The SCC in R v J.J.: Upholding the Constitutionality of Criminal Code Reforms which Remove Barriers that Deter Sexual Assault Complainants from Reporting

By: Caitlin Salvino

On June 23rd, 2022 the Supreme Court of Canada (SCC) released its decision in R v J.J..[1] This 6–3 ruling upheld the constitutionality of recent amendments to the Criminal Code that remove barriers for complainants within the sexual assault trial processes. This piece provides an overview of the history of sexual assault provisions in the Criminal Code and the SCC’s decision in J.J..

History of Sexual Assault Criminal Code Provisions

In 1983, the Criminal Code was reformed to narrow the provisions of “rape” and “indecent assault” into three levels of sexual assault.[2] The 1983 reforms also removed exemptions for marital rape and prohibited evidence on the complainant’s sexual history, subject to  limited exceptions.[3] Following the 1983 Criminal Code reforms, the constitutionality of limits on complainant sexual history evidence was challenged in R v Seaboyer.[4] In Seaboyer, the SCC struck down the Criminal Code provisions related to sexual history, finding that they excluded relevant evidence that would interfere with the accused’s right to make a full answer and defence.[5] The SCC held that these provisions were overbroad as they did not minimally impair the accused’s procedural rights.

In response to Seaboyer, Parliament re-introduced Criminal Code provisions that limited complainant sexual history evidence. These reformed sexual history provisions were deemed constitutional by the SCC in R v Darrach[6] and remain in place today under section 276 of the Criminal Code. These section 276 protections, also known as the “rape shield law”, establish that evidence related to the complainant’s sexual history is inadmissible if it supports assumptions that the complainant is: (1) more likely to have consented to the sexual activity at issue during the trial or (2) less worthy of belief.[7] Section 276 creates an exception to the prohibition of evidence related to sexual history, that requires four criteria to be met: (1) the evidence is not being introduced for the above mentioned assumptions (consent and belief), (2) the evidence is relevant to an issue at trial, (3) the evidence is of specific instances of sexual activity, and (4) the evidence has significant probative value that is not “substantially outweighed by the danger of prejudice to the proper administration of justice”.[8] Section 276(3) lists numerous considerations that judges must take into account during a sexual history evidence admissibility hearing, including society’s interest in encouraging reports of sexual assault and the potential bias against the complainant’s dignity and privacy.[9]

2018 Legislative Reforms to Sexual Assault Evidence Admissibility

Despite the existing rape shield law protections, barriers remain within the criminal justice system for individuals who experience sexual assault. Only 5% of all sexual assaults are reported to police.[10] There is attrition of sexual assault cases at all levels of the criminal justice system. Data from Statistics Canada found that “an accused was solely identified in three in five (59%) sexual assault incidents reported by police; less than half (43%) of sexual assault incidents resulted in a charge being laid; of these, half (49%) courted; of which just over half (55%) led to a conviction; of which just over half (56%) were sentenced to custody”.[11]

In response to the low levels of sexual assault reporting, Parliament in 2018 enacted further reforms to sexual assault trial procedures. Under sections 278.92 and 278.94 of the Criminal Code, Parliament passed amendments creating new procedures for screening complainant evidence to be introduced in a trial.[12] Prior to these amendments there were no procedures for the admissibility of complainant records held by the accused.[13] However, there were procedures for the admissibility of evidence related to the complainant’s prior sexual history under section 276 of the Criminal Code and there were procedures for the admissibility of complainant records held by third parties under section 278 of the Criminal Code. In relation to the latter, the defence can request access to third party records of the complainant to use as evidence in criminal trials.[14] This evidence includes records from medical and counselling centres, child welfare agencies, residential and public schools, drug and alcohol rehabilitation centres, immigration services, and sexual assault crisis centres.[15] The constitutionality of the third-party records processes under section 278 of the Criminal Code was upheld in R v Mills.[16]

The 2018 Criminal Code reforms sought to address this gap in the sexual assault legislative scheme and create processes governing the admissibility of complainant private records held by the accused. The twin Criminal Code provisions of sections 278.92 and 278.94 create a two-stage process for the introduction of records in sexual assault trials, with a focus on increasing the participation of sexual assault complainants. At the first stage, per section 278.93(2), the accused must submit an application to the judge that “set[s] out detailed particulars of the evidence that the accused seeks to adduce and the relevance of that evidence to an issue at trial”.[17] Subsequently, the judge will review the application considering the threshold tests under sections 278.92(2)(a) and (b) and depending on the type of evidence will also consider the factors laid out in sections 276(3) or 278.92(3) of the Criminal Code. If the judge determines that the application meets the threshold evidence requirements, they will proceed to stage two.[18]

At the second stage, the judge will hold a hearing to determine if the evidence should be admitted under the test set out in section 278.92(2) of the Criminal Code. The section creates differing admissibility tests for section 276 evidence and private records evidence. First, as already discussed, section 276 evidence applications must meet the conditions under section 276(2) and judges must consider the factors laid out in section 276(3).[19] Second, private records applications undergo the admissibility test laid out in section 278.92(2)(b).[20] This provision requires that the evidence meets two conditions: (1) the evidence is relevant to an issue at trial, and (2) the evidence has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.[21] These two conditions must be examined with consideration of the factors listed in section 278.92(3).[22] At the second stage of the evidence admissibility process, the Criminal Code provisions permit the complainant to appear at the hearing and make submissions with assistance of counsel. The complainant’s participation does not extend to the trial and is limited to a victim’s impact statement at sentencing.[23]

The Constitutionality of the Complainant Records Admissibility Processes

Shortly following the passing of the 2018 Criminal Code amendments, their constitutionality was challenged. Two individuals charged with sexual assault (J.J. and Shane Reddick) argued that sections 278.92 and 278.84 of the Criminal Code violated their Charter rights, including the right to silence and the privilege against self-incrimination under sections 7 and 11(c); their right to a fair trial under sections 7 and 11(d); and their right to make a full answer and defence under sections 7 and 11(d).[24] The SCC majority decision, written by Chief Justice Wagner and Justice Moldaver, held that the 2018 amendments to the Criminal Code were constitutional.

