Her Majesty The Queen Appellant v. David Sullivan, 2022 SCC 19

SUPREME COURT OF CANADA Citation: R. v.

Sullivan, 2022 SCC 19 Appeal Heard: October 12, 2021 Judgment Rendered: May 13, 2022 Docket: 39270 Between: Her Majesty The Queen Appellant and David Sullivan Respondent And Between: Her Majesty The Queen Appellant / Respondent on application for leave to cross-appeal and Thomas Chan Respondent / Applicant on application for leave to cross-appeal - and - Attorney General of Canada, Attorney General of Quebec, Attorney General of Manitoba, Attorney General of British Columbia, Attorney General of Saskatchewan, Attorney General of Alberta, British Columbia Civil Liberties Association, Empowerment Council, Systemic Advocates in Addictions and Mental Health, Criminal Lawyers’ Association (Ontario), Canadian Civil Liberties Association, Women’s Legal Education and Action Fund Inc. and Advocates for the Rule of Law Interveners Coram: Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ.

Reasons for Judgment : (paras. 1 to 99) Kasirer J. (Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Jamal JJ. concurring) Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports . Her Majesty The Queen Appellant v. David Sullivan Respondent - and - Her Majesty The Queen Appellant / Respondent on application for leave to cross-appeal v.

Thomas Chan Respondent / Applicant on application for leave to cross-appeal and Attorney General of Canada, Attorney General of Quebec, Attorney General of Manitoba, Attorney General of British Columbia, Attorney General of Saskatchewan, Attorney General of Alberta, British Columbia Civil Liberties Association, Empowerment Council, Systemic Advocates in Addictions and Mental Health, Criminal Lawyers’ Association (Ontario), Canadian Civil Liberties Association, Women’s Legal Education and Action Fund Inc. and Advocates for the Rule of Law Interveners Indexed as: R. v.

Sullivan 2022 SCC 19 File No.: 39270. 2021: October 12; 2022: May 13. Present: Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ. on appeal from the court of appeal for ontario

Constitutional law — Charter of Rights — Fundamental justice — Presumption of innocence — Reasonable limits —Section 33.1 of Criminal Code preventing accused from raising common law defence of self-induced intoxication akin to automatism —Whether s. 33.1 violates principles of fundamental justice or presumption of innocence — If so, whether infringement justified —Canadian Charter of Rights and Freedoms, ss. 1, 7, 11(d) — Criminal Code, R.S.C. 1985, c. C-46, s. 33.1.

Constitutional law — Remedy — Declaration of invalidity — Whether declaration of unconstitutionality issued by superiorcourt pursuant to s. 52(1) of Constitution Act, 1982, can be considered binding on courts of coordinate jurisdiction.

Criminal law — Appeals — Appeals to Supreme Court of Canada — Jurisdiction — Accused convicted of indictable offenceat trial — Court of Appeal setting aside conviction and ordering new trial — Crown bringing appeal to Supreme Court of Canada —Accused applying for leave to cross-appeal order of new trial and requesting stay — Whether Court has jurisdiction to hear accused’sappeal — Criminal Code, R.S.C. 1985, c. C-46, s. 691. After having voluntarily taken an overdose of a prescription drug and falling into an impaired state, S attacked his motherwith a knife and injured her gravely.

He was charged with several offences, including aggravated assault and assault with a weapon. Inunrelated circumstances, C fell into an impaired state after he voluntarily ingested magic mushrooms containing a drug called psilocybin.He attacked his father with a knife and killed him, and seriously injured his father’s partner. C was tried for manslaughter and aggravatedassault.

Both S and C argued at their respective trials that their state of intoxication was so extreme that their actions were involuntaryand could not be the basis of a guilty verdict for the violent offences of general intent brought against them. C also argued that anunderlying brain injury was the significant contributing cause of his psychosis, rather than his intoxication alone, such that he was notcriminally responsible.

In the case of S, the trial judge accepted that S was acting involuntarily but decided that the defence of extreme intoxicationakin to automatism was not available by virtue of s. 33.1 of the Criminal Code. S was convicted of the two assault charges. The trialjudge in C’s case dismissed C’s constitutional challenge to s. 33.1, during which C had argued that previous decisions of the same courtthat declared s. 33.1 unconstitutional were binding on the trial judge.

C’s brain trauma was held to be a mental disorder but not the causeof C’s incapacity, which was the result of the voluntary ingestion of magic mushrooms. C was convicted of manslaughter and aggravatedassault. The Court of Appeal heard appeals by S and C together and held that s. 33.1 violates ss. 7 and 11(

d) of the Charter and isnot saved by s. 1. S and C were therefore entitled to raise the defence of automatism. The Court of Appeal also addressed the issue ofwhether the trial judge in C’s case was bound by precedent of a court of coordinate jurisdiction in the province to accept theunconstitutionality of s. 33.1. It held that the ordinary rules of stare decisis apply when superior courts in first instance consider whetherto follow previous declarations of unconstitutionality. The trial judge was correct to decide that he was not bound by previous decisionsand entitled to consider the issue afresh.

In the result, S’s convictions were set aside and acquittals entered. The Court of Appeal ordereda new trial for C because no finding of fact had been made in respect of non-mental disorder automatism. The Crown appeals to theCourt from the Court of Appeal’s decision in respect of both S and C, and C applies for leave to cross-appeal the order of a new trial,seeking an acquittal or, in the alternative, a stay of proceedings. Held: The appeals should be dismissed. C’s application for leave to cross-appeal should be quashed for want of jurisdiction. In the companion appeal of R. v.

Brown, 2022 SCC 18, the Court concludes that s. 33.1 violates the Charter and is of noforce or effect pursuant to s. 52(1) of the Constitution Act, 1982. That conclusion is applicable to the Crown’s appeals in the presentcases. In the result, given that s. 33.1 is of no force or effect, S is entitled to acquittals. He established that he was intoxicated to the pointof automatism and the trial judge found that he was acting involuntarily. As for C, the Court of Appeal’s order for a new trial should beupheld.

C may avail himself of the defence of non-mental disorder automatism at a new trial, should it be applicable on the facts. The ordinary rules of horizontal stare decisis and judicial comity apply to declarations of unconstitutionality issued bysuperior courts within the same province. A decision may not be binding if it is distinguishable on its facts or the court had no practicalway of knowing it existed. If it is binding, a trial court may only depart if one or more of the exceptions set out in Re Hansard SpruceMills, (BC SC), [1954] 4 D.L.R. 590 (B.C.S.C.), apply.

Accordingly, a trial judge is not strictly bound by a prior declaration by a court of coordinate jurisdiction by virtue ofs. 52(1) of the Constitution Act, 1982. A s. 52(1) declaration of unconstitutionality reflects an ordinary judicial task of determining aquestion of law. Determining whether an impugned law is inconsistent with the provisions of the Constitution and, if so, whether and towhat extent the law is of no force or effect is no different than other questions of law decided outside the constitutional context.

Judgescannot in a literal sense strike down legislation when they review the consistency of the law with the Constitution under s. 52(1). Adeclaration of unconstitutionality simply refutes the presumption of constitutionality; it does not alter the terms of the statute. Questionsof law are governed by the normal rules and conventions that constrain courts in the performance of their judicial tasks, includingapplying the ordinary principles of stare decisis. A judicial declaration made under s. 52(1) by a superior court is therefore binding onother courts within the confines of the law relating to precedent.

The principle of constitutional supremacy cannot dominate the analysis of s. 52(1) to the exclusion of other constitutionalprinciples. The legal effect of a s. 52(1) declaration by a superior court must be defined with reference to constitutional supremacy, therule of law, and federalism. Pursuant to s. 96 of the Constitution Act, 1867, superior courts operating within a province only have powerswithin the province.

Federalism prevents a s. 52(1) declaration issued within one province from binding courts throughout the country.Horizontal stare decisis applies to courts of coordinate jurisdiction within a province and a constitutional ruling will bind lower courtsthrough vertical stare decisis. Stare decisis is the appropriate framework to apply to litigation of constitutional issues, because itbalances stability and predictability against correctness and the orderly development of the law.

The Crown may consider an appealwhen faced with conflicting trial decisions relating to a law on which the prosecution continues to rely, but is not bound to appealdeclarations of unconstitutionality in criminal matters. However desirable uniform treatment of the substantive criminal law might bewithin or even across provinces, a decision to appeal remains within the discretion of the relevant attorney general, to be decided inkeeping with its authority to pursue the public interest and the constitutional and practical constraints relating to its office.

Varying standards have been invoked to define when departure from prior precedent is appropriate, for example if it isplainly wrong, when there is good reason for doing so or in extraordinary circumstances. These qualitative tags are susceptible ofextending to almost any circumstance and do not provide precise guidance. These terms should no longer be used. Judicial comity aswell as the rule of law principles supporting stare decisis mean that prior decisions should be followed unless the Spruce Mills criteriaare met.

Trial courts should only depart from binding decisions issued by a court of coordinate jurisdiction in three narrowcircumstances: the rationale of the earlier decision has been undermined by subsequent appellate decisions; some binding authority incase law or some relevant statute was not considered; or the earlier decision was not fully considered, for example if it was taken inexigent circumstances. Where a judge is faced with conflicting authority on the constitutionality of legislation, the judge must follow themost recent authority unless one or more of these three criteria are met.

