Author: Tal Schreier

Constitutional Litigator in Residence for 2023

Posted on by Tal Schreier

We are pleased to announce that Ewa Krajewska has been selected as the Asper Centre’s Constitutional Litigator in Residence for Fall 2023.

Ewa will be co-teaching the Asper Centre’s Clinic Course in the Fall 2023 term with our Executive Director, Cheryl Milne. This course offers upper year law students at the University of Toronto the unique opportunity to engage in Charter rights advocacy, including Charter litigation. Ewa will bring her extensive constitutional litigation experience to the role and will greatly enrich the Asper Centre’s Clinic students next term. Amongst other projects, Ewa will work with students on the Asper Centre’s intervention in the Mathur climate justice case at the Ontario Court of Appeal.

Ewa Krajewska, B.A. (McGill) 2004, LL.B. BCL (2008), was called to the Bar of Ontario in 2009. She has practiced civil litigation for 14 years, specializing in public and constitutional law. She practiced at a large national firm for 12 years before joining Henein Hutchison Robitaille LLP in January of 2022. She was counsel to the Canadian Civil Liberties Association on the Public Order Emergency Commission. She has appeared at all levels of court including at the Supreme Court of Canada on important constitutional and estates matters.

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

In Mathur v Ontario Court Rejects Charter Challenge to Ontario’s Emissions Target  

Posted on by Tal Schreier

by Daniel Kiesman

In Mathur v Ontario[1] the Ontario Superior Court of Justice rejected the constitutional challenge to the greenhouse gas emissions target set by Government of Ontario under s. 3(1) of the Cap and Trade Cancellation Act (“CTCA”).[2]

Background

In 2018, the Government of Ontario through s. 3(1) of the CTCA set an emissions reduction target at 30% below 2005 levels by 2030. However, scientific research showed that to prevent serious adverse consequences in relation to health, food security, and human security, greenhouse gas emissions would need to be reduced by 52% below 2005 levels by 2030.  The Applicants, a group of young Ontarians, argued the target set by Ontario was too low, failing to adequately address climate change and leading to adverse future consequences for young people and for future generations.

The Applicants advanced two Charter arguments. First, by failing set the target high enough Ontario was authorizing and creating a level of emissions that will lead to serious adverse consequences and put the lives of Ontarians at risk, violating s. 7 of the Charter. Second, the Applicants argued the CTCA violates s. 15 of the Charter because it distinctly encumbers young people and future generations who will endure most of the impacts of climate change. In so doing, the Applicants argued the CTCA perpetuated a disadvantage since young people and future generations lack political decision making power and their interests are often ignored.

Justiciability

The judge found the challenges regarding the emissions target set by Ontario to be justiciable.[3] This is notable because the Federal Court found a past challenge to government climate action to be non-justiciable. In La Rose v Canada, the Federal Court held that a constitutional challenge of the Federal Government’s greenhouse gas emissions target was non-justiciable because the challenge was not focused on specific government action or legislation but rather focused on the Federal Government’s overarching policy positions regarding climate change.[4] The La Rose case was similarly brought by a group of young people concerned about the impacts of climate change and the decision in that case is currently under appeal to the Federal Court of Appeal. Nevertheless, the ruling in Mathur signifies that Charter challenges to government climate action can be justiciable when they are focused on a specific government action, which in this case was the target set under s. 3(1) of the CTCA.

Section 7

Under the s. 7 analysis the judge characterised the Applicants’ complaint as being that the emission target set by Ontario was not high enough. Therefore, the judged interpreted the Applicants’ s. 7 claim as a positive right claim, suggesting the Applicants were seeking a declaration that Ontario has a positive obligation to prevent the impacts of climate change from posing a threat to young people’s security of the person.[5] While noting in Gosselin v Quebec (Attorney General) the Supreme Court rejected the idea s. 7 creates a general positive obligation on governments to ensure citizens have the benefits of life, liberty and security of the person, the judge highlighted that Gosselin left open the possibility of positive obligations under s. 7 in certain unique circumstances.[6] The judge found that, “the Applicants make a compelling case that climate change and the existential threat that it poses to human life and security of the person present special circumstances that could justify the imposition of positive obligations under s. 7 of the Charter.”[7] The Court appeared open to the idea that the impacts of climate change could be special enough to for a court to impose a positive obligation but noted that if such a positive obligation were to be found there would likely be a different s. 7 analytical framework used in such cases. Ultimately, the judge assumed without deciding that a positive obligation under s. 7 arose in this case but went on to reject the s. 7 claim on the grounds that Ontario, in setting the emissions target, did not violate any principles of fundamental justice.[8]

