COURT
    OF APPEAL FOR ONTARIO

CITATION:
    R. v. Sullivan, 2020 ONCA 333

DATE:
    20200603

DOCKET:
    C64566 & C66588

Watt, Lauwers and Paciocco JJ.A.

DOCKET:
    C64566

BETWEEN

Her Majesty the Queen

Respondent

and

David Sullivan

Appellant

DOCKET:
    C66588

AND BETWEEN

Her Majesty the Queen

Respondent

and

Thomas Chan

Appellant

Stephanie DiGiuseppe, for the appellant David Sullivan

Danielle Robitaille, Matthew Gourlay, and Lauren Binhammer,
    for the appellant Thomas Chan

Joan Barrett, Michael Perlin, and Jeffrey Wyngaarden for
    the respondent

Roy Lee and Rebecca Sewell, for the intervener Attorney
    General of Canada

Lindsay Daviau and Deepa Negandhi, for the intervener Criminal
    Lawyers Association (Ontario)

Jill R. Presser, Cara Zwibel, and Eric S. Neubauer, for the
    intervener Canadian Civil Liberties Association

Megan Stephens and Lara Kinkartz, for the intervener Legal
    Education and Action Fund (LEAF)

Heard:
    October 8 and 9, 2019

On appeal from the conviction entered on
    December 7, 2016 by Justice David Salmers of the Superior Court of Justice
    (C64566).

On appeal from the conviction entered on December 6, 2018
    by Justice R. Cary Boswell of the Superior Court of Justice, with reasons
    reported at 2018 ONSC 7158 (C66588).

Paciocco J.A.:

OVERVIEW

[1]

Mr. Thomas Chan and Mr.
    David Sullivan share similar, tragic experiences. In separate incidents, while
    in the throes of drug-induced psychoses and without any discernible motive, both
    men attacked and stabbed loved ones. Mr. Chan, who became intoxicated after
    consuming magic mushrooms, killed his father and grievously injured his fathers
    partner. Mr. Sullivan, who had become intoxicated after consuming a heavy dose
    of a prescription drug in a suicide attempt, repeatedly stabbed his elderly
    mother. Both men allege that they were in a state of automatism at the time of
    the attacks.

[2]

Automatism is defined
    as a state of impaired consciousness, rather than unconsciousness, in which an
    individual, though capable of action, has no voluntary control over that action:
R. v. Stone
, [1999] 2 S.C.R. 290, at para. 156,
per
Bastarache
    J. Involuntariness is therefore the essence of automatism. The mind does not
    go with what is being done:
Rabey v. The Queen
, [1980] 2 S.C.R. 513,
    at p. 518, citing
R. v. K.
, [1971] 2 O.R. 401 (S.C.), at p. 401.

[3]

Persons in a state of
    automatism may have the benefit of a defence when they engage in otherwise
    criminal conduct, even though automatism is not a justification or excuse:
R.
    v. Luedecke
, 2008 ONCA 716, 93 O.R. (3d) 89, at para. 56. Instead, automatism
    is treated as negating the crime. It is referred to as a defence because the
    accused bears the burden of establishing automatism. In
Luedecke
, at
    para. 56, Doherty J.A. explained the underlying principles:

A person who is
    unable to decide whether to perform an act and unable to control the
    performance of the act cannot be said, in any meaningful sense, to have
    committed the act. Nor can it be appropriate in a criminal justice system in
    which liability is predicated on personal responsibility to convict persons
    based on conduct which those persons have no ability to control.

[4]

There are two branches
    to the defence of automatism. The mental disorder defence, codified in s. 16 of
    the
Criminal Code
, R.S.C., 1985, c. C-46, applies where
    involuntariness is caused by a disease of the mind, since those who are in a
    state of automatism are incapable of appreciating the nature and quality of
    their acts or of knowing at the time of their conduct that it is morally wrong
    [mental disorder automatism]. If successful, a mental disorder automatism
    defence will result in a not criminally responsible verdict, with the
    likelihood of detention or extensive community supervision.

[5]

The alternative branch,
    the common law automatism defence, applies where the involuntariness is not
    caused by a disease of the mind [non-mental disorder automatism]. Where a
    non-mental disorder automatism defence succeeds, the accused is acquitted.

[6]

Mr. Chan and Mr. Sullivan
    each relied on non-mental disorder automatism as their primary defence. The
    hurdle they each faced is that their non-mental disorder automatism claims arose
    from their intoxication, and each man was charged with violent offences. Yet,
    s. 33.1 of the
Criminal Code
[s. 33.1] removes non-mental disorder
    automatism as a defence where the state of automatism is self-induced by
    voluntary intoxication and the offence charged includes as an element an
    assault or any other interference or threat of interference by a person with
    the bodily integrity of another person [a violence-based offence].