These criteria do not detract from the narrow circumstances inwhich a lower court may depart from binding vertical precedent. An application of the doctrine of horizontal stare decisis to C’s case illustrates how these criteria should work in practice. R.v. Dunn (1999), (ON SC), 28 C.R. (5th) 295, did not engage with an earlier Ontario decision that upheld theconstitutionality of s. 33.1 and Dunn did not apply the criteria to determine whether it was permissible to depart from that precedent;therefore it was a decision per incuriam and did not need to be followed.

The earlier decision considered the appropriate statutes andauthorities in reaching the conclusion that s. 33.1 infringed ss. 7 and 11(

d) of the Charter but was upheld under s. 1 and there is noindication that it was rendered in exigent circumstances. Therefore, that decision should have been followed by the trial judge in theconstitutional ruling in C’s case. On appeal, however, the Court of Appeal was not bound to follow any first instance superior courtdecision. There is no statutory route for C to appeal the Court of Appeal’s order of a new trial.

Section 695 of the Criminal Code doesnot provide the Court with the jurisdiction to hear a cross-appeal by C. Sections 691 and 692 of the Criminal Code set out thejurisdiction of the Court to hear criminal appeals brought by criminal accused and represent the whole of an accused’s express statutoryright to appeal when their conviction has been affirmed or their acquittal set aside by the Court of Appeal. In cases like C’s, where anaccused, having been convicted of an indictable offence at trial, is granted a new trial, s. 691 does not provide a route of appeal to theCourt.

As for a stay of proceedings, it may only be granted in the clearest of cases, where prejudice to an accused’s rights or to thejudicial system is irreparable and cannot be remedied. The record before the Court is insufficient to conclude that C’s right to a fair trialis prejudiced. Cases Cited By Kasirer J. Applied: R. v. Brown, 2022 SCC 18; Re Hansard Spruce Mills, (BC SC), [1954] 4 D.L.R. 590;distinguished: R. v. J.F., 2008 SCC 60, [2008] 3 S.C.R. 215; R. v. Warsing, (SCC), [1998] 3 S.C.R. 579; explained:R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96; Nova Scotia (Workers’ Compensation Board) v.

Martin, 2003 SCC 54, [2003] 2 S.C.R.504; considered: R. v. Dunn (1999), (ON SC), 28 C.R. (5th) 295; R. v. Fleming, 2010 ONSC 8022; R. v. McCaw,2018 ONSC 3464, 48 C.R. (7th) 359; R. v. Decaire, [1998] O.J. No. 6339; referred to: R. v. Scarlett, 2013 ONSC 562; Canada(Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101; Canada (Attorney General) v. Hislop, 2007 SCC 10, [2007] 1S.C.R. 429; R. v. Poulin, 2019 SCC 47, [2019] 3 S.C.R. 566; Reference re Manitoba Language Rights, (SCC), [1985] 1S.C.R. 721; R. v. P. (J.) (2003), (ON CA), 67 O.R. (3d) 321; Ravndahl v.

Saskatchewan, 2009 SCC 7, [2009] 1S.C.R. 181; Coquitlam (City) v. Construction Aggregates Ltd. (1998), (BC SC), 65 B.C.L.R. (3d) 275, aff’d 2000BCCA 301, 75 B.C.L.R. (3d) 350, leave to appeal refused, [2001] 1 S.C.R. ix; Saskatchewan (Human Rights Commission) v. Whatcott,2013 SCC 11, [2013] 1 S.C.R. 467; R. v. St-Onge Lamoureux, 2012 SCC 57, [2012] 3 S.C.R. 187; Schachter v. Canada, (SCC), [1992] 2 S.C.R. 679; Windsor (City) v. Canadian Transit Co., 2016 SCC 54, [2016] 2 S.C.R. 617; R. v. Lloyd, 2016 SCC 13,[2016] 1 S.C.R. 130; Mouvement laïque québécois v.

Saguenay (City), 2015 SCC 16, [2015] 2 S.C.R. 3; Okwuobi v. Lester B. PearsonSchool Board, 2005 SCC 16, [2005] 1 S.C.R. 257; Ontario (Attorney General) v. G, 2020 SCC 38; R. v. Albashir, 2021 SCC 48; Re B.C.Motor Vehicle Act, (SCC), [1985] 2 S.C.R. 486; Reference re Secession of Quebec, (SCC), [1998] 2S.C.R. 217; Wolf v. The Queen, (SCC), [1975] 2 S.C.R. 107; Reference re Same-Sex Marriage, 2004 SCC 79, [2004] 3S.C.R. 698; Parent v. Guimond, 2016 QCCA 159; R. v.

Nur, 2015 SCC 15, [2015] 1 S.C.R. 773; Saskatchewan Federation of Labour v.Saskatchewan, 2015 SCC 4, [2015] 1 S.C.R. 245; David Polowin Real Estate Ltd. v. Dominion of Canada General Insurance Co. (2005), (ON CA), 76 O.R. (3d) 161; Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331; Toronto (City)v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77; Guindon v. Canada, 2015 SCC 41, [2015] 3 S.C.R. 3; R. v. McCann, 2015ONCA 451; R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167; R. v. Dunn, (ON CA), 156 O.A.C. 27; R. v. Jensen(2005), (ON CA), 74 O.R. (3d) 561; R. v.

Cawthorne, 2016 SCC 32, [2016] 1 S.C.R. 983; R. v. Power, (SCC), [1994] 1 S.C.R. 601; R. v. Green, 2021 ONSC 2826; R. v. Kehler, 2009 MBPC 29, 242 Man. R. (2d) 4; R. v. Wolverine andBernard (1987), (SK KB), 59 Sask. R. 22; The Owners, Strata Plan BCS 4006 v. Jameson House Ventures Ltd., 2017BCSC 1988, 4 B.C.L.R. (6th) 370; R. v. Hinse, (SCC), [1995] 4 S.C.R. 597; R. v. Shea, 2010 SCC 26, [2010] 2 S.C.R.17; Saumur v. Recorder’s Court (Quebec), (SCC), [1947] S.C.R. 492; Kourtessis v. M.N.R., (SCC),[1993] 2 S.C.R. 53; R. v. Carosella, (SCC), [1997] 1 S.C.R. 80; R. v.

Babos, 2014 SCC 16, [2014] 1 S.C.R. 309; R. v.O’Connor, (SCC), [1995] 4 S.C.R. 411. Statutes and Regulations Cited Canadian Charter of Rights and Freedoms,

preamble, ss. 1, 7, 11(d), 24(1). Constitution Act, 1867, s. 96. Constitution Act, 1982, s. 52(1). Criminal Code, R.S.C. 1985, c. C-46, ss. 16, 33.1, 691, 692, 695. Rules of the Supreme Court of Canada, SOR/2002-156, r. 29(3).

Supreme Court Act , R.S.C. 1985, c. S-26, s. 40 . Authors Cited Brun, Henri, Guy Tremblay et Eugénie Brouillet. Droit constitutionnel , 6 e éd. Cowansville, Que.: Yvon Blais, 2014. Canada. Department of Justice Canada. Principles guiding the Attorney General of Canada in Charter litigation , Ottawa, 2017. Garner, Bryan A., et al. The Law of Judicial Precedent. St. Paul, Minn.: Thomson Reuters, 2016. Gélinas, Fabien. “La primauté du droit et les effets d’une loi inconstitutionnelle” (1988), 67 Can. Bar Rev. 455.

Gervais, Marc-Antoine. “Les impasses théoriques et pratiques du contrôle de constitutionnalité canadien” (2021), 66 McGill L.J. 509. Hogg, Peter W., and Allison A. Bushell. “The Charter Dialogue Between Courts and Legislatures” (1997), 35 Osgoode Hall L.J. 75. Hogg, Peter W., and Wade K. Wright. Constitutional Law of Canada , 5th ed. Supp. Toronto: Thomson Reuters, 2021 (updated 2021, release 1). Kerwin, Scott. “ Stare Decisis in the B.C. Supreme Court: Revisiting Hansard Spruce Mills ” (2004), 62 Advocate 541. Leckey, Robert. Bills of Rights in the Common Law . Cambridge: Cambridge University Press, 2015.

Mancini, Mark. “Declarations of Invalidity in Superior Courts” (2019), 28:3 Const. Forum 31. Marcotte, Alexandre. “A Question of Law: (Formal) Declarations of Invalidity and the Doctrine of Stare Decisis” (2021), 42 N.J.C.L. 1. Parkes, Debra. « Precedent Unbound? Contemporary Approaches to Precedent in Canada » (2006), 32 Man. L.J. 135. Pinard, Danielle. “De l’inhabilité des juges à modifier le texte des lois déclarées inconstitutionnelles”, dans Patrick Taillon, Eugénie Brouillet et Amélie Binette, dir., Un regard québécois sur le droit constitutionnel: Mélanges en l’honneur d’Henri Brun et de Guy Tremblay .