First, at the outset, the SCC dismissed the claim that the evidence admissibility process engages the right to silence and the privilege against self-incrimination under sections 7 and 11(c) of the Charter.[25] The SCC made this finding on the basis that during the evidence admissibility processes the accused is not compelled to testify.[26]

Second, the SCC rejected that the evidence admissibility provisions infringe the accused’s right to a fair trial under sections 7 and 11(d) of the Charter. To begin, the SCC affirmed that in the context of the right to a fair trial, sections 7 and 11(d) must be assessed together because they are inextricably intertwined.[27] The SCC held that fair trial rights are not infringed because the evidence admissibility procedures reaffirm the fundamental principle of evidence law that only relevant evidence is admitted. The right to a fair trial does not extend to an unlimited right to have all evidence admitted. Instead, the accused’s Charter rights are only infringed when they are not able to admit relevant evidence.[28]

Third, the SCC held that the sexual assault complainant’s participation in the second stage of the evidence admissibility process does not infringe the rights of the accused to make a full answer and defence under sections 7 and 11(d) of the Charter. The SCC determined that the complainant’s participation does not impact the accused’s disclosure rights or undermine prosecutorial independence.[29] Further, the SCC rejected that the accused’s right to make a full answer and defence is undermined by the complainant learning of the evidence to be admitted before the trial. The SCC held that this right does not include having the complainant’s initial emotional reaction to introduced evidence occur during the trial.

Due to the determination that the evidence admissibility procedures for sexual assault do not infringe any Charter rights, the SCC declined to conduct a section 1 analysis to determine if a Charter infringement is demonstrably justified.[30]  

Looking Ahead

The Criminal Code provisions related to sexual assault have undergone extensive reform and litigation over the past forty years. The creation of admissibility procedures for evidence in sexual assault trials and the inclusion of complainant participation options is the most recent legislative reform enacted by Parliament to remove barriers to reporting sexual assault. The SCC in J.J. upheld the constitutionality of the sexual assault evidence admissibility procedures.[31] In doing so, the SCC recognised continued barriers to reporting for individuals who experience sexual assault and held that “more needs to be done”.[32]

Caitlin Salvino is a JD Candidate at the Faculty of Law and is the Asper Centre’s 2022 summer Research Assistant.

 

[1] R v J.J., 2022 SCC 28 [J.J.].

[2] The Criminal Code of Canada classifies sexual assault into three different levels: Level 1: (s. 271 – Sexual Assault) Any form of sexual activity forced on another person (i.e., sexual activity without consent), or non-consensual bodily contact for a sexual purpose (e.g., kissing, touching, oral sex, vaginal or anal intercourse). Level 1 sexual assault involves minor physical injury or no injury to the victim. Conviction for a level 1 sexual assault is punishable by up to 10 years in prison. Level 2: (s. 272 – Sexual Assault with a weapon, threats to a third party or causing bodily harm) A sexual assault in which the perpetrator uses or threatens to use a weapon, threatens the victim’s friends or family members, causes bodily harm to the victim, or commits the assault with another person (multiple assailants). Conviction for a level 2 sexual assault is punishable by up to 14 years in prison. Level 3: (s. 273 – Aggravated sexual assault) A sexual assault that wounds, maims, or disfigures the victim, or endangers the victim’s life. Conviction for a level 3 sexual assault is punishable by up to life in prison. See Criminal Code, RSC 1985, c. C-46, ss 271-273; Martha Shaffer, “The impact of the Charter on the law of sexual assault: plus ca change, plus c’est la meme chose” (2012) 57 SCLR 354.

[3] Shaffer, supra note 2 at 337-338.

[4] R v Seaboyer, [1991] 2 SCR 577, 83 DLR (4th) 193.

[5] Ibid at 582-585.

[6] R v Darrach, 2000 SCC 46.

[7] Criminal Code, supra note 2, s 276 (1).

[8] Ibid at s 276 (2).

[9] Ibid at s 276 (3)

[10] Department of Justice Canada, “Sexual Assault – JustFacts”, (31 January 2017), online: https://www.justice.gc.ca/eng/rp-pr/jr/jf-pf/2017/may02.html.

[11] Statistics Canada, “From arrest to conviction: Court case outcomes of police-reported sexual assaults in Canada, 2009 to 2014”, (26 October 2017), online: https://www150.statcan.gc.ca/n1/pub/85-002-x/2017001/article/54870-eng.htm.

[12] An Act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another Act, SC 2018, c 29.

[13] J.J., supra note 1 at para 4.

[14] Criminal Code, supra note 2, s 278.3(2) – 278.3(5)

[15] Karen Busby, “Discriminatory uses of personal records in sexual violence cases” (1996) 9:1 CJWL 148 at 149.

[16] R v Mills, [1999] 3 SCR 668, 180 DLR (4th) 1.

[17] Criminal Code, supra note 2, s 278.93 (2).

[18] J.J., supra note 1 at para 28-29.

[19] Ibid at para 31.

[20] Ibid at para 32.

[21] Criminal Code, supra note 2, s 278.92(2)(b)

[22] The factors to consider include society’s interest in encouraging the reporting of sexual assault offences and the potential prejudice to the complainant’s personal dignity and right of privacy. For an exhaustive list, see ibid at s 278.92(3).

[23] J.J., supra note 1 at para 33.

[24] Ibid at para 112.

[25] Ibid at paras 148-150.

[26] Ibid.

[27] Ibid at para 114.

[28] Ibid at paras 125 and 129.

[29] Ibid at paras 151 and 176.

[30] Ibid at para 191.

[31] Ibid.

[32] Ibid at para 2.

