A MAN WHO IS REALLY DRUNK CANNOT BE CONVICTED OF RAPE in canada
This is a very important
article for anyone living in Canada. I don’t know if this court decision and those
of the Supreme Court of Canada is applicable in other countries. I have
described definitions for legal terms you may not be familiar with. The word ‘Crown’
in this article means the prosecutor. The word ‘Applicant’ means the lawyer
acting for Cameron McCaw who is the defendant in this case. The letter R in R,v, means the Crown versus
which in essence is the government charging the accused person in the name of
the Queen. The letter’ p’ means page when quoting a statement related to a
certain page number The letters ‘s’ and ‘ss’
mean section and subsection. And now my article which is a direct quote from
the judge in the Superior Court in the Province of Ontario in Canada along with
my own commentary that is bracketed thusly.
The applicant, (the man who was charged with sexual assault against a woman ) Cameron McCaw, stands charged that on July 13, 2015, he sexually
assaulted the complainant in this matter, AB., (not her
real initials ) contrary to section 271 of
the Criminal Code. He
re-elected trial by judge alone and pleaded not guilty to the charge.
At the outset of the trial,
Mr. McCaw brought an application seeking an order from this Court, affirming
that s. 33.1 of
the Criminal Code is
of no force and effect in Ontario, as having been previously determined to be
of no force and effect pursuant to s. 52(1) of
the Constitution
Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c
11 [Constitution Act]. In the alternative, Mr. McCaw
sought an order, pursuant to s. 52(1) of the Constitution Act,
declaring that section
33.1 of the Criminal Code is
invalid and of no force and effect, as being inconsistent with subsection and 11(d)
of the Canadian
Charter of Rights and Freedoms [Charter]
in a manner not justified under section 1.
Mr. McCaw filed an
affidavit sworn by Richelle Cickello, a law clerk from Simcoe Chambers, in
support of his application. Ms. Cickello deposed (swore under oath while testifying) that at his trial.
Mr. McCaw testified that he consumed “several
intoxicating substances and performed the sexual acts alleged without having
intended to do so”. In other words, he was in a state of extreme intoxication,
akin to automatism, so as to cast
doubt on the voluntariness of his actions.
Automatism is an involuntary act such as
sleepwalking that is performed in a state of unconsciousness. The subject does
not act voluntarily and is not fully aware of his or her actions.
When the judge asked for
particulars from McCaw’s lawyer, he was
advised that Mr. McCaw would testify that he consumed alcohol, marihuana and
GBD which is a date rape drug.
Why would he swallow a date
drug?
Since Mr. McCaw wished to
rely at trial on a defence of automatism as a direct result of self-induced
extreme intoxication but the purpose of section 33.1 of
the Criminal Code made
this defence unavailable to him
The law is clear that as a
general rule, constitutional challenges should be disposed of at the end of a
case. Accordingly, the judge considered whether or not he should direct that
the trial proceed and reserve his decision on the application until the end of
the trial.
Mr. Frost, who represented
Mr. McCaw during the trial, advised that he needed to know what the judge’s ruling
would be before deciding whether or not to call Mr. McCaw at trial. Ms. Garcia (the prosecutor) also took the position
that she needed to know the judge’s decision before the trial proceeded because
if he ruled in favour of the application, she intended to call further evidence
as part of the Crown’s case. She also wanted to know what the judge’s decision
was before cross-examining Mr. McCaw. As the positions of counsel made sense
and to ensure the fairness of this trial, the judge agreed to proceed as
proposed by counsel. In his view, this case fell within the exception to the
general rule as articulated by Sopinka judge. in R. v. DeSousa, in
the Supreme Court on page 955, as the trial judge’s determination of the
application would not be dependent on the facts to be elicited during the
trial.
As a preliminary matter,
Ms. Garcia argued that Mr. McCaw was obliged to file evidence in support of his
application in the form of an affidavit sworn by him as well as expert reports
from the pharmacologist he has retained and the forensic psychiatrist he
intends to retain.
The judge did not accept
that position, as in his view, all he needed was to know what substances Mr.
McCaw intended to testify that he had consumed in support of his position that
he was acting as an automaton. Further evidence would only have given the Crown
a chance to cross-examine Mr. McCaw in advance of his evidence at trial. It
would not have provided any assistance to the judge in deciding this
application.
On June 4, 2018 the judge advised
counsel and Mr. McCaw that he had decided to grant the relief sought by the
applicant in his application. This included the relief sought in the
alternative which the judge considered in the event it was determined on appeal
that he was in error in granting the principle relief claimed. This ruling meant
that it would bel open to the applicant at trial to demonstrate on a balance of
probabilities that because of extreme self-induced intoxication, he did not
intend to sexually assault A.B., resulting in an acquittal.
The Issues
This application (via his lawyer) raises the following issues:
a)
Is the Crown estopped (prevented) from arguing that s. 33.1 of
the Criminal Code is
constitutional?
b)
Is s. 33.1 of the Criminal Code of
no force and effect by virtue of a prior finding pursuant to s. 52(1) of
the Constitution Act by a court of competent jurisdiction in
the case of R. v. Dunn and,
c)
In the alternative, should s.33.1 of
the Criminal Code be
declared invalid and of no force and effect, pursuant to s. 52(1) of the Constitution
Act?
The applicant submitted
that this application is not required, as previous trial courts have already
ruled in favour of "striking down" s. 33.1 of
the Criminal Code,
having found s. 33.1 to
be unconstitutional and of no force and effect in the province of
Ontario. It was only if I decided to reject this submission that the applicant
sought an order that s. 33.1 be
declared of no force and effect as being contrary to ss. 7 and 11(d)
of the Charter in
a manner not justified under s.1.
The respondent (prosecutor) submitted that s. 33.1 is
still in force, and the matter remains open to litigation. The respondent
contended that s. 33.1 does
not infringe on the applicant's s. 7 and s. 11(d) Charter rights
and is not unconstitutional. In the alternative, the respondent submitted
that if this Court finds that s. 33.1 breaches
the Charter,
then it is saved by s. 1 as
a reasonable limit on those rights.
The Facts
Transcripts from the
preliminary inquiry were filed in support of the application. After argument of
the application, the judge heard the evidence of D.C. Patching, who was the
Scenes of Crime officer who collected evidence and took pictures of the scene
of the alleged assault; the complainant, AB.; her former boyfriend, DL, who was
Mr. McCaw’s roommate at the time of the alleged sexual assault and another
friend of Mr. S.L.’s, M.H., as part of the Crown’s case. The Crown’s case is
not closed.
[12]
At the time of the alleged assault, Mr.
McCaw lived at 582 Marlee Avenue, apartment B. He shared this two-story
apartment with Mr. S.L. Mr. S.L. and Ms. A.B. attended a pool party on July 11,
2015.
Mrs. A.B. testified that
she consumed several alcoholic beverages while at the party from approximately
5:00 pm to 11:00 pm. Mr. S.L., Ms. A.B. and M.H. returned to Mr. S.L. apartment
at approximately 11:00 pm, where they met up with Mr. McCaw. According to Ms. A.B.
they all had a few more drinks. When they later stepped out to the parking lot
in front of the building to have a cigarette, Ms. A.B. testified that she began
to feel extremely intoxicated and had to be carried back into the apartment
where she was deposited on the couch in the living room. According to Mr.
S.L. and M.H., Ms. A.B. passed out on the couch and was fully clothed at the
time.
Mr. S.L., M.H. and Mr.
McCaw left the apartment and attended a bar located on the lower level of the
apartment building where they continued drinking. After some time, Mr.
Habib left the bar and went to his home, while Mr. S.L. and Mr. McCaw returned
to their own apartment.
The essence of Ms. A.B.’s
evidence of what followed is that after she passed out on the couch in the
living room of Mr. S.L.`s apartment, she awoke to find Mr. McCaw touching her
sexually and kissing her and then engaging in sexual intercourse with her. Ms. A.B.
testified that she initially thought that this person was her boyfriend and so
she did not resist. She realized that this person was not her boyfriend
when he said "I'm going to come inside you". Ms. AB. then saw
that it was Mr. McCaw who was on top of her. Mr. McCaw moved off of Ms. A.B.
and she ran to Mr. S.L.’s bedroom on the second floor of the apartment. Mr.
S.L. and Ms. A.B then left the apartment. As they exited, they saw Mr.
McCaw sitting in an arm chair in the living room. He appeared to be sleeping
and was holding a pair of scissors in his hands.
Ms. AB. reported the sexual
assault to police at approximately 5:00 am on July 12, 2015. She
identified Mr. McCaw as the assailant and provided his address. Police went to
the apartment and arrested Mr. McCaw shortly thereafter.
The judge said, “Given my
ruling, after these Crown witnesses testified, it was agreed that the trial
would be adjourned until September 2018 so that Mr. McCaw could arrange to be
assessed by a forensic psychiatrist who would provide a report, presumably in
support of his defence.” unquote
Bill C-72 and Section 33.1 of the Criminal Code
Section 33.1 of
the Criminal Code was
enacted in July 1995. It bars the defence of self-induced intoxication in cases
that involve an element of an assault. The provision applies only to offences
of general intent. It does not interfere with the common law rule that a state
of "advanced intoxication" can raise a reasonable doubt as to
the mens rea (criminal intent) of specific intent offences.