Montréal: Yvon Blais, 2016, 329. Roach, Kent. Constitutional Remedies in Canada , 2nd ed. Toronto: Thomson Reuters, 2013 (loose-leaf updated October 2021, release 2). Roach, Kent. “Not Just the Government’s Lawyer: The Attorney General as Defender of the Rule of Law” (2006), 31 Queen’s L.J. 598. Rosenberg, Marc. “The Attorney General and the Administration of Criminal Justice” (2009), 34 Queen’s L.J. 813 . Rowe Malcom, and Leanna Katz. “A Practical Guide to Stare Decisis ” (2020), 41 Windsor Rev. Legal Soc. Issues 1. Sarna, Lazar. The Law of Declaratory Judgments , 4th ed. Toronto: Thomson Reuters, 2016.

Sharpe, Robert J. Good Judgment: Making Judicial Decisions . Toronto: University of Toronto Press, 2018. Waldron, Jeremy. « Stare Decisis and the Rule of Law: A Layered Approach » (2012), 111 Mich. L. Rev. 1. APPEAL from a judgment of the Ontario Court of Appeal (Watt, Lauwers and Paciocco JJ.A.), 2020 ONCA 333 , 151 O.R. (3d) 353, 387 C.C.C. (3d) 304, 63 C.R. (7th) 77, 462 C.R.R. (2d) 231, [2020] O.J. No. 2452 (QL), 2020 CarswellOnt 7645 (WL Can.), setting aside the convictions for aggravated assault and assault with a weapon entered by Salmers J., [2016] O.J.

No. 6847 (QL), 2016 CarswellOnt 21197 (WL Can.) , and entering verdicts of acquittal. Appeal dismissed. APPEAL and APPLICATION FOR LEAVE TO CROSS-APPEAL from a judgment of the Ontario Court of Appeal (Watt, Lauwers and Paciocco JJ.A.), 2020 ONCA 333 , 151 O.R. (3d) 353, 387 C.C.C. (3d) 304, 63 C.R. (7th) 77, 462 C.R.R. (2d) 231, [2020] O.J. No. 2452 (QL), 2020 CarswellOnt 7645 (WL Can.), setting aside the convictions for manslaughter and aggravated assault entered by Boswell J., 2018 ONSC 7158 , [2018] O.J. No. 6459 (QL), 2018 CarswellOnt 20662 (WL Can.), and ordering a new trial.

Appeal dismissed and application for leave to cross-appeal quashed. Joan Barrett , Michael Perlin and Jeffrey Wyngaarden , for the appellant/ r espondent on application for leave to cross-appeal. Stephanie DiGiuseppe and Karen Heath , for the respondent David Sullivan. Matthew R. Gourlay and Danielle Robitaille , for the respondent/ a pplicant on application for leave to cross-appeal Thomas Chan. Michael H. Morris , Roy Lee and Rebecca Sewell , for the intervener the Attorney General of Canada. Sylvain Leboeuf and Jean-Vincent Lacroix , for the intervener the Attorney General of Quebec.

Ami Kotler , for the intervener the Attorney General of Manitoba. Lara Vizsolyi , for the intervener the Attorney General of British Columbia. Noah Wernikowski , for the intervener the Attorney General of Saskatchewan. Deborah J. Alford , for the intervener the Attorney General of Alberta.

Jeremy Opolsky, Paul Daly, Jake Babad and Julie Lowenstein, for the intervener the British Columbia Civil LibertiesAssociation. Carter Martell, Anita Szigeti, Sarah Rankin and Maya Kotob, for the intervener the Empowerment Council, SystemicAdvocates in Addictions and Mental Health. Lindsay Daviau and Deepa Negandhi, for the intervener the Criminal Lawyers’ Association (Ontario). Eric S. Neubauer, for the intervener the Canadian Civil Liberties Association. Megan Stephens and Lara Kinkartz, for the intervener the Women’s Legal Education and Action Fund Inc.

Connor Bildfell and Asher Honickman, for the intervener the Advocates for the Rule of Law. The judgment of the Court was delivered by Kasirer J. — I. Overview [1] After having voluntarily taken an overdose of a prescription drug and falling into an impaired state, David Sullivanattacked his mother with a knife and injured her gravely. He was charged with several offences, including aggravated assault and assaultwith a weapon. In unrelated circumstances, Thomas Chan also fell into an impaired state after he voluntarily ingested “magicmushrooms” containing a drug called psilocybin. Mr.

Chan attacked his father with a knife and killed him and seriously injured hisfather’s partner. He was tried for manslaughter and aggravated assault. [2] In their different circumstances, both Mr. Sullivan and Mr. Chan argued at their respective trials that their state ofintoxication was so extreme that their actions were involuntary and could not be the basis of a guilty verdict for the violent offences ofgeneral intent brought against them. Mr.

Chan argued in particular that an underlying brain injury was the significant contributing causeof his psychosis, rather than his intoxication alone, such that he was not criminally responsible pursuant to s. 16 of the Criminal Code,R.S.C. 1985, c. C-46. [3] In the case of Mr. Sullivan, the trial judge accepted the accused was acting involuntarily but decided that thedefence of extreme intoxication akin to automatism was not available by virtue of s. 33.1 of the Criminal Code. Mr. Sullivan wasconvicted of the two assault charges. In the case of Mr.

Chan, the trial judge dismissed a constitutional challenge to s. 33.1. Mr. Chan’sbrain trauma was held to be a mental disorder, but not the cause of the incapacity, which was the result of the voluntary ingestion ofmagic mushrooms. The trial judge in his case rejected his argument under s. 16. He was convicted of manslaughter and aggravatedassault. [4] Their appeals were heard together. The Court of Appeal for Ontario held that s. 33.1 violated ss. 7 and 11(

d) of theCanadian Charter of Rights and Freedoms and was not saved by s. 1. As a result, both Mr. Sullivan and Mr. Chan were entitled to raisethe defence of automatism. Based on the findings at his trial, Mr. Sullivan’s convictions were set aside and acquittals entered. The Courtof Appeal ordered a new trial for Mr. Chan because no finding of fact had been made in respect of non-mental disorder automatism in hiscase. The Crown has appealed both the decisions for Mr. Sullivan and Mr. Chan to this Court. [5] In R. v.

Brown, 2022 SCC 18, released concurrently with the reasons for judgment in these appeals, I conclude thats. 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 equallyapplicable to the Crown’s appeals in the cases at bar. [6] As respondent, Mr. Sullivan has raised an issue relating to the character and force of a s. 52(1) declaration ofunconstitutionality issued by a superior court.

He argued before us that the trial judge had been bound by a previous declaration by asuperior court judge in the province that held s. 33.1 to be of no force and effect. The issue raised by Mr. Sullivan provides anopportunity to clarify whether a declaration made under s. 52(1) binds the courts of coordinate jurisdiction in future cases due to theprinciple 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. Theright approach can be stated plainly. Superior courts at first instance may not be bound if the prior decision is distinguishable on its factsor if the court had no practical way of knowing that the earlier decision existed.

Otherwise, the decision is binding and the judge mayonly depart from it if one or more of the exceptions helpfully explained in Re Hansard Spruce Mills, (BC SC), [1954] 4D.L.R. 590 (B.C.S.C.), apply. [7] In the result, I would dismiss the Crown’s appeal in the case of Mr. Sullivan and confirm the acquittals entered bythe Court of Appeal. [8] As respondent in his appeal before this Court, Mr. Chan seeks leave to cross-appeal and, if granted, he asks that wesubstitute 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 applicationfor leave to cross-appeal must be quashed for want of jurisdiction. I would reject his alternative argument that this Court order a stay ofproceedings in respect of the very serious violent charges brought against Mr. Chan because the requirements for a stay have not beenmade out. In the result, I would confirm the Court of Appeal’s order of a new trial. II. Background

A. David Sullivan [9] All parties agree that Mr. Sullivan attacked his mother during an episode of drug-induced psychosis during whichhe had no voluntary control over his actions. Mr. Sullivan, then 43 years old, lived with his mother in a condominium unit. He has ahistory of mental illness and substance abuse. Evidence adduced at trial indicated that in the three months before the attack, he wasconvinced that the planet would be invaded by aliens that were already present in their condominium. [10] Mr. Sullivan had been prescribed bupropion (under the name Wellbutrin) to help him quit smoking.

Psychosis is aside effect of the drug. He had experienced psychosis from Wellbutrin at least once before, shortly before the events in this case. Theevening prior to the attack, he ingested 30 to 80 Wellbutrin tablets in a suicide attempt. The drugs prompted a psychotic episode duringwhich time, in the early hours of the morning, he woke his mother and told her an alien was in the living room. She followed him intothe area and, while she was there, Mr. Sullivan went into the kitchen, took two knives, and stabbed his mother six times.

She sufferedserious injuries, including residual nerve damage that was slow to heal. She died before trial of unrelated causes. [11] Several neighbours saw Mr. Sullivan acting erratically outside of the building after the attack. Agitated when thepolice arrived, Mr. Sullivan was talking about Jesus, the devil, and aliens. He was taken to the hospital, where he had multiple seizures.The psychotic episode resolved itself within a few days. At trial, a forensic psychiatrist gave evidence that Mr. Sullivan was likelyexperiencing a bupropion-induced psychosis at the time of the attack on his mother. B.