A Clear and Decisive Supreme Court Ruling on Public Interest Standing: Attorney General of British Columbia v. Council of Canadians with Disabilities

by Caitlin Salvino

On June 23rd, 2022 the Supreme Court of Canada (SCC) released its decision in Attorney General of British Columbia v. Council of Canadians with Disabilities.[1] This ruling reaffirms the important role of public interest standing in systemic litigation and will have long lasting impacts on future Charter litigation.

Public Interest Standing

All cases heard by the courts require parties to have standing.[2] In most cases parties have private interest standing through a direct legal interest in the case.[3] In some cases, there are no parties with private interest standing and a party may apply for public interest standing to pursue the litigation. The courts have long recognised that there must be limitations on public interest standing to avoid over-burdening the courts, deter “busybody” litigants, and maintain the appropriate role of the courts within Canada’s constitutional democracy.[4] The courts have thus developed a test to determine whether public interest standing should be granted.[5]

The leading case on public interest standing is Canada v Downtown Eastside Sex Workers United Against Violence Society.[6] In Downtown Eastside Sex Workers, the SCC established that the court will consider three factors in assessing public interest standing: (1) if there is a serious and justiciable issue;[7] (2) if the claimant has a genuine interest in the proceedings ;[8] and (3) if the litigation is a reasonable and effective means to bring forward the challenge.[9] Furthermore, the SCC stipulated that these three public interest standing factors should not be assessed as a checklist. Instead, the factors should be assessed cumulatively through a purposeful and flexible interpretive approach.[10]

Council of Canadians with Disabilities and the Jurisprudence on Public Interest Standing

Despite the criteria laid out in Downtown Eastside Sex Workers, less than ten years later the SCC granted leave  in Council of Canadians with Disabilities.[11]  The Council of Canadians with Disabilities (CCD) had sought public interest standing to challenge the constitutionality of the British Columbia’s Health Care (Consent) Act, Mental Health Act and Representation Agreement Act. This combined legislative scheme permits the administration of psychiatric medical treatment to patients living with disabilities related to mental health and mental illness without their consent. Unlike all other forms of medical treatment, when a patient is being involuntarily held in a mental health facility, psychiatric treatment can be administered without the consent of the patient or the patient’s identified substitute decision-maker.[12] The CCD argued that this legislative scheme violated sections 7 and 15 of the Charter in a way that could not be justified under section 1.[13]

Initially, the constitutional challenge was brought by individuals with private interest standing who had undergone non-consensual psychiatric treatment. The CCD was supporting this litigation as a co-plaintiff. However, the individual plaintiffs subsequently withdrew from the proceedings after the Attorney General of British Columbia requested their medical records.[14] The CCD then pursued the Charter claims independently by seeking public interest standing, which the Attorney General of British Columbia challenged. At the court of first instance, the Attorney General’s summary trial motion was granted and the CCD was denied public interest standing.[15] On appeal, the British Columbia Court of Appeal granted the CCD public interest standing.[16] The case was then granted leave to appeal to the SCC.[17]

In Council of Canadians with Disabilities, the SCC unanimously reaffirmed the public interest standing analysis established in Downtown Eastside Sex Workers. This decision is significant because it addresses interpretive gaps that remained from Downtown Eastside Sex Workers and sends a strong message affirming the important role of public interest standing parties within Canada’s constitutional democracy.

First, the SCC in Council of Canadians with Disabilities provided additional guidance on the public interest standing analysis. The court rejected the CCD’s argument, and the Court of Appeal’s finding, that the principles of legality and access to justice should merit particular weight in the public interest standing analysis.[18] Instead, the SCC held that the principles of legality and access to justice permeate all three factors that a court must consider when deciding whether to grant public interest standing.[19] The principle of legality is linked to the rule of law by requiring that there are reasonable ways for individuals to challenge the legality of State action.[20] The principle of access to justice is symbiotically linked to public interest standing by providing an avenue to challenge the legality of State action and uphold the rule of law.[21]  The SCC noted that the dual principles of legality and access to justice are most relevant to the consideration of the third factor in the public interest standing  analysis[22] but cautioned against courts interpreting these principles as “hard and fast requirements or free-standing, independently operating tests”.[23]

Second, the SCC clarified the requirement of a sufficient factual setting for cases where parties are granted public interest standing. The SCC established that there is no strict requirement that public interest litigation always be in partnership with a directly affected co-plaintiff.[24] Such an interpretation would undermine the principles of legality and access to justice by creating barriers to litigation for marginalised populations. Instead, the SCC held that parties seeking public interest standing must “show that a sufficiently concrete and well-developed factual setting will be forthcoming at trial”.[25] The SCC reasoned that at the pre-liminary stages it is unnecessary for the party seeking public interest to provide trial-level evidence. However, the courts retain the ability to reconsider standing at any point of the proceeding if there is not a sufficient evidentiary record to conduct the trial.[26]

Finally, the SCC decision in Council of Canadians with Disabilities is significant because it represents a vindication of the public interest work of  CCD, and uplifts the importance of public interest standing in systemic litigation. The CCD first filed the original notice of civil claim in 2016 and had been litigating the preliminary issue of standing for six years.[27] Rather than referring the case back to the British Columbia Supreme Court for re-consideration, the SCC granted the CCD public interest standing because “it is in the interests of justice”.[28]

This decision also sends a message to governments who seek to shut down public interest litigation on behalf of vulnerable populations at preliminary stages. The SCC makes clear that the threshold to establish public interest standing should not be onerous and should only be denied in limited circumstances. This message is in part demonstrated through the SCC’s decision to grant special costs in favour of the CCD.[29] Special costs requires the losing party to cover the full costs of the litigation and is much higher than the standard “party costs” that usually only cover 30% to 40% of the actual litigation costs incurred.[30] The SCC, through this decision and the awarding of special costs, sends a cautionary message to government’s considering challenging public interest litigation based on standing.

