Supreme Court of Canada

R v Sullivan, R v Chan and R v Brown: The Supreme Court’s Ruling on the Defence of Extreme Intoxication

Posted on by Tal Schreier

by Kathryn Mullins

On May 13, 2022 the Supreme Court handed down its unanimous ruling in the related cases of R v Brown,[1] R v Sullivan[2] and R v Chan.[3] The Court declared that s. 33.1 of the Criminal Code, which barred the use of the defence of self-induced intoxication for crimes of general intent, is unconstitutional and of no force or effect. While the decision has been controversial in terms of public opinion, it was not surprising to the many constitutional and criminal legal scholars who have previously studied the topic.[4]

Much of the focus in the media is on the consequences of the declaration of invalidity, but less attention has been paid to the reasons that s. 33.1 of the Criminal Code was found to violate the section 7 and 11(d) Charter rights of accused persons.

Background

While judicial consideration of the relevance of intoxication in criminal offences dates back centuries, the modern Canadian law generally begins with Leary v the Queen [Leary].[5] That case solidified the common law rule that the defence of intoxication cannot be used with respect to crimes of general intent.

With general intent offences, the Crown needs to prove only a willingness to commit the act (i.e. assault – the question is simply whether force was intentionally applied), while specific intent crimes involve a heightened sense of intention, for example, assault with intent to resist arrest – there is an added ulterior purpose which goes to the mens rea of the accused.[6]

It is easier, then, to imagine how intoxication might call into question a heightened intention or ulterior purpose, making it harder to prove beyond a reasonable doubt, while generally being unable to disprove the simple willingness to commit an act of general intent.

Notwithstanding the existence of the common law rule, this is not the first time the Court has made the defence of self-induced intoxication more available. In the 1994 case of R v Daviault,[7] the Court seemingly put an end to the Leary rule and made the defence available for general intent offences. However, like the Court in 2022, it too specified that when it comes to violent general intent crimes like assault and sexual assault, the defence is only available when the accused can prove they were in a state akin to automatism.

Despite that qualification, the public reaction to Daviault was intense – so much so that it spurred Parliament to craft a new solution. That solution, s. 33.1 of the Criminal Code, specified that it is not a defence that the accused lacked the general intent or voluntariness to commit an offence by reason of intoxication where they departed markedly from the standard of care generally recognized in Canadian society, which occurs when they interfere with the bodily integrity of another person. Effectively, then, the defence of self-induced intoxication, even in the case of automatism, was entirely unavailable for general intent crimes involving violence.

Brown, Sullivan and Chan all challenged the constitutionality of this provision in their individual but similar cases. All three accused consumed drugs which had unexpected and profound impacts on their brains, and all three assaulted other people (with varying degrees of severity, ranging from broken bones to death) in automatism-like states. While the Ontario Court of Appeal declared s. 33.1 unconstitutional in both Sullivan and Chan (heard together), the Court of Appeal of Alberta upheld the law in Brown.

What’s Wrong with S. 33.1?

In its unanimous opinion, the Supreme Court declared that s. 33.1 is unconstitutional on the grounds that it violates the s. 7 and 11(d) rights of the accused. It adopted the terminology used by Paciocco J.A. of the Ontario Court of Appeal to explain why s. 33.1 is unconstitutional on the basis of three breaches: the actus reus breach, the mens rea breach, and the substitution breach.

Actus Reus

Physical voluntariness, as a requirement of all true criminal offences, is a principle of fundamental justice.[8] The jurisprudence on s. 7 is clear that the act in question must be the voluntary act of the accused for actus reus to be made out,[9] and that the “absence of volition … is always a defence”.[10] On that basis, the Court concludes it is impossible for a person experiencing a state of automatism as a result of self-induced intoxication to act voluntarily. Automatism is not a more severe or extreme form of intoxication, but a state more comparable to sleepwalking or delirium; “the body moves, but there is no link between mind and body”.[11] Proving automatism will require scientific evidence, and the court repeatedly confirms that any intoxication short of automatism will not ground a defence of this kind.

