R. v. Sullivan

R. v. Sullivan
Collection
Supreme Court Judgments
Date
2022-05-13
Neutral citation
2022 SCC 19
Report
[2022] 1 SCR 460
Case number
39270
Judges
Wagner, Richard; Moldaver, Michael J.; Karakatsanis, Andromache; Côté, Suzanne; Brown, Russell; Rowe, Malcolm; Martin, Sheilah; Kasirer, Nicholas; Jamal, Mahmud
On appeal from
Ontario
Subjects
Constitutional law
Criminal law
Notes
Case in Brief SCC Case Information
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. Sullivan, 2022 SCC 19, [2022] 1 S.C.R. 460
Appeal Heard: October 12, 2021 Judgment Rendered: May 13, 2022 Docket: 39270
Between: Her Majesty The Queen Appellant
and
David Sullivan Respondent
And Between: Her Majesty The Queen Appellant / Respondent on application for leave to cross-appeal
and
Thomas Chan Respondent / Applicant on application for leave to cross-appeal
- and -
Attorney General of Canada, Attorney General of Quebec, Attorney General of Manitoba, Attorney General of British Columbia, Attorney General of Saskatchewan, Attorney General of Alberta, British Columbia Civil Liberties Association, Empowerment Council, Systemic Advocates in Addictions and Mental Health, Criminal Lawyers’ Association (Ontario), Canadian Civil Liberties Association, Women’s Legal Education and Action Fund Inc. and Advocates for the Rule of Law Interveners
Coram: Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ.
Reasons for Judgment: (paras. 1 to 99)
Kasirer J. (Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Jamal JJ. concurring)
Her Majesty The Queen Appellant
v.
David Sullivan Respondent
‑ and ‑
Her Majesty The Queen Appellant / Respondent on application for leave to cross‑appeal
v.
Thomas Chan Respondent / Applicant on application for leave to cross‑appeal
and
Attorney General of Canada,
Attorney General of Quebec,
Attorney General of Manitoba,
Attorney General of British Columbia,
Attorney General of Saskatchewan,
Attorney General of Alberta,
British Columbia Civil Liberties Association,
Empowerment Council,
Systemic Advocates in Addictions and Mental Health,
Criminal Lawyers’ Association (Ontario),
Canadian Civil Liberties Association,
Women’s Legal Education and Action Fund Inc. and
Advocates for the Rule of Law Interveners
Indexed as: R. v. Sullivan
2022 SCC 19
File No.: 39270.
2021: October 12; 2022: May 13.
Present: Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ.
on appeal from the court of appeal for ontario
Constitutional law — Charter of Rights — Fundamental justice — Presumption of innocence — Reasonable limits — Section 33.1 of Criminal Code preventing accused from raising common law defence of self‑induced intoxication akin to automatism — Whether s. 33.1 violates principles of fundamental justice or presumption of innocence — If so, whether infringement justified — Canadian Charter of Rights and Freedoms, ss. 1, 7, 11(d) — Criminal Code, R.S.C. 1985, c. C‑46, s. 33.1.
Constitutional law — Remedy — Declaration of invalidity — Whether declaration of unconstitutionality issued by superior court pursuant to s. 52(1) of Constitution Act, 1982, can be considered binding on courts of coordinate jurisdiction.
Criminal law — Appeals — Appeals to Supreme Court of Canada — Jurisdiction — Accused convicted of indictable offence at trial — Court of Appeal setting aside conviction and ordering new trial — Crown bringing appeal to Supreme Court of Canada — Accused applying for leave to cross‑appeal order of new trial and requesting stay — Whether Court has jurisdiction to hear accused’s appeal — Criminal Code, R.S.C. 1985, c. C‑46, s. 691.
After having voluntarily taken an overdose of a prescription drug and falling into an impaired state, S attacked his mother with a knife and injured her gravely. He was charged with several offences, including aggravated assault and assault with a weapon. In unrelated circumstances, C fell into an impaired state after he voluntarily ingested magic mushrooms containing a drug called psilocybin. He attacked his father with a knife and killed him, and seriously injured his father’s partner. C was tried for manslaughter and aggravated assault. Both S and C argued at their respective trials that their state of intoxication was so extreme that their actions were involuntary and could not be the basis of a guilty verdict for the violent offences of general intent brought against them. C also argued that an underlying brain injury was the significant contributing cause of his psychosis, rather than his intoxication alone, such that he was not criminally responsible.
In the case of S, the trial judge accepted that S was acting involuntarily but decided that the defence of extreme intoxication akin to automatism was not available by virtue of s. 33.1 of the Criminal Code. S was convicted of the two assault charges. The trial judge in C’s case dismissed C’s constitutional challenge to s. 33.1, during which C had argued that previous decisions of the same court that declared s. 33.1 unconstitutional were binding on the trial judge. C’s brain trauma was held to be a mental disorder but not the cause of C’s incapacity, which was the result of the voluntary ingestion of magic mushrooms. C was convicted of manslaughter and aggravated assault.