The David Asper Centre Intervention in Council of Canadians with Disabilities

The David Asper Centre for Constitutional Rights participated as an intervener in Council of Canadians with Disabilities. Through their intervention factum, the Asper Centre focused on the role of public interest standing as a mechanism in litigation pursuing a remedy under section 52(1) Constitution Act, 1982. Section 52(1), also known as the Constitution’s “supremacy clause”,[31] establishes that “any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force and effect”.[32]  The Asper Centre argued that section 52(1) is a systemic remedy that does not require an individual plaintiff.[33]  In their factum, the Asper Centre also highlighted challenges associated with class actions, which could become one of the only viable ways for parties to pursue litigation for Charter rights violations if public interest standing were to be restricted.[34]

In Council of Canadians with Disabilities, without referencing the Asper Centre, the SCC adopted its stance on the challenges associated with class actions as an alternative means to pursue litigation.[35] Following the release of the decision in Council of Canadians with Disabilities, the Asper Centre Executive Director Cheryl Milne shared that the SCC “listened to the submissions of the CCD and the Asper Centre, that relying upon class action litigation as a more effective means of bringing this claim forward is questionable. [The SCC] note[s] that class actions are ‘rife with unknowns,’ including the fact that their primary focus is on damages and not always the systemic issue raised by a public interest litigant”.[36]

Looking Ahead

The unanimous SCC decision in Council of Canadians with Disabilities reaffirms and fills the gaps in the existing jurisprudence on public interest standing. The SCC released a clear and decisive ruling on the importance of the parties with public interest standing pursuing systemic litigation on behalf of vulnerable populations. Moving forward, the decision Council of Canadians with Disabilities is likely to increase access to justice for vulnerable populations and ensure that potential State Charter infringements are accountable under the rule of law.

The Asper Centre intervention factum in Council of Canadians with Disabilities can be read here

Caitlin Salvino is a JD Candidate at the Faculty of Law and is the Asper Centre’s 2022 summer Research Assistant.

 

[1] British Columbia (Attorney General) v Council of Canadians with Disabilities, 2022 SCC 27 [Council of Canadians with Disabilities].

[2] Canada (Attorney General) v Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45, at para 1 [Downtown Eastside Sex Workers].

[3] Mia Reimers, “Constitutional Challenges: Public Interest Standing”, (26 September 2014), online: Centre for Constitutional Studies <https://www.constitutionalstudies.ca/2014/09/constitutional-challenges-public-interest-standing/>.

[4] Downtown Eastside Sex Workers, supra note 2 at para 1.

[5] Ibid at para 2.

[6] Downtown Eastside Sex Workers, supra note 2.

[7] Ibid at paras 39–42.

[8] Ibid at para 43.

[9] The third stage of the public interest standing analysis adjusted the precedent from Minister of Justice of Canada v. Borowski. In Borowski, the SCC held that the third public interest standing factor required that the party seeking public interest standing show that: “there is no other reasonable and effective manner in which the issue may be brought before the Court”. The SCC in Downtown Eastside Sex Workers altered the rigid Borowski third factor from requiring that litigation is the most effective means of bringing forward the case to requiring that the litigation is an effective means of bringing forward the case. See Minister of Justice of Canada v Borowski, [1981] 2 SCR 575, 130 DLR (3d) 588 and  Downtown Eastside Sex Workers, supra note 2 at paras 19–20, 44.

[10] The SCC affirmed the purposeful and flexible interpretive approach to public interest standing that was established in Canadian Council of Churches v. Canada (Minister of Employment and Immigration). See Downtown Eastside Sex Workers, supra note 2 at para 23 citing Canadian Council of Churches v Canada (Minister of Employment and Immigration), [1992] 1 SCR 236, 88 DLR (4th) 193, at 252.

[11] Council of Canadians with Disabilities, supra note 1.

[12] Ibid at para 8.

[13] Ibid.

[14] Ibid at paras 9–10. Also see Council of Canadians with Disabilities v British Columbia (Attorney General), 2020 BCCA 241, at para 21 [Council of Canadians with Disabilities BCCA].

[15] MacLaren v British Columbia (Attorney General), 2018 BCSC 1753.

[16] Council of Canadians with Disabilities BCCA, supra note 14.

[17] Attorney General of British Columbia v. Council of Canadians with Disabilities, 2022 SCC 27, leave to appeal to SCC granted, 2021 CanLII 24821.

[18] Council of Canadians with Disabilities, supra note 1 at para 31.

[19] Ibid at para 56.

[20] Ibid at para 33.

[21] Ibid at para 34.

[22] The third public interest standing factor is whether the litigation is a reasonable and effective means to bring forward the challenge. See Downtown Eastside Sex Workers, supra note 2 at para 44. Also see Council of Canadians with Disabilities, supra note 1 at para 58.

[23] Council of Canadians with Disabilities, supra note 1 at para 69.

[24] Ibid at paras 63–67.

[25] Ibid at para 71.

[26] Ibid at paras 72, 74–75.

[27] Ibid at para 122.

[28] Ibid at para 78.

[29] Ibid at paras 119–123.

[30] Peter J Roberts, “The Thorny issue of Costs and Special Costs”, (3 November 2014), online: Lawson Lundell LLP <https://www.lawsonlundell.com/Commercial-Litigation-and-Dispute-Resolution-Blog/the-thorny-issue-of-costs-and-special-costs>.

[31] Peter Hogg, Constitutional Law of Canada, student ed (Scarborough: Carswell, 2006) at 850.

[32] Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 at s 52(1).

[33] Attorney General of British Columbia v. Council of Canadians with Disabilities, 2022 SCC 27 (Factum of Intervener David Asper Centre for Constitutional Rights, at para 6).

[34] Ibid at paras 13-15.

[35] Council of Canadians with Disabilities, supra note 1 at paras 113–116.

[36] Quote provided directly from Executive Director of the Asper Centre Cheryl Milne.

