COURT FILE NO.: CR-15-9423

DATE: 20190131

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 for Mr. Chan

HEARD: January 23, 2019

ruling on defence application to re-open A constitutional challenge to S. 33.1 of the criminal code

Boswell j.

[1] Mr. Chan has been convicted of two very serious criminal offences. He has not yet been sentenced. This ruling addresses his request to re-open the case to permit him to re-argue a constitutional issue that I earlier ruled against him on. For the reasons that follow, I am not prepared to give him that opportunity.

OVERVIEW

[2] Three years ago, on a late December evening, Mr. Chan and some of his friends decided to experiment with magic mushrooms. The experiment went badly wrong for Mr. Chan. He experienced a toxic psychosis. While in a drug-induced delusional state, he stabbed his father and his father’s partner, Lynn Witteveen, killing the former and gravely wounding the latter.

[3] Mr. Chan was charged with murder and attempted murder. He was convicted last month of manslaughter and aggravated assault. At trial he advanced a defence, under s. 16 of the Criminal Code, that he was not criminally responsible for the attack on his father and Ms. Witteveen. I rejected that defence, finding that the primary driver of his psychosis was his self-induced intoxication.[^1]

[4] A number of months before Mr. Chan’s trial began, he applied for an order striking down, as unconstitutional, s. 33.1 of the Criminal Code. Section 33.1 is a somewhat controversial provision that prohibits the use of self-induced intoxication as a defence to general intent offences, where the bodily integrity of another person has been interfered with. Manslaughter and aggravated assault are both general intent offences.

[5] Defence counsel advanced two principal arguments on Mr. Chan’s Charter application. First, that I must respect and follow the decision of Wallace J. of this court in R. v. Dunn, [1999] O.J. No. 5452, where s. 33.1 was struck down as unconstitutional. Second, that even if I did not consider myself bound by Dunn, I should similarly find that s. 33.1 is unconstitutional, as being contrary to ss. 7 and 11(d) of the Charter and not saved by s. 1 as demonstrably justified in a free and democratic society.

[6] On June 26, 2018 I released a ruling dismissing the defence application.[^2] In short, I concluded that it remained open to me to rule on the constitutionality of s. 33.1. I went on to find that the provision breaches both ss. 7 and 11(d) of the Charter, but that it is saved by s. 1.

[7] Section 33.1 came into force in 1995. Since that time, its constitutionality has been litigated in some ten trial court proceedings, including this case. Decisions have been split down the middle in terms of whether the section passes constitutional muster. To date there is no appellate authority on the issue.

[8] Two months after I released my decision in this case, one of my colleagues on this court released a decision on the same issues. Unlike me, Justice N. Spies ruled, in R. v. McCaw, 2018 ONSC 3464, that she was bound by the decision in Dunn. More particularly, she concluded that s. 33.1 was struck down in Dunn and is no longer of force and effect in Ontario. She went on to rule that even if she were not bound by Dunn, she would similarly find that s. 33.1 offended ss. 7 and 11(d) of the Charter and is not saved by s. 1. In other words, she came to conclusions entirely at odds with my own.

[9] It may have made no difference in any event, but it does not appear that Spies J. had an opportunity to review my decision in this case, released in June 2018. My decision had not yet been published given that, as at June 2018, this case was scheduled to proceed as a jury trial. Publication of any pre-trial rulings was being deferred until after jury deliberations began. As things transpired, Mr. Chan re-elected to have his trial conducted before me alone.

THE ISSUES

[10] Following the evidentiary portion of this trial, counsel made closing submissions on November 1, 2018. At that time, I invited them to make submissions, if they wished, on the effect, if any, of the McCaw decision. All counsel declined to make submissions.

[11] Following Mr. Chan’s conviction, however, his counsel brought an application to re-open the issue of the constitutionality of s. 33.1 in light of McCaw. The Crown opposes a re-opening of the issue.

[12] In light of the written and oral submissions of counsel, the following issues must be determined on this application:

(i) Should the court refuse to hear the application on the basis that it was not served in a timely way, in accordance with the Rules of Criminal Procedure?

(ii) What is the proper test to apply when counsel seeks, post-conviction, to re-argue a legal issue already disposed of pre-conviction?

(iii) Assuming the applicable test requires the demonstration of exceptional circumstances, are there any such circumstances present here?