The Court of Appeal heard appeals by S and C together and held that s. 33.1 violates ss. 7 and 11(d) of the Charter and is not saved by s. 1. S and C were therefore entitled to raise the defence of automatism. The Court of Appeal also addressed the issue of whether the trial judge in C’s case was bound by precedent of a court of coordinate jurisdiction in the province to accept the unconstitutionality of s. 33.1. It held that the ordinary rules of stare decisis apply when superior courts in first instance consider whether to follow previous declarations of unconstitutionality. The trial judge was correct to decide that he was not bound by previous decisions and entitled to consider the issue afresh. In the result, S’s convictions were set aside and acquittals entered. The Court of Appeal ordered a new trial for C because no finding of fact had been made in respect of non-mental disorder automatism. The Crown appeals to the Court from the Court of Appeal’s decision in respect of both S and C, and C applies for leave to cross‑appeal the order of a new trial, seeking an acquittal or, in the alternative, a stay of proceedings.
Held: The appeals should be dismissed. C’s application for leave to cross‑appeal should be quashed for want of jurisdiction.
In the companion appeal of R. v. Brown, 2022 SCC 18, [2022] 1 S.C.R. 374, the Court concludes that s. 33.1 violates the Charter and is of no force or effect pursuant to s. 52(1) of the Constitution Act, 1982. That conclusion is applicable to the Crown’s appeals in the present cases. In the result, given that s. 33.1 is of no force or effect, S is entitled to acquittals. He established that he was intoxicated to the point of automatism and the trial judge found that he was acting involuntarily. As for C, the Court of Appeal’s order for a new trial should be upheld. C may avail himself of the defence of non‑mental disorder automatism at a new trial, should it be applicable on the facts.
The ordinary rules of horizontal stare decisis and judicial comity apply to declarations of unconstitutionality issued by superior courts within the same province. A decision may not be binding if it is distinguishable on its facts or the court had no practical way of knowing it existed. If it is binding, a trial court may only depart if one or more of the exceptions set out in Re Hansard Spruce Mills, [1954] 4 D.L.R. 590 (B.C.S.C.), apply.
Accordingly, a trial judge is not strictly bound by a prior declaration by a court of coordinate jurisdiction by virtue of s. 52(1) of the Constitution Act, 1982. A s. 52(1) declaration of unconstitutionality reflects an ordinary judicial task of determining a question of law. Determining whether an impugned law is inconsistent with the provisions of the Constitution and, if so, whether and to what extent the law is of no force or effect is no different than other questions of law decided outside the constitutional context. Judges cannot in a literal sense strike down legislation when they review the consistency of the law with the Constitution under s. 52(1). A declaration of unconstitutionality simply refutes the presumption of constitutionality; it does not alter the terms of the statute. Questions of law are governed by the normal rules and conventions that constrain courts in the performance of their judicial tasks, including applying the ordinary principles of stare decisis. A judicial declaration made under s. 52(1) by a superior court is therefore binding on other courts within the confines of the law relating to precedent.
The principle of constitutional supremacy cannot dominate the analysis of s. 52(1) to the exclusion of other constitutional principles. The legal effect of a s. 52(1) declaration by a superior court must be defined with reference to constitutional supremacy, the rule of law, and federalism. Pursuant to s. 96 of the Constitution Act, 1867, superior courts operating within a province only have powers within the province. Federalism prevents a s. 52(1) declaration issued within one province from binding courts throughout the country. Horizontal stare decisis applies to courts of coordinate jurisdiction within a province and a constitutional ruling will bind lower courts through vertical stare decisis. Stare decisis is the appropriate framework to apply to litigation of constitutional issues, because it balances stability and predictability against correctness and the orderly development of the law. The Crown may consider an appeal when faced with conflicting trial decisions relating to a law on which the prosecution continues to rely, but is not bound to appeal declarations of unconstitutionality in criminal matters. However desirable uniform treatment of the substantive criminal law might be within or even across provinces, a decision to appeal remains within the discretion of the relevant attorney general, to be decided in keeping with its authority to pursue the public interest and the constitutional and practical constraints relating to its office.
Varying standards have been invoked to define when departure from prior precedent is appropriate, for example if it is plainly wrong, when there is good reason for doing so or in extraordinary circumstances. These qualitative tags are susceptible of extending to almost any circumstance and do not provide precise guidance. These terms should no longer be used. Judicial comity as well as the rule of law principles supporting stare decisis mean that prior decisions should be followed unless the Spruce Mills criteria are met. Trial courts should only depart from binding decisions issued by a court of coordinate jurisdiction in three narrow circumstances: the rationale of the earlier decision has been undermined by subsequent appellate decisions; some binding authority in case law or some relevant statute was not considered; or the earlier decision was not fully considered, for example if it was taken in exigent circumstances. Where a judge is faced with conflicting authority on the constitutionality of legislation, the judge must follow the most recent authority unless one or more of these three criteria are met. These criteria do not detract from the narrow circumstances in which a lower court may depart from binding vertical precedent.