Thomas Chan [12] Thomas Chan violently attacked his father and his father’s partner with a knife. Mr. Chan’s father later died from hisinjuries. The father’s partner was gravely and permanently injured. [13] After returning home from a bar where they had consumed several alcoholic drinks earlier that evening, Mr. Chan andhis friends decided to take magic mushrooms. Mr. Chan had consumed mushrooms before and enjoyed the experience. He ingested aninitial dose and when he failed to feel the same effects as his friends, he took a second dose. Towards the end of the night, he beganacting erratically.

Frightened, he went upstairs where he woke up his mother, mother’s boyfriend, and sister. Mr. Chan then left the homewearing only a pair of pants. His family and friends pursued him as he ran towards his father’s home a short distance away. Mr. Chanbroke into his father’s house through a window even though he normally gained entry through finger-print recognition on a homesecurity system. [14] Once inside, he confronted his father in the kitchen and did not appear to recognize him. He shouted that he was Godand that his father was Satan. He proceeded to stab his father repeatedly.

He then stabbed his father’s partner. When police arrived, hecomplied with their demands, although at one point he struggled with what a police officer described as “super-strength”. III. Proceedings Below A. David Sullivan Ontario Superior Court of Justice, [2016] O.J. No. 6847 (QL), 2016 CarswellOnt 21197 (WL Can.) (Salmers J.) [15] At trial, the parties agreed, and the trial judge accepted, that Mr. Sullivan was acting involuntarily when he stabbedhis mother. The trial judge found that Mr. Sullivan experienced a state of non-mental disorder automatism, attributable to his ingestion ofWellbutrin.

His state was caused by a drug for which psychosis is a known side-effect. [16] The Crown said s. 33.1 applied because Mr. Sullivan’s psychosis was self-induced and therefore could not be thebasis for a defence that he lacked the general intent or voluntariness for the crimes of assault. There was disagreement about whetherMr. Sullivan’s consumption of Wellbutrin was voluntary.

Section 33.1 would only preclude the automatism defence if intoxication was“self-induced”. The trial judge found that Mr. Sullivan’s intoxication was voluntary and that he knew or ought to have known thatWellbutrin would cause him to be impaired.

Section 33.1 was applied. He was found guilty of aggravated assault, assault with a weapon,and four counts of breach of a non-communication order. It bears noting that Mr. Sullivan did not contest the constitutionality of s. 33.1at trial. He received a global sentence of five years. B. Thomas Chan

(1) Constitutional Ruling, 2018 ONSC 3849, 365 C.C.C. (3d) 376 (Boswell J.) [17] Mr. Chan challenged the constitutionality of s. 33.1 in a pre-trial application, arguing in particular that the trial judgewas bound by previous decisions of the same court, notably R. v. Dunn (1999), (ON SC), 28 C.R. (5th) 295 (Ont.C.J. (Gen. Div.)), and R. v.

Fleming, 2010 ONSC 8022, which found s. 33.1 to be unconstitutional. [18] Boswell J. considered whether, by reason of the doctrine of horizontal stare decisis, he was bound by a constitutionaldeclaration by another judge of the superior court in the province that s. 33.1 was of no force or effect because it was inconsistent withthe Charter. Relying on R. v. Scarlett, 2013 ONSC 562, the trial judge held that he was not so bound. Decisions from courts ofcoordinate jurisdiction should be followed in the absence of cogent reasons to depart therefrom.

A court is bound unless the previousdecision is “plainly wrong” (paras. 55-56). The trial judge reasoned that the case law on the constitutionality of s. 33.1 was“considerably unsettled” (para. 58). Although all courts had agreed that s. 33.1 violated ss. 7 and 11(

d) of the Charter, courts weredivided on whether it could be saved under s. 1. As a result, Boswell J. did not “feel constrained to follow one school of thought morethan the other” (ibid.). In addition, none of the earlier constitutional decisions had had the benefit of the judgment of the Court in Canada(Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, on the relationship between ss. 7 and 1 (para. 58). He concluded thathe was free to reconsider the question afresh. [19] The trial judge then went on to decide that s. 33.1 violated ss. 7 and 11(

d) of the Charter but was saved under s. 1.

(2) Judgment on the Merits, 2018 ONSC 7158 (Boswell J.) [ 20 ] With the defence of automatism precluded by operation of s. 33.1, Mr. Chan argued that he was not criminally responsible by reason of brain trauma which, alone or in connection with the effect of the intoxicant, amounted to mental disorder under s. 16 . The parties disagreed about whether Mr. Chan was suffering from a brain injury and, if so, whether it played a

part in his violent conduct. Mr. Chan argued that but for the brain injury, he would not have been psychotic from consuming the mushrooms. The Crown argued that the primary cause of Mr. Chan’s psychosis was his voluntary consumption of the mushrooms. The trial judge was required to consider, first, whether Mr. Chan was suffering from a mental disorder at the time of the offence and, second, if that mental disorder rendered him incapable of appreciating the nature and quality of his actions, or incapable of knowing they were wrong. [ 21 ] Mr. Chan did not satisfy the applicable requirements under s. 16 .

The evidence disclosed a mild traumatic brain injury. The trial judge could not conclusively say that the brain injury rendered Mr. Chan incapable of appreciating the nature and quality of his actions or of knowing they were wrong. The progression of his psychosis suggested that the ingestion of psilocybin was the primary cause of Mr. Chan’s impaired state. The judge found that “Mr. Chan experienced a sudden onset of psychosis that coincided directly with the ingestion and absorption of magic mushrooms”. While the trial judge found that Mr.

Chan “was incapacitated by the effects of the drugs he consumed”, I note that he made no specific finding that Mr. Chan was in a state of self-induced intoxication akin to non-mental disorder automatism. [ 22 ] Mr. Chan was convicted of manslaughter and aggravated assault. He was later sentenced to a global sentence of five years, reduced to three and a half years after credit reductions ( 2019 ONSC 1400 ).

(3) Application to Re-open Constitutional Challenge, 2019 ONSC 783 , 428 C.R.R. (2d) 81 (Boswell J.) [ 23 ] After sentencing, Mr. Chan applied to re-open the case to re-argue the constitutional issue. He said that R. v. McCaw , 2018 ONSC 3464 , 48 C.R. (7th) 359, which had been rendered subsequently, declared s. 33.1 unconstitutional and therefore presented a renewed opportunity to consider the question. In McCaw , Spies J. said she was bound by Dunn .

Spies J. held that once a provision is declared unconstitutional, it is invalid and “off the books” (para. 76) for all future cases by operation of s. 52(1) and as directed in R. v. Ferguson , 2008 SCC 6 , [2008] 1 S.C.R. 96. In other words, judges of concurrent jurisdiction are bound by a declaration of unconstitutionality. On that basis, argued Mr. Chan, the trial judge had been bound by the prior declaration of unconstitutionality in Dunn when he considered the application of s. 33.1 here. [ 24 ] Boswell J. dismissed Mr. Chan’s application to re-open the case. McCaw was not an accurate statement of the law.

Relying on Spruce Mills , a proper understanding of the rule of horizontal stare decisis is that relevant decisions of the same level of court should be followed as a matter of judicial comity, unless there are compelling reasons that justify departing therefrom. Spruce Mills set out three criteria for departure, which were summarized correctly, in his view, by Strathy J. in Scarlett as “plainly wrong” (para. 41 ). [ 25 ] For Boswell J., McCaw misinterpreted the statements by McLachlin C.J. in Ferguson that an unconstitutional law is “effectively removed from the statute books” (para. 65).

McLachlin C.J. did not express the view that judges of coordinate jurisdiction could not review or reconsider an order striking down a provision under s. 52. Ferguson was not about horizontal stare decisis . Boswell J. preferred Strathy J.’s reading of Ferguson , which acknowledged the erga omnes (“against all” or, as is sometimes said, “against the world”) character of a declaration of unconstitutionality but did not extend that effect to courts of coordinate jurisdiction. The question remained as to whether the prior ruling is plainly wrong and there are salient reasons for correcting the error.

With respect to Dunn , there were good reasons to depart from precedent. The s. 1 analysis was plainly wrong; Bedford had changed the relationship between ss. 7 and 1 . Moreover there were inconsistent rulings on the matter of the constitutionality of s. 33.1 across the country. C. Court of Appeal for Ontario, 2020 ONCA 333 , 151 O.R. (3d) 353 (Paciocco J.A., Watt J.A. concurring; Lauwers J.A. concurring in the result) [ 26 ] The Court of Appeal allowed the appeals and held that s. 33.1 is unconstitutional and of no force or effect.