The Crown argued that s. 33.1 was constitutionally sound as it pertains to voluntariness because it punishes the voluntary act of becoming extremely intoxicated. It relies on the idea, originating from R v Penno,[12] that Parliament can validly bar the use of the defence of intoxication when intoxication is the gravamen of the offence (that case related to the offence of having control of a motor vehicle while intoxicated). The Crown pinned the connection to intoxication on the “marked departure” aspect of s. 33.1 – it argued that the “predicate act” of self-induced extreme intoxication is the gravamen of the offence. The intoxication itself, then, is the voluntary “marked departure from the standard of reasonable care generally recognized in Canadian society”.[13]

The Court flatly rejected the argument that intoxication is the gravamen of the offence. It held that s. 33.1, which begins with the words “it is not a defence”, does not create a new offence in the form of the “predicate act of self-induced extreme intoxication” – a plain reading makes it clear that it serves to invalidate a defence only. As per LeBel J.’s understanding in R v Bouchard-Lebrun,[14] the marked departure is the interference (or threat of interference) with the bodily integrity of another person, not the intoxication. Since the gravamen of the offence is the violence, not the intoxication, a lack of voluntariness caused by intoxication (at the level of automatism) means that the accused cannot bear criminal liability for the act in accordance with the principles of fundamental justice.

Mens Rea

It is also a principle of fundamental justice that a minimum level of mens rea is required for criminal convictions. At the minimum level of penal negligence, a court must ask whether a reasonable person in the position of the accused would have foreseen the risk and avoided it, and whether the failure of the accused to do so is a marked departure from that reasonable standard. S. 33.1, however, deems a person to have departed markedly from that standard even when it was entirely unforeseeable that the intoxicants would have such an effect on them. By preventing the foreseeability question from being examined properly, the Court says that s. 33.1 has the effect of convicting a person without proof of mens rea, essentially creating absolute liability offences which carry the possibility of imprisonment – an unacceptable outcome which violates s. 7 of the Charter.[15]

At the Court below, Slatter J.A. in Brown disagreed, representing a relatively common public opinion that when one voluntarily ingests intoxicants they foresee and accept the risk of “rendering [themselves] an automaton”,[16] and in doing so they depart markedly from what a reasonable person would do. Like Paciocco J.A. at the Ontario Court of Appeal, though, the Supreme Court did not accept this reasoning – intoxication is far too common of an occurrence in the average Canadian to support the conclusion that it is a marked departure from what reasonable people do.

Substitution

The last breach, the substitution breach, violates the s. 11(d) right to be presumed innocent until proven guilty. To be proven guilty, the Crown must make out all of the essential elements of a crime (the mens rea and actus reus). There have been cases where substitutions – in which proof of one fact is taken to substitute for proof of one of the essential elements – were valid, but only when the substituted fact “leads inexorably” to the conclusion that the essential element exists.[17] Some, like Slatter J.A., have argued that intoxication meets this test: putting oneself in a situation where it is possible to lose control by way of extreme intoxication is proof of the fault for the violent act that follows.

The Court does not accept this argument and finds it improper to substitute proof of self-induced intoxication for proof of the elements of the offence. As the Court says, “the choice to become intoxicated through legal or illegal means, a choice that many Canadians make, cannot be said to be the same as an intention to perpetrate the illegal act.”[18] The result is that the substitution violates s. 11(d), because it creates a situation in which a person can be convicted despite a reasonable doubt as to whether the essential elements of the offence have been established.[19]

What’s Next?

After failing at the proportionality stage of the s. 1 analysis, s. 33.1 is declared invalid. This does not mean, however, that Parliament will be unable to once again prevent the defence from being used, even in cases of automatism. The Court provides examples of constitutionally valid ways of doing so, the clearest of which is the creation of a new provision which actually makes the act of extreme intoxication itself the gravamen of the offence. As the Court says, “the sense that an accused who acts violently in a state of extreme self‑induced intoxication is morally blameworthy is by no means beyond the proper reach of the criminal law”.[20]

In the face of strong public disapproval with the decision, it is entirely possible that Parliament will take the same approach it did after Daviault and craft a new provision. The concern for victims of domestic and sexual violence at the hands of intoxicated offenders, victims who, as the intervener Women’s Legal Education and Action Fund point out, tend to be vulnerable women and children, is legitimate. The Supreme Court has sent a strong message, however, that if Parliament plans to legislate to protect these victims, it must do so in a way that complies with the Charter rights of accused persons too.

Kathryn Mullins is a 1L JD Candidate at the Faculty of Law and is the Asper Centre’s 2022 summer Research Assistant.

[1] R v Brown 2022 SCC 18.

[2] R v Sullivan 2022 SCC 19.

[3] Ibid.