Please note that once you
have pushed s. 33.1 which is the paragraph in the Criminal Code that defines the crime of sexual assault which is
used instead of the word rape, you won’t have to push that s. 33.1 again as it is the same definition of sexual assault.
The preamble of Bill C-72
(which enacted s. 33.1) states that:
WHEREAS the Parliament of
Canada is gravely concerned about the incidence of violence in Canadian
society;
WHEREAS the Parliament of
Canada recognizes that violence has a particularly disadvantaging impact on the
equal participation of women and children in society and on the rights of women
and children to security of the person and to the equal protection and benefit
of the law as guaranteed by sections 7, 15 and 28 of
the Canadian
Charter of Rights and Freedoms;
WHEREAS the Parliament of
Canada recognizes that there is a close association between violence and
intoxication and is concerned that self-induced intoxication may be used
socially and legally to excuse violence, particularly violence against women
and children;
WHEREAS the Parliament of
Canada recognized that the potential effects of alcohol and certain drugs on
human behaviour are well known to Canadians and is aware of scientific
evidence that most intoxicants, including alcohol, by themselves, will not
cause a person to act involuntarily;
WHEREAS the Parliament of
Canada shares with Canadians the moral view that people who, while in a state
of self-induced intoxication, violate the physical integrity of others are
blameworthy in relation to their harmful conduct and should be held criminally
accountable for it;
WHEREAS the Parliament of
Canada desires to promote and help to ensure the full protection of the rights
guaranteed under sections 7, 11, 15 and 28 of
the Canadian Charter of Rights and Freedoms for all
Canadians, including those who are or may be victims of violence.
WHEREAS the Parliament of
Canada considers it necessary to legislate a basis of criminal fault in
relation to self-induced intoxication and general intent offences involving
violence;
WHEREAS the Parliament of
Canada recognizes the continuing existence of a common law principle that
intoxication to an extent that is less than that which would cause a person to
lack the voluntariness required to commit a criminal offence of general intent
is never a defence at law;
WHEREAS the Parliament of
Canada considers it necessary and desirable to legislate a standard of care, in
order to make it clear that a person, who, while in a state of incapacity by
reason of self-induced intoxication, commits an offence involving violence
against another person, departs markedly from the standard of reasonable care
that Canadians owe to each other and is thereby criminally at fault;
Section 33.1 provides as follows:
section 33.1 (1) It is not
a defence to an offence referred to in subsection (3) that the accused, by
reason of self-induced intoxication, lacked the general intent or the voluntariness
required to commit the offence, where the accused departed markedly from the
standard of care as described in subsection (2).
Criminal fault by reason of intoxication -- section. 33.1(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.
This section applies in
respect of an offence under this Act or any other Act of Parliament that
includes as an element an assault or any other interference or threat of
interference by a person with the bodily integrity of another person.
The History of s. 33.1 of the Criminal Code
Historically, at common
law, (previous court decisions) intoxication could
provide a defence to a charge of specific intent such as like murder but it could not provide a
defence to a charge of general intent like sexual assault. In cases of
general intent offences, the specific mens rea for the
particular offence; typically the intentional application of force or touching,
was deemed met by the intentional act of becoming intoxicated. In this
way the intention to become intoxicated acted as a substitute basis for
liability.
This state of the law,
articulated more recently in R. v. Leary, that was originally dated
back to 16th century England. In Leary the Supreme Court of
Canada endorsed the proposition that drunkenness was not available as a defence
to negate the mens rea for a general intent offence. The Court
held that the defendant, by becoming voluntarily intoxicated, committed
the mens rea for a general intent offence. Accordingly, under
the Leary approach, the recklessness of becoming drunk was
deemed to be sufficient to supply the fault element for the commission of the
particular general intent offence.
This changed with the
Supreme Court of Canada’s decision in R. v. Daviault, which
dealt with a case where the defendant was acquitted on account of his extreme
intoxication by alcohol; akin to automatism, at the time of the sexual assault.
Cory J. on behalf of the majority determined that the passage of the Charter made
it necessary to re-evaluate whether a strict application of the common law rule
in Leary withstood constitutional scrutiny. The majority
of the Court decided that it did not, holding that the strict application of
the Leary rule violated sub section 7 and 11(d)
of the Charter.
The trial judge said, “ In
summary, I am of the view that to deny that even a very minimal mental element
is required for sexual assault offends the Charter in
a manner that is so drastic and so contrary to the principles of fundamental
justice that it cannot be justified under section 1 of the Charter.
Apart from mens rea, Justice Cory (in his Supreme Court of Canada
ruling) further held (ruled) that extreme intoxication could in some cases cast doubt on the
voluntariness of the act itself. He stated that if the mental element involved
relates to the actus rues *(actual
act) rather than the mens rea, then the result must be the
same as the actus reus - which requires that the prohibited criminal
act be performed voluntarily as a willed act. A person in a state of automatism
cannot perform a voluntary willed act, since the automatism has deprived the
person of the ability to carry out such an act.”
As summarized by Professor
Gerry Ferguson in his article “The Intoxication Defence: Constitutionally
Impaired and In Need of Rehabilitation.” The Supreme Court Law Review:
Osgoode’s Annual Constitutional Cases at page 133, the Supreme Court
in Daviault held that:
The infringement [of
the Charter
in the Leary rule (a former decision) arises from the fact that
the fault of getting extremely intoxicated is treated as an adequate and
essentially equal level of fault as the fault required for the offence
committed, e.g., an intent to commit sexual assault. In Daviault,
the Supreme Court held that those two fault levels are not equivalent and
cannot be substituted one for the other. The Supreme Court further concluded
that this infringement of sections 7and 11(d)
cannot be saved under section 1 of
the Charter.
Thus Daviault held that extreme intoxication akin to automatism or insanity
must be recognized as a defence since the Charter compels
it!
In coming to his
conclusion, Justice Cory considered studies that had been undertaken in
Australia and New Zealand following decisions in those countries that were
diametrically opposed to the Leary rule. Based on those
studies he concluded that those decisions had not opened the floodgates as had
been feared and in fact had not had an effect of any significance on the
numbers of acquittals arising from evidence of severe intoxication. Justice Cory observed that it will only be on
rare occasions that evidence of such an extreme state of intoxication can be
advanced and perhaps only on still rarer occasions that it is likely to be
successful.
Please note that judges who
are judges in the higher courts are referred to as Justice. Justice Cory was a
member of an ad hoc task force in 1969 in which I was the chairman of that task
force. An ad hock task force is one that advises governments.
Justice Cory suggested a
procedure for how a defendant could assert this defence. He held that the defendant should be called
upon to establish this defence on a balance of probabilities since it is only
the defendant who can give evidence as to the amount of alcohol consumed and
its effect upon him. Furthermore, he held that expert evidence would be
required to confirm that the defendant was probably in a state akin to
automatism or insanity as a result of his drinking.
In Daviault, Justice Cory stated: "I would add that it
is always open to Parliament to fashion a remedy which would make it a crime to
commit a prohibited act while drunk." Notwithstanding the Daviault defence's
narrow application, and the stringent reverse persuasive burden, there was a
strong, negative, public reaction to the decision. Nine months after the
release of Daviault, Parliament enacted.
As can be seen, on the one
hand s. 33.1’s
application is narrower than Daviault in that it only applies
to general intent offences involving an assault or any other interference with
the bodily integrity of another person. In other words, Daviault is
still applicable in other types of offences. As the Supreme Court of Canada
said in R v. Bouchard-Lebrun, the Daviault ruling
still represents the state of the law in Canada subject to the significant
restriction set out in s. 33.1 and
so would apply today.
For example, to enable a
defendant charged with a property offence to please extreme intoxications.
However, where s. 33.1 applies,
its effect is that extreme intoxication is not a defence in general intent
offences under any circumstances.
Mr. Neubauer argued that by
doing so, s. 33.1 does
not address the issues that Justice Cory had with the Leary rule
when he decided that it was unconstitutional. Ms. Garcia argued that
since s. 33.1 only
applies to cases of assault, Daviault still applies for non-assault
cases and that this represents an appropriate balance implemented by Parliament
in accordance with section 1 of the Charter. This is an issue I will come
to.
The Cases that have Considered the
Constitutionality of s. 33.1 of the Criminal Code
Since the enactment
of s. 33.1 of
the Criminal Code,
counsel advised me of nine reported decisions by Canadian courts that
considered its constitutionality. In all but two cases these were Superior
Courts of Justice. In every case the court found that s. 33.1infringed ss. 7 and 11(d)
of the Charter.
The courts differed, however, as to whether s. 33.1 constituted
a reasonably justifiable limit on these Charter rights,
so as to be saved under s. 1 of
the Charter.
In R. v. Vickberg,
and R. v. Dow, the courts found that s. 33.1 could
be saved by s. 1 of
the Charter. In
these cases the courts generally found that the objective of s. 33.3 is
consistent with the preamble of Bill C-72.