The Court of Appeal’s judgment on this point is reviewed in Brown and need not be recounted here in detail. For the purposes of this case, I need only note that Paciocco J.A.’s careful reasoning on ss. 7 and 11 (

d) has been affirmed in Brown . In addition, although my own justification analysis differs from that of Paciocco and Lauwers JJ.A., I agree with their ultimate conclusion: s. 33.1 cannot be saved by s. 1 . Their conclusion that s. 33.1 is inconsistent with the Charter and of no force or effect is equally applicable in these two appeals. [ 27 ] Speaking for the Court on this point, Paciocco J.A. addressed the issue of whether the trial judge in Mr.

Chan’s case was bound by precedent of a court of coordinate jurisdiction in the province to accept the unconstitutionality of s. 33.1. [ 28 ] In his view, the ordinary rules of stare decisis apply when superior courts in first instance consider whether to follow previous declarations of unconstitutionality made by the same court. He distinguished several cases that purported to stand for the proposition that a declaration is binding on other superior court judges unless successfully appealed by the Crown (paras. 34-35, referring to Nova Scotia (Workers’ Compensation Board) v.

Martin , 2003 SCC 54 , [2003] 2 S.C.R. 504; Canada (Attorney General) v. Hislop , 2007 SCC 10 , [2007] 1 S.C.R. 429; and Ferguson ). These cases made statements to the effect that a provision inconsistent with the Constitution “is invalid from the moment it is enacted” in all future cases and is “effectively removed from the statute books” ( Martin , at paras. 28 and 31 ; see Ferguson , at para. 65 ; Hislop , at para. 82 ). Paciocco J.A. read these cases as describing the effect of s. 52(1) declarations rendered by the Supreme Court because it is the apex court in Canada.

They did not oust the principles of stare decisis generally nor did they pertain to declarations made by lower courts. [ 29 ] If all s. 52(1) declarations were binding, wrote Paciocco J.A., accuracy would be compromised. For example, if three superior court judges in succession upheld a provision, but a fourth judge’s ruling declared it to be of no force and effect, only the fourth judge’s ruling would take hold within a province absent an appeal by the Crown.

The development of the law would be “driven by coincidence” rather than by the “quality of the judicial ruling” (para. 37). [ 30 ] The principles in Spruce Mills and Scarlett were affirmed. Applied to the context of s. 52(1) declarations of unconstitutionality, a superior court judge faced with a prior judgment of a court of coordinate jurisdiction should apply that precedent

and treat the provision as having no force or effect unless, by exception to the principle of horizontal stare decisis , the earlier decision is plainly wrong. The trial judge was correct to decide that he was not bound by Dunn and entitled to consider the issue afresh. [ 31 ] Having declared s. 33.1 unconstitutional and of no force or effect, Paciocco J.A. entered acquittals for Mr. Sullivan on his assault charges. Mr. Chan was entitled to a new trial, but not acquittals. The trial judge made no finding that Mr. Chan was acting involuntarily. Instead, the trial judge rejected Mr.

Chan’s claim that he should be found not criminally responsible, a claim that does not require the establishment of automatism. Mr. Chan should have the opportunity to invoke the defence of non-mental automatism and lead evidence in that regard at a new trial. IV. Issues [ 32 ] As noted, the Crown appeals on the constitutionality of s. 33.1 cannot succeed for the reasons stated in Brown . The Court of Appeal correctly concluded that s. 33.1 infringes ss. 7 and 11 (

d) and cannot be saved under s. 1 . [ 33 ] There are two remaining issues in these appeals: 1. On what basis can a declaration issued by a superior court pursuant to s. 52(1) of the Constitution Act, 1982 be considered binding on courts of coordinate jurisdiction? 2. Does the Court have jurisdiction to hear Mr. Chan’s cross-appeal? If so, is he entitled to an acquittal?

If not, is he nevertheless entitled to a stay of proceedings? [ 34 ] For the reasons that follow, I conclude on the first issue that the ordinary rules of stare decisis and judicial comity apply to declarations of unconstitutionality issued by superior courts within the same province. On the second issue, I conclude the Court lacks jurisdiction to hear the cross-appeal. I would not order a stay. The Court of Appeal’s order for a new trial for Mr. Chan should be upheld, as should the acquittals it entered for Mr. Sullivan. V. Analysis A.

Section 52(1) Declarations of Unconstitutionality and Horizontal Stare Decisis [ 35 ] Presented in the General Part of the Constitution Act, 1982 under the heading “Primacy of Constitution of Canada”, s. 52(1) provides: 52

(1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect. [ 36 ] The parties disagree on the rules that apply after a superior court declares a law inconsistent with the Charter and thus of no force or effect pursuant to s. 52(1). [ 37 ] Mr. Sullivan observes that at the time he was convicted at trial, s. 33.1 had already been declared of no force and effect by other judges of the superior court in the province of Ontario.

He recalls that starting in Dunn , in 1999, four separate superior court judgments were rendered “striking [s. 33.1] down” (R.F., at para. 85). Mr. Sullivan says that a declaration issued by a court of coordinate jurisdiction under s. 52(1) of the Constitution Act, 1982 invalidates the law for all future cases. In deciding the contrary, the trial judge in Mr. Chan’s case and the Court of Appeal failed to recognize the effect on the law of the declaration issued under s. 52(1) .

Paciocco J.A., writing for a unanimous court on this point in appeal, erred in deciding that the matter is governed by the ordinary principles of stare decisis and by adopting the test of judicial comity explained in Scarlett and Spruce Mills . [ 38 ] Mr. Sullivan, along with a number of interveners, submit that a superior court only “discovers” that a law is unconstitutional when it issues a declaration pursuant to s. 52(1) — the law becomes of no force or effect through the operation of s. 52(1) .

He relies on statements from this Court which characterize a s. 52(1) declaration as rendering the law “null and void”, a finding which applies “for all future cases” and that the law is unenforceable because it is “effectively removed from the statute books” ( Martin , at para. 31 ; Ferguson , at para. 65 , Hislop , at para. 82 ). Consistent with those statements, says Mr. Sullivan, when a superior court issues a s. 52(1) declaration of unconstitutionality, the impugned provision is nullified both prospectively and retrospectively.

The intervener British Columbia Civil Liberties Association argues further that, by its nature, a s. 52(1) declaration by a superior court has universal effect beyond the parties “for all Canadians” and thus must bind courts across the country. The intervener Advocates for the Rule of Law adds that a s. 52(1) declaration derives its force from the Constitution and that permitting the government to relitigate a law’s constitutionality after it has been declared of no force or effect would be inconsistent with the Constitution’s remedial scheme.

Finally, the Canadian Civil Liberties Association intervenes to warn of the potential undermining of the rule of law and consequential unpredictability if the ordinary rules of stare decisis apply. [ 39 ] Although it argues that the Court of Appeal made no mistake in holding that the ordinary rules of stare decisis apply here, the Crown recalls that the matter is technically moot. Even if the trial judges were obliged to follow Dunn , this Court is not so bound and the lower courts’ failure to do so has no practical impact on the outcome of these appeals. But, says the Crown, the question raised by Mr.

Sullivan should still be decided. [ 40 ] I agree that the matter can and should be decided here ( Rules of the Supreme Court of Canada , SOR/2002-156, r. 29(3) ; R. v. Poulin , 2019 SCC 47 , [2019] 3 S.C.R. 566, at paras. 18-26 ). The question is one of public importance to the conduct of constitutional litigation in courts of first instance in Canada.

Moreover the question was carefully considered by the courts below and, in this Court, has been addressed by the parties with additional submissions on either side of the question by interveners. [ 41 ] On the substance of the matter, the Crown argues that while s. 52(1) declarations are erga omnes in nature, they do not necessarily stand as authority for all future cases to be decided of coordinate jurisdiction or bind across the country. Mr. Sullivan’s approach compromises the rule of law by allowing for erroneous findings of unconstitutionality to stand. The rules of stare decisis

provide the flexibility needed to balance finality with correctness. [42] The Attorneys General of British Columbia, Quebec and Canada intervene in support of the Crown’s position. BritishColumbia submits that a s. 52(1) declaration should be reconsidered only where there is palpable and overriding error or where thethreshold in Bedford is met.

Quebec argues the “plainly wrong” standard should be qualified; a previous decision should only be setaside where there is a new question of law or a change in the situation or evidence that leads to materially different circumstances.Canada observes that disagreement between lower courts helpfully generates considered opinions upon which appellate courts can relyfor their own reasoning. [43] For the reasons that follow, I agree with the Crown that the trial judge was not strictly bound by the prior declarationby a court of coordinate jurisdiction by virtue of s. 52(1). In my respectful view, Mr.

Sullivan’s understanding of the effect of adeclaration under s. 52(1) is mistaken. A s. 52(1) declaration of unconstitutionality reflects an ordinary judicial task of determining aquestion of law, in this case with respect to the consistency of a law with the requirements of the Charter.

Questions of law are governedby the normal rules and conventions that constrain courts in the performance of their judicial tasks. [44] In the result, I agree with the conclusion reached by Paciocco J.A. that the ordinary principles of stare decisis governthe manner in which a declaration issued by a court under s. 52(1) affects how courts of coordinate jurisdiction in the province shoulddecide future cases raising the same issue. I would however clarify the situations when a superior court may depart from a priorjudgment of a court of coordinate jurisdiction.

The standard is not that the prior decision was “plainly wrong”.