An application of the doctrine of horizontal stare decisis to C’s case illustrates how these criteria should work in practice. R. v. Dunn (1999), 28 C.R. (5th) 295, did not engage with an earlier Ontario decision that upheld the constitutionality of s. 33.1 and Dunn did not apply the criteria to determine whether it was permissible to depart from that precedent; therefore it was a decision per incuriam and did not need to be followed. The earlier decision considered the appropriate statutes and authorities in reaching the conclusion that s. 33.1 infringed ss. 7 and 11(d) of the Charter but was upheld under s. 1 and there is no indication that it was rendered in exigent circumstances. Therefore, that decision should have been followed by the trial judge in the constitutional ruling in C’s case. On appeal, however, the Court of Appeal was not bound to follow any first instance superior court decision.
There is no statutory route for C to appeal the Court of Appeal’s order of a new trial. Section 695 of the Criminal Code does not provide the Court with the jurisdiction to hear a cross-appeal by C. Sections 691 and 692 of the Criminal Code set out the jurisdiction of the Court to hear criminal appeals brought by criminal accused and represent the whole of an accused’s express statutory right to appeal when their conviction has been affirmed or their acquittal set aside by the Court of Appeal. In cases like C’s, where an accused, having been convicted of an indictable offence at trial, is granted a new trial, s. 691 does not provide a route of appeal to the Court. As for a stay of proceedings, it may only be granted in the clearest of cases, where prejudice to an accused’s rights or to the judicial system is irreparable and cannot be remedied. The record before the Court is insufficient to conclude that C’s right to a fair trial is prejudiced.
Cases Cited
By Kasirer J.
Applied: R. v. Brown, 2022 SCC 18, [2022] 1 S.C.R. 374; Re Hansard Spruce Mills, [1954] 4 D.L.R. 590; distinguished: R. v. J.F., 2008 SCC 60, [2008] 3 S.C.R. 215; R. v. Warsing, [1998] 3 S.C.R. 579; explained: R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96; Nova Scotia (Workers’ Compensation Board) v. Martin, 2003 SCC 54, [2003] 2 S.C.R. 504; considered: R. v. Dunn (1999), 28 C.R. (5th) 295; R. v. Fleming, 2010 ONSC 8022; R. v. McCaw, 2018 ONSC 3464, 48 C.R. (7th) 359; R. v. Decaire, [1998] O.J. No. 6339; referred to: R. v. Scarlett, 2013 ONSC 562; Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101; Canada (Attorney General) v. Hislop, 2007 SCC 10, [2007] 1 S.C.R. 429; R. v. Poulin, 2019 SCC 47, [2019] 3 S.C.R. 566; Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721; R. v. P. (J.) (2003), 67 O.R. (3d) 321; Ravndahl v. Saskatchewan, 2009 SCC 7, [2009] 1 S.C.R. 181; Coquitlam (City) v. Construction Aggregates Ltd. (1998), 65 B.C.L.R. (3d) 275, aff’d 2000 BCCA 301, 75 B.C.L.R. (3d) 350, leave to appeal refused, [2001] 1 S.C.R. ix; Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11, [2013] 1 S.C.R. 467; R. v. St‑Onge Lamoureux, 2012 SCC 57, [2012] 3 S.C.R. 187; Schachter v. Canada, [1992] 2 S.C.R. 679; Windsor (City) v. Canadian Transit Co., 2016 SCC 54, [2016] 2 S.C.R. 617; R. v. Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130; Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16, [2015] 2 S.C.R. 3; Okwuobi v. Lester B. Pearson School Board, 2005 SCC 16, [2005] 1 S.C.R. 257; Ontario (Attorney General) v. G, 2020 SCC 38, [2020] 3 S.C.R. 629; R. v. Albashir, 2021 SCC 48, [2021] 3 S.C.R. 531; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; Reference re Secession of Quebec, [1998] 2 S.C.R. 217; Wolf v. The Queen, [1975] 2 S.C.R. 107; Reference re Same‑Sex Marriage, 2004 SCC 79, [2004] 3 S.C.R. 698; Parent v. Guimond, 2016 QCCA 159; R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773; Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4, [2015] 1 S.C.R. 245; David Polowin Real Estate Ltd. v. Dominion of Canada General Insurance Co. (2005), 76 O.R. (3d) 161; Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331; Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77; Guindon v. Canada, 2015 SCC 41, [2015] 3 S.C.R. 3; R. v. McCann, 2015 ONCA 451; R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167; R. v. Dunn (2002), 156 O.A.C. 27; R. v. Jensen (2005), 74 O.R. (3d) 561; R. v. Cawthorne, 2016 SCC 32, [2016] 1 S.C.R. 983; R. v. Power, [1994] 1 S.C.R. 601; R. v. Green, 2021 ONSC 2826; R. v. Kehler, 2009 MBPC 29, 242 Man. R. (2d) 4; R. v. Wolverine and Bernard (1987), 59 Sask. R. 22; The Owners, Strata Plan BCS 4006 v. Jameson House Ventures Ltd., 2017 BCSC 1988, 4 B.C.L.R. (6th) 370; R. v. Hinse, [1995] 4 S.C.R. 597; R. v. Shea, 2010 SCC 26, [2010] 2 S.C.R. 17; Saumur v. Recorder’s Court (Quebec), [1947] S.C.R. 492; Kourtessis v. M.N.R., [1993] 2 S.C.R. 53; R. v. Carosella, [1997] 1 S.C.R. 80; R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309; R. v. O’Connor, [1995] 4 S.C.R. 411.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, preamble, ss. 1, 7, 11(d), 24(1).
