R v Yag, 2021 ABQB 90

Court of Queen’s Bench of Alberta Citation: R v Yag, 2021 ABQB 90 Date: 20210205 Docket: 181227570Q1 Registry: Calgary Between: Her Majesty the Queen Crown - and - John Garang Luka Yag Accused _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice R.J. Hall _______________________________________________________ Brief background [ 1 ] Mr. Yag is charged with two counts of attempted murder and two counts of aggravated assault. Both the Crown and counsel for Mr. Yag relied on expert forensic psychiatry evidence with respect to the mental state of Mr.

Yag on the day of the offence, including the impact that Mr. Yag’s use of cannabis had, if any. After the Crown called rebuttal expert evidence, counsel for Mr. Yag gave notice that the Accused wished to bring a constitutional challenge against

section 33.1 of the Criminal Code , RSC 1985, c C-46 . [ 2 ] I adjourned the trial in order to provide proper notice of Mr. Yag’s application as well as to ask for and examine written submissions from both parties. Counsel for Mr. Yag takes the position that

section 33.1 of the Criminal Code violates sections 7 and

11(

d) of the Canadian Charter of Rights and Freedoms,

Part 1 of the Constitution Act, 1982, being

Schedule B to the Canada Act 1982(UK), 1982, c 11 [Charter]. As such,

section 33.1 should be declared of no force or effect under section 52(1) of the Constitution Act,1982. The Crown urges the Court to dismiss Mr. Yag’s application on the basis that there is no air of reality to the defence of extremeintoxication and thus, the discussion on whether

section 33.1 is constitutional is purely academic. Should this Court decide to rule on theconstitutionality issue, however, the Crown argues that while

section 33.1 offends the Charter, it is nonetheless upheld under

section 1of the Charter. [3] For the following reasons, I find that there is an air of reality to the defence of extreme intoxication. I further find that section33.1 of the Criminal Code is unconstitutional and cannot be saved by

section 1 of the Charter. Therefore,

section 33.1 is declared of noforce or effect. Analysis [4]

Section 33.1 of the Criminal Code states:

(1) It is not a defence to an offence referred to in subsection (3) that the accused, by reason of self-induced intoxication, lacked thegeneral intent or the voluntariness required to commit the offence, where the accused departed markedly from the standard of care asdescribed in subsection (2).

(2) For the purposes of this section, a person departs markedly from the standard of reasonable care generally recognized in Canadiansociety and is thereby criminally at fault where the person, while in a state of self-induced intoxication that renders the person unawareof, or incapable of consciously controlling, their behaviour, voluntarily or involuntarily interferes or threatens to interfere with the bodilyintegrity of another person.

(3) This

section applies in respect of an offence under this Act or any other Act of Parliament that includes as an element an assault orany other interference or threat of interference by a person with the bodily integrity of another person. [5] In essence,

section 33.1 prohibits an accused from relying on extreme intoxication as a defence when the accused, in a stateof self-induced intoxication, commits a general intent offence, interfering or threatening to interfere with the bodily integrity of anotherperson. [6] The genesis of

section 33.1 is oft-discussed and not without controversy. For some time, the so-called Leary rule arising outof Leary v The Queen, (SCC), [1978] 1 SCR 29 allowed the Crown to educe the requisite mens rea for general intentoffences from the voluntary intoxication, where extreme intoxication was claimed as a defence. The seminal decision R v Daviault, (SCC), [1994] 3 SCR 63 [Daviault] held that the Leary rule violated sections 7 and 11(

d) of the Charter. In Daviault, theheavily-divided Supreme Court of Canada reasoned that an individual who becomes intoxicated does not do so intending to commit acrime and ultimately concluded that extreme intoxication akin to automatism would render an accused incapable of either performing awilled act or of forming the minimal intent required for a general intent offence: at 103. [7] In response to the ruling in Daviault and the subsequent public outcry, Parliament passed Bill C-72, which introduced section33.1 to the Criminal Code. As established above,