While the result of the s. 7 analysis in this case may be disappointing to those concerned about the effects of climate change and government inaction, the Court’s analysis in Mathur presents a potentially important pathway forward for climate change focused constitutional litigation. The decision shows that courts may be open to imposing positive obligations on governments under s. 7. The decision is also notable for recognizing the unique and pressing challenges climate change posses to Canadian society such that climate change can be considered a special circumstance as articulated in Gosselin which may give rise to a positive obligation under s. 7. Furthermore, this decision adds to a growing chorus of courts across Canada which have expressed openness to the possibility that there may be a positive obligation on governments to adequately combat climate change. In La Rose the Federal Court did not foreclose the possibility that such positive obligations could exist.[9] In Kreishan v Canada (Citizenship and Immigration) the Federal Court of Appeal cautioned that s. 7 should not remain simply “frozen in time”[10] and expressly listed climate rights as a domain in which positive obligations under s. 7 could arise.[11] These decisions show that future litigation may be able to persuade a court that there are positive obligations on governments, under s. 7, to adequately combat climate change.

Section 15

With respect to the Applicants’ s. 15 claim, the Court applied the s. 15 test following the guidance given recently by the Supreme Court in R v Sharma.[12] At the first step of the test the judge accepted that young people are disproportionately affected by climate change.[13] However, the judged stressed that any disproportionate impact is caused by climate change itself and not by emissions targets set by Ontario through s. 3(1) of the CTCA.[14] As such, the Applicants’ claim failed to show Ontario’s actions created or contributed to the disproportionate affects of climate change faced by young people. While the emissions target is not high enough to thwart the impacts of climate change, the emissions target itself does not cause or contribute to the adverse effects of climate change that young people will face. Given the requirements set out in Sharma for claimants to show causation at the first stage of the s. 15 analysis, the judge concluded the s. 15 must fail because the requisite causation could not be established in this case.[15]

The judge, echoing the Supreme Court in Sharma, also noted there is no positive obligation of governments to address inequalities through remedial legislation.[16] The emission target is part of a remedial scheme aimed at addressing climate change. The Supreme Court stated that when a government chooses to address inequality it can legislate incrementally and leave gaps between members of protected groups who may be affected by such legislation and members of non-protected groups unaffected by such legislation.[17] The emissions target in question were viewed by the Court as incremental and remedial legislation Ontario chose to enact to address the issue of climate change. Therefore, any gap the CTCA creates does not in itself infringe s. 15.[18]

The Applicants also advanced a s. 15 argument claiming that since the impacts of climate change will only get worse over time, young people and future generations will face the brunt of impacts of climate change since they will live longer into the future. The judge also rejected this argument. The Court again noted that a claim relating to the effects of climate change on future generations fails to meet the causal burden at the first step of the s. 15. The more impactful future effects of climate change are not caused by Ontario’s emissions target but caused by climate change.[19] Furthermore, the judge appeared skeptical that the Applicants could even advance a s. 15 claim on behalf of future generations. Since everyone who lives into the future will be affected by climate change, this is not a distinction based on age because people of all ages will face the impacts of climate change in the future. Therefore, the judge held the Applicant’s claim is based solely on a temporal distinction and cannot succeed because such a distinction is not an enumerated or analogous ground.[20] Even if future generations could be considered to fall under the enumerated ground of age, or recognized as an analogous ground itself, the judge held that the claim would still fail. Citing Sharma, the judge noted that the disproportionate effects felt by future generations, would be a “gap” which already existed and was left unaffected by emissions target set by Ontario and therefore would not infringe s. 15.[21]

Mathur illustrates the impact of the decision in Sharma on s. 15 claims. The evidentiary burden on claimants to show a government action “creates or contributes to a disproportionate impact,”[22] at the first stage s. 15 test and the Supreme Court’s assertion that it does not infringe s. 15 to leave gaps between different groups so long as government action did not cause those gaps are important developments which drive the judge’s s. 15 analysis in this case.[23] This guidance in Sharma may prove to be difficult hurdles to climb for litigants bringing s. 15 challenges to government climate actions. Governments do not create or cause climate change. While governmental inaction will not abate the adverse consequences of climate change, it may prove difficult to show inadequate government action independently cause the impacts of climate change to worsen. Furthermore, as the judge accepted, young people already bear the brunt of the impacts of climate change. However, the gap between young people and other groups in society in relation to the adverse effects of climate change is again created by climate change. Government actions which will fail to remedy the issue of climate change will simply leave these gaps unaffected and therefore, per Sharma would not infringing s. 15.