THE PARTIES’ POSITIONS

[13] Mr. Chan’s counsel submits that I have the discretion to re-open the case and hear further arguments on the constitutionality of s. 33.1. He argues that the discretion must be exercised rarely and only in exceptional circumstance. He says those circumstances are present here.

[14] When defence counsel first argued the constitutionality of s. 33.1, he asserted that R. v. Scarlett[^3] represented the correct and current state of the law on the issue of the binding nature of horizontal precedents. Scarlett essentially holds that as a judge of concurrent jurisdiction to Wallace J., I had the jurisdiction to depart from her decision in Dunn, but I should only do so if I considered the decision to be plainly wrong.

[15] In this iteration of the defence application, the submission is that Scarlett was wrongly decided. Instead, according to the defence, a correct statement of the law is found at para. 76 of McCaw where Justice Spies said the following:

In my view…If a judge of this Court finds that a provision of a statute 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.

[16] In other words, according to McCaw, the usual horizontal convention of precedent does not apply when a statutory provision is struck down. Judges of concurrent jurisdiction are, in Justice Spies’ view, bound to follow a declaration of unconstitutionality. Principles of stare decisis and comity have no bearing on the matter.

[17] Mr. Chan’s counsel contends that I should conclude, on the basis of the reasoning in McCaw, that I got it wrong in my decision on the initial application. This is an opportunity for me to reconsider my error and follow McCaw.

[18] The Crown submits that this application should not be heard because timely notice was not given according to the Rules of Criminal Procedure. To be fair, the Crown recognized that this application was unlikely to be disposed of on the basis of a procedural issue, but nevertheless asked the court to consider the breach of the Rules in the overall analysis.

[19] Substantively, the Crown asserted that my initial decision ought not to be interfered with. They submitted that the arguments in McCaw were not the same as the arguments here. Most significantly, counsel in McCaw did not argue the significance of the change in the law represented by the Supreme Court’s decision in Canada (Attorney General) v. Bedford[^4]. Specifically in relation to the relationship between a s. 7 breach and the s. 1 analysis.

[20] In any event, the Crown asserts that my initial decision was correctly decided and should not be interfered with solely on the basis of a decision from another judge of cognate jurisdiction. I should not, in effect, be sitting on an appeal of my own decision.

[21] Having set out the parties’ positions, I will move on to the issues raised by the application.

DISCUSSION

(i) The Procedural Issues

[22] The Crown is on solid footing in asserting that the defence application did not comply with the notice requirements set out in the Rules. According to Rule 27.04, applications involving constitutional issues must be served and filed some thirty days in advance of a hearing date. That was not done in this case.

[23] Having said that, the Crown is also on solid footing acknowledging that the non-compliance with the Rules will not be dispositive of this application. Rule 2.01 permits the court to relieve a party from strict compliance with the Rules when it is in the interests of justice to do so.

[24] In this instance, the Crown was not in any way prejudiced by any non-compliance. They had an opportunity to prepare for and present fulsome substantive arguments on the application. It is in the interests of justice that the application be disposed of for substantive, as opposed to procedural, reasons.

(ii) The Governing Principles

[25] The matter of the controlling authorities is not particularly contentious. The parties are more or less in agreement about the test to be applied on an application of this nature. That said, I think it is important to address it, because the circumstances here are somewhat unusual.

[26] In a judge-alone trial, the trial judge, it is agreed, is functus only after sentencing is completed.

[27] Where an application is brought to re-open a case following judgment, but before sentencing, the trial judge has a discretion to re-open the case and to reconsider the judgment. The discretion, however, is “only to be exercised in exceptional circumstances, where its exercise is clearly called for.” See R. v. Lessard (1976), 30 C.C.C. (2d) 70, at p. 73; R. v. Griffen, 2013 ONCA 510 at para. 12; R. v. Kowall (1996), 108 C.C.C. (3d) 481 at para. 31; and R. v. Drysdale, 2011 ONSC 5451 at para. 12.

[28] Although some courts have attempted to refine the “exceptional circumstances” test, Rosenberg J.A. made it clear in Griffen that the Lessard test has stood the test of time and should continue to be applied. He added that in cases where the application is based on fresh evidence, the trial judge is required to apply the test from Palmer v. The Queen[^5] applicable to fresh evidence applications on appeal. In addition, the trial judge is to take into account whether the application is merely an attempt to reverse a tactical decision. (Para. 21).