[4] See Kent Roach, Criminal Law, 7th ed (Toronto: Irwin, 2018) at 277; Michelle S. Lawrence, “Voluntary Intoxication and the Charter: Revisiting the Constitutionality of Section 33.1 of the Criminal Code” (2017) 40:3 Man LJ 391-425; Dennis J. Baker and Rainer Knopff “Daviault dialogue: the strange journey of Canada’s intoxication defence” (2014) Rev of Const Stud 19:1 35-58.

[5] Leary v the Queen [1978] 1 SCR 29.

[6] R v Tatton 2015 SCC 33.

[7] R v Daviault [1994] 3 SCR 63.

[8] Brown, supra note 1 at para 47.

[9] R v Théroux [1993] 2 SCR 5 at 522.

[10] Daviault, supra note 7 at 74.

[11] Brown, supra note 1 at para 47..

[12] R v Penno [1990] 2 SCR 865.

[13] Brown, supra note 1 at para 77.

[14] R v Bouchard-Lebrun 2011 SCC 58.

[15] Reference Re BC Motor Vehicle Act [1985] 2 SCR 486.

[16] R v Brown 2021 ABCA 273 at para 31.

[17] Brown, supra note 1 at para 99.

[18] Ibid at para 49.

[19] Ibid at para 34.

[20] Ibid at para 10.

Constitutional Roundtable on City of Toronto et al v Ontario

Posted on by Tal Schreier

by: Bailey Fox

On Tuesday November 9, 2021 the Asper Centre hosted a constitutional roundtable panel on the Supreme Court’s recent decision in City of Toronto et al v Ontario, 2021 SCC 34. The Asper Centre intervened in the appeal at both the Ontario Court of Appeal (OCA) and the Supreme Court of Canada (SCC). The panelists for the constitutional roundtable included lawyers and academics who had participated in the appeal: Geetha Philipupillai, lawyer at Goldblatt Partners LLP and counsel for the intervener Canadian Civil Liberties Association in the SCC appeal; Professor Lorraine Weinrib, Professor Emerita at the University of Toronto Faculty of Law and a specialist in constitutional law and litigation; and Alexi Wood, of St. Lawrence Barristers LLP, counsel for the Asper Centre in its intervention at the OCA and the SCC. The panel was moderated by Lillianne Cadieux-Shaw, of St. Lawrence Barristers LLP, co-counsel for the Asper Centre in its intervention at the SCC.

Lillianne Cadieux-Shaw began the discussion with a summary of the facts and issues in the case. In short, the Supreme Court considered whether the Better Local Government Act, SO 2018, c 11 (the Act) – enacted by Ontario’s provincial government during the City of Toronto’s municipal election – which cut the number of city wards violated freedom of expression. The Court also discussed the role of unwritten constitutional principles in constitutional interpretation. In a 5-4 split decision, the SCC held that the Act did not violate candidates’ freedom of expression. A fuller discussion of the case be found on the Asper Centre’s blog here.

The panelists discussed the many important ramifications of the case for constitutional interpretation and litigation. Professor Weinrib noted that the case may revolutionize the freedom of expression guarantee because the Court de-emphasized the purposive approach to Charter interpretation. Instead, the Court underscored the Baier framework and its more technical positive/negative rights analysis. Alexi Wood noted that it would likely be more difficult to prove a breach of s2.(b) going forward, noting that in the context of preparing for freedom of expression litigation, lawyers will have to carefully frame the claim based on a positive/negative rights distinction. Geetha Philipupillai added the insight that this may lead to more claims based on the Charter’s s.15 guarantee of equality or s.2(d) right to freedom of association given that the current legal test for breach of these provisions does not distinguish between positive and negative claims.

A recurring thread throughout the Roundtable was a comparison between the majority and dissent in the decision. The dissenting opinion, penned by Justice Abella, would have applied the framework for proving a breach of s.2(b) from Irwin Toy v Quebec, [1989] 1 SCR 927 and found that the Act violated freedom of expression. As Professor Weinrib noted, the strong dissent also highlighted the radical change in the majority’s approach to the scope of s.2(b). Professor Weinrib was referring to a broader recent shift in the Courts jurisprudence that narrows the scope of Charter guarantees, based on the SCC’s concern that the existing legal tests are too broad and the test for justifying a breach under s.1 too difficult for governments to meet. During the discussion on the role of evidence in the case, Alexi Wood noted that the Majority’s choice to advance the positive/negative rights framework was facilitated by the majority’s move away from the facts of the case. Conversely, the dissenting opinion was much more fact-specific, partially because the Irwin Toy framework requires an analysis of the facts. In comparing the two sets of reasons throughout the discussion, the Panelists usefully highlighted the extent of the ideological cleavage on the Court as well as the implications of the majority’s departure from the Irwin Toy test.