Constitution Act, 1867, s. 96.
Constitution Act, 1982, s. 52(1).
Criminal Code, R.S.C. 1985, c. C‑46, ss. 16, 33.1, 691, 692, 695.
Rules of the Supreme Court of Canada, SOR/2002‑156, r. 29(3).
Supreme Court Act, R.S.C. 1985, c. S‑26, s. 40.
Authors Cited
Brun, Henri, Guy Tremblay et Eugénie Brouillet. Droit constitutionnel, 6e éd. Cowansville, Que.: Yvon Blais, 2014.
Canada. Department of Justice Canada. Principles guiding the Attorney General of Canada in Charter litigation, Ottawa, 2017.
Garner, Bryan A., et al. The Law of Judicial Precedent. St. Paul, Minn.: Thomson Reuters, 2016.
Gélinas, Fabien. “La primauté du droit et les effets d’une loi inconstitutionnelle” (1988), 67 Can. Bar Rev. 455.
Gervais, Marc‑Antoine. “Les impasses théoriques et pratiques du contrôle de constitutionnalité canadien” (2021), 66 McGill L.J. 509.
Hogg, Peter W., and Allison A. Bushell. “The Charter Dialogue Between Courts and Legislatures” (1997), 35 Osgoode Hall L.J. 75.
Hogg, Peter W., and Wade K. Wright. Constitutional Law of Canada, 5th ed. Supp. Toronto: Thomson Reuters, 2021 (updated 2021, release 1).
Kerwin, Scott. “Stare Decisis in the B.C. Supreme Court: Revisiting Hansard Spruce Mills” (2004), 62 Advocate 541.
Leckey, Robert. Bills of Rights in the Common Law. Cambridge: Cambridge University Press, 2015.
Mancini, Mark. “Declarations of Invalidity in Superior Courts” (2019), 28:3 Const. Forum 31.
Marcotte, Alexandre. “A Question of Law: (Formal) Declarations of Invalidity and the Doctrine of Stare Decisis” (2021), 42 N.J.C.L. 1.
Parkes, Debra. « Precedent Unbound? Contemporary Approaches to Precedent in Canada » (2006), 32 Man. L.J. 135.
Pinard, Danielle. “De l’inhabilité des juges à modifier le texte des lois déclarées inconstitutionnelles”, dans Patrick Taillon, Eugénie Brouillet et Amélie Binette, dir., Un regard québécois sur le droit constitutionnel: Mélanges en l’honneur d’Henri Brun et de Guy Tremblay. Montréal: Yvon Blais, 2016, 329.
Roach, Kent. Constitutional Remedies in Canada, 2nd ed. Toronto: Thomson Reuters, 2013 (loose‑leaf updated October 2021, release 2).
Roach, Kent. “Not Just the Government’s Lawyer: The Attorney General as Defender of the Rule of Law” (2006), 31 Queen’s L.J. 598.
Rosenberg, Marc. “The Attorney General and the Administration of Criminal Justice” (2009), 34 Queen’s L.J. 813.
Rowe, Malcom, and Leanna Katz. “A Practical Guide to Stare Decisis” (2020), 41 Windsor Rev. Legal Soc. Issues 1.
Sarna, Lazar. The Law of Declaratory Judgments, 4th ed. Toronto: Thomson Reuters, 2016.
Sharpe, Robert J. Good Judgment: Making Judicial Decisions. Toronto: University of Toronto Press, 2018.
Waldron, Jeremy. « Stare Decisis and the Rule of Law: A Layered Approach » (2012), 111 Mich. L. Rev. 1.