section 33.1 effectively circumscribes the scope of the legal proposition emerging outof Daviault, and since, there have been numerous challenges to its constitutionality. Significantly, every court in front of which the issuewas brought has concluded that

section 33.1 violates sections 7 and 11(

d) of the Charter, including this Court in R v B, 2019 ABQB 770.However, courts across Canada have diverged on whether

section 33.1 can be saved under

section 1 of the Charter. I pause here to notethat the only appellate decision to rule on the constitutionality of

section 33.1 thus far is R v Sullivan, 2020 ONCA 333 [Sullivan], theappeal of which is scheduled to be heard by the Supreme Court of Canada. [8] Mr. Yag intends to rely on the defence of extreme intoxication akin to automatism, or the Daviault defence. However, underthe operation of

section 33.1, the Daviault defence is unavailable for him with respect to the two counts of aggravated assault, given thataggravated assault is a general intent offence causing bodily harm. Consequently, the constitutionality of

section 33.1 becomes a pivotalfactor in the present case. Counsel for Mr. Yag argues that

section 33.1 is unconstitutional and cannot be saved by

section 1 of theCharter. [9] On the other hand, the Crown submits that this Court need not consider the constitutionality of

section 33.1 because the issueis essentially moot. More specifically, the Crown asserts that there is no air of reality to the Daviault defence, based on the aggregateevidence before the Court. In other words, regardless of whether

section 33.1 is constitutional or not, the Accused cannot advance adefence based on extreme intoxication. Therefore, the Crown contends, the discussion on the constitutionality of

section 33.1 is purelyacademic. [10] The existing jurisprudence appears to support the proposition that if Mr. Yag cannot establish an air of reality to the Daviaultdefence, the constitutionality question becomes academic, and this Court need not entertain the inquiry into

section 33.1: R v Brenton,2001 NWTCA 1 at para 10; R v Dow, 2010 QCCS 4276 at paras 46-51 [Dow]. Therefore, the preliminary determination in which thisCourt must engage is whether Mr. Yag has established an air of reality to the Daviault defence. I.

Air of reality [11] That an accused bears the evidential burden to raise a defence on the evidence adduced at trial is a well-established principle.The defence must possess an air of reality, which means that a properly instructed jury acting reasonably could acquit based on theevidence on the record: R v Cinous, 2002 SCC 29 at para 49 [Cinous]. [12] Specifically in the context of the Daviault defence, the Supreme Court of Canada opined that an assertion of involuntariness

on the part of the accused, supported by the logically probative opinion of a qualified expert, would normally provide a sufficient evidentiary foundation for putting the defence to the jury: R v Fontaine , 2004 SCC 27 at para 89 . [ 13 ] In applying the air of reality test, a trial judge considers the totality of the evidence and assumes the evidence relied upon by the accused to be true.

That said, the threshold determination by the trial judge is not aimed at deciding the substantive merits of the defence: Cinous at paras 53 and 54 . [ 14 ] The Crown argues that the evidence before this Court does not establish a complete lack of voluntariness on Mr. Yag’s part and points to the following, among others, in support of its position: (

a) Mr. Yag sought to steal alcohol in order to gain “liquid courage” before his attack; (

b) Mr. Yag deliberately chose a woman and a child as his victims because they would be easy targets; (

c) Mr. Yag was aware that he was physically assaulting entities with his knife; (

d) Although there is some inconsistency in Mr. Yag’s testimony, he has at one point stated that he was not high on the day of the offence; and (

e) None of the experts expressly stated that Mr. Yag was acting in a state of automatism. [ 15 ] In sum, the Crown’s position is that Mr. Yag, in fact, formed an intent to kill and that his acts could not have been involuntary. Thus, there is no air of reality to the Daviault defence. With respect, I must disagree. At this juncture, the main inquiry does not rest upon the substantive merits of the Daviault defence, meaning I need not determine whether or not the evidence relied on by the Crown establishes Mr. Yag’s voluntariness. [ 16 ] The general consensus among the experts called at trial is that Mr.