The Panel also touched on the role unwritten constitutional principles and the place of municipalities in Canada’s constitutional framework. Overall, the discussion between scholars and practitioners, all involved in the case, highlighted some important implications about the case from both an academic and practical perspective. It both put the decision in broader context while helping attendees understand the implications of the case for both freedom of expression specifically and constitutional litigation more broadly going forward.

View the webcast of this Constitutional Roundtable HERE.

Bailey Fox is a Research Assistant with the Asper Centre and is currently an LLM student at the University of Toronto, Faculty of Law. 

News Statement: Toronto (City) v Ontario (Attorney General)

Posted on by Tal Schreier

In a deeply divided 5 to 4 decision released today, the Supreme Court of Canada upheld the Better Local Government Act, 2018 as constitutional. This legislation was enacted by the newly elected Ford government in 2018, midway through an ongoing municipal election. The legislation reduced the number of wards of Toronto City Council from 47 wards to 25 wards.

A number of individuals, including candidates in the 47-ward election, challenged the legislation, as did the City of Toronto. It was argued that cancelling a democratic election more than halfway through the election period breached the Charter’s guarantee of freedom of expression, without justification. The challenge was successful at Divisional Court but failed at the Court of Appeal. The individual litigants dropped out of the litigation at this point and the City of Toronto appealed to the SCC.

The David Asper Centre for Constitutional Rights, represented by Alexi Wood of St. Lawrence Barristers LLP, intervened on the issue of freedom of expression under s. 2(b) of the Charter.

The Asper Centre is disappointed in the majority ruling in the SCC. According to Alexi Wood, “The majority decision fails to recognize the importance of electoral expression and has the potential to destabilize other types of expression in the future.”

The Asper Centre prefers the analysis set out in Justice Abella’s dissent, which held that the Act unconstitutionally interfered with the political dialogue between candidates and voters. The legislation was an unprecedented intervention midway through the election period, “destabilizing the foundations of the electoral process and interfering with the ability of candidates and voters to engage in meaningful political discourse during the period leading up to voting day,” according to the dissenting opinion. Justice Abella, quoting from the Asper Centre’s legal arguments, specifically noted how different aspects of the election period require protection: “All exercises of expression, at each and every stage of the electoral process – not only the final act of voting – must receive consistent and robust Charter protection” (paragraph 130).

Cheryl Milne, Executive Director of the Asper Centre, notes, “The majority and dissenting opinions represent very different views of our constitution with the majority taking a much narrower interpretation of freedom of expression, characterising the claim as a positive rights claim for an expressive platform and thus not protected by the Charter.”

Lorraine Weinrib, professor emerita at the University of Toronto Faculty of Law and a specialist in constitutional law and litigation, notes that the majority judgment embodies some novel features: “It does not emphasize the importance of the guarantee of the fundamental freedom of expression in protecting the full range of public participation in the vital context of the actual election period. It does not emphasize the importance of democratic deliberation and representation at the municipal level where, as has been so clear during the covid pandemic, local government carries out a distinctive and crucial role in making policy decisions, setting priorities, and providing services in a densely populated, exceptionally diverse context.”

In stressing the importance of the text of the Charter, the majority undermined the well-established understanding that constitutional principles provide fidelity to the Charter’s basic value structure in a changing world. The contrasting factual summaries in the reasoning in this case also makes clear that we need new rules for Charter litigation so that the litigants, whose personal accounts of the actual impact of complicated government legislation on their lives and the lives of their communities, can fully participate in the adjudication of their claims through the full litigation process.

For further information:

Alexi Wood, Counsel
St. Lawrence Barristers LLP
Direct: 647 245 8283 / alexi.wood@stlbarristers.ca

Lillianne Cadieux-Shaw, Co-Counsel
St. Lawrence Barristers LLP
Direct: 647 245 3122 / lil.cadieux.shaw@stlbarristers.ca

Professor Lorraine Weinrib, Professor Emerita
University of Toronto, Faculty of Law
l.weinrib@utoronto.ca

Cheryl Milne, Executive Director
David Asper Centre for Constitutional Rights
cheryl.milne@utoronto.ca

R v Chouhan: The Supreme Court of Canada finds room for disagreement

Posted on by Student

 

By Wei Yang

On June 25, 2021, the Supreme Court of Canada (SCC) released its reasons for judgement in R v Chouhan,1 a case that the Asper Centre intervened in last year.