Looking Forward

Mathur was the first case to substantively tackle a constitutional challenge to a government climate change policy and there are important takeaways to consider moving forward. First, constitutional challenges to government climate actions need to be aimed at specific government actions or legislation in order to be justiciable. Simply pointing to a broad constellation of government policies or positions on climate change will likely be viewed by courts as non-justiciable. Second, courts appear to be open to entertain arguments that climate is a special domain in which positive obligations on governments could potentially arise under s. 7. Given the right case with the right facts this could prove to be an exciting area for significant development of the law and advance climate activists’ cause. Third, the decision in Mathur illustrates that, given the majority decision in Sharma, s. 15 challenges to government climate actions will likely prove difficult to successfully make out. Overall, while the result in Mathur may be discouraging for individuals concerned about climate change, the decision shows there remain potentially viable avenues for future successful constitutional challenges to government climate actions.

Daniel Kiesman is a 1L JD candidate at the Faculty of Law and is an Asper Centre Summer Research Assistant

[1] Mathur v Ontario, 2023 ONSC 2316 [Mathur].

[2] Cap and Trade Cancellation Act, 2018, SO 2018, c 13, s 3(1).

[3] Mathur, supra note 1 at para 106.

[4] La Rose v Canada, 2020 FC 1008 at paras 40—41 [La Rose].

[5] Mathur, supra note 1 at paras 122, 124, 132.

[6] Ibid at paras 125, 137 citing Gosselin v Quebec (Attorney General), 2002 SCC 84 at paras 81—83.

[7] Ibid at para 138.

[8] Ibid at paras 142.

[9] La Rose, supra note 4 at paras 69—72.

[10] Kreishan v Canada (Citizenship and Immigration), 2019 FCA 223 at para 139.

[11] Ibid.

[12] R v Sharma, 2022 SCC 39 [Sharma].

[13] Mathur, supra note 1 at para 178.

[14] Mathur, supra note 1 at para 178.

[15] Ibid citing Sharma, supra note 12 at para 42.

[16] Mathur, supra note 1 at para 178 citing Sharma, supra note 12 at paras 40, 63.

[17] Sharma, supra note 12 at paras 40, 63—64.

[18] Mathur, supra note 1 at para 178.

[19] Ibid at para 179.

[20] Ibid at para 180.

[21] Ibid at para 182.

[22] Sharma, supra note 12 at para 42.

[23] Ibid at paras 40, 42; Mathur, supra note 1 at para 178.

R v Sharma: Supreme Court of Canada upholds legislation limiting conditional sentences despite Indigenous over-incarceration concerns

Posted on by Tal Schreier

by Kailyn Johnson

In a 5-4 split, the Supreme Court of Canada upheld the constitutionality of sections 742.1(c) and 742.1(e)(ii) of the Canadian Criminal Code (R v Sharma, 2022 SCC 39 at paras 2-4 [Sharma]). These sections of the Criminal Code, which were amended in 2012, limit access to conditional sentences for certain classes of offences.[1] 

Ms. Cheyenne Sharma challenged the constitutionality of the two provisions under sections 7 and 15(1) of the Canadian Charter of Rights and Freedoms (the Charter). She argued that the provisions were unconstitutional under section 7 of the Charter because they arbitrarily and overbroadly limit the freedom of offenders (Sharma at para 85). Additionally, she asserted that the legislation was unconstitutional under section 15(1) of the Charter because it disproportionately and negatively affects Indigenous offenders (Sharma at para 72). This, she contended, violates the right to equality before the law, derived from section 15(1). Ms. Sharma is of Ojibwa ancestry and a member of the Saugeen First Nation (Sharma at para 5). 