Yag suffered a psychotic episode on the day of the offence. Dr. Roger Brown, a forensic psychiatrist called by the Accused, opined that Mr. Yag was experiencing delusions, hallucinations, and disorganization of speech. Dr. Kenneth Hashman, who gave the rebuttal evidence for the Crown, agreed with Dr. Brown and expressed that at the time of the assault, Mr. Yag appreciated neither the nature and quality of his acts nor that his acts were wrong. Unlike Dr. Brown, however, Dr. Hashman was of the view that the psychosis was induced by cannabis, as opposed to Mr. Yag’s underlying mental disorder. [ 17 ] Mr.

Yag has put forward an assertion of involuntariness before this Court, and I find that such an assertion is supported by the logically probative opinions of Dr. Brown and Dr. Hashman. Given Dr. Brown and Dr. Hashman’s comments on delusions and hallucinations and Mr. Yag’s inability to appreciate the nature and consequences of his acts, the evidential burden of the air of reality test is met. Differently put, there is sufficient evidence to “put in play” the Daviault defence: Cinous at para 52 . II. Constitutionality of

section 33.1 [ 18 ] Having ruled that the Daviault defence has an air of reality in the case at hand, I now turn to

section 33.1. Because Mr. Yag has met the evidential burden to advance the Daviault defence and because his charges include the very offences that

section 33.1 seeks to preclude from the Daviault defence, the constitutionality of

section 33.1 becomes a pivotal issue. i. Horizontal stare decisis [ 19 ] As I mentioned above, this Court has already ruled on the constitutionality of

section 33.1. In R v B , deWit J concluded that

section 33.1 offends sections 7 and 11(

d) of the Charter and cannot be saved under

section 1 of the Charter . Counsel for Mr. Yag maintains that I am bound by his decision and that because this Court has already declared

section 33.1 of no force or effect under section 52(1) of the Constitution Act, 1982 , Mr. Yag’s Daviault defence is no longer subject to the limits placed by

section 33.1. [ 20 ] I reject this argument for several reasons. Whether I am bound by a decision of another judge at the very same Court is a question of horizontal stare decisis.

While I acknowledge that in general, horizontal stare decisis “promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process,” it is simply a practice, not a rule: Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 at para 260 ; Chief Mountain v British Columbia (Attorney General) , 2011 BCSC 1394 at para 74 . [ 21 ] The reason behind characterizing horizontal stare decisis as nonbinding comity is succinctly articulated in Sullivan , in which the accused advanced a similar argument.

The accused argued that once a superior court judge declares a law to be unconstitutional, such a declaration is binding on other superior court judges unless there is a successful appeal. The Ontario Court of Appeal rejected his argument and explained at para 37: There is good reason why not. Whereas Bedford compromises stare decisis to promote accurate constitutional outcomes, the compromise on stare decisis proposed by Mr. Chan has the potential to discourage accuracy.

For example, three superior court judges in succession could find a provision to be constitutional, but the fourth judge’s ruling to the contrary would be the only one to have full force or effect in the province. Unless that fourth decision is appealed, it becomes the law in the province. The Crown can no longer rely on the provision; therefore, decreasing the prospect that the issue of constitutional validity would make it before the provincial appellate court.

The development of the law would be driven by coincidence in the sequence of trial level decisions and the fortuity of discretionary decisions about whether to appeal, when it should be determined by the quality of the judicial ruling. [ 22 ] However, the Court continued on to note that “[o]ther superior court judges should respect an earlier declaration of unconstitutionality, absent cogent reason to conclude that the earlier declaration is plainly the result of a wrong decision”: Sullivan at para 38 .

