If the maximum penalty is the same, then the new provision would simply be another way of saying that intoxication is not a defence;
(b) The label “criminal intoxication” would tend to suggest that the offender was not responsible for the original offence committed (aggravated assault for instance), but instead is only guilty of getting extremely intoxicated. This would undermine the objective of accountability; and,
(c) Prosecutors would frequently be put in the position of arguing inconsistent positions. In particular, that an accused person was not so intoxicated as to avoid responsibility for the offence in issue, but at the same time, sufficiently intoxicated to be guilty of criminal intoxication.
[140] It is important to recall that Parliament is not required to demonstrate that it has chosen the absolutely least intrusive alternative to meet its objective(s). As McLachlin, J., as she then was, held in RJR-MacDonald, as above, at para. 160:
The tailoring process seldom admits of perfection and the courts must accord some leeway to the legislator. If the law falls within a range of reasonable alternatives, the courts will not find it overbroad merely because they can conceive of an alternative which might better tailor objective to infringement.
[141] In my view, while impairment is certainly not minimal, the Oakes requirement to establish minimal impairment is nevertheless met.
Balancing the Deleterious and Salutary Effects of the Law
[142] Justice McLachlin in RJR-MacDonald, as above, directed that in a s. 1 analysis, courts must “insist that before the state can override constitutional rights, there be a reasoned demonstration of the good which the law may achieve in relation to the seriousness of the infringement.” (Para. 129).
[143] Obviously any provision that impacts on the presumption of innocence is hugely problematic. Reasonable people may, and indeed have, differed on whether the salutary effects of s. 33.1 outweigh the seriousness of its infringement on Charter rights. Justice Wallace, for instance, was firmly of the view that it did not:
In my view, there are few infringements that could be more serious. When an accused can be convicted without proof that he intended his actions or without proof that his actions were voluntary, then absolute liability has become a component of Canadian criminal justice, the presumption of innocence is eroded and principles of fundamental justice are seriously compromised. (Dunn, as above, at para. 53).
[144] With respect, I take the opposite view.
[145] Intoxicated persons who interfere with the bodily integrity of others, interfere with the rights of those others to security of their persons. They interfere with the rights of those others to participate equally in society. And they interfere, in a more general sense, with the sense of peace and security that everyone is entitled to in their own communities. All this is to say that this case, like so many others, engages a balancing act between individual rights.
[146] Rights frequently come into conflict with other rights, or with other societal interests. Justice Iacobucci made this point eloquently in R. v. White, 1999 CanLII 689 (SCC), [1999] 2 S.C.R. 417. White involved a determination of the constitutionality of a provision of the BC Motor Vehicles Act that required persons involved in motor vehicle accidents to give statements to the police. The respondent argued that such compelled statements were in breach of her right against self-incrimination.
[147] The right against self-incrimination is recognized as a principle of fundamental justice. Moreover, it is an organizing principle in criminal law. And yet, even it has its limits. As Justice Iacobucci held, at paras. 45 and 48 of White:
That the principle against self-incrimination does have the status as an overarching principle does not imply that the principle provides absolute protection for an accused against all uses of information that has been compelled by statute or otherwise. The residual protections provided by the principle against self-incrimination as contained in s. 7 are specific, and contextually-sensitive…The principle against self-incrimination demands different things at different times, with the task in every case being to determine exactly what the principle demands, if anything, within the particular context at issue.
It is the balancing of principles that occurs under s. 7 of the Charter that lends significance to a given factual context in determining whether the principle against self-incrimination has been violated. In some contexts, the factors that favour the importance of the search for truth will outweigh the factors that favour protecting the individual against undue compulsion by the state.
[148] In short, no right is sacrosanct. Each must be considered in context and each may at times bend to other pressing rights or concerns.
[149] The analysis in s. 7 litigation has changed as a result of Bedford. Former Chief Justice McLachlin made it clear that sections 1 and 7 ask different questions. As she put it, “the question of justification on the basis of an overarching public goal is at the heart of s. 1, but it plays no part in the s. 7 analysis, which is concerned with the narrower question of whether the impugned law infringes individual rights.” (Para. 125).
[150] Accordingly, it is here, under the s. 1 analysis, that broader social concerns and the balancing of rights are taken into account.
[151] There is no question that Parliament is entitled to legislate on the basis of “a fundamental conception of morality for the purposes of safeguarding the values which are integral to a free and democratic society”: R. v. Butler, 1992 CanLII 124 (SCC), [1992] 1 S.C.R. 452. Security of the person, protection of women and children from violence, and equality are all principles integral to a free and democratic society, as of course is the presumption of innocence and the right to liberty.