In the cases of R.
v. Brenton, R. v. Dunn, [ R. v. Jenson,
R. v. Ciano and R. v. Fleming, the courts found that the
unconstitutionality of s. 33.1 could not be
saved by s. 1 of
the Charter.
These courts characterized the objective of s. 33.1 as
being far narrower. According to these courts, the objective was to
eliminate self-induced intoxication as a defence even in cases where the
intoxication rendered the accused an automaton.
Despite the fact that in
1999, the Superior Court of Ontario in Dunn, supra, found
that s. 33.1 of
the Criminal Code
infringes ss. 7 and 11(d)
of the Charter, in
a manner not justified under s. 1, courts in Ontario (including
provincial and Superior) have been asked three more times to decide
whether s.33.
1 is constitutionally valid. All of the cases in Ontario, save for Decaire,
supra, released in September 1998, before Dunn, have
decided that s. 33.1 is
constitutionally invalid and cannot be saved by s. 1 of
the Charter.
The issue raised before me;
whether or not the first decision of this Court in Dunn, supra,
is a binding decision upon me, does not appear to have been argued before in
the context of s. 33.1 of
the Criminal Code.
In each of the other cases from this Court; namely Jenson and Fleming,
the Court considered the issue anew and it was not argued that the Court was
bound by the decision in Dunn. The exception is the provincial
court decision in Cedano, supra, (earlier in the page) but there it is not
surprising that the trial judge considered himself bound by the decisions of
the Superior Court.
Counsel (for the appellant) advised that the issue of
the constitutionality of s. 33.1 has
not received consideration from any courts of appeal, including the Ontario
Court of Appeal.
Dealing first with the
cases that have upheld s. 33.1 of
the Criminal Code,
the case of Vickberg, supra, a decision of the British
Columbia Supreme Court released in April 1998, appears to have been the first
case to consider the constitutionality of s. 33.1.
The defendant raised the defence of automatism based on the over consumption of
prescription drugs with respect to the charge of assault with a weapon; a
general intent offence. The trial judge acquitted the defendant having found
that he was a non-insane automaton at the time of the offence and this defence
was available to the defendant because he had a reasonable doubt as to whether
the consumption of pills by the defendant was voluntary. His comments on s. 33.1 were
therefore obiter. (a remark in a judgment that is said in passing.) at para. 71. Although he found that s. 33.1 of
the Criminal Code violated ss. 7 and 11(d)
of the Charter (at
para. 84) he found, at para. 91, that the objective of this provision is to
ensure that a person who commits an act of violence while in a state of
self-induced intoxication is held legally responsible for this conduct, and he
went on to conclude that following Daviault, Parliament had
“selected, on a reasonable basis, the legislative means by which it can least
impair the rights of an accused” at para. 97 and that as such the provision was
saved by s. 1(at
para. 100).
The decision of Decaire,
supra, released in September 1998, was the first time this Court considered the
issue. In that case the defendant was charged with attempted murder, break and
enter to commit theft and two counts of assault. He alleged that he was heavily
intoxicated by alcohol at the time of the alleged offences. Justice Festeryga
referred to the obiter comments of the trial judge in Vickberg and
after noting that the defence in the case before him had conceded that s. 33.1 met
the first step of the Oakes test, he went on to find
that s. 33.1 was
saved by s. 1 of
the Charter.
In Dow, supra, the
Quebec Superior Court dismissed a motion by the defence to declare s. 33.1 unconstitutional
in a case where the defendant consumed only alcohol. It is important to note
that the comments on the constitutionality of s. 33.1 were obiter
since the trial judge did not accept the defendant’s evidence.
In a strongly worded
decision, Senior Judge Sharkey of the Nunavut Court of Justice upheld the
constitutionality of s. 33.1
in supra. Having found the provision unconstitutional,
Sharkey J. held that the real object of s. 33.1 is
the protection of women from alcohol-related or intoxicated violence, and, in
turn, the preservation of women’s equality rights to full participation in
Canadian society (at para. 48); and in his further s. 1. analysis,
he found that s. 33.1 was
saved by s. 1 of
the Charter.
In Dunn, supra,
Justice Wallace of this Court considered a case where the defendant was charged
with aggravated assault and he claimed he had consumed a large amount of
alcohol at the time of the incident. This is the decision that Mr. Neubauer
argues is binding upon me. Although he acknowledged that the decision makes no
mention of s. 52 of the Constitution Act, he argued that in
effect Wallace J. struck down s. 33.1 of
the Criminal Code and
that it is no longer of any force and effect. Ms. Garcia however argued that it
is not clear that Justice Wallace made a declaration that s. 33.1 is
unconstitutional and that all she decided was that the defendant could raise
the defence of extreme intoxication in the case before her; i.e. claim a
constitutional exemption.
In para. (paragraph) 1 of her
decision, Justice Wallace stated the issue before her as follows:
His [(Mr. Dunn’s) counsel submits the Criminal Code’s
enactment, in 1995, of s. 33.1 (which
removed the defence of self-induced intoxication akin to automatism),
is unconstitutional; she argues the section is an unreasonable limit on
Mr. Dunn’s rights, guaranteed by ss. 7 and 11(d)
of the Charter,
she says it cannot be ‘demonstrably justified in a free and democratic society’
as promised by the Charter’s s. 1.
The Crown asks the Court to uphold s. 33.1’s
validity.”
Justice Wallace then went
on to consider the issues; concluding that s. 33.1 infringed
the defendant’s s. 11(d)
and s. 7
Charter rights
(at paras. 21 and 35). In coming to this decision Judge Wallace came to the
conclusion that the Preamble to Bill 72 misstates and overstates the safeguards
interest of society in two respects (at paras. 30-32) and that despite the
section’s wording and its stated objectives, the most society gains from s. 33.1 is
the removal of one defence for violent, intoxicated automatons;
At para. 54 she concluded
that s. 33.1 went
further than s. 1 of
the Charter permits
and that it “imposes more than reasonable limits on individual rights and
freedoms, and those limits cannot be ‘demonstrably justified’ in our free and
democratic Canadian society”. At para. 55 she concluded simply by stating: “The
motion is allowed”. I will come back to the significance of this and what I
should take from this decision as to the remedy that Justice Wallace granted.
The next case
chronologically that was drawn to my attention and upheld s. 33.1 was
a decision released three days later by Judge Vertes of the Northwest
Territories Supreme court: Brenton, supra. In
that case the defendant had shared a marijuana cigarette, and the trial judge
found that he had a reasonable doubt as to whether the defendant was in a state
of automatism due to self-induced intoxication. Because of s. 33.1,
which the trial judge found was constitutional, he convicted the defendant of
sexual assault and other assault offences.
Judge Vertes allowed the
appeal. He reviewed the constitutionality of s. 33.1 and
considered the cases of Vickberg, Decaire and Dunn, and
he came to the same conclusion as Justice Wallace in Dunn. Although
he adopted some of those reasons, he did his own analysis of the objective
of s. 33.1,
whether it breached the Charter and
whether it is saved by s. 1.
He concluded that it did not.
The next case that
considered the issue is Jensen, supra, but as Ms.
Garcia submitted, Then J.’s endorsement is very short and offers no analysis in
how he decided to come to the same decision as the judges did in Dunn and Brenton. The
defendant appealed and although the issue of the constitutionality of s. 33.1 was
before the Court of Appeal, the Court did not need to deal with it; R.
v. Jenson At para. 24 the Court stated:
Based on the foregoing
reasons, we would dismiss the conviction appeal. As we did not call on the
respondent to address the appellant's first two grounds of appeal, the
respondent did not pursue its additional issue raised on this appeal concerning
the constitutionality of section 33.1. of the Criminal Code. Accordingly, we did not
call on either the intervenor or the appellant to address that issue, as it is
not relevant to our disposition of this appeal. Nothing in these reasons should
be read as approving or disapproving of the trial judge's ruling on the
constitutionality of s. 33.1.
In Cedano, Duncan
J. referred to the cases that had gone both ways by this point on
the constitutionality of s. 33.1 and
held (at para. 33) that the law on this point in Ontario appeared to be
that s. 33.1 offended
the Charter and
was not saved by s. 1,
referring to Jensen and the cases cited therein. He convicted
the defendant, however, because he was not persuaded of the defence beyond a
reasonable doubt, noting the defendant had not called an expert fk expl;ain his
opinion.
Finally in Fleming,
supra, released in October 2010, on an application at the outset of a
jury trial, Judge Patterson of this Court considered the earlier authorities on
the issue of the constitutionality of s. 33.1 and
to a large extent adopted the reasons of Judge Wallace in Dunn,
concluding that the defence of extreme intoxication had an “air of reality” and
would be put to the jury. The defendant was relying on his drinking or
consumption of drugs.
Is the Crown Estopped(prevented) from Arguing that s. 33.1 is Constitutional?