[23] In sum, although I am not strictly bound by deWit J’s decision in R v B, I am to respect his decision unless there is evidence tosuggest that the decision was plainly wrong. [24] The Crown contends that the declaration of unconstitutionality of

section 33.1 in R v B was plainly the result of a wrongdecision. It argues that the mischaracterization in R v B of

section 33.1 as an adoption of the dissenting decision in Daviault provides asufficient basis to conclude that R v B was a wrong decision. It is true that in R v Bouchard-Lebrun, 2011 SCC 58 at para 35[Bouchard-Lebrun], the Supreme Court of Canada stated that

section 33.1 was not a strict codification of the dissenting judgment inDaviault but rather a legislative response that limited the scope of the majority’s position. In R v B, however, this Court commented,“Section 33.1 simply adopted the reasoning of the minority in Daviault that the mens rea in cases of self-induced intoxication could besubstituted for the intent to commit a general intent offence of violence”: at para 68. [25] In Bouchard-Lebrun, the Supreme Court of Canada stated that in a general sense, Parliament implicitly endorsed thedissenting opinion from Daviault by enacting

section 33.1; what

section 33.1 does not do is revive the Leary rule. In that aspect, it isinaccurate to characterize

section 33.1 as a simple adoption of the dissenting opinion from Daviault. While the technical wording in R vB may not be the most accurate, in my view, the substance of what was stated is accurate and consistent with the Supreme Court ofCanada’s comment in Bouchard-Lebrun. R v B does not stand for the proposition that

section 33.1 has somehow revived the Leary rule.It correctly identified that

section 33.1 removes the Daviault defence from general intent offences of violence, caused by self-inducedintoxication. In any case, the thorough constitutional analysis in R v B did not hinge on the Court’s characterization of

section 33.1. [26] Therefore, I find that the declaration that

section 33.1 is of no force or effect in R v B was not a result of a wrong decision, andI agree with and endorse deWit J’s conclusion from R v B. However, for the sake of completeness, I will briefly address theconstitutionality issue below. ii.

Section 33.1 violates the Charter [27] Various courts across Canada have considered whether

section 33.1 offends the values enshrined in the Charter, and in everyinstance,

section 33.1 was found to violate sections 7 and 11(

d) of the Charter. While the Crown conceded during oral argument thatsection 33.1 is indeed in violation of the Charter, I will nonetheless briefly summarize why

section 33.1 is unconstitutional.

Section 7 of the Charter – mens rea [28] It is trite law that the Crown must prove both the actus reus and mens rea of an offence beyond a reasonable doubt to obtain acriminal conviction. The mens rea element may be minimal in general intent offence, but it still exists: Daviault at

Section 33.1,however, allows for an accused to be convicted even in the absence of the constitutionally requisite level of fault and thus infringessection 7 of the Charter. As summarized in detail in Sullivan,

section 33.1 is built on a theory of negligence but fails to meet the requisitestandard because

(1) section 33.1 requires no foreseeability link between voluntary intoxication and the criminal consequence; (2) thecriminal behaviour arising out of voluntary intoxication is not always a foreseeable risk; and (3) the normative element of penalnegligence is absent, meaning any degree of intoxication is enough to trigger

section 33.1: at paras 81-88.

Section 11(

d) of the Charter –voluntariness and presumption of innocence [29] Once more, it is a well-established and fundamental principle that an accused has the right to be presumed innocent unless theCrown proves the accused’s guilt beyond a reasonable doubt. Further, voluntariness is a critical condition of the attribution of criminalliability: R v Ruzic, 2001 SCC 24 at para 45. With

section 33.1, voluntariness vis-à-vis the criminal act is substituted with voluntarinessvis-à-vis the act of intoxication. To convict an accused where there is reasonable doubt about the voluntariness of the criminal act itselfinfringes on the presumption of innocence embodied in

section 11(d): Sullivan at para 64 and 77; R v B at para 37. iii.