[29] The Palmer test has four well-known components. I am not going to set them out here because this is not an application based on fresh evidence. The only one of the four Palmer factors that counsel suggested was even potentially applicable to my decision is the first: that fresh evidence ought not generally to be admitted where, by the exercise of due diligence, it could have been adduced at trial. By analogy, the Crown submits that the defence should be precluded from arguing this application because an opportunity was offered during final arguments to make submissions on the effect of McCaw and the defence elected not to do so.

[30] In my view, Lessard remains the controlling authority. The court has the discretion to re-open the case, notwithstanding the conviction of Mr. Chan. The discretion is only to be exercised if exceptional circumstances are shown and the exercise of the discretion is clearly called for. In other words, where exceptional circumstances are demonstrated and where it is clearly in the interests of justice to re-open the case. Where, as here, the application is not based on fresh evidence, the Palmer test is not applicable. That said, issues of delay and/or a lack of due diligence may play a role in the assessment of whether exceptional circumstances exist.

(iii) Are There Exceptional Circumstances Here?

[31] Defence counsel asserts that there are exceptional circumstances in this case. He relies, in particular, on the “clarification” of the law provided by Justice Spies in McCaw. Counsel asserts that McCaw correctly holds that trial judges lack the jurisdiction to reconsider the constitutionality of a legislative provision that has already been struck down by a judge of cognate jurisdiction in the same province. I am urged, in the circumstances, to find that my initial ruling was in error and to conclude that I did not have the jurisdiction to reconsider the constitutionality of s. 33.1 of the Criminal Code. More specifically, I should conclude that I was bound to follow Dunn.

[32] I tend to agree with Crown counsel that I am, in effect, being asked to sit on an appeal of my own prior ruling. This alone is sufficient reason to dismiss Mr. Chan’s application. That said, I am also of the view that exceptional circumstances do not exist here that would justify re-opening the case to allow further argument on the constitutionality of s. 33.1 of the Criminal Code. I will, accordingly, set out my reasons for that point of view.

[33] I am not persuaded that exceptional circumstances are present because I am not persuaded, with the greatest of respect, that McCaw is a correct statement of the law in issue. I continue to be of the view that I am not bound by the decision in Dunn. In the result, from my point of view, there is no change in circumstances that would warrant a revisiting of the constitutional issue.

[34] I will take a moment to explain why I believe McCaw is wrongly decided.

[35] As I described in my initial decision on the constitutionality of s. 33.1, the doctrine of stare decisis reflects the principle that courts should stand by things already decided. Its rationale is obvious: it promotes consistency, certainty and predictability in the law and it enhances the legitimacy and repute of the common law: see David Polowin Real Estate Ltd. v. The Dominion of Canada General Insurance Co.[^6] (“David Polowin”).

[36] The principle of comity is grounded in a similar rationale. It expresses the idea that courts of concurrent jurisdiction should extend mutual courtesy and recognition of one another’s decisions.

[37] Stare decisis and comity are both doctrines of precedent.

[38] There are both vertical and horizontal conventions of precedent.[^7] The vertical convention provides that lower courts must abide by decisions of courts above them in the judicial pyramid. In the case of this court, that means the Divisional Court, the Court of Appeal for Ontario and the Supreme Court of Canada.

[39] The horizontal convention provides that, while not strictly binding, relevant decisions of the same level of court should be followed as a matter of judicial comity, unless there are compelling reasons that justify departing from the earlier ruling.[^8]

[40] In Re Hansard Spruce Mills[^9] Wilson J. defined “compelling reasons” as follows:

(a) Where subsequent decisions have affected the validity of the earlier decision;

(b) Where it is demonstrated that some binding precedent or relevant statute was overlooked; or,

(c) Where the judgment was not considered.

[41] Wilson J.s’ compelling reasons were summed up by Strathy J. as he then was, in R. v. Scarlett[^10], as being the equivalent to a requirement that a prior applicable ruling of a court of coordinate jurisdiction should be followed unless “plainly wrong”.

[42] The issue of the horizontal convention of precedent was squarely before the Court of Appeal for Ontario in David Polowin. Laskin J.A. wrote the unanimous decision of the court. He reflected on Lord Denning’s comments in Ostime v. Australian Mutual Provident Society[^11] where his Lordship remarked, “The doctrine of precedent does not compel your Lordships to follow the wrong path until you fall over the edge of a cliff.” In other words, the convention of horizontal precedent is not inflexible.