The Curious Case of Section 15 and Courts of First Instance: The Joint Asper Centre, LEAF and West Coast LEAF Intervention in Canadian Council for Refugees, et al. v. Minister of Citizenship and Immigration, et al 

by Caitlin Salvino

In the Fall of 2022, the Supreme Court of Canada (SCC) will hear the case Canadian Council for Refugees, et al. v. Minister of Citizenship and Immigration, et al.[1] The David Asper Centre for Constitutional Rights, West Coast Legal Education and Action Fund (West Coast LEAF), and Women’s Legal Education and Action Fund (LEAF) have been jointly granted intervener status.[2] Their joint intervention focuses on the treatment of claims under section 15 of the Canadian Charter of Rights and Freedoms (Charter) by courts of first instance.

The Safe Third Country Agreement with the United States

In Canada, an individual can apply for refugee status at an official Port of Entry or at an Immigration, Refugees and Citizenship Canada office. To qualify for refugee status the claimant must either: (1) have a well-founded fear of persecution or (2) are at risk of torture, or cruel or unusual punishment in their home countries.[3]

In Canada, the federal government has restricted Port of Entry asylum claims through the Safe Third Country Agreement (STCA) with the United States (US). The STCA bars refugee claimants that arrive at the Canadian border from the US, unless they meet a narrow category of exceptions.[4] The STCA expects refugees to make an asylum claim in the first safe country they enter, in this case the US. The Canadian government maintains that countries will only be recognised as a “safe third country” if they respect human rights and offer a high degree of protection to refugee claimants.[5]  The Immigration and Refugee Protection Act (IRPA) requires the Government of Canada to continuously review the STCA with the US to ensure that it meets  four conditions listed in the IRPA.[6] The STCA with the US has been criticised by refugee and human rights organisations, based on increasing evidence of mistreatment of refugee claimants in the US.[7]

Challenging the Constitutionality of the Safe Third Country Agreement

In 2017, the STCA was jointly challenged by refugee claimants barred under the STCA, together with the Canadian Council of Refugees, Amnesty International and the Canadian Council of Churches. In addition to arguing that provisions of the STCA were ultra vires, the Applicants argued that the combined effect of sections 101(1)(e) of IRPA and 159.3 of the Immigration and Refugee Protection Regulations unjustifiably infringed sections 7 and 15 of the Charter.[8]

Under section 7, the Applicants argued that many asylum seekers rejected under the STCA are automatically imprisoned upon their return to the US as a form of punishment depriving the claimants of their section 7 rights to liberty and security of the person.[9] With respect to section 15, the Applicants argued that the STCA with the US has a disproportionate impact on female-identifying refugee claimants. This claim was supported by evidence of a narrower interpretation of gender persecution asylum claims in the US[10] and a one-year bar on all refugee claims in the US.[11] The one-year ban on refugee claims requires an individual to seek asylum within one year of experiencing persecution – a restriction that poses a barrier for women and 2SLGBTQQIA[12] individuals who experience gender persecution that involve unique forms of trauma that often result in delayed reporting.[13]

The Applicants succeeded at the Federal Court in 2020. The Federal Court declared that the provisions[14] enacting the STCA unjustifiably infringed section 7 of the Charter.[15] The Federal Court held that the STCA was intra vires federal authority and declined to address the arguments put forward on section 15 of the Charter.[16] As a remedy for the section 7 violation, the impugned provisions were declared to have no force or effect and the declaration of invalidity was suspended for six months.[17]

The Federal Court ruling was overturned by the Federal Court of Appeal in 2021.[18] The Federal Court of Appeal agreed with the lower court that the STCA is intra vires the federal authority[19] but disagreed with the findings with respect to section 7 of the Charter.[20] The Federal Court of Appeal, held that the two impugned provisions, which recognise the US as a safe third country, do not cause the harms being challenged under the Charter.[21] Instead, the Federal Court of Appeal held that section 102(3) of IRPA, which includes the criteria for safe third country designation, should have been challenged under judicial review in relation to the alleged harms under the Charter.[22] Regardless of the appropriate approach, the Federal Court of Appeal disagreed with the lower court’s factual findings on section 7, which the Federal Court of Appeal deemed insufficient and unrepresentative of the experiences of refugee claimants on the whole.[23] On section 15, the Federal Court of Appeal agreed with the Federal Court’s approach to judicial restraint and also declined to address the claim based on equality rights.[24]

Joint Asper Centre, LEAF and West Coast LEAF Intervention

In Canada, there is a growing recognition of the relevance of gender-related persecution in refugee asylum claims. Although it is not yet recognised as an independent ground to establish fear of persecution, if claimed, gender-related persecution must be assessed by the Refugee Division panel considering the claim.[25] The assessment of gender-related persecution claims requires an examination of the link between gender persecution and the enumerated grounds in the Refugee Convention.[26]

The Applicants argued that the STCA violated both sections 7 and 15 of the Charter. Under section 15, the Applicants argued that the STCA disproportionately impacts female-identifying refugees[27] and provide an extensive evidentiary record of gender discrimination under the STCA.  After determining that provisions of the STCA unjustifiably infringed section 7 of the Charter the Federal Court declined to address the section 15 claim.[28] In doing so, the Federal Court made no factual findings on the evidence of gender-based discrimination within the STCA legal regime. The Federal Court’s disregard of the section 15 claim was upheld by the Federal Court of Appeal who determined that lower courts are not required to consider all Charter claims because section 15 “does not enjoy ‘superior status in a hierarchy of rights’”.[29]

The joint Asper Centre, West Coast LEAF and LEAF intervention for the upcoming SCC hearing focuses on the Federal Court’s decision to not consider and make factual findings on all Charter issues raised that are supported by an extensive evidentiary record. The joint interveners argue that the Federal Court should have decided the section 15 claim and the refusal to consider the section 15 claim inappropriately applied the doctrine of judicial restraint.[30]