The applicant argued in his
factum (legal opinion) that the declarations of
the unconstitutionality of s. 33.1 in
the previous Ontario decisions (Dunn, Fleming, and Jensen) were not
appealed by the Crown, leaving the declarations of the Superior Court of
Justice decisions binding on the Crown.
The respondent took the
position that this is incorrect. Ms. Garcia submitted that the Crown
specifically appealed the issue of constitutional invalidity to s.33.1 in
the Jensen case and I have already included the passage from
the decision of the Court of Appeal that confirms this and sets out why the
issue was not argued in that court. I agree with Ms. Garcia that nothing in the
decision of the Court of Appeal should be read as approving or disapproving of
the trial judge's ruling on the constitutionality of s. 33.1.
Ms. Garcia conceded that
the Crown has not appealed the rulings on the constitutionality of s. 33.1 in
the other cases although she submitted that this was because of a “lack of a
route” to do so and because of the way in which the case resolved itself. For
example in Fleming, she argued that although there was a
ruling of invalidity of s.33.1,
Mr. Fleming was ultimately convicted of sexual assault by the trial judge. In
doing so, the judge rejected the defence of intoxication, even as it applied in
the absence of s.33.1.
Ms. Garcia submitted that the Crown is not positioned to appeal a case that was
decided in its favour based on the merits, because the issue became moot; the
Crown has, in effect, nothing to appeal. The same thing happened in Dunn.
It was further submitted by
the Crown that even if there was a case that was available to the Crown to
appeal, and it did not appeal - this should not necessarily handcuff the Crown
in all future proceedings on the issue. Cases are appealed (or not) for a myriad of reasons, often unrelated to
the core legal decisions of the file.
Mr. Neubauer submitted that
the Crown could have appealed the decisions in Dunn and Fleming but
chose not to do so. He argued that the Crown’s opportunity to re-litigate this
issue has passed. He relied on s. 676 of
the Criminal Code and
the decision of R. v. Labe from the Supreme Court of
Canada; 1994 CanLII
41 (SCC), [1994] 3 S.C.R. 965 at paras. 17 and 20. There
the Court concluded that under s. 40(1) of
the Supreme Court
Act, R.S.C., 1985, S. S-26, the Court has jurisdiction to grant
leave to appeal against a ruling on the constitutionality of a law that “cannot
be piggybacked onto proceedings set out in the Criminal Code”.
Although not referred to by counsel, I note that the examples of why a finding otherwise
would be an “absurd consequence” in para. 21 suggest that a second judge could
disagree with the first judge about the constitutionality of a section of a
piece of legislation. These were examples and the issue before me was not
argued. Even if these comments are binding on me, in my view they have been
overruled by R. v Ferguson 2008 SCC 6 (CanLII), [2008] S.C. J.
No. 6, which I will review in connection with the next issue before me.
Ms. Garcia conceded
that s. 40(1) of
the Supreme Court
Act does afford the Crown an avenue of appeal and in my
view that is clearly the case. That said, I did not find that the Crown was
estopped in making its arguments on the constitutionality of s. 33.1of
the Criminal Code before
me and as I will come to, I considered all of them in reaching my decision.
Is s. 33.1 of the Criminal Code Already of No Force
and Effect?
The applicant submitted
that s. 33.1 of
the Criminal Code is
no longer in effect, and the continued re-litigation of this provision runs
contrary to well-established constitutional principles. The position of Mr.
Neubauer is that when a court of competent jurisdiction declares a provision
invalid pursuant to s. 52 of the Constitution Act, the
constitutionality of the provision is no longer a live issue, and the
declaration renders the provision of no force and effect in that province.
He argued that the earlier decisions are binding as a result of s. 53, not as
a result of judicial comity. Mr. Neubauer submitted that this Court should
simply affirm that s. 33.1 is
of no force and effect in Ontario, without considering further constitutional
arguments.
Ms. Garcia, however,
submitted that a Superior Court of Justice lacks the authority to strike down a
section of the Criminal Code,
such that it would be binding on other jurists (judges) of the Superior Court of Justice who have equal authority. She
argued that rulings of the Superior Court of Justice are persuasive and should be
followed in the absence of cogent reasons to depart from them but decisions of
courts of coordinate jurisdictions are not absolutely binding on one another.
In considering this issue,
for the reasons that follow, I accepted the position of the applicant and
accordingly affirmed that since the release of the decision in Dunn,
s. 33.1 of the Criminal Code is
of no force and effect in Ontario
Section 52(1) reads as
follows: The Constitution of Canada is the supreme law of Canada, and any law
that is inconsistent with the provisions of the Constitution is, to the extent
of the inconsistency, of no force or effect.
In considering this issue,
the key decision is R. v Ferguson, supra, the defendant appealed a
decision from the Alberta Court of Appeal which overturned the sentencing
ruling of the trial judge who granted a constitutional exemption to the
defendant from the mandatory minimum sentence as he found the mandatory
sentence constituted cruel and unusual punishment, violating s. 12 of
the Charter.
In considering the issues on appeal, Chief Justice McLachlin, writing for the
Court, considered what remedy a trial judge is entitled to grant once finding
that a particular provision violates the Charter.
At para. 35 she held that:
“Two remedial provisions
govern remedies for Charter
violations; ss. 24(1) of
the Charter and s. 52(1)
of the Constitution
Act, 1982. Section 24(1) has
generally been seen – at least until now – as providing a case-by case remedy
for unconstitutional acts of government agents operating under lawful schemes
whose constitutionality is not challenged. The other remedy section, s. 52(1) of
the Constitution
Act, 1982, confers no discretion on judges. It simply provides
that laws that are inconsistent with the Charter are
of no force and effect to the extent of the inconsistency.”
Section 52 states; :The
Constitution of Canada is the supreme law of Canada, and any law this is
inconsistent with the provisions of the Constitution is, to the extent of the
inconsistency, of no force or effect.”
When a litigant claims that
a law violates the Charter,
and a court rules or ‘declares’ that is does, the effect of s. 52(1) is
to render the law null and void. It is common to describe this as the court
‘striking down’ the law. In fact, when a court ‘strikes down’ a law, the law
has failed by operation of s. 52 of
the Constitution
Act, 1982.
McLachlin C. J. went on to
consider whether or not a constitutional exemption under s. 24(1) of
the Charter should
be granted in a case where the alleged constitutional violation involved a
mandatory minimum sentence. She gave four reasons for concluding that it should
not: 1) the weight of authority thus far was against the availability of
constitutional exemptions for mandatory minimum sentencing laws (at para. 48);
2) a constitutional exemption would confer on judges a discretion to reject the
mandatory minimum sentence prescribed by Parliament; 3) the remedial scheme of
the Charter (which
I will come back to); and 4) the fact that constitutional exemptions would buy
flexibility for the courts at the cost of undermining the rule of law.
In considering the remedial
scheme of the Charter,
Justice McLachlin stated;
“As I noted at the outset,
remedies for breaches of the Charter are governed by s. 24(1) of
the Charter and s. 52(1) of
the Constitution
Act, 1982.”
When a law produces an
unconstitutional effect, the usual remedy lies under s. 52(1),
which provides that the law is of no force or effect to the extent that it is
inconsistent with the Charter.
Section 24(1),
by contrast, is generally used as a remedy, not for unconstitutional laws, but
for unconstitutional government acts committed under the authority of legal
regimes which are accepted as fully constitutional.
It thus becomes apparent
that ss. 52(1) and 24(1) serve
different remedial purposes. Section 52(1) provides
a remedy for laws that violate Charter rights
either in purpose or in effect. Section 24(1),
by contrast, provides a remedy for government acts that
violate Charter rights.
We are here concerned with a law that is alleged to violate a Charter right.
This suggests that s. 52(1) provides
the proper remedy.
The highly discretionary
language in s. 24(1),
‘such remedy as the court considers appropriate and just in the circumstances’,
is appropriate for control of unconstitutional acts. By contrast, s. 52(1) targets
the unconstitutionality of laws in a direct non-discretionary way: laws are of
no force or effect to the extent that they are unconstitutional.
The presence of s. 52(1) with
its mandatory wording suggests an intention of the framers of the Charter that
unconstitutional laws are deprived of effect to the extent of their
inconsistency, not left on the books subject to discretionary case-by-case
remedies, in cases where the
requirements for severance or reading in are met, it may be possible to remedy
the inconsistency judicially instead of striking down the impugned legislation
as a whole […] Where this is not possible - as in the case of an
unconstitutional mandatory minimum sentence - the unconstitutional provision
must be struck down. The ball is thrown back into Parliament's court, to revise
the law, should it choose to do so, so that it no longer produces
unconstitutional effects. In either case, there is a s. 52 remedy that renders the
unconstitutional provision of no force or effect to the extent of its
inconsistency. To the extent that the law is unconstitutional, it is not merely
inapplicable for the purposes of the case at hand. It is null and void, and is
effectively removed from the statute books.
As noted in the last
section, a constitutional exemption under s. 24(1) is
a personal remedy. The remedy proposed by Constable Ferguson is thus distinct
from a s. 52 remedy
that reads in an exception for a well-defined class of situations. When a constitutional exemption is granted,
the successful claimant receives a personal remedy under s. 24(1),
but the law remains on the books, intact. As Wilson J. put it in Osborne, the
legislation remains as enacted ‘in its pristine over-inclusive form” (p. 77).
