Keeping Up Is Hard to Do:
A Trial Judge’s Reading Blog


In R. v. Brown, 2022 SCC 18, May 13, 2022, the accused was charged with the offences of break and entry and committing the offence of aggravated assault therein and the offence of break and entry and committing the offence of mischief.  Prior to the offences occurring, the accused had consumed alcohol and “magic mushrooms”. Mr. Brown was acquitted at trial. The trial judge concluded that the accused was in a “substance intoxication delirium” that was so extreme as to be “akin to automatism”. The Alberta Court of Appeal set aside the acquittal for the offence of break and entry and committing the offence of aggravated assault and entered a conviction.

The Supreme Court indicated that the appeal a “before this Court turns on the circumstances in which persons accused of certain violent crimes can invoke self‑induced extreme intoxication to show that they lacked the general intent or voluntariness ordinarily required to justify a conviction and punishment. Similar matters are at the heart of the Crown appeals in R. v. Sullivan and R. v. Chan, for which judgments are rendered simultaneously with this case (R. v. Sullivan, 2022 SCC 19) (the “Sullivan and Chan appeals”). The Court is asked in all three cases to decide upon the constitutionality of An Act to amend the Criminal Code (self‑induced intoxication), S.C. 1995, c. 32 (“Bill C‑72”), in light of, on the one hand, the principles of fundamental justice and the presumption of innocence guaranteed to the accused by ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms and, on the other, Parliament’s aims to protect victims of intoxicated violence, in particular women and children, and hold perpetrators to account” (at  paragraph 3).

The Supreme Court held “the common law rule that drunkenness, absent clear scientific evidence of automatism, is not a defence to general intent crimes, including crimes of violence such as sexual assault” remains “intact” (at paragraph 4).  However, the Supreme Court concluded that “[t]o deprive a person of their liberty for that involuntary conduct committed in a state akin to automatism — conduct that cannot be criminal — violates the principles of fundamental justice in a system of criminal justice based on personal responsibility for one’s actions. On its face, not only does the text of s. 33.1 fail to provide a constitutionally compliant fault for the underlying offence set out in its third paragraph, it creates what amounts to a crime of absolute liability” (at paragraph 9).

Section One:

In relation to section 1 of the Charter, the Court held that “[t]he violations of the rights of the accused in respect of the principles of fundamental justice and the presumption of innocence occasioned by s. 33.1 are grave. Notwithstanding Parliament’s laudable purpose, s. 33.1 is not saved by s. 1 of the Charter. The legitimate goals of protecting the victims of these crimes and holding the extremely self-intoxicated accountable, compelling as they are, do not justify these infringements of the Charter that so fundamentally upset the tenets of the criminal law. With s. 33.1, Parliament has created a meaningful risk of conviction and punishment of an extremely intoxicated person who, while perhaps blameworthy in some respect, is innocent of the offence as charged according to the requirements of the Constitution” (at paragraph 13).


The Supreme Court concluded that section 33.1 is of “no force or effect” and restored the acquittal entered at the trial (at paragraph 14):

In the case of Mr. Brown, and on the strength of the findings of fact at trial, the conclusion may be plainly stated. Mr. Brown might well be reproached for choosing to drink alcohol and ingest magic mushrooms prior to the harm suffered by Ms. Hamnett, but that blame cannot ground criminal liability for the aggravated assault that occurred while he was in a state of delirium akin to automatism. On a constitutional standard, he did not commit the guilty act of aggravated assault voluntarily and he was incapable of forming even the minimally‑required degree of mens rea required for conviction of that offence. In my respectful view, to punish him in these circumstances, however exceptional they might be, would be intolerable in a free and democratic society. The law imposes the solemn and onerous duty on this Court to declare s. 33.1 unconstitutional (see Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486 (“Motor Vehicle Reference”), at p. 497). For the reasons that follow, I would set aside the judgment of the Court of Appeal, declare s. 33.1 to be of no force and effect pursuant to s. 52(1) of the Constitution Act, 1982, and restore Mr. Brown’s acquittal rendered at trial.

In R. v. Sullivan & Chan, 2022 SCC 19, May 19, 2022, a companion case to Brown, Mr. Sullivan “was charged with several offences, including aggravated assault and assault with a weapon. In unrelated circumstances, Thomas Chan also fell into an impaired state after he voluntarily ingested ‘magic mushrooms’ containing a drug called psilocybin. Mr. Chan attacked his father with a knife and killed him and seriously injured his father’s partner. He was tried for manslaughter and aggravated assault” (at paragraph 1).

Mr. Sullivan was convicted of the two assault charges. Mr. Chan was convicted of the offences of manslaughter and aggravated assault.

The Ontario Court of Appeal for Ontario held that section 33.1 of the Criminal Code violated ss. 7 and 11(d) of the Charter and was not saved by s. 1 of the Charter.  The Court of Appeal set aside the convictions entered against Mr. Sullivan and ordered a new trial in relation to the offences of which Mr. Chan was convicted.

The Crown appealed from both to the Supreme Court of Canada.  The appeal in Sullivan, in addition to raising the constitutionality of section 33.1, also raised an issue involving stare decisis.

The Supreme Court, relying on its decision in Brown, concluded as follows (at paragraphs 5 to 8):

 In R. v. Brown, 2022 SCC 18, released concurrently with the reasons for judgment in these appeals, I conclude that s. 33.1 violates the Charter and is of no force or effect pursuant to s. 52(1) of the Constitution Act, 1982. That conclusion is equally applicable to the Crown’s appeals in the cases at bar.

As respondent, Mr. Sullivan has raised an issue relating to the character and force of a s. 52(1) declaration of unconstitutionality issued by a superior court. He argued before us that the trial judge had been bound by a previous declaration by a superior court judge in the province that held s. 33.1 to be of no force and effect. The issue raised by Mr. Sullivan provides an opportunity to clarify whether a declaration made under s. 52(1) binds the courts of coordinate jurisdiction in future cases due to the principle of constitutional supremacy, or whether the ordinary rules of horizontal stare decisis apply. As I shall endeavour to explain, stare decisis does apply and the trial judge was only bound to that limited extent on the question of the constitutionality of s. 33.1. The right approach can be stated plainly. Superior courts at first instance may not be bound if the prior decision is distinguishable on its facts or if the court had no practical way of knowing that the earlier decision existed. Otherwise, the decision is binding and the judge may only depart from it if one or more of the exceptions helpfully explained in Re Hansard Spruce Mills, [1954] 4 D.L.R. 590 (B.C.S.C.), apply.

In the result, I would dismiss the Crown’s appeal in the case of Mr. Sullivan and confirm the acquittals entered by the Court of Appeal.

As respondent in his appeal before this Court, Mr. Chan seeks leave to cross-appeal and, if granted, he asks that we substitute an acquittal for the order of a new trial. I would reject Mr. Chan’s arguments on this point. In my view, Mr. Chan’s application for leave to cross‑appeal must be quashed for want of jurisdiction. I would reject his alternative argument that this Court order a stay of proceedings in respect of the very serious violent charges brought against Mr. Chan because the requirements for a stay have not been made out. In the result, I would confirm the Court of Appeal’s order of a new trial.