The joint interveners support their position with three arguments. First, a purposive interpretation of the Charter as a whole requires a ruling on all Charter claims raised with an extensive evidentiary record. The Federal Court’s decision to decline considering the section 15 issue altered the subsequent justificatory analysis of section 1 and the appropriate remedy.[31] Second, the lower court erred in its application of the principle of judicial restraint, which does not permit a court to favour one Charter claim over another.[32] This flawed interpretation of the principle of judicial restraint has the practical implication of creating a hierarchy of Charter rights, within which section 15 is relegated to the bottom.[33] Third, the Federal Court’s failure to address the section 15 claim minimises the issue of gender-based violence and historic disadvantage experienced by women and 2SLGBTQQIA individuals.[34]

Looking Ahead

The SCC hearings in Canadian Council for Refugees, et al. v. Minister of Citizenship and Immigration, et al. will be heard in Fall 2022.[35] The joint intervention by the Asper Centre, West Coast LEAF and LEAF argues that this case represents a unique opportunity for Canada’s highest court to send a directive to lower courts regarding the treatment of court cases with multiple Charter claims. This guidance on the treatment of multiple Charter claims in a single case is particularly relevant to equality rights under section 15 – a Charter provision that has been historically dismissed[36] and has experienced uncertainty based on its “continual reinvention” in the jurisprudence.[37]

The Asper Centre, West Coast LEAF and LEAF filed their joint intervention factum on June 15, 2022 and it can be read here

Caitlin Salvino is a JD Candidate at the Faculty of Law and is the Asper Centre’s 2022 summer Research Assistant.

[1] The date of the SCC hearings for Canadian Council for Refugees, et al. v. Minister of Citizenship and Immigration, et al. is October 3, 2022.

[2] Canada (Citizenship and Immigration) v Canadian Council for Refugees, 2021 FCA 72, leave to appeal to SCC granted, 2021 CanLII 129759. 

[3] Immigration, Refugees and Citizenship Canada, “How Canada’s refugee system works”, (27 November 2019), online: Government of Canada https://www.canada.ca/en/immigration-refugees-citizenship/services/refugees/canada-role.html.

[4] Immigration, Refugees and Citizenship Canada, “Canada-U.S. Safe Third Country Agreement”, (23 July 2020), online: Government of Canada https://www.canada.ca/en/immigration-refugees-citizenship/corporate/mandate/policies-operational-instructions-agreements/agreements/safe-third-country-agreement.html.

[5] Overview of the Canada–United States Safe Third Country Agreement Background Paper, 4, by Madalina Chesoi & Robert Mason, 4 2020-70-E (Library of Parliament, 2021) at 1–2.

[6] The four conditions that are evaluated in each review are: (1) if they are a party to the Refugee Convention and Convention Against Torture; (2) its policies and practices are in line with those two international treaties; (3) its human rights record and (4) whether they are party to an STCA agreement with Canada. See Immigration, Refugees and Citizenship Canada, supra note 3.

[7] “US as a Safe Third Country Infographic”, (June 2017), online: Canadian Council for Refugees <https://ccrweb.ca/en/us-safe-third-country-infographic>; Contesting the Designation of the US as a Safe Third Country, by Amnesty International & Canadian Council for Refugees (2017); “Refugees entering from US and Safe Third Country: FAQ”, (February 2017), online: Canadian Council for Refugees https://ccrweb.ca/en/refugees-entering-us-and-safe-third-country-faq.

[8] Canadian Council for Refugees v Canada (Immigration, Refugees and Citizenship), 2020 FC 770, at paras 82–83 [Canadian Council for Refugees FC].

[9] Ibid.

[10] Ibid at para 151.

[11]  Ibid at para 153.

[12] The acronym 2SLGBTQQIA refers to Two-Spirit, lesbian, gay, bisexual, transgender, queer, questioning, intersex and asexual.

[13]  Canadian Council for Refugees FC, supra note 8 at para 153.

[14] Immigration and Refugee Protection Act, SC 2001, c 27, s 101(1)(e), 159.3.

[15] Canadian Council for Refugees FC, supra note 8 at para 162.

[16] Ibid at paras 151–154.

[17] Ibid at para 163.

[18] Canada (Citizenship and Immigration) v Canadian Council for Refugees, 2021 FCA 72, at para 179 [Canadian Council for Refugees FCA 2021].

[19] Ibid at para 179.

[20] Ibid at paras 132–168.

[21] Ibid at paras 46–47.

[22] Ibid at paras 92–93.

[23] Ibid at paras 132–168.

[24] Ibid at paras 169–174.

[25] Immigration and Refugee Board of Canada, Chairperson Guidelines 4: Women Refugee Claimants Fearing Gender-Related Persecution, online: https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir04.aspx.

[26] The enumerated grounds under the Refugee Convention are having a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. See UN General Assembly, Convention Relating to the Status of Refugees, 28 July 1951, United Nations, Treaty Series, vol. 189, p. 137, 1951.

[27] Canadian Council for Refugees FC, supra note 8 at para 151.

[28]  Ibid at para 154.

[29] Canadian Council for Refugees FCA 2021, supra note 19 at para 172 citing Gosselin, supra note 25 at para 26.

[30] Canada (Citizenship and Immigration) v Canadian Council for Refugees, 2021 FCA 72, leave to appeal to SCC granted, 2021 CanLII 129759 (Factum of Joint Interveners Asper Centre, West Coast LEAF and LEAF, at para 3).

[31] Ibid at para 4.

[32] Ibid at para 18.

[33] Ibid at para 4.

[34] Ibid at para 26.

[35] The date of the SCC hearings for Canadian Council for Refugees, et al. v. Minister of Citizenship and Immigration, et al.is October 3, 2022.

[36] Bruce Ryder & Taufiq Hashmani, “Managing Charter Equality Rights: The Supreme Court of Canada’s Disposition of Leave to Appeal Applications in Section 15 Cases, 1989-2010” (2010) 51 SCLR 505; Jonnette Watson Hamilton & Jennifer Koshan, “Adverse Impact: The Supreme Court’s Approach to Adverse Effects Discrimination under Section 15 of the Charter” (2014) 19 Rev Const Stud 191.