Background

Mr Chouhan was charged with first-degree murder and was thus entitled to a trial by jury. His trial date was scheduled for September 19, 2019, the same day that legislation eliminating peremptory challenges and substituting the trial judge as the trier for challenges for cause took effect.2 Prior to the new law, a limited number of peremptory challenges were available for both the accused and the Crown to dismiss potential jurors without cause.3 Challenges for cause used to be heard by lay triers instead of the trial judge.4

The federal government introduced this legislation in response to the trial of Gerald Stanley, who was charged with murder in the death of Colten Boushie, an Indigenous man. Mr Stanley was acquitted by a jury composed of zero Indigenous persons – a result of Mr Stanley’s peremptory challenges against five Indigenous prospective jurors.5

Mr Chouhan argued before his trial that the elimination of peremptory challenges violated his ss. 7, 11(d), and 11(f) Charter rights.6 If the amendments were constitutional, Mr Chouhan argued that they applied prospectively and not to his trial.7 The trial judge determined that there were other sufficient jury selection protections and the amendments were purely procedural.8 Therefore, the law was constitutional and applied to all trials after entering into force, including Mr Chouhan’s; neither party was entitled to peremptorily challenge any prospective jurors. Mr Chouhan was convicted.

At appeal, the Court of Appeal for Ontario rejected Mr Chouhan’s constitutional arguments, echoing the trial judge’s finding that other jury-related protections such as representative jury rolls, judicial excusals, and challenges for cause sufficiently preserved Mr Chouhan’s ss. 11(d) and 11(f) rights.9 However, the Court of Appeal held that his substantive right to peremptory challenges was nevertheless affected.10 Therefore, the amendments applied prospectively and Mr Chouhan was entitled to peremptory challenges.11

At the Supreme Court of Canada

The Crown appealed on the temporal applicability issue and Mr Chouhan cross-appealed on the constitutional question.12 The Supreme Court of Canada released its decision from the bench: Wagner CJ declared that a majority of the Court believed that the amendments were constitutional and purely procedural. The appeal was allowed, the cross-appeal was dismissed, and the conviction was restored.

The SCC released its divided reasons eight months later. Writing the joint reasons for judgement (alongside four other sets of reasons) Wagner CJ, Moldaver and Brown JJ held that s. 11(d) does not entitle anyone to a particular jury process.13 The question to be asked on a s. 11(d) challenge is “whether a reasonable person, fully informed of the circumstances, would consider that the new jury selection process gives rise to a reasonable apprehension of bias so as to deprive accused persons of a fair trial before an independent and impartial tribunal”, citing Valente v The Queen.14 They agreed with the lower courts that representative jury rolls, the randomness of jury selection, unlimited challenges for cause, and the judge’s power to excuse (or stand aside) prospective jurors protect the independence and impartiality of the tribunal and thus the amendments were constitutional.15 In addition, the changes were purely procedural and applied retrospectively.16 The justices found that abolishing peremptory challenges will likely increase the representativeness of the jury.17 The justices specifically noted, however, that jury diversity is not constitutionally required.18

Wagner CJ, Moldaver and Brown JJ proceeded to define the scope of the existing protections. First, trial judges should consider issuing jury charges and instructions to militate against unconscious bias.19 With challenges for cause, jurors should be asked relevant questions related to circumstances of the case and whether they can set aside compromising beliefs.20 However, the questions must respect juror privacy.21The judge can exercise their discretion to exclude prospective jurors since it is unlikely that individuals will openly admit to their biases.22 Judges can also stand aside prospective jurors if doing so would uphold public confidence.23

Karakatsanis, Martin and Kasirer JJ agreed with the final disposition and the need for robust jury instructions, but cautioned against Wagner CJ, Moldaver and Brown JJ’s description of the scope of the existing jury procedures.24 They opined that it should be left for the lower courts to decide how to interpret and apply the new amendments.25 In addition, one must not rely too heavily on the randomness of jury selection since random selection within an “unequal society” does not eliminate systemic bias.26