The mere possibility of such a remedy thus necessarily generates uncertainty;
the law is on the books, but in practice, it may not apply. As constitutional
exemptions are actually granted, the law in the statute books will in fact
increasingly diverge from the law as applied.
I conclude that
constitutional exemptions should not be recognized as a remedy for cruel and
unusual punishment imposed by a law prescribing a minimum sentence. If a law providing
for a mandatory minimum sentence is found to violate the Charter, it
should be declared inconsistent with the Charter and
hence of no force and effect under s. 52 of
the Constitution
Act, 1982
In R. v. Lloyd, Justice
McLachlin writing for the majority held
at para. 15 that the law is clear that superior court judges of inherent
jurisdiction are empowered to make formal declarations that a law is of no
force or effect under s. 52(1) of the Constitution Act.
There are what appears to
be two competing lines of authority in this Court that I must now consider,
although as I will discuss, their differences may not be as great as suggested
by counsel. The Crown relies on R v. Scarlett, a decision of
Chief Justice Strathy as he then was, which was followed by Justice Code
in R. v. Hussein The applicant relies on R. v. Sarmales.
In Scarlett, the defendant argued that the minimum penalty
for possession of a loaded firearm of three year’s pursuant to s. 95(2)(a)(i)
of the Criminal Code had
been declared inconsistent with the Charter by
Molloy J. of this court in R. v. Smickle, and that it was of
no force and effect. Justice Strathy accepted that submission at para. 2, but
went on to conclude that three year’s was an appropriate sentence in any event.
Arguably in obiter, Strathy J. considered the effect of the Smickle decision
and after noting that the jurisdiction exercised by Molloy J. was pursuant to
s. 52(1) of the Constitution Act, he referred to Ferguson and
some of the parts of that decision that I have set out. Strathy J. stated at
para. 41 that the Supreme Court of Canada in Ferguson observed
that “a declaration of invalidity established the invalidity of a legislative
provision for all future cases,”
It is not clear why, having
reviewed this law, which was binding on Justice Strathy, he went on to consider
judicial comity (in agreement with other courts) at para. 43 of his decision where he stated:
“The decisions of judges of coordinate jurisdiction, while not
absolutely binding, should be followed in the absence of cogent reasons to
depart from them: see Re Hansard Spruce Mills Ltd., […] R. v. Northern Electric
Co. Ltd Reasons to depart from a decision, referred to in Hansard Spruce Mills,
include (a) that the validity of the judgment has been affected by subsequent
decisions; (b) that the judge overlooked some binding case law or a relevant
statute; or (c) that the decision was otherwise made without full
consideration. These circumstances could be summed up by saying that the
judgment should be followed unless the subsequent judge is satisfied that it
was plainly wrong. I am not satisfied that the decision in Smickle is
plainly wrong.”
I have no difficulty with
this statement of the law, but do not understand how it could possibly be
relevant in light of what Molloy J. did in Stickle and the
decision of Ferguson from the Supreme Court of Canada.
Both Hansard Spruce; referred to by Justice Strathy, dealt
only with the question of stare decisis.
( Under stare
decisis, once a court has answered a question, the same question in other cases
must elicit the same response from the same court or lower courts in that same jurisdiction)
As the question related to
judgments of trial judges of the same court those cases had nothing to do with
a s. 52 declaration
of invalidity.
I also agree with Mr.
Neubauer that para. 44 in Scarlett, which follows, is also
confusing as Justice Strathy then makes what in my respectful opinion is a
statement that is inconsistent to what he had already concluded from Ferguson;
namely:
In a constitutional case, where a statute has been declared invalid by a
judge of coordinate jurisdiction, there is strong reason for judicial
restraint on the part of a subsequent judge, for the reasons identified by
Chief Justice McLachlin in Ferguson. To create a judicial exemption presumably
a reference to a constitutional exemption pursuant to s. 24(1) of
the Charter,
based on the facts of the particular case before me, would create uncertainty
and unfairness.
This was the passage the Crown relied upon as it suggests that it is a
matter of judicial comity as to whether or not I decide to follow the decision
in Dunn.
In Sarmales and Ali, supra,
the cases relied upon by the applicant, the constitutionality of s. 151 of
the Criminal Code,
which provides for a minimum sentence for a conviction of sexual interference,
was in issue. In Sarmales, the very issue before me was
before Justice Smith as de Sousa J., also a judge of this Court. Hr had
declared that s. 151 was
unconstitutional and of no force and effect pursuant to s. 52(1) of the Constitution
Act. The position of the Crown in Sarmales, like the Crown
before me, was that the constitutionality of s. 151 remained
in question until it was finally decided by the Ontario Court of Appeal for
Ontario and ultimately the Supreme Court of Canada, and that the defendant
therefore needed to file a Notice of Constitutional Question.
Justice Smith did a
detailed analysis of the relevant law with respect to s. 52 (1) of the Constitution
Act. He began by a reference to R. v. Big M Drug Mart Ltd., where
the Supreme Court found that if a court finds any statute to be inconsistent
with the Canadian Constitution, the overriding effect of
the Constitution Act is to give the Court not only the power,
but the duty, to regard the inconsistent statute, to the extent of the
inconsistency, as being no longer ‘of force of effect’. He went on to
consider Ferguson, Scarlett and Lloyd and at
para. 15, stated the issue before him as “whether the constitutionality of the
minimum sentence provision under s. 151 is
still ‘in question’ after a Superior Court judge has declared the mandatory
minimum sentence to be unconstitutional
and of no force and effect”.
Smith J. referred to
the Scarlett decision in para. 12 of his decision and stated
that he agreed with the Crown’s enunciation of the principles of stare
decisis although he did not state that he needed to apply them to
decide the case before him. However he did refer to Justice’s Strathy’s view
that judicial restraint is further heightened where a court of concurrent
jurisdiction has declared legislation struck pursuant to s. 52 of the Constitution
Act. This raises the same concern about inconsistency of position that I
have already identified in Scarlett.
However, at para. 16, Smith
J. clearly held that: “the Crown is bound by a declaration made by a
Superior Court judge, with inherent jurisdiction, that a section of the Criminal Code is
unconstitutional, is of no force and effect, and is effectively removed
from the statue books”. He went to say on at para. 20 that once such a
declaration is made the “offending section ceases to exist and is of no force
and effect. This ruling is binding on the Crown and can only be altered on
appeal”. Smith J. did not come back to the question of judicial comity and
dismissed the Crown’s application.
Justice Smith noted at
para. 21, in further support of the conclusion that he had come to, that the
contrary view would mean that if the Crown was unsuccessful on a constitutional
challenge then it could simply decide not to appeal the ruling and seek to
reargue the constitutional validity of the law on another case before a
different judge, which would lead to the potential of a multiplicity of legal
proceedings arguing the same issue, which would not be an efficient use of our
limited judicial resources. That of course is exactly what has happened in the
case of s. 33.1 of
the Criminal Code.
In my view the reasoning of Justice Smith is correct and is compelled by the
law as set out by the Supreme Court of Canada in Ferguson.
In Hussein, Justice
Code J also considered the constitutionality of the one-year mandatory minimum
sentence for the sexual offences the defendant was convicted of. He noted at
para. 25 that three judges of this Court had struck down this mandatory minimum
on the basis of a s. 12
Charter violation.,
Justice Code set out an extensive extract from the Sarmales decision,
noting that in that case defence counsel did not have to re-argue the
constitutional issue and the case proceeded to sentence as if there were no
mandatory minimum (at para. 27).
However, at para. 28, Justice
Code set out his views on the principles of judicial comity and he relied
on Scarlett at para. 43, which I have already set out. He
concluded at para. 29 that:
I agree with the above
decisions of my three colleagues in T. (B.J.), M.L., and Sarmales and, in
any event, they should be followed for the reasons set out in Scarlett.
Accordingly, the sentencing in this case will proceed on the basis that the one
year mandatory minimums (in prison) are of no force or effect.
In my view Justice Code in
fact decided the issue before him in the same way as the judges did in the
three cases he referred to which include Sarmales, given the
opening part of his statement at para. 29. He then went on “in any event”,
essentially as an alternative position, to find that he would follow these
cases because of judicial comity principles. However he did not go through a
judicial comity analysis or consider the factors set out by Justice Strathy
in Scarlett. He did not consider whether or not the other cases
that decided this issue were “plainly wrong” or not. It seems then that despite
the reference to Scarlett that Code J. decided his case based
on the reasoning in Sarmales. He did not consider the
inconsistency in the Scarlett decision that I have identified.
In Ali, supra,
Justice Sheard was faced with the same issue that confronted Smith J. in Sarmales. He
considered the same cases including Hussein, supra,
which had now also been decided and he came to the same conclusion as Justice
Smith, including Smith J.’s findings at paras. 20 and 21 that I have already
referred to - that once a declaration has been made by a judge that the law
contravenes the constitution, the subject section ceases to exist and therefore
there is no constitutional issue that remains in question (at para. 14). In
addressing the Crown’s argument that M.L. was not binding
because of judicial comity, he also held that he could not conclude that the
decision in M.L. was “plainly wrong” and that the three
circumstances identified in Scarlett did not apply.