[37] Jennifer Koshan & Jonnette Watson Hamilton, “The Continual Reinvention of Section 15 of the Charter” (2013) 64 UNBLJ 19.

R v Bissonnette: The Supreme Court’s Ruling on the Constitutionality of Consecutive First Degree Murder Sentences

by Caitlin Salvino

In R v Bissonnette, released on May 27, 2022, the Supreme Court of Canada (SCC) ruled on the constitutionality of consecutive first degree murder sentences.[1] The SCC held that consecutive first degree murder sentences, authorised under section 745.51 of the Criminal Code (the Code) violates section 12 of the Canadian Charter of Rights and Freedoms (Charter) and cannot be “demonstrably justified” in a free and democratic society.

The SCC ruling in Bissonnette garnered headlines across Canada[2] and a strong reaction by some Canadian political leaders[3]. This piece will examine the decision and the reasoning that influenced this unanimous SCC decision.

Legislative History

After the death penalty was abolished in Canada, Parliament created mandatory minimum life sentences for the two categories of first degree and second degree murder. For second degree murder the parole ineligibility period varies between 10 and 15 years. For first degree murder, the parole ineligibility is automatically 25 years, regardless of the number of victims.[4] In 2011, Parliament introduced amendments to the Code under section 745.51 that permitted individuals convicted of multiple counts of murder to have each murder sentence applied consecutively.[5] Thus, a judge may determine that an individual convicted of multiple murders should be sentenced to mandatory periods of ineligibility for parole served consecutively.[6]

Factual Background and Procedural History

On January 29, 2017, the respondent (Alexandre Bissonnette) entered the Great Mosque of Québec with a semi-automatic rifle and opened fire on a crowd of 46 worshippers. Bissonnette killed 6 people and seriously injured 5 others. He pleaded guilty to 12 charges, including 6 counts of first degree murder.[7]

At sentencing the Crown requested that section 745.51 of the Code be applied and the six mandatory periods of ineligibility for parole be served consecutively. If applied consecutively, the sentences would total 150 years before Bissonnette could be eligible for parole. Bissonnette argued that applying section 745.51 of the Code infringes sections 7 and 12 of the Charter.

The Quebec Superior Court held that section 745.51 of the Code violates sections 7 and 12 of the Charter and cannot be “demonstrably justified” under section 1 of the Charter.[8] After declaring the provision unconstitutional, the judge then applied the remedy of reading in and sentenced Bissonnette to 40 years in prison before applying for parole.[9]

The Quebec Court of Appeal (QCCA) unanimously held that section 745.51 of the Code violates sections 7 and 12 of the Charter and cannot be “demonstrably justified” under section 1 of the Charter.[10] The QCCA also held that the trial judge erred in sentencing Bissonnette to 40 years in prison without parole eligibility. The identified error in law was that the sentencing alteration had no basis in law.[11]

Interpreting Section 12 of the Charter: Cruel and Unusual Punishments

In an unanimous decision the SCC ruled that section 745.51 of the Code violates section 12 of the Charter and cannot be saved under section 1. Based on this finding the SCC did not consider if section 7 of the Charter was engaged.[12]

Section 12 of the Charter states that “everyone has the right not to be subjected to any cruel and unusual treatment or punishment”.[13] Notably, this right applies to everyone regardless of citizenship status but is limited to humans.[14] Section 12 is engaged only when there is either a punishment or a treatment. In Bissonnette, the SCC determined that the serving of consecutive sentences without the possibility of parole qualified as a punishment to engage section 12.

The SCC then clarified the application of section 12 before applying the principles to the case. Chief Justice Wagner, on behalf of the unanimous Court, affirmed that section 12 has two prongs that must be distinguished.[15] First, section 12 safeguards against a punishment that “is so excessive as to be incompatible with human dignity”.[16] This category is comprised of punishment that not only is excessive but is grossly disproportionate compared to what would have been appropriate.[17] Recent jurisprudence on mandatory minimum sentences have found them to be grossly disproportionate for imposing punishment without consideration of the offenders specific circumstances.[18] Second, section 12 safeguards against punishment that “is intrinsically incompatible with human dignity”.[19] This narrower category comprised of punishments that are by nature incompatible with human dignity will always be considered grossly disproportionate.[20] Other punishments recognised in this evolving category include corporal punishment, lobotomisation of certain dangerous offenders and castration of sexual offenders.[21]

The SCC held that a punishment will be held to infringe section 12 if either of these two prongs is engaged. While pursuing a section 12 analysis, the SCC determined that courts must first analyse the nature of the punishment before considering gross disproportionality.[22]

Application to Bissonnette Factual Matrix

After considering the facts the SCC held that the application of consecutive first degree murder sentences without the possibility of parole was grossly disproportionate because they “are degrading in nature and thus incompatible with human dignity”. This determination was made based on the finding that such consecutive sentences deny offenders any possibility of reform and societal reintegration.[23] Based on the lower life expectancy of individuals in prison, the SCC held that any consecutive sentence of 50 years or more without parole was akin to a life sentence without parole.[24] The SCC also drew on comparative[25] and international law[26] to guide their interpretation of the Charter rights.

The SCC concluded their section 12 analysis by determining that the discretionary nature of sentences and the royal prerogative authority does not permit imposing a punishment contrary to section 12 of the Charter.