Rowe J, in another separate concurring opinion, agreed with the disposition but cautioned against interpreting this judgement as constitutionalizing these jury selection procedures.27 Interpreting these statutes as constitutional requirements would create the absurd consequence of eliminating Parliament’s ability to repeal their own laws, undermining the principle of parliamentary sovereignty.28

Abella J agreed that the amendments were constitutional but dissented on its temporal applicability. In opposition to Wagner CJ, Moldaver and Brown JJ’s more conservative approach, Justice Abella held that as long as judges “vigorously exercise their authority” by using their stand aside power to increase jury diversity and jurors are asked more probing questions when challenged for cause, the accused’s s. 11 rights are sufficiently protected.29 However, the abolition of peremptory challenges still affected a substantive right; the ability for an accused to participate in the empanelment of a jury they themselves view as representative and impartial is a substantive right even if it is not a constitutional one.30 The amendment, therefore, was not purely procedural and did not apply to Mr Chouhan’s trial.31

Côté J, in dissent, claimed Wagner CJ, Moldaver and Brown JJ attempted to create a new jury regime to disguise the fact that the existing one is inadequate.32 The abolition of peremptory challenges creates a gap in the system, violating Mr Chouhan’s s. 11(f) Charter right.33 Stand asides do not sufficiently preserve impartiality because they do not completely eliminate the possibility that the prospective juror will be empanelled.34 Jury rolls are not necessarily representative: when they are sourced from municipal assessment rolls, it prevents some Indigenous persons from being selected.35 Those who have committed certain provincial and criminal offences are also omitted from the jury roll, which excludes many Indigenous and Black persons who are disproportionally represented in the criminal justice system.36 Finally, without peremptory challenges, there is no assurance that jurors will share similar life experiences to the accused, affecting the common sense, competence, and fact finding ability of the jury.37 This infringement cannot be saved under s. 1 of the Charter: it is not rationally connected to the objective of combatting jury discrimination and promoting jury diversity, nor is it minimally impairing (peremptory challenges ought to have been regulated, not eliminated).38 In the alternative, the abolition applied prospectively.39

Implications

The Asper Centre is pleased to see that a majority of the Court shared our view that the amendments were constitutional. The majority of the Court also recognised the reality of unconscious bias, as we stated in our submissions, in addition to affirming the Asper Centre’s argument that peremptory challenges were only one component of a jury selection system that otherwise provides sufficient protections for an accused person.40 However, we recognize the differing views on peremptory challenges in relation to jury representativeness.

Nader Hasan, co-counsel for the Canadian Muslim Lawyers Association and the Federation of Asian Canadian Lawyers (and adjunct professor at UofT Law and Asper Centre’s Fall 2020 constitutional litigator-in-residence), who intervened to support Mr Chouhan’s cross-appeal, lauded Côté J’s dissent.41 Despite the Court’s disposition, Hasan noted that this decision will empower defence counsel to more aggressively challenge for cause prospective jurors.42

R v Chouhan continues the Supreme Court of Canada’s pattern of divided opinions.43 Although the judgements on the constitutional question and temporal applicability were relatively clear, this decision nevertheless produced five distinct sets of reasons, none of which represented a plurality or majority of the Court. This division likely reflects the diverse views on the effectiveness of peremptory challenges on jury representativeness, as demonstrated by the parties’ submissions. Ultimately, however, this outcome leaves Canadians and lower courts with a clear conclusion but without decisive directions.

Wei Yang is an incoming 2L JD student at the Faculty of Law and is currently one of the Asper Centre’s summer research assistants.