In 1996, Parliament introduced section 742.1 of the Criminal Code, creating the framework of the conditional sentence. The bill also included section 718.2(e) of the Criminal Code which instructed courts to consider alternatives to imprisonment, appropriate under the circumstances, “with particular attention to the circumstances of Aboriginal offenders” (Sharma at para 130). Both these provisions were designed to address Indigenous over-incarceration in Canadian prisons. The 2012 amendments, however, reduced judges’ discretion in limiting prison sentences for Indigenous offenders. 

Background on the case 

In 2015, Ms. Sharma was caught smuggling nearly 2 kilograms of cocaine into a Toronto airport. Ms. Sharma pleaded guilty to importing a controlled substance and was sentenced to 18 months in prison (Sharma at para 81). Ms. Sharma seemed to be an ideal candidate for a conditional sentence (Sharma at para 224). She had no previous criminal record. At only 20 years old, Ms. Sharma was her child’s sole provider. At the time of the offence, Ms. Sharma had little support and no financial resources. She was on the verge of eviction. She had smuggled the drugs after her then-partner offered her $20,000 to transport them from Suriname to Toronto, where she was apprehended (Sharma at para 5-6, 116). 

Furthermore, a Gladue report revealed that Ms. Sharma was subject to tremendous intergenerational trauma.[2] Her grandmother was a residential school survivor. Her mother had been placed in foster care. Ms. Sharma herself had been assaulted, forced to drop out of school, and struggled with substance abuse (Sharma at para 6, 121). At the time of sentencing, Ms. Sharma had moved to reserve lands and was receiving help for her substance use issues while working towards her high school diploma (Sharma at para 121). Ms. Sharma’s circumstances and the Indigenous over-incarceration crisis were a few of many compelling reasons for Ms. Sharma to complete her sentence in the community rather than in prison. 

Procedural History 

The trial judge determined that Ms. Sharma was ineligible for a conditional sentence due to the 2012 amendment, 742.1(c). This amendment prohibits offenders who are convicted of offences which carry maximum prison terms of 14 years or life, from receiving conditional sentences, even if the offender themselves receives a much shorter term. Ms. Sharma challenged the constitutionality of this provision and also 742.1(e)(ii), which prohibits offenders convicted of certain offences, including drug trafficking, from receiving a conditional sentence if the maximum penal term for the crime is 10 years or more. The trial judge dismissed her constitutional challenge under section 15 of the Charter (Sharma at para 20). At the time, Ms. Sharma did not include her section 7 challenges in oral arguments (Sharma at para 15). Ms. Sharma appealed this verdict and her sentence. 

At the Ontario Court of Appeal, Ms. Sharma renewed her challenge to the legislation under both section 7 and section 15 of the Charter. The majority of the court struck down the provisions as unconstitutional (Sharma at para 21). They held that both provisions were overbroad under section 7 of the Charter and impermissible under section 15(1) because they discriminated against Indigenous offenders (Sharma at paras 22-23). The Crown appealed to the Supreme Court of Canada. 

Majority at the Supreme Court of Canada 

The majority of the Supreme Court of Canada held that sections 742.1(c) and 742.1(e)(ii) are constitutional under section 7 of the Charter. While the amendments do inhibit “the right to life, liberty, and security of the person” guaranteed by section 7, through imprisonment, they do so in “accordance with the principles of fundamental justice” (Sharma at para 85). The statutes are neither arbitrary nor overbroad. 

The majority also upheld sections 742.1(c) and 742.1(e)(ii) as constitutional under section 15 of the Charter. Section 15(1) guarantees: 

  1. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. 

The majority concluded that Ms. Sharma failed to meet the evidentiary burden required for a successful section 15 challenge. To succeed, Ms. Sharma would need to show 1) that the legislation disproportionately affected Indigenous people and 2) the disproportionate effects of the legislation reinforce, exacerbate, perpetuate, or create disadvantage. The Court found that Ms. Sharma failed to produce evidence which showed the legislation disproportionately impacts Indigenous offenders (Sharma at para 67, 76). The majority found that “historic or systemic disadvantage” alone was not enough to establish the disproportionate impact of this specific legislation on Indigenous offenders (Sharma at para 71). The analysis emphasizes a requirement to show causation through evidence that the impugned law “created or contributed to” the disproportional impact on the claimant group (Sharma para 45). Both amendments were upheld under section 15 because the arguments failed step one of the test due to the lack of evidence of causation. 