Section 33.1 is not saved by

section 1 of the Charter [30] Where the Crown and counsel for Mr. Yag take diametrically opposing stances is on whether

section 33.1, found to be primafacie unconstitutional, can be saved under

section 1 of the Charter. In fact, whether

section 33.1, despite infringing the Charter, fallsunder “reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society” is an inquiry that hasdivided courts across Canada and will remain unresolved until the Supreme Court of Canada renders its decision. [31] The Oakes test, from R v Oakes, (SCC), [1986] 1 SCR 103, is now a widely-cited formulation ondetermining whether legislation that is found prima facie unconstitutional can be upheld pursuant to

section 1 of the Charter. Under theOakes test, the Crown must demonstrate the following:

(1) Pressing and substantial purpose: does the offending law pursue a pressing and substantial objective? Is it sufficiently importantto override a constitutionally protected right or freedom?

(2) Proportionality: is the means chosen to achieve the law’s objective proportional? a. Rational connection: is there a rational connection between the impugned law and the objective? b. Minimal impairment: is the impugned law minimally impairing on the right in question? c. Overall proportionality: do the salutary effects of the impugned law outweigh its deleterious effects? Pressing and substantial purpose [32] Counsel for Mr. Yag concedes that there is a pressing and substantial objective behind

section 33.1. The Crown characterizes

the objective of

section 33.1 as the protection of “vulnerable persons, particularly women and children, from violent intoxicatedoffenders” as well as “holding perpetrators of intoxicated violence accountable for their actions.” Since the Crown’s position was notdisputed, I accept that Parliament’s objective behind

section 33.1 is pressing and substantial. As an aside, however, I point out that theCourt in Sullivan concluded that holding accountable individuals who perpetrate violence under a state of extreme intoxication was not aproper purpose: at paras 112 and 113. Rational connection [33] Again, counsel for Mr. Yag concedes that there is a rational connection between

section 33.1 and Parliament’s objective. TheCrown adroitly points out that Parliament considered a plethora of scientific evidence in showcasing a link between intoxication andviolence and that through

section 33.1, sought to deter violence caused by self-induced intoxication. Consequently, there is a rationalconnection. Again, I accept the Crown’s position as it was not rebutted but note that the Court in Sullivan held that given the lack offoreseeability link, there exists no rational connection between the protective purpose of

section 33.1 and its effect: at para 121. Minimal impairment [34] The Crown tendered a substantial amount of evidence regarding parliamentary discussions surrounding Bill C-72 and section33.1. It is true that Parliament was alive to the issue of constitutionality and considered various legislative options for addressingintoxication and violence, including a special verdict of not criminally responsible on account of automatism and offence of criminalintoxication. Records indicate that Parliament also contemplated providing no legislative response. On the opposite end of the spectrum,one possibility was to draft

section 33.1 in a manner that would have encompassed both specific and general intent offences. [35] In the end, Parliament struck a balance and settled on the structure that presently appears in

section 33.1. As such, the Crownmaintains that Parliament has chosen an option that least impairs the rights of an accused: see, R v Vickberg, (BCSC) at para 97. Further, relying on Dow at paras 144 and 145, the Crown argues that

section 33.1 only relates to a limited number ofoffences, and accordingly, “it was formulated in a measured way and satisfies the minimal impairment criterion.” [36] While I acknowledge that Parliament has canvassed various legislative responses before ultimately enacting

section 33.1, inmy view,

section 33.1 does little to minimally impair rights conferred on by sections 7 and 11(

d) of the Charter. Whether a piece oflegislation is minimally impairing on an individual’s rights is “tested not by whether efforts were made to confine its reach, but bywhether, given the context, Parliament could reasonably have chosen less intrusive alternative means, which would have achieved theidentified objective as effectively”: Sullivan at para 131. [37] In R v B, after carefully examining the relevant legislative background behind

section 33.1, deWit J commented at paras 74-76: Thus

section 33.1 as is currently worded likely allows for the conviction of an individual who consumes a minimal amount of alcoholeven though their actions in consuming the alcohol are not morally reprehensible. The use of drugs was not discussed to any great degree at Justice Committee hearings regarding

section 33.1. During the hearings,Minister Rock also recognized that there was evidence that distinguished alcohol from other intoxicants. He stated that maybe there aresome drugs that do cause automatism, but found that alcohol did not apparently do so. It is clear from the facts in this case and othercases that the ingestion of a small amount of drugs can have significant impact including a dissociative state akin to automatism. Inaddition, the courts and the media report numerous incidences of certain drugs being laced with other substances which result inextremely unusual behaviour.