Footnotes:
1. R v Chouhan, 2021 SCC 26 [Chouhan].
2. Ibid at para 1, citing Bill C-75, An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts, 1st Sess, 42nd Leg, 2019, c 25.
3. Chouhan, supra note 1 at paras 10, 13.
4. Ibid at para 27.
5. Ibid at para 41.
6. Ibid at para 3.
7. Ibid.
8. Ibid at para 4.
9. Ibid at paras 6, 35.
10. Ibid at para 6.
11. Ibid.
12. Ibid at para 7.
13. Ibid at para 31.
14. Ibid, citing Valente v The Queen, [1985] 2 SCR 673, 1985 CanLII 25.
15. Ibid at paras 33–36.
16. Ibid at para 90.
17. Ibid at para 41.
18. Ibid at paras 43, 74 (citing Abella J at para 164), 79.
19. Ibid at para 49.
20. Ibid at para 64.
21. Ibid at para 66.
22. Ibid at para 67.
23. Ibid at paras 70–71.
24. Ibid at paras 109–111.
25. Ibid at paras 111–112.
26. Ibid at para 114.
27. Ibid at para 126.
28. Ibid at paras 141–142.
29. Ibid at paras 159–161, 165.
30. Ibid at paras 167, 189, 194, 204–205.
31. Ibid at paras 165, 220.
32. Ibid at para 267.
33. Ibid at paras 260, 267.
34. Ibid at para 269.
35. Ibid at para 272.
36. Ibid.
37. Ibid at paras 275–277.
38. Ibid at paras 288–291.
39. Ibid at para 293.
40. Ibid (Asper Centre’s factum at paras 2, 3, 20).
41. Nader Hasan, “The Côté J dissent in #Chouhan is [three consecutive fire emojis]. The lead decision, on the other hand, suggests that we can deal with potentially racist jurors with a mid-trial instruction ‘don’t be racist’. [Quote Tweet]” (25 June 2021 at 11:10), online: Twitter <https://twitter.com/Nader_Hasan_law/status/1408442578501001216>.
42. Nader Hasan, “On the plus side, the Chouhan decision as a whole is a clarion call to defence counsel to be aggressive with their challenge-for-cause and stand-aside applications. There is at least some recognition that an important tool has been lost with the abolition of peremptory challenges [Reply Tweet]” (25 June 2021 at 11:10), online: Twitter <https://twitter.com/Nader_Hasan_law/status/1408442579977490435>.
43. Cristin Schmitz, “Supreme Court of Canada Hits Record Low 40% Unanimity Rate in 2019; Many Appeals Came from Quebec” (20 January 2020), online: The Lawyer’s Daily <https://www.thelawyersdaily.ca/articles/17529/supreme-court-of-canada-hits-record-low-40-unanimity-rate-in-2019-many-appeals-came-from-quebec> (last modified 21 January 2020).

SCC’s Reference re GGPPA Decision: an important milestone, but still a long road to travel

Posted on by Tal Schreier

by Cameron Somerville

On March 25th, 2021, the Supreme Court of Canada (SCC) upheld as constitutional the federal Greenhouse Gas Pollution Pricing Act (GGPPA), which sets a benchmark for pricing greenhouse gas (GHG) emissions across the country. In a 6-3 decision, the SCC established that the federal government has jurisdiction to apply the GGPPA under the Peace, Order, and Good Government powers (POGG) of the Constitution. Significantly, this sets a marker for the federal government’s ability to control greenhouse gas emissions.

“Climate change is real,” wrote Chief Justice Wagner.[1] “It is caused by greenhouse gas emissions resulting from human activities, and it poses a grave threat to humanity’s future. The only way to address the threat of climate change is to reduce greenhouse gas emissions.”[2]

This decision, while important, is unlikely to be the last word on carbon pricing in Canada.

Charting A New Course

The GGPPA received royal assent in 2018. The preamble to the legislation details the Act’s stated purpose: limiting the negative impacts of carbon emissions on Canadians’ well-being. Notably, it characterizes climate change as a “national problem.” The SCC has previously held legislation can use the preamble to “provide a base for assessing the gravity” of an issue of national concern.[3]

The GGPPA has two main parts. Part 1 is administered by the Canada Revenue Agency and applies a charge to 21 types of fuel and combustible waste. Part 2 establishes a GHG emissions pricing mechanism for large industrial emitters. Provinces can choose whether to implement a carbon pollution price or implement a cap-and-trade system, that allows corporations to trade emissions allowances under an overall cap, or limit, on those emissions.

The Act only operates as a “backstop,” forcing a system on provinces that don’t already have one in place. Additionally, the Act requires the agency return 90% of the revenue as rebates to provinces and individuals, so it is not a tax.

Diverging Paths: Provincial Courts of Appeal Decisions

Alberta, Ontario, & Saskatchewan challenged the federal government’s right to set price standards for carbon-based fuels and industry-based emissions. Ontario’s and Saskatchewan’s Courts of Appeal ruled the GGPPA falls within the National Concern Doctrine of the federal government’s POGG powers. Both judgements had dissents that indicated the law would be valid if its structure were changed, placing it under the federal tax power.