Dissent at the Supreme Court of Canada 

Four justices of the Supreme Court dissented to the majority holding in Sharma. Karakatsanis J., writing for the dissent, found both provisions unconstitutional, breaching both section 7 and section 15(1) of the Charter. Section 7 was breached because the revisions are overbroad (Sharma at para 118). By using the maximum sentence of a crime as a proxy for its seriousness, the legislation captures not only serious offenders but also offenders whose crimes were only potentially serious (at para 164). For example, if two offenders are convicted of the same crime, both will share the same maximum sentence. Yet the offender sentenced to only 1 year in prison has only committed a potentially serious crime, while the offender sentenced to 14 years imprisonment has committed a serious crime. Despite the differences in severity and actual penal term, both are barred from conditional sentencing by the same provision. Thus, the legislation captures offenders outside its intended scope (serious crimes) and is therefore overbroad. 

The dissent also held that both 742.1(c) and 742.1(e)(ii) are unconstitutional under section 15(1). The dissent recognizes that Indigenous over-incarceration is a result of Canada’s colonial history (Sharma at para 114). While sentencing laws cannot change this past or heal the social issues leading to over-incarceration, they are uniquely positioned to address or exacerbate the effects. 

The dissent applies the same test as the majority but states that the majority’s clarification “seek[s] to revise the test” and “resurrect[s] their rejected arguments in Alliance and Fraser” contrary to stare decisis” (Sharma at para 204). The dissent observes that facially equal treatment under the law may lead to unequal results (Sharma at para 187). The Gladue framework was specifically designed to combat this issue. By considering Indigenous circumstances during sentencing decisions, the courts were working towards achieving substantive equality. The amendments to section 742, however, limit access to conditional sentences and other remedial tools. While the legislation applies to all offenders, it distinguishes by race because it prevents Indigenous offenders from using the Gladue framework (Sharma at para 233). The legislation thus compels judges to give harsh prison sentences to Indigenous offenders where a lesser sentence may otherwise have been appropriate because of Gladue principles. Only Indigenous offenders are impacted in this way and imposing prison sentences exacerbate historic and systemic disadvantages (Sharma at para 237). Therefore, the dissent finds that the statutes are unconstitutional under section 15 of the Charter. 

Impacts of the Sharma decision 

There were 21 interveners in the Sharma case at the Supreme Court of Canada level.  In its factum, the David Asper Centre for Constitutional Rights (“Asper Centre”) argued that, because the criminal justice system plays a causal role in the disadvantage of Indigenous peoples, section 15 of the Charter imposes a positive remedial duty (Factum of the Intervener the David Asper Centre for Constitutional Rights at para 1). The majority of the Court dismissed this argument, finding that “15(1) does not impose a general, positive obligation on the state to remedy social inequalities or enact remedial legislation” (Sharma at para 63). Chris Rudnicki, a criminal lawyer and lecturer at Lincoln Alexander School of Law, called this particular result “profoundly disappointing.”[3] 

In their factum at the Court of Appeal, the Women’s Legal Education and Action Fund (“LEAF”) and the Asper Centre submitted evidence from Statistics Canada and government reports of the growing rates of over-incarceration of Indigenous people in Canada. From 2007/2008 to 2017/2018, admissions of Indigenous men to prison increased 28%. Admission of Indigenous women to custody increased 60%. Indigenous incarceration rates are also grossly disproportionate. Indigenous people make up only 4% of the Canadian adult population, yet they account for 30% of all admissions to provincial and territorial custody (Factum of the Interveners Women’s Legal Education and Action Fund and the David Asper Centre for Constitutional Rights at para 8). The statistical evidence included in the intervening submissions confirms the conclusions of the Ontario Court of Appeal about the over-incarceration of Indigenous women.  