Again, in my view, this was an unnecessary and inconsistent statement to
his approval of Sarmales.
In my view, the weight of
these four authorities supports the position taken by the applicant. If a judge
of this Court finds that a provision of a statue is unconstitutional, by virtue
of s. 52 of the Constitution Act and Ferguson,
that provision is invalid for all future cases – it is “off the books.” Coming
to this conclusion does not require a consideration of judicial
comity. In my view, the question of judicial comity has no
relevance to the issue before me.
Accordingly, it follows
that if a judge of this Court has already declared s. 33.1 of
the Criminal Code as
unconstitutional then s. 33.1 has
effectively been removed from the Criminal Code and
I am bound by that decision. If the applicant’s interpretation of Dunn is
correct, then by virtue of that decision, as of its release in 1999, s. 33.1 of
the Criminal Code was
of no force and effect in the province of Ontario, and that remains the case
unless and until that decision is overturned, or I suppose my decision to find
that I am bound by Dunn is overturned by a higher court.
The remaining question,
then, in determining this issue is what was the effect of the Dunn decision,
given there was no reference to s. 52 of the Constitution Act in
the reasons of Justice Wallace and no formal declaration of unconstitutionality
made. Ms. Garcia argued that it is not clear that Wallace J. granted a s. 52
remedy. Mr. Neubauer argued that in effect Justice Wallace granted such a
remedy when she found that s. 33.1 was
unconstitutional and invalid. He relies on the language of Ferguson,
which I have set out, which he submitted means that the only appropriate remedy
that could have been granted by Justice Wallace when she found s. 33.1 to
be unconstitutional.
I agree with Mr. Neubauer’s
submission. Although Justice Wallace made no express declaration that pursuant to
s. 52 of the Constitution Act that she found s. 33.1 to
be unconstitutional and of no force and effect, in my view that is clearly was
she was being asked to do by the defendant. Accordingly, by granting the
defendant’s motion, that is, in fact, what she did. There is no suggestion from
the language in para. 1 or elsewhere in her decision that the defendant was
seeking only personal relief; namely a constitutional exemption that would
permit him an exemption from s. 33.1 in
his case alone. Clearly his motion was for a ruling that s. 33.1 was
unconstitutional and the Crown’s position was that it was “valid”. By granting
the defence motion Wallace J. was clearly finding that s. 33.1 was
not constitution and was not valid. Based on Ferguson, the
only appropriate remedy was a declaration of invalidity pursuant to s. 52(1) of
the Constitution Act.
I note as well, as argued
by Mr. Neubauer and observed in some of the cases, that if the Crown’s position
were correct then in effect, any time a judge of this Court declared that a
provision of a statute was unconstitutional, apart from judicial comity, that
ruling would only apply to the parties in that case making the remedy akin to a
constitutional exemption. It would essentially make the s. 52 and s. 24(1) remedies
the same.
Ms. Garcia argued that in
all of the cases that have considered the constitutionality of s. 33.1 of
the Criminal Code,
the issue of its constitutionality has been argued. That is true but that
appears to be because no defendant took the position that the applicant has in
this case that a prior declaration of invalidity rendered the provision of no
force and effect for all purposes.
For these reasons I
conclude that notwithstanding the fact that Justice Wallace made no formal
declaration pursuant to s. 52(1) of the Constitution Act, that
the effect of her decision was to find that s. 33.1 of
the Criminal Code is
unconstitutional and invalid. The constitutionality of s. 33.1 ceases
to be a "live" issue for courts to litigate - unless and until the
Crown successfully appeals that determination. Furthermore, as s. 33.1 is
of no force and effect, it presents no barrier to the applicant advancing a
defence of automatism via self-induced intoxication in this trial.
Before leaving this issue I
should note that the parties did not argue that I had jurisdiction to revisit
the issue of the constitutionality of s. 33.1 for
the types of reasons endorsed by the Supreme Court of Canada in Canada
(Attorney General) v. Bedford In any event, in the case at bar, (in the court in this case) the parties did not
suggest that there was a new legal issue or that the evidence had fundamentally
shifted the parameters of the debate on this issue, save for Ms. Garcia’s
position that the scientific evidence considered by Parliament was not before
the Supreme Court in Daviault, a fact I have considered.
[84]
For these reasons I do not accept the
Crown’s position that it is open to this Court to consider the issue of the
constitutionality of s. 33.1 anew
and conduct its own analysis. Accordingly, I made an order allowing the
application, and affirming that s. 33.1 of
the Criminal Code is
of no force and effect in Ontario, as having been previously determined to be
of no force and effect pursuant to s. 52(1) of the Constitution Act.
In the Alternative Should S. 33.1 of
the Criminal Code be Declared Invalid
and of No Force and Effect, pursuant to s. 52(1) of the Constitution
Act?
In light of my conclusion
on the impact of Dunn, it was not necessary to consider the
applicant’s alternative position. Nevertheless, I did so in the event that it
is found that I have erred in concluding that I am bound by Dunn.
This alternative position raises two alternative arguments as follows.
Should s. 33.1 be Declared Invalid Because of the Principals of Judicial
Comity?
The Applicant’s position in
the alternative is that I am constrained by judicial comity from departing
from Sarmales as that case decided the issue head on.
The Crown made three arguments as to why I can and should depart from these
decisions. Ms. Garcia argued that the three reasons for breaking from comity,
as listed in Scarlett and Hansard Spruce Mills are
applicable to the jurisprudence surrounding s. 33.1.
First, under the first
prong (part) of Hansard Spruce Mills, Ms.
Garcia submitted that subsequent decisions (from out of province
and from higher Courts) have indeed cast doubt on the validity of the decisions
declaring the section unconstitutional. She argued that the most compelling
example is from the Supreme Court of Canada, which has twice declined the
opportunity to consider the constitutional validity of s. 33.1 of
the Criminal Code -
but observed that it remains an issue.
In R v.
Bouchard-Lebrun, 2011 SCC 575, the Supreme Court noted at para. 14
that the trial judge found that the defendant had been suffering from toxic
psychosis at the time he committed the offences, which he found was a defence
on the counts of breaking and entering but not on the counts of aggravated
assault because of the application of s. 33.1 of
the Criminal Code
.However, the Court observed at para. 28 that “the appellant [the
defendant] raises no arguments regarding the constitutionality of s. 33.1 [of
the Criminal Code]
which means that only the interpretation and application of that provision
are in issue.”
In R. v. Daley, ,
at para. 39, the Court stated that: This provision [s. 33.1 of
the Criminal Code] appears to
amend the law such that extreme intoxication to the point of automatism or
involuntariness is only available for offences that do not include as an
element ‘an assault or any other interference or threat of interference by a
person with the bodily integrity of another person’: s. 33.1 (3) of the Code.
[
The appeal in Daley, however
involved the correctness of the trial judge’s charge to the jury, not the
constitutionality of s. 33.1.
Ms. Garcia argued that
these remarks by the Supreme Court would not have occurred if the Court
considered the issue to be settled law. I disagree. The issue of the
constitutionality of s. 33.1 was
not in issue before the Court in either case and there was no reference to
cases like Dunn and s. 52 of the Constitution Act in
the reasons of the Court. In my view, there would have been no reason for the
Court to comment on an issue not before it and apparently not even drawn to its
attention.
Under the second prong
of Hansard Spruce Mills, Ms. Garcia argued that in deciding the
cases that found s. 33.1unconstitutional,
judges have failed to consider binding authorities. These are the cases that I
will come to when I consider the s. 1argument.
Finally, under third prong,
Ms. Garcia submitted that the decisions invalidating s.33.1 were
made without full consideration. She referred particularly to the Jensen judgment,
and I agree with her that because of the brevity of the endorsement and the
lack of analysis, that Jensen cannot stand as an authority in
support of the invalidity of s. 33.1.
However, that is clearly not the case for the other cases I have referred to
where judges of this Court found s. 33.1 to
be unconstitutional. I should add that in fairness to Justice Then, he stated
that his decision was merely designed to give an answer to the parties to the
litigation, and if required he would produce more fulsome reasons later. As
already noted, the case was ultimately decided in a way that did not require
him to expand on his decision in this area.
For these reasons, and the
reasons I will come to, considering the principles of judicial comity I would
still follow the decision in Dunn. There is no reasonable basis in
my view to conclude that Dunn is “plainly wrong”.
In the further alternative,
the position of the applicant is that even if I were to consider the
constitutionality of s. 33.1 of
the Criminal Code de
novo, the only reasonable conclusion is that the section is invalid because
it offends ss. 7 and 11(d)
and is not saved by s. 1 of
the Charter.
I begin my consideration of
this issue with two basic propositions: 1) that the applicant has the burden of
proving a Charterviolation
and 2) that legislation passed by Parliament is presumptively valid.