APPEAL from a judgment of the Ontario Court of Appeal (Watt, Lauwers and Paciocco JJ.A.), 2020 ONCA 333, 151 O.R. (3d) 353, 387 C.C.C. (3d) 304, 63 C.R. (7th) 77, 462 C.R.R. (2d) 231, [2020] O.J. No. 2452 (QL), 2020 CarswellOnt 7645 (WL), setting aside the convictions for aggravated assault and assault with a weapon entered by Salmers J., [2016] O.J. No. 6847 (QL), 2016 CarswellOnt 21197 (WL), and entering verdicts of acquittal. Appeal dismissed.
APPEAL and APPLICATION FOR LEAVE TO CROSS‑APPEAL from a judgment of the Ontario Court of Appeal (Watt, Lauwers and Paciocco JJ.A.), 2020 ONCA 333, 151 O.R. (3d) 353, 387 C.C.C. (3d) 304, 63 C.R. (7th) 77, 462 C.R.R. (2d) 231, [2020] O.J. No. 2452 (QL), 2020 CarswellOnt 7645 (WL), setting aside the convictions for manslaughter and aggravated assault entered by Boswell J., 2018 ONSC 7158, [2018] O.J. No. 6459 (QL), 2018 CarswellOnt 20662 (WL), and ordering a new trial. Appeal dismissed and application for leave to cross‑appeal quashed.
Joan Barrett, Michael Perlin and Jeffrey Wyngaarden, for the appellant/respondent on application for leave to cross‑appeal.
Stephanie DiGiuseppe and Karen Heath, for the respondent David Sullivan.
Matthew R. Gourlay and Danielle Robitaille, for the respondent/applicant on application for leave to cross‑appeal Thomas Chan.
Michael H. Morris, Roy Lee and Rebecca Sewell, for the intervener the Attorney General of Canada.
Sylvain Leboeuf and Jean‑Vincent Lacroix, for the intervener the Attorney General of Quebec.
Ami Kotler, for the intervener the Attorney General of Manitoba.
Lara Vizsolyi, for the intervener the Attorney General of British Columbia.
Noah Wernikowski, for the intervener the Attorney General of Saskatchewan.
Deborah J. Alford, for the intervener the Attorney General of Alberta.
Jeremy Opolsky, Paul Daly, Jake Babad and Julie Lowenstein, for the intervener the British Columbia Civil Liberties Association.
Carter Martell, Anita Szigeti, Sarah Rankin and Maya Kotob, for the intervener the Empowerment Council, Systemic Advocates in Addictions and Mental Health.
Lindsay Daviau and Deepa Negandhi, for the intervener the Criminal Lawyers’ Association (Ontario).
Eric S. Neubauer, for the intervener the Canadian Civil Liberties Association.
Megan Stephens and Lara Kinkartz, for the intervener the Women’s Legal Education and Action Fund Inc.
Connor Bildfell and Asher Honickman, for the intervener the Advocates for the Rule of Law.
The judgment of the Court was delivered by
Kasirer J. —
I. Overview
[1] After having voluntarily taken an overdose of a prescription drug and falling into an impaired state, David Sullivan attacked his mother with a knife and injured her gravely. He was charged with several offences, including aggravated assault and assault with a weapon. In unrelated circumstances, Thomas Chan also fell into an impaired state after he voluntarily ingested “magic mushrooms” containing a drug called psilocybin. Mr. Chan attacked his father with a knife and killed him and seriously injured his father’s partner. He was tried for manslaughter and aggravated assault.
[2] In their different circumstances, both Mr. Sullivan and Mr. Chan argued at their respective trials that their state of intoxication was so extreme that their actions were involuntary and could not be the basis of a guilty verdict for the violent offences of general intent brought against them. Mr. Chan argued in particular that an underlying brain injury was the significant contributing cause of his psychosis, rather than his intoxication alone, such that he was not criminally responsible pursuant to s. 16 of the Criminal Code, R.S.C. 1985, c. C‑46.
[3] In the case of Mr. Sullivan, the trial judge accepted the accused was acting involuntarily but decided that the defence of extreme intoxication akin to automatism was not available by virtue of s. 33.1 of the Criminal Code. Mr. Sullivan was convicted of the two assault charges. In the case of Mr. Chan, the trial judge dismissed a constitutional challenge to s. 33.1. Mr. Chan’s brain trauma was held to be a mental disorder, but not the cause of the incapacity, which was the result of the voluntary ingestion of magic mushrooms. The trial judge in his case rejected his argument under s. 16. He was convicted of manslaughter and aggravated assault.