[43] Justice Laskin went on to note that “most modern judges disavow both a rigid adherence to precedent and an unrestrained right to depart from their court’s previous authority.”[^12] He suggested the following approach:

Instead of focusing on phrases such as "manifestly wrong", the approach I prefer is that adopted by this court in R. v. White (1996), 29 O.R. (3d) 577, [1996] O.J. No. 2405 (C.A.), at p. 602 O.R. It calls on the court to weigh the advantages and disadvantages of correcting the error in a previous decision. This approach focuses on the nature of the error, and the effect and future impact of either correcting it or maintaining it. In doing so, this approach not only takes into account the effect and impact on the parties and future litigants, but also on the integrity and administration of our justice system.

[44] In my view, while the decision in David Polowin provides the most flexible approach to horizontal precedent, it is not wildly divergent from the decisions in Spruce Hansard or Scarlett. None of these cases carve out a special exception for decisions with a constitutional dimension.

[45] Justice Spies appears to have concluded that a very different approach is to be taken when a court of coordinate jurisdiction strikes down a law as unconstitutional under s. 52 of the Constitution Act, 1982. In her view, the usual rules of horizontal precedent – expressed in the doctrines of stare decisis and comity – cease to apply where the earlier decision is rendered under s. 52.

[46] In support of her ruling, Spies J. relied on the Supreme Court’s decision in R. v. Ferguson.[^13]

[47] In Ferguson, an RCMP officer shot and killed a detainee in his cell. The officer was convicted of manslaughter. Section 236(a) of the Criminal Code imposed a four year mandatory minimum sentence for manslaughter with a firearm. The trial judge nevertheless imposed a conditional sentence of two years less a day. He granted the officer a constitutional exemption on the basis that, in his view, imposing a sentence of four years in the circumstances of the case amounted to cruel and unusual punishment.

[48] The Alberta Court of Appeal overturned the trial judge’s sentencing decision and found that the four year minimum should have been applied. The Supreme Court agreed and dismissed the appeal. One of the issues before the Supreme Court was whether a constitutional exemption was an appropriate remedy where a trial court concluded that a mandatory minimum sentence violated s. 12 of the Charter of Rights and Freedoms as amounting to cruel and unusual punishment.

[49] McLachlin, C.J., as she then was, held for a unanimous court, that the four year minimum sentence required in this case was not cruel and unusual punishment on the facts of the case. Moreover, she held that a constitutional exemption was not an appropriate remedy for a s. 12 violation. Instead, where a court concludes that a legislative provision is unconstitutional on the facts of a particular case, the section should be declared inconsistent with the Charter and of no force and effect under s. 52 of the Constitution Act, 1982.

[50] In distinguishing the nature of constitutional exemptions under s. 24(2) of the Charter from declarations of unconstitutionality under s. 52 of the Constitution Act, 1982, the former Chief Justice said the following, at para. 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: see Osborne, per Wilson J. 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: Vriend; Sharpe. 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, the remedy 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.

[51] In other words, the Chief Justice was expressing the view that unconstitutional provisions are intended, by s. 52 of the Constitutional Act, 1982, to be struck down rather than worked around on a case-by-case basis in a discretionary way. She did not express the view that any order striking down a provision under s. 52 could not be reviewed or even reconsidered by judges of coordinate jurisdiction.

[52] A trial judge’s declaration of constitutional invalidity does not, of course, literally remove an impugned provision from the statute books. Section 33.1 remains a part of the Criminal Code, for instance. Indeed, the Supreme Court in R. v. Bouchard-Lebrun[^14] recently provided an analysis of the interplay between s. 33.1 and s. 16 of the Code, without commenting on the fact that s. 33.1 had been struck down by trial court judges in a number of provinces.

[53] Given the structure of our justice system, no one could reasonably suggest that a declaration made by a trial judge pursuant to s. 52 of the Constitution Act, 1982 is immune from review by appellate courts. I have furthermore never heard it suggested that a ruling by an Ontario trial judge declaring a statutory provision unconstitutional is binding on courts in other provinces. What appears to be suggested by McCaw, however, is that the decision in Ferguson holds that a trial court’s declaration of unconstitutionality under s. 52 is horizontally binding, but only on other trial courts in the province in which the declaration was made.

[54] I have a very hard time accepting that the former Chief Justice intended Ferguson to be read in that way.

[55] In my view, Ferguson was not a case about the horizontal convention of precedent and it should not be read that way. If the Supreme Court intended to fundamentally alter the usual and long-standing conventions of horizontal precedent, they would have been clearer about it.