Ms. Garcia made an
extensive argument in her factum and in oral submissions that s. 33.1 does
not offend either s. 7 or s. 11(d)
of the Charter.
Given the analysis in Daviault, and the unanimous agreement held
by all courts that have previously considered this issue, I agree
with Mr. Neubauer that a lengthy discussion of why s. 33.1 of
the Criminal Code violates ss. 7 and 11(d)
of the Charter is
not necessary.
Daviault is still good law and Justice Cory’s conclusion that the Leary rule
violated the Charter in
cases of extreme intoxication where the defendant was in a state akin to
automatism, which is what s. 33.1 addresses,
was not impacted by the enactment of s. 33.1 of
the Criminal Code. Only
the s. 1 analysis
has changed. As described by Professor Ferguson, The Intoxication Defence.
Parliament's enactment of
section 33.1 appears to be an "in your face" partial reversal of
the Daviault ruling. Section 33.1 contradicts Daviault by
declaring that extreme intoxication akin to automatism or insanity shall not be
a defence to any general intent offence which includes as an element assault or
interference with the bodily integrity of another. Thus, contrary to Daviault,
section 33.1 states that extreme intoxication is not a defence to offences of
assault or sexual assault.
I will, however, provide
some response to the Crown’s submissions on this issue.
Sections 7 and 11(d)
of the Charter provide
the following:
7. Everyone has the
right to life, liberty and security of the person and the right not to be
deprived thereof except in accordance with the principles of fundamental
justice.
11. 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.
Ms. Garcia correctly argued
that a s. 7 analysis
must include a balancing of the public interest with the rights of the
defendant. She referred to R. v. Penno, where the
Supreme Court of Canada made it clear that “the ‘principles of fundamental
justice’ encompass the public's interest, as represented by the state, as well
as the interests of the accused,” Penno at para. 60 and that
“the principles of fundamental justice are concerned not only with the interest
of the person who claims his liberty has been limited, but with the protection
or society. Fundamental justice required that a fair balance be struck between
these interests both substantively and procedurally,” (Cunningham at
para. 17).
Ms. Garcia referred to
certain cases from the Supreme Court of Canada that have developed the view of
"moral guilt" and "moral innocence". She submitted that
with respect to elements of fault, the Supreme Court has held that there is no
inconsistency with principles of fundamental justice where Parliament imposes
criminal liability for harmful conduct that departs markedly from a standard of
reasonable care. Ms. Garcia argued that this conclusion has been reached
for a wide range of offences, including dangerous driving causing death,
unlawful acts causing bodily harm and manslaughter. She argued that the
same principle can be discerned in self-defence, duress and other exculpatory
claims where Parliament and the courts have strictly limited the conditions in
which they may be raised.
The cases relied upon by
Ms. Garcia, however, all punished actions or conduct that amounted to a marked
departure from the standard of reasonable care generally recognized in Canadian
society. As Justice Cory pointed out in Daviault:
‘It was argued by the
respondent that the “blameworthy” nature of voluntary intoxication is such that
it should be determined that there can be no violation of the Charter if
the Leary approach is adopted. I cannot accept that contention. Voluntary
intoxication is not yet a crime.”
That observation is still
correct.
justifications for s. 33.1
and both are consistent with s. 7 of
the Charter;
first, what she described as her “empirical argument” and the second as her
“normative argument”.
With respect to her
empirical argument, Ms. Garcia argued that the science behind self-induced
intoxication is “dodgy at best” and she submitted that the body of evidence
received by Parliament during the legislative proceedings involving Bill C-72
reflected both the interests of the individual and those of society and that
Parliament struck an appropriate balance in enacting s. 33.1 when it eliminated
the defence of extreme intoxication only if the intoxication was self-induced
and the crime involved violence. It is her position that there is no
demonstrable scientific basis on which to argue that extreme
self-induced intoxication can negate the voluntariness of the actus
reus or the element of fault in an offence of general intent.
It is true that when Daviault was
decided, the Court did not consider this type of evidence; although as I have
already said, Justice Cory was of the view that a defence of extreme
intoxication akin to automatism would only succeed rarely. In that regard he
did rely on studies conducted in other jurisdictions; see paras. 57-58.
I have three problems with
this argument. First of all, although there may have been a majority view among
the experts that alcohol alone could not induce a state of non-insane
automatism; the issue of the impact of the intoxicants that I understand that
Mr. McCaw will testify with respect to his drinking alcohol to excess that was
not the subject of debate. As stated by the Hon. Allan Rock who was then
Minister of Justice and Attorney General of Canada, on June 22, 1995, when
amendments were proposed to Bill C-72:
‘Of key interest in my view
was the uncontradicted testimony that there is absolutely no scientific
evidence that alcohol acting alone can medically produce a state of
automatism or a state akin to automatism. (Keep in mind that the
defendant stated that he also ingested marihuana and GBD, the date rape drug)
Secondly, in my view this
is an issue that should be left to the trier of fact, in a particular case, to
decide on all of the evidence. Finally, if Ms. Garcia’s position is correct,
why leave the defence in place for cases of non-bodily harm?
As for the normative or
moral argument, Ms. Garcia submitted that even if extreme self-induced
intoxication could (as a matter of fact) negate the voluntariness of the act or
the element of general intent, intoxicated violence cannot be considered
innocent in any case where the accused claims that his responsibility for that
violence is attributable to extreme voluntary intoxication. This argument
circled back to her “moral guilt” argument that I have already considered.
The balance of the Crown’s
submissions on the validity of ss. 7 and 11(d)
of the Charter came
from the dissenting reasons of Sopinka J. in Daviault, which
obviously were rejected by the majority.
It was also submitted that
s. 33.1 does not violate the presumption of innocence; s 11(d) of the Charter,
but as stated in the Crown’s factum that argument essentially restated the
arguments made under s. 7.
The submissions made by the
Crown in my view do not address the problems identified by Justice Cory
in Daviault, which equally afflicted the common law rule
in Leary, and a defendant’s s. 7 and 11(d) Charter rights.
The provision relieves the Crown of proving the specific mens rea for
the charged offence and instead allows for proof of guilt on a different, and
arguably lower, standard. It does this even where the state of the
accused's intoxication is so extreme that it reasonably gives rise to a doubt
about whether the accused intended the offending action. The prospect of
a conviction in the face of a reasonable doubt offends both s. 7and s. 11(d)
of the Charter.
As stated in Daviault:
The consumption of alcohol simply
cannot lead inexorably to the conclusion that the accused possessed the
requisite mental element to commit a sexual assault, or any other crime.
Rather, the substituted mens rea rule has the effect of
eliminating the minimal mental element required for sexual assault.
Furthermore, mens rea for a crime is so well recognized that
to eliminate that mental element, an integral part of the crime, would be to
deprive an accused of fundamental justice.
The second difficulty with
s. 33.1 is that it relieves the Crown of proving another necessary element of
these offences - the voluntariness of the act. Again, as articulated
in Daviault:
“If the Leary rule was to be strictly applied, an
accused in an extreme state of intoxication akin to automatism or mental
illness would have to be found guilty although there was reasonable doubt as to
the voluntary nature of the act committed by the accused. This would clearly
infringe both ss. 7 and 11(d)
of the Charter.
In my view, the mental element of voluntariness is a fundamental aspect of the
crime which cannot be taken away by a judicially developed policy”
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.
Importantly, the Supreme
Court was not opening the gates for any level of intoxication to afford a defence;
it would only be a defence where intoxication was extreme and produced a state
akin to automatism. Further, to limit overly broad application of the
defence, the Court placed upon a defendant a reverse onus - a burden of
establishing the requisite degree of intoxication on a balance of
probabilities. For these reasons, Cory J. stressed that it would be the
rare case that such a defence would succeed.
Accordingly, for these
reasons, I conclude, as found in Daviault, and as unanimously
held by courts considering the constitutionality of s. 33.1, that by allowing a
conviction in circumstances where a court may have a reasonable doubt as to an
essential element of the offence, or as to voluntariness, or both, the
provision infringes both s. 7 and s. 11(d)
of the Charter.
In my view, this final
alternative argument really depends on whether or not the provision imposes
"reasonable limits prescribed by law as can be demonstrably justified in a
free and democratic society", so as to be saved by s. 1 of
the Charter.
The onus of proving a limit is reasonably and demonstrably justified rests upon
the party seeking to uphold the limitation; in this case the Crown. The
standard is a preponderance, or very high degree of probability.
In R. v. Oakes,
the Supreme Court "established a set of principles, or guidelines,
intended to serve as a framework for making a determination" whether
legislation found to violate the Charter is
a reasonable and demonstrably justified limit on Charter rights.
The "test" involves a two-stage inquiry. At the first stage,
the question is whether the law pursues an objective that is sufficiently
important to justify limiting a Charter right.
At the second stage the "party invoking s. 1 must
show that the means chosen are reasonable and demonstrably justified"
which involves a three-branch assessment, measuring: a) whether the legislation
is rationally connected to its objective; b) whether the legislation minimally
impairs the infringed right or freedom; and c) whether there is proportionality
between the objective of the legislation and its deleterious effects.