[4] Their appeals were heard together. The Court of Appeal for Ontario held that s. 33.1 violated ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms and was not saved by s. 1. As a result, both Mr. Sullivan and Mr. Chan were entitled to raise the defence of automatism. Based on the findings at his trial, Mr. Sullivan’s convictions were set aside and acquittals entered. The Court of Appeal ordered a new trial for Mr. Chan because no finding of fact had been made in respect of non-mental disorder automatism in his case. The Crown has appealed both the decisions for Mr. Sullivan and Mr. Chan to this Court.
[5] In R. v. Brown, 2022 SCC 18, [2022] 1 R.C.S. 374, released concurrently with the reasons for judgment in these appeals, I conclude that s. 33.1 violates the Charter and is of no force or effect pursuant to s. 52(1) of the Constitution Act, 1982. That conclusion is equally applicable to the Crown’s appeals in the cases at bar.
[6] As respondent, Mr. Sullivan has raised an issue relating to the character and force of a s. 52(1) declaration of unconstitutionality issued by a superior court. He argued before us that the trial judge had been bound by a previous declaration by a superior court judge in the province that held s. 33.1 to be of no force and effect. The issue raised by Mr. Sullivan provides an opportunity to clarify whether a declaration made under s. 52(1) binds the courts of coordinate jurisdiction in future cases due to the principle of constitutional supremacy, or whether the ordinary rules of horizontal stare decisis apply. As I shall endeavour to explain, stare decisis does apply and the trial judge was only bound to that limited extent on the question of the constitutionality of s. 33.1. The right approach can be stated plainly. Superior courts at first instance may not be bound if the prior decision is distinguishable on its facts or if the court had no practical way of knowing that the earlier decision existed. Otherwise, the decision is binding and the judge may only depart from it if one or more of the exceptions helpfully explained in Re Hansard Spruce Mills, [1954] 4 D.L.R. 590 (B.C.S.C.), apply.
[7] In the result, I would dismiss the Crown’s appeal in the case of Mr. Sullivan and confirm the acquittals entered by the Court of Appeal.
[8] As respondent in his appeal before this Court, Mr. Chan seeks leave to cross-appeal and, if granted, he asks that we substitute an acquittal for the order of a new trial. I would reject Mr. Chan’s arguments on this point. In my view, Mr. Chan’s application for leave to cross‑appeal must be quashed for want of jurisdiction. I would reject his alternative argument that this Court order a stay of proceedings in respect of the very serious violent charges brought against Mr. Chan because the requirements for a stay have not been made out. In the result, I would confirm the Court of Appeal’s order of a new trial.
II. Background
A. David Sullivan
[9] All parties agree that Mr. Sullivan attacked his mother during an episode of drug-induced psychosis during which he had no voluntary control over his actions. Mr. Sullivan, then 43 years old, lived with his mother in a condominium unit. He has a history of mental illness and substance abuse. Evidence adduced at trial indicated that in the three months before the attack, he was convinced that the planet would be invaded by aliens that were already present in their condominium.
[10] Mr. Sullivan had been prescribed bupropion (under the name Wellbutrin) to help him quit smoking. Psychosis is a side effect of the drug. He had experienced psychosis from Wellbutrin at least once before, shortly before the events in this case. The evening prior to the attack, he ingested 30 to 80 Wellbutrin tablets in a suicide attempt. The drugs prompted a psychotic episode during which time, in the early hours of the morning, he woke his mother and told her an alien was in the living room. She followed him into the area and, while she was there, Mr. Sullivan went into the kitchen, took two knives, and stabbed his mother six times. She suffered serious injuries, including residual nerve damage that was slow to heal. She died before trial of unrelated causes.
[11] Several neighbours saw Mr. Sullivan acting erratically outside of the building after the attack. Agitated when the police arrived, Mr. Sullivan was talking about Jesus, the devil, and aliens. He was taken to the hospital, where he had multiple seizures. The psychotic episode resolved itself within a few days. At trial, a forensic psychiatrist gave evidence that Mr. Sullivan was likely experiencing a bupropion‑induced psychosis at the time of the attack on his mother.
B. Thomas Chan
[12] Thomas Chan violently attacked his father and his father’s partner with a knife. Mr. Chan’s father later died from his injuries. The father’s partner was gravely and permanently injured.
[13] After returning home from a bar where they had consumed several alcoholic drinks earlier that evening, Mr. Chan and his friends decided to take magic mushrooms. Mr. Chan had consumed mushrooms before and enjoyed the experience. He ingested an initial dose and when he failed to feel the same effects as his friends, he took a second dose. Towards the end of the night, he began acting erratically. Frightened, he went upstairs where he woke up his mother, mother’s boyfriend, and sister. Mr. Chan then left the home wearing only a pair of pants. His family and friends pursued him as he ran towards his father’s home a short distance away. Mr. Chan broke into his father’s house through a window even though he normally gained entry through finger-print recognition on a home security system.