The majority at the Supreme Court of Canada had serious concerns about the intervening parties’ submissions. “Interveners creating a new evidentiary record at the appellate level undermines the trial process” they concluded (Sharma at para 75). However, the majority of the Supreme Court failed to identify why they found it objectionable to include the intervening submissions in the evidentiary record. The decision to diminish the role of interveners, thus largely dismissing their evidence, was heavily critiqued by the dissent. This was one of the reasons the dissent found that “My colleagues’ revisions are not only unsolicited, unnecessary, and contrary to stare decisis; they would dislodge foundational premises of our equality jurisprudence. This is not “clarification”; it is wholesale revision” (Sharma at paras 205-206). Overall, LEAF feels the Sharma decision “will make future equality rights claims more difficult.”[4]  

The decision has serious repercussions on Indigenous peoples, as the dissent observed. The impugned provisions force the hands of judges to impose harsher sentences on Indigenous offenders than they may have otherwise (Sharma at 238). These prison sentences are often contrary to Indigenous principles of justice such as community healing, reconciliation, and reintegration of the offender (Sharma at para 214, 240). They also remove Indigenous people from their community, family, and culture, thereby stripping them of their support (Sharma at para 240). The decision fails to realize the objectives of section 718.2(e), to consider sentences alternative to prison terms, “with particular attention to the circumstances of Aboriginal offenders.” Sharma fails to meaningfully address Indigenous over-incarceration. The continued enforcement of 742.1(c) and 742.1(e)(ii) may reinforce cycles of intergenerational trauma. 

While reactions to the Court’s decision were largely negative,[5] Ms. Sharma’s lawyer, Nader Hasan, LEAF, and many others are using this as a rallying cry to pass Bill C-5.[6] If enacted, Bill C-5 would amend both the Criminal Code and the Controlled Drugs and Substances Act, repealing mandatory minimum sentences for a variety of offences. This would allow for greater judicial discretion when assessing the individual circumstances of offenders during sentencing as well as to increase the usage of conditional sentences. These proposed changes are designed to curb the over-incarceration of Black and Indigenous people in Canadian prisons.[7] 

Kailyn Johnson is a 1L JD candidate at the Faculty of Law and is a member of the Asper Centre’s Consent and Constitution student working group. 

[1] Conditional sentences are an alternative to serving a term in prison. Instead, individuals who meet legislative criteria and are not deemed a safety threat to their communities can serve their sentence in the community, under surveillance, with specific requirements. 

[2] Gladue reports collect relevant personal information on Indigenous offenders during the sentencing stage of a trial. These reports are used to tailor a prison sentence to suit both the individual circumstances of the offender as well their community. This may include information on the individual’s family history, culture, hereditary laws, and values. Reintegration, reconciliation, and community healing may be special considerations when sentencing Indigenous offenders (Gladue at para 214). 

[3] Chris Rudnicki, [@chrisrudnicki], ““There is no general, positive obligation on the state to remedy social inequalities or enact remedial legislation, nor is the legislature bound to its current policies.” A profoundly disappointing result in R v Sharma, 2022 SCC 39,” Twitter, 4 Nov 2022 

[4] Women’s Legal Education and Action Fund, “Supreme Court decision fails to address the mass incarceration of Indigenous women and makes equality rights claims more difficult,” 4 Nov 2022, https://www.leaf.ca/news/supreme-court-decision-fails-to-address-the-mass-incarceration-of-indigenous-women-and-makes-equality-rights-claims-more-difficult/. 

[5] Lisa Kerr [@coleenlisa], “This is a hard one to report. R v. Sharma. In a 5:4 decision, majority holds that Criminal Code sections that prevent conditional sentences do not limit s. 7 or s. 15 rights,” Twitter, 4 Nov 2022, Nader Hassan, [@Nader_Hassan_law], “ While today’s decision in #Sharma is beyond disappointing, the policy justification for #BillC5 is just as sound as ever. Parliament needs to address Indigenous mass incarceration,” Twitter, 4 Nov 2022, 

[6] Nader Hasan, [@Nader_Hasan_law], “While today’s decision in #Sharma is beyond disappointing, the policy justification for #BillC5 is just as sound as ever. Parliament needs to address Indigenous mass incarceration,” Twitter, 4 Nov 2022; Criminal Lawyers Association, [@ClaOntario], “Today’s @SCC_eng decision in R v. Sharma drives home the importance of Bill C-5. We call on the @SenateCA to pass C-5 quickly so that judges once again have discretion to craft fit sentences that take into account experiences with #systemicracism,” Twitter, 4 Nov 2022, 

[7] Department of Justice Canada, “Bill C-5: Mandatory Minimum Penalties to be repealed,” 7 Dec 2021, https://www.canada.ca/en/department-justice/news/2021/12/mandatory-minimum-penalties-to-be-repealed.html. 

Constitutional Litigator in Residence for 2022

Posted on by Tal Schreier

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

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.