[56] In Scarlett, Justice Strathy echoed the language of former Chief Justice McLachlin from Ferguson where he said, at para. 36:

Where legislation is declared unconstitutional, the declaration applies not merely to the parties immediately before the court, but to the whole world. Lazar Sarna makes this point in The Law of Declaratory Judgments, 3rd ed. (Toronto: Thomson Canada, 2007) at p. 139:

[T]he Charter declaratory remedy declaring a statute invalid has effect erga omnes [toward everyone]. The invalidation of a statute erga omnes creates a legal vacuum, which urgently calls for the legislature and the administrative agencies involved to amend enabling statutes and alter organizational structures.

[57] Justice Strathy, went on, however, to address whether such a judicial declaration is binding on judges of coordinate jurisdiction. He held, at paras. 43-44:

The decisions of judges of coordinate jurisdiction, while not absolutely binding, should be followed in the absence of cogent reasons to depart from them…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.

[58] It is obvious that Justice Strathy was of the view that, notwithstanding the language used by the Chief Justice in Ferguson, the convention of horizontal precedent still applies. I agree.

[59] More recently, in R. v. Sarmales[^15], Smith J. held as follows:

I agree with the Crown's enunciation of the principles of stare decisis, namely that a judge is not bound by a decision of another judge of the same court on the same issue. A decision by a judge of a court of concurrent jurisdiction is of persuasive value only. However, the need for judicial restraint is further heightened where a court of concurrent jurisdiction has declared legislation struck as per s. 52.

[60] It remains my view, contrary to that of Justice Spies and defence counsel in this case, that Scarlett is a correct statement of the law. I am not bound by Justice Wallace’s decision in Dunn on the constitutionality of s. 33.1 of the Criminal Code. I accept that there are good reasons to apply the doctrines of stare decisis and comity and only to depart from her ruling where there are compelling reasons. By that I mean where the prior ruling is plainly wrong and there are salient reasons for correcting the error.

[61] It further remains my view that there were good reasons to depart from the decision of Wallace J. and any others that found s. 33.1 to be unconstitutional. To repeat the substance of my earlier ruling, those reasons include:

(a) The analysis under s. 1 of the Charter was, in my view, plainly wrong;

(b) Moreover, the Supreme Court’s ruling in Bedford has changed the landscape somewhat in terms of the relationship between s. 7 and s. 1 of the Charter. I note, by the way, that this change brought about by Bedford does not appear to have been argued in McCaw; and,

(c) There are inconsistent rulings across the country on the constitutionality of s. 33.1. Clearly the issue is quite unsettled an in need of appellate consideration. I do not, in the circumstances, find myself bound by one line of decisions when there are an equal number of decisions along an entirely opposite line from judges of equal jurisdiction across the country.

[62] Defence counsel essentially conceded in argument that to find exceptional circumstances here, I would have to agree that McCaw was correctly decided and Scarlett was wrongly decided. I do not agree. I am not persuaded, in the result, that exceptional circumstances exist here that would warrant re-opening the case, post-verdict, to permit the re-arguing of the constitutional issue. The application is therefore dismissed.

Boswell J.

Released: January 31, 2019

[^1]: See 2018 ONSC 7158 [^2]: See 2018 ONSC 3849 [^3]: [2013 ONSC 562] [^4]: [2013 SCC 72] [^5]: [1980] 1 S.C.R. 759 [^6]: [(2005), 76 O.R. (3d) 161 (C.A.) at paras. 119-120]. [^7]: Debra L. Parkes, Precedent Unbound? Contemporary Approaches to Precedent in Canada (2007), 32 Man. L.J. 135. [^8]: As above, at footnote 7, at para. 49. [^9]: [[[1954] 13 W.W.R. (N.S.) 285 (B.C.S.C.) at para. 4]](https://www.canlii.org/en/bc/bcsc/doc/1954/1954canlii253/1954canlii253.html). [^10]: [2013 ONSC 562 at para. 43]. [^11]: [1960] A.C. 459, [1959] All E.R. 245 (H.L.) at p. 489 A.C. [^12]: As above, at footnote 10, at para. 122. [^13]: [[2008 SCC 6, [2008] S.C.J. No. 6]](https://www.canlii.org/en/ca/scc/doc/2008/2008scc6/2008scc6.html) [^14]: [2011 SCC 58] [^15]: [2017 ONSC 1869 at para. 12].