[14] Once inside, he confronted his father in the kitchen and did not appear to recognize him. He shouted that he was God and that his father was Satan. He proceeded to stab his father repeatedly. He then stabbed his father’s partner. When police arrived, he complied with their demands, although at one point he struggled with what a police officer described as “super‑strength”.
III. Proceedings Below
A. David Sullivan
Ontario Superior Court of Justice, [2016] O.J. No. 6847 (QL), 2016 CarswellOnt 21197 (WL) (Salmers J.)
[15] At trial, the parties agreed, and the trial judge accepted, that Mr. Sullivan was acting involuntarily when he stabbed his mother. The trial judge found that Mr. Sullivan experienced a state of non‑mental disorder automatism, attributable to his ingestion of Wellbutrin. His state was caused by a drug for which psychosis is a known side‑effect.
[16] The Crown said s. 33.1 applied because Mr. Sullivan’s psychosis was self‑induced and therefore could not be the basis for a defence that he lacked the general intent or voluntariness for the crimes of assault. There was disagreement about whether Mr. Sullivan’s consumption of Wellbutrin was voluntary. Section 33.1 would only preclude the automatism defence if intoxication was “self‑induced”. The trial judge found that Mr. Sullivan’s intoxication was voluntary and that he knew or ought to have known that Wellbutrin would cause him to be impaired. Section 33.1 was applied. He was found guilty of aggravated assault, assault with a weapon, and four counts of breach of a non-communication order. It bears noting that Mr. Sullivan did not contest the constitutionality of s. 33.1 at trial. He received a global sentence of five years.
B. Thomas Chan
(1) Constitutional Ruling, 2018 ONSC 3849, 365 C.C.C. (3d) 376 (Boswell J.)
[17] Mr. Chan challenged the constitutionality of s. 33.1 in a pre‑trial application, arguing in particular that the trial judge was bound by previous decisions of the same court, notably R. v. Dunn (1999), 28 C.R. (5th) 295 (Ont. C.J. (Gen. Div.)), and R. v. Fleming, 2010 ONSC 8022, which found s. 33.1 to be unconstitutional.
[18] Boswell J. considered whether, by reason of the doctrine of horizontal stare decisis, he was bound by a constitutional declaration by another judge of the superior court in the province that s. 33.1 was of no force or effect because it was inconsistent with the Charter. Relying on R. v. Scarlett, 2013 ONSC 562, the trial judge held that he was not so bound. Decisions from courts of coordinate jurisdiction should be followed in the absence of cogent reasons to depart therefrom. A court is bound unless the previous decision is “plainly wrong” (paras. 55‑56). The trial judge reasoned that the case law on the constitutionality of s. 33.1 was “considerably unsettled” (para. 58). Although all courts had agreed that s. 33.1 violated ss. 7 and 11(d) of the Charter, courts were divided on whether it could be saved under s. 1. As a result, Boswell J. did not “feel constrained to follow one school of thought more than the other” (ibid.). In addition, none of the earlier constitutional decisions had had the benefit of the judgment of the Court in Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, on the relationship between ss. 7 and 1 (para. 58). He concluded that he was free to reconsider the question afresh.
[19] The trial judge then went on to decide that s. 33.1 violated ss. 7 and 11(d) of the Charter but was saved under s. 1.
(2) Judgment on the Merits, 2018 ONSC 7158 (Boswell J.)
[20] With the defence of automatism precluded by operation of s. 33.1, Mr. Chan argued that he was not criminally responsible by reason of brain trauma which, alone or in connection with the effect of the intoxicant, amounted to mental disorder under s. 16. The parties disagreed about whether Mr. Chan was suffering from a brain injury and, if so, whether it played a part in his violent conduct. Mr. Chan argued that but for the brain injury, he would not have been psychotic from consuming the mushrooms. The Crown argued that the primary cause of Mr. Chan’s psychosis was his voluntary consumption of the mushrooms. The trial judge was required to consider, first, whether Mr. Chan was suffering from a mental disorder at the time of the offence and, second, if that mental disorder rendered him incapable of appreciating the nature and quality of his actions, or incapable of knowing they were wrong.
[21] Mr. Chan did not satisfy the applicable requirements under s. 16. The evidence disclosed a mild traumatic brain injury. The trial judge could not conclusively say that the brain injury rendered Mr. Chan incapable of appreciating the nature and quality of his actions or of knowing they were wrong. The progression of his psychosis suggested that the ingestion of psilocybin was the primary cause of Mr. Chan’s impaired state. The judge found that “Mr. Chan experienced a sudden onset of psychosis that coincided directly with the ingestion and absorption of magic mushrooms” (para. 134 (CanLII)). While the trial judge found that Mr. Chan “was incapacitated by the effects of the drugs he consumed” (para. 134), I note that he made no specific finding that Mr. Chan was in a state of self‑induced intoxication akin to non‑mental disorder automatism.
