Constitutional Litigator-in-Residence for 2022

Jessica Orkin has been selected as the Asper Centre Constitutional-Litigator-in-Residence for Fall 2022.

Jessica Orkin is a partner at Goldblatt Partners LLP in Toronto and leads the firm’s Aboriginal law practice. She has a broad litigation practice including criminal, civil and administrative law matters, with an emphasis on constitutional, Aboriginal rights and access to information law matters.

In her Aboriginal law practice, Jessica provides legal and strategic advice and advocacy to Indigenous governments, communities, organizations and individuals to advance and protect their rights and interests in interactions with governments, industry, the justice system and civil society. Her practice includes complex Aboriginal title, Aboriginal rights and treaty rights litigation; environmental assessment and regulatory processes relating to mining, infrastructure and energy projects; environmental stewardship and natural resource management, including negotiations with industry proponents; and advice on the constitutional duty to consult and accommodate. Jessica has particular expertise in relation to expressive and protest rights, including those of Indigenous individuals in the context of land and resource disputes. She also has a particular interest in systemic issues relating to the overrepresentation of Indigenous individuals within the criminal justice and carceral systems.

Jessica appears at all levels of court, including the Court of Appeal for Ontario and the Supreme Court of Canada. She has been recognized by Best Lawyers in Canada in the categories of Aboriginal law and Administrative & Public Law, and by Lexpert in the category of Aboriginal law.

Jessica received her law degree from the University of Toronto. She also holds an M.Phil. degree in Development Studies from the University of Oxford, and a bachelor of arts and sciences from McMaster University. She was called to the Ontario Bar in 2006, after clerking at the Federal Court of Appeal.

View the Asper Centre’s past Constitutional Litigators-in-Residence HERE.

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

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.

Statement: Inquiry into the use of the Emergencies Act

The Asper Centre has joined a number of civil society organizations across Canada to call for the public inquiry into the recent invocation of the Emergencies Act to have broad terms of reference and all the powers under Parts I & III of the Inquiries Act.

This is necessary to ensure a meaningful public inquiry and to hold our government accountable to all Canadians.

Read the joint statement here.

News Statement: Young Canadians File Court Challenge to Lower Federal Voting Age – Calling it Unconstitutional

TORONTO, Dec. 1, 2021 – A group of Canadian children and youth are set to make history, opening the possibility that they and their peers may be able to cast a ballot in the next federal election. The 13 young people range in age between 12 to 18 years old and hail from coast to coast to coast, including Nunavut, British Colombia, Alberta, Saskatchewan, Ontario, Quebec, and Nova Scotia. They have filed an application at the Ontario Superior Court of Justice to challenge the voting age in Canada, and are arguing that the Canada Elections Act, which prevents citizens under the age of 18 from voting in federal elections, is in violation of Sections 3 and 15 of the Charter of Rights and Freedoms and is therefore unconstitutional.

Section 3 of the Canadian Charter of Rights and Freedoms states that all Canadian citizens have a right to vote in federal and provincial/territorial elections, and section 15 states that everyone is equal before and under the law without discrimination based on age. Additionally, the Supreme Court of Canada, in the case Frank v Canada, made it clear that any limit on Canadians’ right to vote must be clearly justified. Children represent nearly one quarter of Canada’s population, yet they remain the only disenfranchised citizens in our society.

The move comes days after Senator Marilou McPhedran introduced BILL S-201 in the Senate to lower the voting age from 18 years to 16. The bill calls for a referendum to amend the Canada Elections Act and the Regulation Adapting the Canada Elections Act.

“Youth are the future. But as it stands, we can’t vote for who gets to shape that future – and particularly in this unprecedented climate crisis, lack of youth voting rights might mean that we don’t have a future at all,” says Amelia Penney Crocker, a youth litigant from Halifax.

The court challenge is being supported by Justice for Children and Youth (JFCY) and the David Asper Centre for Constitutional Rights at the University of Toronto (Asper Centre).

“Decision-makers tend to cite outdated factors when denying young people access to the polls. They are the same factors historically used to deny other groups the right to vote,” say the lawyers at Justice for Children and Youth. “We have seen a continued rise in young people’s efforts to be heard — millions marching on issues that have a direct impact on their lives and the world in which they live, yet they still can’t vote.”

Already, four of Canada’s federal political parties permit those under 18 to vote for party leadership. The Liberal Party of Canada, Conservative Party of Canada, and Green Party of Canada allow members as young as 14. The federal New Democratic Party does not set out a minimum age for membership, but its provincial and territorial NDPs typically require members to be 14 or older. The Ontario NDP accepts 13-year-olds as full voting members.

“As children and youth, we deserve to speak for ourselves on the issues that matter to us and affect our lives, such as climate change and mental health. Our voices should not be ignored, as we know what actions are needed to address these issues and better the world for future generations, and we are already making change in many ways—we’re hoping that gaining the right to vote will be the next step,” says Katie Yu, a 15-year-old litigant from Iqaluit.

The fight to lower the voting age is also happening at municipal and provincial levels across the country. In June, the city of Vancouver officially endorsed lowering the voting age to 16 in municipal elections across B.C. Meanwhile, the P.E.I. provincial parliament struck down a similar attempt in April.

“Making the kinds of decisions that people make when voting is often called cold decision making – you have information and time to consider alternatives and make choices,” say the lawyers at JFCY.  “We know from brain science research, from direct experience, and from international examples that people under 18 are equally capable as those over 18 of making voting decisions. We also know that including voters under age 18 improves democracy.”

According to the Universal Declaration of Human Rights: “everyone has the right to take part in the government of his country, directly or through freely chosen representatives.” The United Nations Convention on the Rights of the Child further requires countries to “assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child” in accordance “with the age and maturity of the child.”

Other countries and international jurisdictions that have lowered their voting age to 16 include Argentina, Austria, Brazil, Ecuador, Germany, Scotland and Wales.

Media inquiries:

Andrea Chrysanthou

Director, NATIONAL Public Relations

achrysanthou@national.ca

416-797-8194

Youth litigants in the court challenge include:

  • Amelia Penney-Crocker, aged 16, Halifax, NS
  • Parker Boot-Quackenbush, aged 16, London, ON
  • Khadijat Folasayo Dairo, aged 16, Fort McMurray, AB
  • Catherine He, aged 16, Angus, ON
  • Tharan D’Silva, aged 12, Richmond, ON
  • Katie Yu, aged 15, Iqaluit, NU
  • Diego Christiansen-Barker, aged 17, Campbell River, BC
  • Lachlan Brown, aged 18, Halifax, NS
  • Zoey Purves, aged 17, Ottawa, ON
  • Jacob Colatosti, aged 16, Hamilton, ON
  • Milan Rozotto-Lagos, aged 13, Saskatoon, SK
  • Oswaldo Paz Flores, aged 16, Montreal, QC
  • Lauren Handley, aged 18, Peterborough, ON

Legal Counsel:

  • Cheryl Milne, Executive Director of the David Asper Centre for Constitutional Rights at the University of Toronto
  • Mary Birdsell, Executive Director, Justice for Children and Youth
  • Emily Chan, Staff Lawyer, Justice For Children & Youth