After finding that consecutive first degree murder sentences without parole eligibility infringes section 12, the SCC briefly analysed whether section 745.51 of the Code could be saved under section 1. Section 1 of the Charter, also known as the reasonable limits clause, allows the government to reasonably limit a Charter right if the limitation “can be demonstrably justified in a free and democratic society”.[27] The SCC drew on its earlier decision in R v Nur to find that “it is hard to imagine how a punishment that is cruel and unusual by nature could be justified in a free and democratic society”.[28]

At the remedy stage, the SCC held that the trial court erred in its interpretation of its authority under the remedy of reading in.[29] Instead, the SCC applied section 52(1) of the Constitution Act, 1982 to declare section 745.51 of the Code invalid for a breach of section 12 of the Charter that could not be saved under section 1.[30] The declaration of invalidity would come into effect immediately.[31]

Looking Ahead

Bissonnette is the second unanimous SCC decision rendered on Charter rights within criminal law proceedings in May 2022. In R v Sullivan, the SCC held that the barring of the defence of self-induced intoxication for crimes of general intent under section 33 of the Code unjustifiably infringed sections 7 and 11(d) of the Charter.[32] These two unanimous decisions establish clear safeguards for the constitutional rights of individuals accused of an offence or undergoing sentencing.

Immediately following the release of the Bissonnette decision, two federal Conservative Party of Canada leadership candidates expressed their intent to invoke the notwithstanding clause to temporarily set aside the effects of the decision.[33] The notwithstanding clause entrenched under section 33 of the Charter, is a legislative tool that permits a federal, provincial, or territorial legislature to declare an Act or provision of an Act to operate notwithstanding sections 2 and 7 to 15 of the Charter. Any notwithstanding clause declaration must be passed by a legislative simple majority and expires after five years.[34] If the notwithstanding clause were to be invoked to temporarily suspend section 12 of the Charter, it would be the first time ever used by the federal Parliament.[35]

Caitlin Salvino is a JD Candidate at the Faculty of Law and is the Asper Centre’s 2022 summer Research Assistant.

[1] R v Bissonnette, 2022 SCC 23 [Bissonnette].

[2] Isabelle Porter, “Alexandre Bissonnette pourra chercher une libération conditionnelle après 25 ans”, Le Devoir (28 May 2022), online: <https://www.ledevoir.com/societe/justice/716079/decision-cour-supreme-alexandre-bissonnette-mosquee-de-quebec>; Joe Lofaro, “Supreme Court rules Quebec City mosque killer to be eligible for parole in 25 years”, CTV Montreal (27 May 2022), online: <https://montreal.ctvnews.ca/supreme-court-rules-quebec-city-mosque-killer-to-be-eligible-for-parole-in-25-years-1.5921148>; Antoni Nerestant, “Quebec City mosque shooter must get chance at parole after 25 years, Supreme Court rules”, CBC News Montreal (27 May 2022), online: <https://www.cbc.ca/news/canada/montreal/supreme-court-canada-bissonnette-mosque-shooting-sentence-parole-1.6466847>; Sean Fine, “Supreme Court to rule on constitutionality of life without parole in case of Quebec City mosque shooter”, The Globe and Mail (25 May 2022), online: <https://www.theglobeandmail.com/canada/article-supreme-court-quebec-city-mosque-shooter/>.

[3] Federal Conservative Party of Canada leadership candidates Pierre Poilievre and Patrick Brown both released statements following the SCC ruling pledging to invoke the notwithstanding clause to temporarily suspend the decision if elected. The notwithstanding clause under section 33 of the Charter, permits a federal, provincial or territorial legislature to suspend sections 2 and 7 to 15 of the Charter for a renewable period of 5 years. See Peter Zimonjic, “Government disagrees with top court’s decision on gunman’s parole but will respect it: Lametti”, CBC News (27 May 2022), online: <https://www.cbc.ca/news/politics/lametti-top-court-parole-decision-1.6468914>; Canadian Charter of Rights and Freedoms, s 8, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (UK), c 11 (Canadian Charter of Rights and Freedoms), 1982, s 33.

[4] Bissonnette, supra note 1 at para 31.

[5] Ibid at para 34.

[6] Criminal Code, RSC 1985, c C-46, s 745.51.

[7] Bissonnette, supra note 1 at paras 11–12.

[8] R c Bissonnette, 2019 QCCS 354.

[9] Ibid.

[10] Bissonnette c R, 2020 QCCA 1585.

[11] Ibid.

[12] Bissonnette, supra note 1 at para 119.

[13] Canadian Charter of Rights and Freedoms, supra note 3, s 12.

[14] Quebec (Attorney General) v 9147-0732 Québec inc., 2020 SCC 32.

[15] Bissonnette, supra note 1 at para 59.

[16] Ibid at para 60.

[17] Ibid at para 61.

[18] Ibid at para 63 citing R v Nur, 2015 SCC 15; R v Ferguson, 2008 SCC 96; R v Lloyd, 2016 SCC 13.

[19] Bissonnette, supra note 1 at para 60.

[20] Ibid at para 64.

[21] Ibid at paras 64–65.

[22] Ibid at para 69.

[23] Ibid at para 73.

[24] Ibid at para 78.

[25] Ibid at paras 105–106.

[26] The SCC referenced the Charter of the United Nations, the International Covenant on Civil and Political Rights, the Rome Statute, and the European Convention on Human Rights. See ibid at paras 99–104.

[27] Canadian Charter of Rights and Freedoms, supra note 3, s 1.

[28] Bissonnette, supra note 1 at para 121.

[29] Ibid at para 124.

[30] Ibid at para 123.

[31] Ibid at para 125.

[32] R. v. Sullivan, 2022 SCC 19. For an analysis of Sullivan, see Kathryn Mullins. ”R v Sullivan, R v Chan and R v Brown: The Supreme Court’s Ruling on the Defence of Extreme Intoxication”. David Asper Centre for Constitutional Rights, May 2022. online: https://aspercentre.ca/r-v-sullivan-r-v-chan-and-r-v-brown-the-supreme-courts-ruling-on-the-defence-of-extreme-intoxication/.

[33] Zimonjic, supra note 3.

[34] Canadian Charter of Rights and Freedoms, supra note 3, s 33.

[35] Caitlin Salvino, “A Tool of Last Resort: A Comprehensive Account of the Notwithstanding Clause Political Uses 1982-2021” (2022) 16:1 JPPL.

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.