A superior court judge infirst instance should follow prior decisions made by their own court on all questions of law, including questions of constitutional law,unless one or more of the exceptions in Spruce Mills are met. (1) Section 52(1) Declarations of Unconstitutionality Reflect the Exercise of Judicial Power to Decide Questions of Law [45] I start with a simple point: in issuing a declaration that a law is inconsistent with the Constitution and thus of no forceor effect, a judge is exercising an ordinary judicial power to determine a question of law.

Given the nature of the power they exercise,judges cannot in a literal sense “strike down legislation” when they review the consistency of the law with the Constitution unders. 52(1). Mr. Sullivan misconstrues the power of judges when he says that the effect of a declaration of unconstitutionality is that theimpugned law is removed from the statute books going forward. In our law, legislatures have the power to remove laws from the statutebooks, or to modify those statutes, not judges (see D. Pinard, “De l’inhabilité des juges à modifier le texte des lois déclaréesinconstitutionnelles”, in P. Taillon, E.

Brouillet and A. Binette, eds., Un regard québécois sur le droit constitutionnel: Mélanges enl’honneur d’Henri Brun et de Guy Tremblay (2016), 329, at p. 342). Professor Pinard convincingly frames this judicial power as onegrounded in legal

interpretation and recalls the distinction, that she rightly says is sometimes neglected, between legal rules and thetextual expression of those rules. Judges, in their interpretative task as it bears on statutory law under s. 52(1), have no power to[translation] “alter the text of rules of written law” (p. 329, fn. 2 (emphasis deleted)). She writes: [translation] Judicial review for constitutionality concerns the impugned rule, not the text of written law that expresses the rule.

Thenecessary legislative reworking, if any, will only be done after the judgment of unconstitutionality, by the relevant legislature. [p. 347] [46] Contrary to what Mr. Sullivan suggests, while s. 33.1 was declared to be inconsistent with the Constitution and of noforce or effect in Dunn, it was not, by the effect of that judgment, “struck from the books”. As I seek to explain below, when this Court inFerguson stated that a law is effectively removed from the statute books, it was not speaking in literal terms.

The effect of the judicialdeclaration in this case, where s. 33.1 is considered to be inconsistent with the Constitution, is not to annul the law but, as the French textof s. 52(1) makes especially plain, to declare that it is “inopérante” (see M.-A. Gervais, “Les impasses théoriques et pratiques ducontrôle de constitutionnalité canadien” (2021), 66 McGill L.J. 509, at p. 521, at fn. 45, citing P.-A. Côté, “La préséance de la Chartecanadienne des droits et libertés” (1984), 18 R.J.T. 105, at pp. 108-10; see also F. Gélinas, “La primauté du droit et les effets d’une loiinconstitutionnelle” (1988), 67 Can.

Bar Rev. 455, at pp. 463-64). [47] A second equally simple point flows from the first and also appears to have been neglected by Mr. Sullivan. Inauthorizing a competent judge to issue a declaration under s. 52(1), the Constitution Act, 1982 also invites the court to decide an ordinaryquestion of law, albeit one with constitutional implications. Specifically, s. 52(1) asks the court to determine whether the impugned lawis “inconsistent with the provisions of the Constitution” and, if so, to measure “the extent of this inconsistency” to decide whether and towhat extent the law is of no force or effect.

To do so, the court interprets the impugned law and interprets the Constitution. In Mr. Chan’scase, the trial judge was called upon to determine whether there was an inconsistency between the Charter and s. 33.1. To decide that, hehad to resolve the legal question relating to the meaning of ss. 7, 11(

d) and 1 of the Charter and the meaning of s. 33.1. [48] Notwithstanding the heady constitutional context, these are ordinary judicial tasks raising questions of law. Unders. 52(1) of the Constitution Act, 1982, courts are called upon to resolve conflicts between the Constitution and ordinary statutes(Reference re Manitoba Language Rights, (SCC), [1985] 1 S.C.R. 721, at p. 746). Properly understood, the supremacyclause refers to the hierarchy of laws in the constitutional order. Superior courts are empowered to determine whether a provision isinconsistent with the Constitution in accordance with this hierarchy.

These questions of law are no different than other questions of lawdecided outside the constitutional context (A. Marcotte, “A Question of Law: (Formal) Declarations of Invalidity and the Doctrine ofStare Decisis” (2021), 42 N.J.C.L. 1, at p. 9). Judicial review of legislation on federalism or Charter grounds has been described as a“normal judicial task” similar to the “interpretation of a statute” (P. W. Hogg and W. K. Wright, Constitutional Law of Canada (5th ed.Supp.), at §5-21; R. Leckey, Bills of Rights in the Common Law (2015), at p. 55).

As judicial review of legislation is an ordinary judicialtask consisting of the determination of a question of law, the legal effects of the declaration of unconstitutionality that results should begoverned by the ordinary rules of stare decisis (Marcotte, at p. 21). In its effect, a declaration of unconstitutionality simply refutes thepresumption of constitutionality by deciding that the impugned provisions are inconsistent with the Constitution and therefore of noforce or effect. It does not alter the terms of the statute (see, e.g., R. v.

P. (J.) (2003), (ON CA), 67 O.R. (3d) 321(C.A.), at para. 31; Gervais, at pp. 535-38). [49] Having indicated my view that a s. 52(1) declaration of unconstitutionality is an ordinary judicial task that involvesresolving a question of law rather than an expression of the authority of a superior court to alter the statute book, I now turn to the legal

nature and effect of a s. 52(1) declaration beyond the parties to litigation.

(2) Stare Decisis Governs Declarations of Unconstitutionality [50] Mr. Sullivan argues that an unconstitutional law is invalid from the moment it was first enacted, due to the operationof s. 52(1) and the principle of constitutional supremacy. In effect, s. 52(1) renders a law invalid or “null and void” retrospectively andprospectively. As a result, when a superior court “discovers” that legislation is unconstitutional, absent an appeal, the legislation is nulland void for all future cases.

In support of this argument, he points specifically to the judgment of Spies J. in McCaw who decided shewas bound by a previous judgment of her court in Dunn declaring that s. 33.1 was unconstitutional where the Crown had chosen not toappeal. Spies J. relied specifically on Ferguson for this conclusion: “To the extent that the law is unconstitutional, it is not merelyinapplicable for the purposes of the case at hand.

It is null and void, and is effectively removed from the statute books” (Ferguson, atpara. 65, cited by Spies J. in McCaw, at para. 60). [51] I respectfully disagree. [52] Understanding the comments of this Court in Ferguson requires the reader to recall the context in which that case wasrendered. The Court rejected the argument, in connection with the application of mandatory minimum sentences, that individualexemptions be granted by judges from otherwise unconstitutional laws.

McLachlin C.J. sought to underscore, in understandably stronglanguage, that a s. 52(1) declaration did not operate on a case-by-case remedial basis as would a constitutional remedy available unders. 24(1) of the Charter, but instead that the issuing court’s declaration that the law was of no force or effect was applicable erga omnes.The impugned legislation was not to be applied, as a matter of course, to some litigants and not others according to judicial discretion(see Ferguson, at para. 35). [53] That said, Ferguson does not change the fact that the declaration remains an exercise of judicial power by which ajudge determines a question of law.

As such, the determination of that question of law is binding erga omnes as a matter precedent,according to the ordinary rules of stare decisis, and not because that law has been truly removed from the statute books (see H. Brun,G. Tremblay and E. Brouillet, Droit constitutionnel (6th ed. 2014), at para. I.54). Judges, of course, do not have that latter power. Tosuggest that, by its use of a figure of speech, this Court lost sight of this is, in my view, a mistaken reading of the case.

I note that somescholars have similarly commented upon the formulation of the observations in Ferguson and like observations made by this Court as tothe effect of a s. 52(1) declaration (see, e.g., Marcotte, at pp. 13-14 and 16-17; Pinard, at p. 349). Indeed Ferguson points to a plainunderstanding that the declaration issued under s. 52(1) is the exercise of judicial power that has an erga omnes vocation. I read theoccasional references to s. 52(1) as judgments in rem in the cases (see, e.g., Ravndahl v. Saskatchewan, 2009 SCC 7, [2009] 1 S.C.R.181, at para. 27), in the same way.

A judgment in rem applies beyond the immediate parties but, ultimately, even in the context of as. 52(1) declaration, it remains a judgment: an exercise of judicial power that determines a question of law (Coquitlam (City) v.Construction Aggregates Ltd. (1998), (BC SC), 65 B.C.L.R. (3d) 275 (S.C.), at paras. 11-17, aff’d 2000 BCCA 301,75 B.C.L.R. (3d) 350, leave to appeal dismissed, [2001] 1 S.C.R. ix, cited in Marcotte, at p. 14, fn. 64; see also L. Sarna, The Law ofDeclaratory Judgments (4th ed. 2016), at p. 158).