[22] Mr. Chan was convicted of manslaughter and aggravated assault. He was later sentenced to a global sentence of five years, reduced to three and a half years after credit reductions (2019 ONSC 1400).
(3) Application to Re-open Constitutional Challenge, 2019 ONSC 783, 428 C.R.R. (2d) 81 (Boswell J.)
[23] After sentencing, Mr. Chan applied to re‑open the case to re‑argue the constitutional issue. He said that R. v. McCaw, 2018 ONSC 3464, 48 C.R. (7th) 359, which had been rendered subsequently, declared s. 33.1 unconstitutional and therefore presented a renewed opportunity to consider the question. In McCaw, Spies J. said she was bound by Dunn. Spies J. held that once a provision is declared unconstitutional, it is invalid and “off the books” (para. 76) for all future cases by operation of s. 52(1) and as directed in R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96. In other words, judges of concurrent jurisdiction are bound by a declaration of unconstitutionality. On that basis, argued Mr. Chan, the trial judge had been bound by the prior declaration of unconstitutionality in Dunn when he considered the application of s. 33.1 here.
[24] Boswell J. dismissed Mr. Chan’s application to re‑open the case. McCaw was not an accurate statement of the law. Relying on Spruce Mills, a proper understanding of the rule of horizontal stare decisis is that 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 therefrom. Spruce Mills set out three criteria for departure, which were summarized correctly, in his view, by Strathy J. in Scarlett as “plainly wrong” (para. 41).
[25] For Boswell J., McCaw misinterpreted the statements by McLachlin C.J. in Ferguson that an unconstitutional law is “effectively removed from the statute books” (para. 65). McLachlin C.J. did not express the view that judges of coordinate jurisdiction could not review or reconsider an order striking down a provision under s. 52. Ferguson was not about horizontal stare decisis. Boswell J. preferred Strathy J.’s reading of Ferguson, which acknowledged the erga omnes (“against all” or, as is sometimes said, “against the world”) character of a declaration of unconstitutionality but did not extend that effect to courts of coordinate jurisdiction. The question remained as to whether the prior ruling is plainly wrong and there are salient reasons for correcting the error. With respect to Dunn, there were good reasons to depart from precedent. The s. 1 analysis was plainly wrong; Bedford had changed the relationship between ss. 7 and 1. Moreover there were inconsistent rulings on the matter of the constitutionality of s. 33.1 across the country.
C. Court of Appeal for Ontario, 2020 ONCA 333, 151 O.R. (3d) 353 (Paciocco J.A., Watt J.A. concurring; Lauwers J.A. concurring in the result)
[26] The Court of Appeal allowed the appeals and held that s. 33.1 is unconstitutional and of no force or effect. The Court of Appeal’s judgment on this point is reviewed in Brown and need not be recounted here in detail. For the purposes of this case, I need only note that Paciocco J.A.’s careful reasoning on ss. 7 and 11(d) has been affirmed in Brown. In addition, although my own justification analysis differs from that of Paciocco and Lauwers JJ.A., I agree with their ultimate conclusion: s. 33.1 cannot be saved by s. 1. Their conclusion that s. 33.1 is inconsistent with the Charter and of no force or effect is equally applicable in these two appeals.
[27] Speaking for the Court on this point, Paciocco J.A. addressed the issue of whether the trial judge in Mr. Chan’s case was bound by precedent of a court of coordinate jurisdiction in the province to accept the unconstitutionality of s. 33.1.
[28] In his view, the ordinary rules of stare decisis apply when superior courts in first instance consider whether to follow previous declarations of unconstitutionality made by the same court. He distinguished several cases that purported to stand for the proposition that a declaration is binding on other superior court judges unless successfully appealed by the Crown (paras. 34‑35, referring to Nova Scotia (Workers’ Compensation Board) v. Martin, 2003 SCC 54, [2003] 2 S.C.R. 504; Canada (Attorney General) v. Hislop, 2007 SCC 10, [2007] 1 S.C.R. 429; and Ferguson). These cases made statements to the effect that a provision inconsistent with the Constitution “is invalid from the moment it is enacted” in all future cases and is “effectively removed from the statute books” (Martin, at paras. 28 and 31; see Ferguson, at para. 65; Hislop, at para. 82). Paciocco J.A. read these cases as describing the effect of s. 52(1) declarations rendered by the Supreme Court because it is the apex court in Canada. They did not oust the principles of stare decisis generally nor did they pertain to declarations made by lower courts.
[29] If all s. 52(1) declarations were binding, wrote Paciocco J.A., accuracy would be compromised. For example, if three superior court judges in succession upheld a provision, but a fourth judge’s ruling declared it to be of no force and effect, only the fourth judge’s ruling would take hold withi