Ms. Garcia submitted that
the objectives of s. 33.1 are society's concern for protecting vulnerable
persons, particularly women and children, from violent intoxicated offenders
and holding perpetrators of intoxicated violence accountable for their actions.
Mr. Neubauer’s position is that s. 33.1, properly interpreted, has a very
narrow objective, which it seeks to achieve at too great a cost. He
argued that the appropriate balance was struck in Daviault as
it maintained the existing law and just carved out a narrow exception.
Accordingly, as submitted by the applicant, the provision is not a reasonably
and demonstrably justified limit on Charter rights,
and cannot be saved under s. 1.
In my view, a determination
of this issue largely depends on what the purpose of s. 33.1 of
the Criminal Code was
when it was enacted. As already stated, the cases that have upheld s. 33.1 have
found that the purpose of the section is generally as stated in the Preamble,
which essentially is to protect vulnerable persons from violence committed by
intoxicated offenders and ensure they are held personally responsible for their
actions. It is difficult to argue with the constitutionality of the provision
if it was truly passed in order to protect the rights of women and children to
security of the person and to address the alleged “close association between
violence and intoxication” and the argument “that self-induced intoxication may
be used socially and legally to excuse violence, particularly violence against
women and children”.
“I am of the view that to
deny that even a very minimal mental element is required for sexual assault
offends the Charter in
a manner that is so drastic and so contrary to the principles of fundamental
justice that it cannot be justified under s. 1 of
the Charter.
The experience of other jurisdictions which have completely abandoned the Leary rule, coupled with the fact that
under the proposed approach, the defence would be available only in the rarest
of cases, demonstrate that there is no urgent policy or pressing objective
which need to be addressed. Studies on the relationship between intoxication
and crime do not establish any rational link.
Cory J. went on to say, at
para. 66, that the same is true if it is the case that the mental element
involved relates to the actus reus (criminal act) rather than the mens
rea (criminal intention) and that to convict in the face of such a
fundamental denial of natural justice could not be justified under s. 1 of
the Charter.
The cases that have
found s. 33.1 unconstitutional
have found that its true objective was the reversal of Daviault and
the elimination of a defence of self-induced extreme intoxication akin to
automatism.
The task of identifying the
objective of impugned legislation is a difficult one; and care must be taken
not to overstate the objective. As cautioned by McLaughlin J. in RJR-MacDonald
v. Canada (Attorney General).
Care must be taken not to
overstate the objective. The objective relevant to the s. 1 analysis
is the objective of the infringing measure, since it is the infringing measure
and nothing else which is sought to be justified. If the objective is
stated too broadly, its importance may be exaggerated and the analysis
compromised
The
MacDonald case is an
illustrative example that I have found of assistance. In that case the
challenged law banned the advertising of tobacco products and the infringement
of the Charter was
that it infringed freedom of expression. Had the objective been
characterized as the protection of public health from the use of tobacco it
would have been considered too broad. The Court found that the objective in
fact was to prevent people in Canada from being persuaded by advertising and
promotion to use tobacco products.
This is similar to the
issue before me. Ms. Garcia argues that the Preamble makes plain that
Parliament was particularly concerned with the disadvantaging impact that
violence has on the equal participation of women and children in society and on
the rights of women and children to security of the person and to equal
protection and benefit of the law. She further submitted that the legislative
history supports the proposition that the aim of the section is the protection
of vulnerable persons. At the third reading of Bill C-72, then Minister of
Justice and Attorney General of Canada, Allan Rock stressed Canadians' concern
for the victimization of women and children at the hands of violent intoxicated
offenders and society's strong moral view that persons who commit violent acts
against others while voluntarily intoxicated should be held criminally
responsible for their actions. Ms. Garcia also relies on the decisions
of Decaire, and Dow that held that the objective
of s. 33.1 is
the protection of persons, including vulnerable persons, from intoxicated
violence and accountability for violent crimes committed while intoxicated. As
a result, she argues that the objective of s. 33.1 supports
a finding that Parliament's objectives are pressing, substantial and warrant
overriding ss. 7 and 11(d).
Ms. Garcia further argued
that since Dunn, the Supreme Court of Canada in R. v Mills,
emphasized the importance of the democratic process and the need for the courts
to respect Parliament and the proposition that the courts must presume that
Parliament intended to enact constitutional legislation and strive where
possible to give effect to this intention; at paras. 56-57. In Mills the
court also made it clear that Parliament can amend the common law; at para. 60.
However the court also stated that the task in a case like the case at bar is
to decide whether Parliament’s balance between competing Charter
rights is a constitutional one; at para. 18.
In order to identify the
objective of s. 33.1,
the scope of its infringement must be appreciated. In Daviault,
the majority specifically contemplated, and refused to find, that the common
law rule in Leary violated the Charter because
it foreclosed on drunkenness being a defence to crimes of general intent.
Rather, what Cory J. found was that its "strict application"
violated ss. 7and 11(d).
A strict application of the rule in Leary did not allow
extreme intoxication akin to automatism to afford a defence to general intent
offences. Accordingly, the Court in Daviault located the
infringement of ss. 7 and 11(d)
at a very specific point: when the law allowed for the conviction of a
person proven, on balance, to be an automaton at the time of the offence (Daviault,
at paras. 38-47).
If Ms. Garcia is correct in
her view of the purpose of s. 33.1,
then I agree that the protection of vulnerable persons and accountability for
intoxicated violence is a pressing and substantial objective. As stated by Chief
Justice Lamer in R. v Robinson, 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.”
However, I agree with the
submissions of the applicant that the purpose of s. 33.1 as
set out in the Preamble, is over-stated and that, in fact, the objective
of s. 33.1 was
the far narrower objective of rendering unavailable a very specific defence
that was allowed in Daviault. As stated by the Hon. Allan
Rock on March 27, 1995, the nature of the change in the law brought about
by Daviault and “its effect in subsequent cases and the
concern it caused about the principle of accountability in criminal law lie
behind the government’s decision to introduce Bill C-72;” House of Commons
Debates, on (March 27, 1995).
In this regard I agree with
the observations of Justice Wallace in Dunn at paras. 30-22
that the Preamble overstates the objective of the provision. I agree, as she
found and as found by Judge Vertes in Brenton at para. 102
that the real purpose of the enactment of s. 33.1 of the Criminal Code was
to remove the narrow defence allowed in Daviault. That defence
would only apply in rare cases and be successful in even fewer cases. As made
clear by the studies reviewed by Justice Cory, it would not have any real
impact on cases involving violence against women and children.
Having accepted this as the
purpose of s. 33.1,
then the s. 1 analysis is clearer. In assessing
the importance of a legislative objective, the decision in Oakes directs
that a number of things must be taken into account, namely: whether the
objective is consistent with values in a free and democratic society; whether
the objective relates to concerns which are pressing and substantial; and,
whether the objective is directed to the realization of collective goals that
are of fundamental importance.
Section 33.1's
objective, the removal of the Daviault defence, is not
sufficiently pressing and substantial to justify the great damage it does to
fair trial interests. This was made clear by Justice Cory in Daviault in
the passages I have already referred to.
Having made this finding,
it is not necessary to consider the balance of the Oakes test.
I conclude, having considered this alternative argument that if s. 33.1 of
the Criminal Code is
still in force and effect, and that it should be declared as invalid as it is
inconsistent with ss. 7 and 11(d)
of the Charter, and
is not saved by operation of s. 1 of
the Charter.
Disposition
For these reasons I made an
order allowing the application, and affirming that s. 33.1 of
the Criminal Code is
of no force and effect in Ontario, as having been previously determined to be
of no force and effect pursuant to s. 52(1) of the Constitution Act.
In the alternative,
pursuant to s. 52(1) of the Constitution Act, I declared s. 33.1 of
the Criminal Code of
no force and effect.
Subsequently, the drunken rapist was found not guilty of raping the
young woman. This doesn’t mean that the woman can’t sue him.
This decision raises a rather interesting dilemma. Suppose a man who is
so drunk when he is driving his car, he is unaware that he smashed into another
car and killed the driver and three small children in the back seat of that
car. Could he also be acquitted? Yes he could be acquitted.
Years ago in Canada, a man drove his car to his mother-in-law’s home and
murdered her. He was sound asleep when he did his driving and murdering the
woman. Yes. a person who is asleep can drive a car and commit a murder. Back in
the 1960’s I was driving a motor scooter from Sudbury to Toronto. While driving
on the highway late at night, I fell asleep and only woke up as I was
approaching a turn. Had the truck driver who was heading towards me, not blown
his horn and woken me up, I would have smashed into him and been killed.
There should be some form, of punishment awarded to anyone
who is so drunk when that driver is in a sleep walking condition brought about
by alcohol or ingesting illicit drugs. First
of all, that driver should be permanently banned from ever driving again. Further
if that driver drinks any form of alcohol or ingests illicit drugs, that person
should be arrested and serve a minimum of
a month in prison for every person that former driver killed while driving in
that drunken stupor
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