It is binding precedent, to be sure, but within the proper limits of the doctrine of staredecisis. [54] I am thus content to read Ferguson as a useful figure of speech rather than take what the Court said in literal terms.McLachlin C.J. sought to show, in connection with the dispute as to remedy before the Court in that case, that under s. 52(1), as opposedto s. 24(1) of the Charter, the law was unconstitutional erga omnes and not on a case-by-case basis. At a technical level, it is true that theexplanation for that is rooted in s. 52(1), as other cases have suggested.

But ultimately, that effect requires the exercise of judicial powerto declare the law to be unconstitutional. And the exercise of that power requires the judge to make a determination of an ordinaryquestion of law: by interpreting the impugned law and the relevant provisions of the Constitution, whether the impugned law isinconsistent with Canada’s supreme law. If so, then the law is, of course, of no force or effect for all future cases, insofar as that judicialdeclaration made under s. 52(1) by a superior court is binding on other courts and within the right confines of the law relating toprecedent.

Other decisions of this Court that use the language of “striking out” or “striking down” or “severing” statutory text should beunderstood in a similarly figurative manner, rendering the text merely inoperative pursuant to s. 52(1) as opposed to altering or repealingthe text in the literal sense (see Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11, [2013] 1 S.C.R. 467, at para. 94,and R. v. St-Onge Lamoureux, 2012 SCC 57, [2012] 3 S.C.R. 187, at para. 67, cited in Pinard, at pp. 331-34; Schachter v. Canada, (SCC), [1992] 2 S.C.R. 679, at p. 695; Gervais, at p. 530; see also Windsor (City) v.

Canadian Transit Co., 2016 SCC 54,[2016] 2 S.C.R. 617, at para. 70; R. v. Lloyd, 2016 SCC 4 , 2016 SCC 130, [2016] 1 S.C.R. 13, at para. 15; P. W. Hogg andA. A. Bushell, “The Charter Dialogue Between Courts and Legislatures” (1997), 35 Osgoode Hall L.J. 75, at p. 100). [55] Similarly, the principle from Martin that the “invalidity of a legislative provision inconsistent with the Charter doesnot arise from the fact of its being declared unconstitutional by a court, but from the operation of s. 52(1)” must be understood in itsentire context (para. 28).

Martin concerned the ability of administrative tribunals to consider the constitutionality of provisions of theirenabling statutes (para. 27). Gonthier J. determined that an administrative tribunal empowered to consider and decide questions of lawthrough its enabling statute must also have the power to determine a provision’s consistency with the Charter because itsconstitutionality is a question of law (K. Roach, Constitutional Remedies in Canada (2nd ed. (loose-leaf)), at § 6:3). Such adetermination is not binding on future decision-makers (paras. 28 and 31).

Importantly, Gonthier J. added that only through “obtaining aformal declaration of invalidity by a [superior] court can a litigant establish the general invalidity of a legislative provision for all futurecases” (para. 31), a point taken up in later cases of this Court (Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16, [2015] 2S.C.R. 3, at para. 153; Okwuobi v. Lester B. Pearson School Board, 2005 SCC 16, [2005] 1 S.C.R. 257, at paras. 43-44; Ontario(Attorney General) v. G, 2020 SCC 38, at para. 88).

In other words, it is the constitutional determination of a superior court judge thatbinds future decision makers (R. v. Albashir, 2021 SCC 48, at paras. 64-65). The inconsistency spoken to in s. 52(1) is revealed throughlitigation, specifically the judgment that declares the inoperability of the impugned law. The doctrine of stare decisis extends the effectof that judgment beyond the parties to the case, erga omnes within the province at least — subject to the limits of the doctrine itself.

Theissue in these appeals concerns the binding nature of such a judgment, and, in my view, consonant with our jurisprudence, a s. 52(1)declaration establishes unconstitutionality “for all future cases” through the authority of the judgment that makes that declaration. I agreewith Paciocco J.A., at para. 34 of the judgment in appeal, that Gonthier J. was not seeking to alter the principles of stare decisis inMartin.

[56] I add that this explanation does not reduce the declaration to an individual remedy, as some interveners suggest. Whileit is true that stare decisis pertains to the reasons given by a court and a s. 52(1) declaration is a remedy, the reasons explain the status ofthe impugned law in terms of its consistency with the Constitution. The constitutional status of the law is, as I say, a question of law. Thescope of the legal reasoning extends beyond the individual claimant, with effect beyond the parties flowing from the binding character ofthe judgment as a matter of precedent (Albashir, at para. 65).

The granting of a personal remedy under s. 24(1), in contrast, is a highlyfactual exercise, involving the application of law to a specific context — that someone has obtained a s. 24(1) remedy in a case says verylittle about whether a subsequent claimant is entitled to the same relief (Ferguson, at paras. 59-61; Albashir, at para. 65). [57] In other words, in McCaw, Spies J. was right to conclude she was not free to ignore prior decisions but, with respect,she arrived at that conclusion for what appears to be the wrong reason (para. 76).

It was right to say that, in considering whether tofollow Dunn, the court was obliged to consider s. 33.1 as having been declared, by a judge of her court, as unconstitutional. But theresult of that declaration was not that s. 33.1 was “off the books” (it remains of course on the books until Parliament chooses to removeit) (para. 76). Spies J. was bound to follow precedent because as a matter of horizontal stare decisis, Dunn was binding on courts ofcoordinate jurisdiction in the province as a matter of judicial comity, unless an exception to horizontal stare decisis was established.

Itwas true that s. 33.1 was of no force and effect. It was true that the declaration in Dunn applied not just to the parties in that case but toall future cases. But, with respect, it was wrong to say that “judicial comity has no relevance to the issue before me” (McCaw, atpara. 76). If she had concluded that Dunn had been rendered per incuriam (“through carelessness” or “by inadvertence”), for example, itwould not have been binding on the court in McCaw based on the ordinary rules of stare decisis as interpreted in Spruce Mills.

Indeed, assuggested by this Court in Martin, Spies J. could not apply an invalid law. It is certainly true, as suggested in Ferguson, that she had “nodiscretion” to do so (para. 35). Yet Spies J. was bound, as a matter of precedent, by the prior judgment of a court of coordinatejurisdiction to consider s. 33.1 to be unconstitutional, insofar as the doctrine of horizontal stare decisis so required. [58] By contrast, in Mr. Chan’s case, Boswell J. decided, as a matter of discerning applicable and binding precedent, thatDunn did not bind him.

While he may have erred in respect of his explanation as to why Dunn was not binding, he was right to considerthe matter from the point of view of binding precedent and the doctrine of horizontal stare decisis. [59] I would add — and here I likely

part company with the Court of Appeal in the present case — that the same principlesapply to judicial declarations made by this Court under s. 52(1). I respectfully disagree with the view that, as the apex court in theCanadian judicial system, the Supreme Court of Canada is invested with a special mandate to strike laws from the books. The judges ofthis Court are judges, not legislators.

If it is true that the declarations of this Court under s. 52(1) have a qualitatively different effect thandeclarations made by judges of other courts, it is on the basis of vertical stare decisis — the idea that other courts are bound to followprecedent set by higher judicial authority — and not because the Constitution has invested the judges of this Court with a power that is insome way non-judicial (see Re B.C. Motor Vehicle Act, (SCC), [1985] 2 S.C.R. 486, for a related expression of this sameidea).

(3) The Role of Federalism and the Rule of Law [60] The principle of constitutional supremacy cannot dominate the analysis of s. 52(1) to the exclusion of otherconstitutional principles. Mr. Sullivan points to the idea that an unconstitutional law is invalid from the moment it is enacted. But thestrict enforcement of such a principle “cannot easily be reconciled with modern constitutional law” (Albashir, at para. 40). Instead, it issubject to a number of exceptions and s. 52(1) must be read “in light of all constitutional principles” (Albashir, at paras. 40 and 42; G, atpara. 88).

In Albashir, my colleague Karakatsanis J. explained that declarations of unconstitutionality are generally retrospective,consistent with the notion that a law is unconstitutional from its enactment. However, other constitutional principles may require a purelyprospective declaration of unconstitutionality or a suspended declaration.

Similarly, the legal effect of a s. 52(1) declaration by a superiorcourt must be defined with reference to constitutional supremacy, the rule of law, and federalism. [61] It is often said there are four fundamental organizing precepts of the Constitution: federalism, democracy,constitutionalism and the rule of law and respect for minorities (see Reference re Secession of Quebec, (SCC), [1998] 2S.C.R. 217, at paras. 32, 43 and 49).

Of particular importance in the context of s. 52(1), the principle of constitutional supremacy must bebalanced against federalism and the rule of law (see Albashir, at paras. 30 and 34). This point has been neglected by Mr. Sullivan andsome of the interveners who argue that a declaration of unconstitutionality has the effect of rendering a law null and void as “against theworld” without regard for the territorial limits of the administration of justice within a province. Yet even in McCaw, Spies J. understoodthat effect to be limited to the province (para. 77).

Author Mark Mancini acknowledges that this is linked to a proper understanding ofs. 96 of the Constitution Act, 1867, which explains that because superior courts operating “within the province” only have powers withinthe province, courts of one province are not bound by decisions of courts of another province (“Declarations of Invalidity in SuperiorCourts” (2019), 28:3 Const. Forum 31, at p. 35, relying on Wolf v. The Queen, (SCC), [1975] 2 S.C.R. 107; see alsoGervais, at p. 561; Brun, Tremblay and Brouillet, at para. I.106).

