R. v. McCaw, 2018 ONSC 3464 - SummaryR. v. McCaw, 2018 ONSC 3464 (CanLII)
A white whale of criminal law has been caught! It is dead... In Ontario. Or more precisely, it was dead, but remained so.
Let's delve in to make a bit more sense of it all.
In R. v. Daviault,  3 S.C.R. 63, the Supreme Court held that extreme intoxication tantamount to a state of automatism can negative the intent required for general intent offences, and that the common law rule (see generally Leary v. The Queen,  1 S.C.R. 29) claiming otherwise infringed liberty and the principles of fundamental justice (s. 7 of the Canadian Charter of Rights and Freedoms), as well as the presumption of innocence (guaranteed under s. 11(d) of the Charter). Parliament quickly replied by adopting s. 33.1 of the Criminal Code, to supplant Daviault and statutorily re-instate the common law rule for violent offences. (See par. 20-28 for a more detailed history of the section.)
Evidently, that makes s. 33.1 constitutionally suspect. It was contested a few times (par. 30-32): though it was always held to infringe on s. 7 and 11(d) of the Charter, in some but not all of those cases, it was found to be justified under s. 1 of the Charter (see par. 35-47 for details on those cases). In Ontario, since R. v. Dunn,  O.J. No. 5452 (S.C.), the non-justified camp has systematically won the day (par. 32).
Interestingly, however, every time the Superior Court considered the issue in Ontario, they did so anew, as if it had never been before by that court (par. 33-34). In this judgement, Justice Nancy J. Spies addressed the appellant's argument that Dunn struck down s. 33.1, and not merely gave the defendant a constitutional exemption. Had Dunn declared s. 33.1 invalid and of no force and effect under s. 52(1) of the Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c. 11?
After consideration, Justice Spies sided with the appellant. She "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" (par. 56).
She first turned to the effect of precedents in such cases. She noted that the Supreme Court in R. v. Ferguson, 2008 SCC 6, had eliminated constitutional exemptions as a valid remedy against an unconstitutional law, instead finding that a reading in or reading down was required, and if not possible, that the law should be struck down (par. 58 and following). She then considered sometimes unclear Ontario authorities dealing with unconstitutional laws declared invalid and with horizontal stare decisis (par. 62 and following), to conclude that "[i]f a judge of this Court finds that a provision of a statu[t]e 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.”" (par. 76) "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." (par. 77)
Her conclusion goes beyond judicial comity, and instead finds a truly binding authority when a previous judgement struck down a law as unconstitutional. Indeed, relying on judicial comity only, without binding authority, would be "making the remedy akin to a constitutional exemption" (par. 80).
Then, turning to Dunn itself, she found that it implicitly struck down s. 33.1 under s. 52 of the Constitution Act (par. 79). As such, s. 33.1 was already invalid. That previous litigants did not raise the binding authority of Dunn, and rather re-litigated the issue, did not change this conclusion (par. 81). As such, "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." (par. 82)
Finally, she held that no horizontal stare decisis principle, as recently explained in Canada (Attorney General) v. Bedford, 2013 SCC 72, allowed her to reopen the question (par. 83). As such, "it is [not] open to this Court to consider the issue of the constitutionality of s. 33.1 anew and conduct its own analysis." (par. 84).
This would be sufficient to decide the case. However, she still considered the constitutionality of s. 33.1 in the event that she erred in her conclusion on Dunn as binding, and even if she would still have followed Dunn under judicial comity principles (par. 86-93). She would have found that s. 33.1 infringed upon ss. 7 and 11(d) of the Charter, and was not saved under s. 1 (par. 94-114 for the infringement; 115-132 for the s.1 analysis).
We can only hope that the Crown will appeal, so that the issue may find its way to the Supreme Court. Ever since it was adopted, s. 33.1 is a blatant infringement on constitutional rights. A pan-Canadian pronouncement of its invalidity would be important.
Of course, it is open to Parliament to criminalise voluntary intoxication leading to a state tantamount to automatism. However, fair labelling principles require that those in such a state not be declared guilty of the offences they may commit while under automatism. They may be guilty of dangerous intoxication, as a tentative label, but not of anything more.