[152] Parliament is entitled to express the view that extreme self-intoxication is morally blameworthy behaviour. It is entitled to express the view that those who voluntarily become extremely intoxicated and hurt others while in that condition are to be held accountable. I do not think that anyone seriously challenges these observations.
[153] The entire history of the defence of intoxication has been about finding the appropriate balance between the fundamental rights of accused persons and the rights of others – particularly women and children – to be protected from intoxication-fueled violence. That balance was squarely in favour of societal interests prior to Beard. Since Beard, and especially since Daviault, that balance has shifted.
[154] In my view, Parliament was entitled to weigh in with its view of the morally appropriate balance between intoxicated offenders and the rest of society and to hold intoxicated offenders to account. Parliament’s balancing is, in my view, entitled to deference.
[155] At the same time, those persons whom the administration of justice serves are entitled to hold it to account. In my view, reasonable people do not accept that someone who commits a violent offence – sexual assault for instance – should be able to assert that he was so intoxicated that he literally did not know what he was doing. If he got himself into that state of intoxication and hurt someone, he should be held accountable. Otherwise, the rights of victims – frequently women and children – to be safe from such violence are given little to no weight. That is an important message and Parliament has sent that message through s. 33.1. It is a message designed to ensure that the administration of justice was not brought into dispute.
[156] The identified Charter infringements are serious, to be sure. But they arise in very few cases. And in those cases, there are mitigating features to remember. First, the morally innocent will not be punished. Those who self-intoxicate and cause injury to others are not blameless. Second, extreme intoxication to the point of undermining voluntariness may be taken into account in sentencing. A fundamental goal of sentencing is to match the punishment to the moral blameworthiness of the accused.
[157] On balance, I am satisfied that there is proportionality between the salutary and deleterious effects of the provision.
[158] I note that Justice Cory addressed s. 1 in Daviault, where he held 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.
[159] His s. 1 observations were obiter, of course, because Daviault dealt with the Leary Rule, which was a creature of common law. There was virtually no s. 1 analysis in the result. Moreover, s. 33.1 is narrower than the Leary Rule and has the benefit of being entitled to at least some modest level of deference.
[160] In my view, the comments of Cory J. do not preclude me from determining that s. 33.1 is saved by s. 1 of the Charter.
CONCLUSION
[161] For the foregoing reasons, I conclude that s. 33.1 Cr. C. violates Mr. Chan’s ss. 7 and 11(d) Charter rights. But I find that it is saved under s. 1 of the Charter as being reasonable and demonstrably justified in a free and democratic society. The application is therefore dismissed.
Boswell J.
Released: June 26, 2018
APPENDIX “A”
| The Leary Rule | Post-Daviault | Post-Robinson | Post-s.33.1 | |
|---|---|---|---|---|
| General Intent Offences | Extreme Intoxication is no defence to general intent offences | Extreme intoxication may be a defence to a general intent offence, but only if the accused can demonstrate, on a balance of probabilities, that s/he was in an automatistic state | Extreme intoxication may be a defence to a general intent offence, but only if the accused can demonstrate, on a balance of probabilities, that s/he was in an automatistic state | Extreme intoxication is no defence to a general intent offence where the accused interfered with, or threatened to interfere with another person’s bodily integrity |
| Specific Intent Offences | Extreme intoxication may be a defence to specific intent offences, but only if the accused can demonstrate s/he did not have the capacity to form the requisite intent | Extreme intoxication may be a defence to specific intent offences, but only if the accused can demonstrate s/he did not have the capacity to form the requisite intent | Intoxication may be a defence to specific intent offences, if, in the context of all of the evidence, a reasonable doubt is raised about whether the accused had the requisite intent to commit the offence in issue | Intoxication may be a defence to specific intent offences, if, in the context of all of the evidence, a reasonable doubt is raised about the whether the accused had the requisite intent to commit the offence in issue |
[^1]: Wang, Jiajing; Liu Li; Ball, Terry; Yu, Linjie; Lie, Yuanqing; and Xing, Fulai, Revealing a 5,000-y-old beer recipe in China. (May 13, 2016). Proceedings of the National Academy of Sciences of the United States. 113: 201601465.
[^2]: A number of fundamental changes occurred with respect to the intoxication defence in the early to mid-1990s. In Appendix “A” I have included a chart that tracks those changes from the Leary Rule through Daviault and Robinson and ultimately to s. 33.1
[^3]: See Hamish Stewart, Fundamental Justice, Section 7 of the Charter of Rights and Freedoms (Toronto: Irwin Law, 2012) (“Fundamental Justice”) at chapter 4