The Alberta Court of Appeal was the final provincial ruling and the only court to rule the GGPPA ultra vires Parliament. The majority found the Act infringed the provincial power to manage natural resources. The Court held that the National Concern Doctrine failed, as carbon pricing does not possess the requisite degree of unity to make it indivisible, in other words that the doctrine could not be used to assign a new head of power to the federal government where the subject matter falls within the province’s exclusive jurisdiction.

The Latest Stop: Supreme Court of Canada Decision

The SCC split 6-3 in finding the Act intra vires the federal government, with three separate dissenting judgements.

Chief Justice Wagner’s Majority Reasons

The majority judgement uses the Act’s long title to frame its main thrust as not just the mitigation of climate change but mitigation through pan-Canadian GHG pricing mechanisms.[4] They argue both Parts 1 and 2 of the GGPPA are “centrally aimed” at creating one GHG pricing scheme nationally.[5]

The majority finds the law is “tightly focused” and that all the provinces acting together would be “incapable” of enacting legislation with equivalent effects because they could not impose a binding outcome-based standard.[6] Therefore, the law meets the first set of requirements for the POGG national concern doctrine.

Lastly, the majority determines the impact of the legislation is reconcilable with the distribution of legislative powers. Since the law merely operates as a “backstop” within a “narrow and specific regulatory mechanism” it does not unduly infringe provincial powers.[7] Furthermore, considering the interests climate change would harm, they find the impact on provincial heads of power is relatively limited.[8]

They determine the GGPPA meets the criteria established in R v Crown-Zellerbach Canada Ltd. and is intra vires the Parliament of Canada.[9]

The Dissenting Judgements

Justice Côté takes issue primarily with the power granted under the GGPPA to the Governor in Council. He argues no clause should give the executive branch the power to nullify or amend Acts of Parliament. Furthermore, when an Act grants such power, the law cannot be within the national concern doctrine as the minimum standards have not been set by Parliament but by the executive branch.[10]

Justice Brown found the subject matter of the GGPPA was “squarely within” provincial jurisdiction and argued the Court should “condemn” the “leveraging” of climate change.[11] He finds provincial property and civil rights stand out as “the most relevant source of legislative authority” for the GGPPA.[12]

Finally, Justice Rowe took issue with the use of POGG in the majority’s reasons. He felt the doctrine of National Concern, and POGG more generally, should only be used as a last resort to “preserve the exhaustiveness of the division of powers.”[13]

The Road Ahead

This decision is not the end of the story for litigation of environmental legislation and climate change protection in Canada. As Justices Brown and Rowe indicate, the on-going balancing of powers in federalism will no doubt be fodder for the next leg of the journey.

This latest ruling is only directly about carbon pricing schemes. David Suzuki said the judgement gives the federal government the “power to make a difference,” but the extent of that power remains unclear.[14] The SCC in Friends of the Oldman River Society v Canada (Minister of Transport) ruled the “environment” cannot be assigned solely to one level of government, as the “environment” is too broad.[15] This case is likely not the last time a court will need to balance Canada’s climate crisis and federalism issues.

Nonetheless, potential future challenges should in no way undermine the magnitude of this decision. The finding that a matter is one of national concern is “permanent” and confers exclusive jurisdiction on the issue to Parliament.[16] The Supreme Court has moved the line for federal authority in environmental legislation. The question remains just how far it has moved.

Cameron Somerville is a 1L JD student at the Faculty of Law and is a member of this year’s Asper Centre Climate Justice student working group.

[1] Reference re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11 at para 2 [re GGPPA] [2] Ibid
[3] Reference re Anti-Inflation Act, [1976] 2 SCR 373 at para 66
[4] re GGPPA, supra note 1 at para 58
[5] Ibid at para 71
[6] Ibid at paras 179, 182
[7] Ibid at paras 199-200
[8] Ibid at para 206
[9] R v Crown-Zellerbach, [1998] 1 S.C.R. 401
[10] GGPPA SCC, supra note 2 at para 294
[11] Ibid at para 454
[12] Ibid at para 343
[13] Ibid at para 616
[14] Supreme Court decision puts Canada on right track for carbon pricing, David Suzuki Foundation at https://bit.ly/3fMSCXa
[15] Friends of the Oldman River Society v Canada (Minister of Transport), [1992] 1 S.C.R. 3 at para 93
[16] re GGPPA, supra note 1 at para 90