In today’s society, the use of illegal drugs by young people has become much more prevalent. The use of these drugs can beunpredictable. The amount of intoxication, from such drugs is not necessarily dependent on the amount consumed. According to section33.1 the circumstances of the offence and the offender matters not when self-induced intoxication renders the person unaware orincapable of consciously controlling their behaviour. The level of moral culpability under s. 33.1 is irrelevant even though thecircumstances of the offence and the offender could be very different. [38] I echo the above concerns.

By way of example, if

section 33.1 took into account the accused’s experience and knowledge ofthe effects of the impugned intoxicant, such a requirement would “ensure that the morally innocent are not convicted and importantCharter rights not unduly impaired”: R v B at para 82. [39] Further, with respect, I cannot agree with the proposition from Dow that because

section 33.1 affects a limited number ofoffences, the minimal impairment requirement is satisfied. Whether the impugned law is minimally impairing is not a question ofquantity. In other words, although

section 33.1 only captures very specific instances, the infringement arising thereof remains just asserious as if

section 33.1 captured a broader range of offences. If there is an alternative legislative option that is less intrusive but equallyeffective in addressing the underlying concern of Parliament, the impugned law is not minimally impairing, regardless of how fewindividuals it may impact by way of operation. [40] Consequently, I find that

section 33.1 is not minimally impairing with regards to sections 7 and 11(

d) of the Charter. Overall proportionality [41] Turning first to the salutary effects of

section 33.1, individuals who commit crimes of violence under a state of self-inducedintoxication cannot evade criminal responsibility and are held accountable for their actions. Further, I am inclined to agree with theCrown that

section 33.1 may lower the likelihood of vulnerable individuals hesitating to come forward to report instances of domesticabuse, as

section 33.1 removes self-induced intoxication as a valid justification.

[ 42 ] As for the deleterious effects of

section 33.1, individuals accused of committing violence-based, general intent offences can be convicted despite the fact that the requisite elements of their offences are not established. In other words,

section 33.1 offends the principles of fundamental justice and the basic tenets of criminal law in Canada. Proof of the mens rea and voluntariness of the actus reus is an indispensable part of the Crown’s burden in proving an accused’s guilt beyond a reasonable doubt and is a sacrosanct principle in the criminal context: R v B at para 89 . [ 43 ] Given the profound and severe impact that

section 33.1 has on the constitutional values within the Canadian criminal law, I find that its deleterious effects outweigh its salutary effects. [ 44 ] While I understand and sympathize with the concerns associated with the outcome of Daviault , it is crucial to note that a simple assertion of extreme intoxication clearly does not satisfy the requisite burden of proof. [ 45 ] I pause here to reiterate the Supreme Court of Canada’s unequivocal statement with regards to the Daviault defence: It is obvious that it will only be on rare occasions that evidence of such an extreme state of intoxication can be advanced and perhaps only on still rarer occasions is it likely to be successful: Daviault at 100. [ 46 ] As so indicated by the Supreme Court of Canada and as evinced by the extremely limited number of case authorities, the Daviault defence is rarely successful.

The protection of vulnerable individuals from violence fueled by self-induced intoxication is of utmost importance in our society; however, to do so by convicting individuals who do not bear the moral fault required by the Charter would be singularly infelicitous. Conclusion [ 47 ] In sum, I conclude that the Crown has failed to demonstrate that

section 33.1 is saved under

section 1 of the Charter , and accordingly, I would declare

section 33.1 to be of no force or effect, pursuant to section 52(1) of the Constitution Act, 1982 . Heard on the 2 nd and 3 rd days of February, 2021. Dated at the City of Calgary, Alberta this 5 th day of February, 2021. R.J. Hall J.C.Q.B.A. Appearances: Vicki Faulkner for the Crown Andrea Urquhart for the Accused