I agree. [62] Federalism prevents a s. 52(1) declaration issued within one province from binding courts throughout the country:indeed, to allow a declaration of unconstitutionality issued by a superior court in British Columbia to bind a superior court, much less anappellate court, in Quebec or Alberta would be wholly inconsistent with our constitutional structure (see, e.g., Reference re Same-SexMarriage, 2004 SCC 79, [2004] 3 S.C.R. 698, at para. 70). It cannot be the case that the supremacy clause compels this outcome,through the simple operation of s. 52(1) (see C.A. reasons, at para. 35).

I understand this to be a major obstacle to Mr. Sullivan’sargument, not just as a matter of the territorial scope of the effect of s. 52(1) declarations, but in respect of the theoretical basis forarguing why and how they would operate outside the confines of the ordinary rules of stare decisis.

If the provision of s. 33.1 was truly“off the books” because a s. 52(1) declaration resulted in it being considered null and void, it is hard to explain why — not least from theperspective of the accused in another province — it would be null and void in one part of the country and not another. [63] The better view is that s. 33.1 is not null and void, but inoperative by reason of a determination of law made by ajudge. That determination is binding, within the province, unless there is valid reason to depart from it.

The accused is free to make thatargument and a court of coordinate jurisdiction is not irretrievably bound by the prior decision within the province. Needless to say, thedeclaration of unconstitutionality made by a superior court in one province may be followed in another province because it is persuasive(see, e.g., Parent v. Guimond, 2016 QCCA 159, at paras. 11 et seq. ; Brun, Tremblay and Brouillet, at para. I.105). Thus, I reject

the arguments from Mr. Sullivan and the interveners that a s. 52(1) declaration is of such a unique legal character that, once a declarationis issued anywhere in the country, its effect is that the impugned legislation is “no longer in the system” from coast to coast.

Instead, as. 52(1) declaration is the end-result of a judge’s ability to resolve questions of law and should be observed by courts of coordinatejurisdiction within the province as a matter of stare decisis: nothing more or less. [64] It follows there is no supplementary power held by courts when issuing a declaration of unconstitutionality beyondthe strictures imposed by the rules of stare decisis.

Precedent requires judges to examine prior judicial decisions, examine the ratiodecidendi in order to determine whether the ratio is binding or distinguishable and, if binding, whether the precedent must be followedor departed from (see M. Rowe and L. Katz, “A Practical Guide to Stare Decisis” (2020), 41 Windsor Rev. Legal Soc. Issues 1, at pp. 8-12; D. Parkes, “Precedent Unbound? Contemporary Approaches to Precedent in Canada” (2006), 32 Man. L.J. 135, at p. 141; see also R.v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773, at para. 71).

Adherence to precedent furthers basic rule of law values such as consistency,certainty, fairness, predictability, and sound judicial administration (Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4,[2015] 1 S.C.R. 245, at para. 137; David Polowin Real Estate Ltd. v. Dominion of Canada General Insurance Co. (2005), (ON CA), 76 O.R. (3d) 161 (C.A.), at paras. 118-21). It helps ensure judges decide cases based on shared and general norms,rather than personal predilection or intuition (J. Waldron, “Stare Decisis and the Rule of Law: A Layered Approach” (2012), 111 Mich.L. Rev. 1, at pp. 22-23).

The rule of law itself has constitutional status, recognized in the

preamble of the Charter. It “lie[s] at the root of[Canada’s] system of government” (Reference re Secession of Quebec, at paras. 32 and 70). [65] Horizontal stare decisis applies to courts of coordinate jurisdiction within a province, and applies to a ruling on theconstitutionality of legislation as it does to any other legal issue decided by a court, if the ruling is binding. While not strictly binding inthe same way as vertical stare decisis, decisions of the same court should be followed as a matter of judicial comity, as well as for thereasons supporting stare decisis generally (Parkes, at p. 158).

A constitutional ruling by any court will, of course, bind lower courtsthrough vertical stare decisis. [66] Stare decisis brings important benefits to constitutional adjudication that balance predictability and consistency withchanging social circumstances and the need for correctness. As Robert J. Sharpe has observed, an incorrect constitutional decision by acourt is more difficult to repair and may require legislative intervention (Good Judgment: Making Judicial Decisions (2018)). It wouldbe unwise for a single trial judge in a province to bind all other trial judges.

It is better to revisit precedent than to allow it to perpetuatean injustice (Sharpe, at pp. 165-68). Were s. 52(1) declarations strictly binding for all future cases, none of these benefits would berealized and our constitutional law would ossify. It is for these reasons that McLachlin C.J. asserted that “stare decisis is not astraitjacket that condemns the law to stasis” (Carter v.

Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, at para. 44).Horizontal stare decisis attempts to balance stability and predictability against correctness and the orderly development of the law. [67] In the absence of the supporting theory of stare decisis, res judicata on its own is not a helpful lens through which toanalyse s. 52(1) declarations. Res judicata estops relitigation of disputed facts and disputed mixed questions of fact and law (B. Garner etal., The Law of Judicial Precedent (2016), at p. 374).

The formal requirements of the two main branches of res judicata, cause of actionand issue estoppel, will not be met in cases relitigating the constitutionality of a provision, for the simple reason that the parties will notbe the same and neither will the facts. I acknowledge that courts also have inherent ability to prevent an abuse of process, which preventsrelitigation of an issue where the strict test for res judicata is not met, in order to “[preserve] the integrity of the court’s process”(Toronto (City) v.

C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77, at para. 42). [68] Stare decisis is the better framework to apply to litigation of constitutional issues, as it better guards against therelitigation of law, whereas res judicata guards against the relitigation of facts. First, abuse of process is not confined within a provinceand applying it to relitigation of the constitutionality of legislation would require a court to consider whether the parties are estoppedfrom arguing the issue because a court in another jurisdiction has already decided on it.

Even more remarkably, applying abuse ofprocess to these types of cases would require a court of appeal to consider whether it should hear an appeal where a trial court in anotherprovince has already ruled on the constitutionality of an issue. Second, stare decisis and the test from Spruce Mills serve as a better guidefor trial judges to determine whether to depart from horizontal precedent. At its core, this question relates to the rule of law and judicialcomity. Applying abuse of process would unnecessarily confuse this analysis.

Finally, courts must adjudicate constitutional issues —applying abuse of process or res judicata would prevent a court from even considering new constitutional arguments or issues. Thiswould be unwise and would undermine constitutional supremacy.

It would also prevent the courts from adapting to changing socialcircumstances, a fundamental feature of our constitutional order. [69] Lastly, I note that some have been critical of the fact that the constitutional status of s. 33.1 has remained unsettledbefore trial courts across the country more than twenty years after its enactment by reason, in part, of a lack of appeals by theprosecution.

Section 33.1 was declared unconstitutional by several trial courts in different provinces and upheld in others over thisperiod. Notwithstanding declarations of unconstitutionality by trial courts, the Crown continued to rely on the provision in subsequentcases. One intervener before us suggested that the Crown must appeal declarations of unconstitutionality at the first opportunity oraccept the lower court’s conclusion for all future cases.

In the legal literature, some have said that it is unacceptable, in respect of federallegislation, for a provision to be unconstitutional in one province and not in another, or for a law to be applied inconsistently within aprovince because its constitutionality remains unsettled. [70] While one might well expect the authorities to consider an appeal when faced with conflicting trial decisions relatingto a law on which the prosecution continues to rely, I respectfully disagree with the view that the relevant attorney general is bound toappeal declarations of unconstitutionality in criminal matters such as these.

It is true that when put on notice that the constitutionality of aprovision has been challenged, the attorney general has the “opportunity” to defend the impugned law and appeal a declaration ofunconstitutionality where an appeal does lie (Guindon v. Canada, 2015 SCC 41, [2015] 3 S.C.R. 3, at para. 19; see also R. v. McCann,2015 ONCA 451, at para. 6 ).

Yet however desirable uniform treatment of the substantive criminal law might be within or evenacross provinces, the decision to appeal remains within the discretion of the attorney general, who acts independently in deciding thequestion, in keeping with its authority to pursue the public interest (see, e.g., M. Rosenberg, “The Attorney General and theAdministration of Criminal Justice” (2009), 34 Queen’s L.J. 813, at pp. 819 and 825; K. Roach, “Not Just the Government’s Lawyer:The Attorney General as Defender of the Rule of Law” (2006), 31 Queen’s L.J. 598, at pp. 608-10, citing J. Ll. J.

Edwards, The LawOfficers of the Crown (1964), at p. 228).

[71] Barring an abuse of that authority, the attorney general is not answerable for the exercise of its discretion in suchmatters before the courts (R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167, at paras. 44 and 46). The attorney general might wellchoose not to appeal a declaration of unconstitutionality, for example, if it felt that the matter is insufficiently developed in the decidedcases for proper consideration by an appeal court or that a conviction would best be left alone. For example, there was no appeal fromthe constitutional ruling in Dunn notwithst

[…]