[7]

Mr. Chan tried to
    overcome the impediment s. 33.1 presented to his non-mental disorder automatism
    defence by applying to have the section declared to be of no force or effect
    under s. 52(1) of the
Constitution Act, 1982
, as contrary to the
Charter
.
    The trial judge agreed with Mr. Chan that s. 33.1 is in
prima facie
violation
    of ss. 7 and 11(d) of the
Charter
but upheld the constitutionality of
    s. 33.1 under s. 1 of the
Charter
, as a demonstrably justifiable limit
    on the
Charter
rights Mr. Chan invoked.

[8]

Mr. Sullivan argued
    that s. 33.1 did not prevent him from relying on the non-mental disorder
    automatism defence because his intoxication was not voluntary, having resulted
    from a suicide attempt. The trial judge rejected this contention and found s.
    33.1 to apply.

[9]

Both Mr. Chan and Mr. Sullivan
    defended themselves, in the alternative, by claiming that if they were not experiencing
    non-mental disorder automatism at the time of their respective attacks, they
    were experiencing mental disorder automatism. Neither Mr. Chan nor Mr. Sullivans
    mental disorder defences succeeded, and both men were convicted of the
    violence-based charges they faced.

[10]

They now appeal. They
    both raise additional grounds of appeal, but their appeals have in common that
    they both challenge convictions claiming that s. 33.1 unconstitutionally deprived
    them of access to the non-mental disorder automatism defence. Mr. Chan does so
    by challenging the trial judges rulings. Mr. Sullivan raises the
    constitutional validity of s. 33.1 for the first time on appeal, as his case is
    still in the system. The Crown concedes that if Mr. Chans s. 33.1 challenge
    succeeds, Mr. Sullivan would also be entitled to the benefit of that ruling. We
    therefore heard their appeals together and I address them together in this
    joint decision.

[11]

For the reasons below,
    I would find that s. 33.1 is indeed unconstitutional and I would declare it to
    be of no force or effect.

[12]

Since Mr. Chan was
    convicted only of offences that include an element of assault, and those
    convictions depended upon s. 33.1, I would allow his appeal in its entirety and
    order a new trial.

[13]

Mr. Sullivans
    violence-based convictions must also be set aside, for the same reason. The
    Crown agrees that, in these circumstances, verdicts of acquittal should be
    substituted for Mr. Sullivans violence-based convictions, and I would do so. Mr.
    Sullivan also appeals four breach of recognizance convictions for contacting
    his sister while in custody, contrary to a non-communication order. As I will
    explain, I would reject his appeal of these convictions.

[14]

I will begin with Mr.
    Chans appeal, since this is where the bulk of the arguments relating to the
    constitutional validity of s. 33.1 were made.

THE
CHAN
APPEAL:
    MATERIAL FACTS

[15]

The consumption of magic
    mushrooms, containing the active ingredient psilocybin, triggered Mr. Chans
    extreme intoxication. After an evening watching a hockey game at a pub, Mr.
    Chan, a high school student, and three friends ingested magic mushrooms in the
    basement of Mr. Chans mothers home, where he lived. Mr. Chan had used magic
    mushrooms before, and the experience had always been pleasant and uneventful. Within
    a half-hour of consuming the magic mushrooms, his friends were high, but Mr.
    Chan was not. He took an additional quantity of mushrooms.

[16]

Forensic toxicologist,
    Dr. Daryl Mayers, testified that psilocybin is a pretty safe drug in terms of
    toxicity. On this occasion, it was anything but. A few hours after ingesting
    the drugs, Mr. Chans behaviour changed. He expressed that he was scared, began
    speaking in gibberish, and at some point, ran upstairs to his mothers room
    where she and her boyfriend, Mr. Jeff Phillips, were sleeping. Mr. Chan turned
    on the lights and refused to turn them off. He began calling his mother and
    sister Satan and the Devil and claimed to see the light. Mr. Chan ran
    outside, where it was below freezing and snowing, wearing only a pair of pants.

[17]

Mr. Chan then ran to
    his fathers [Dr. Chans] house, which was just around the corner. Outside of
    his fathers house, he tried to fight with one of his friends who had followed
    him, and he smashed a car window. Several neighbours reported that they heard a
    male voice yelling phrases such as, This is Gods will and I am God.

[18]

Mr. Chan broke into his
    fathers house through a window even though he customarily gained entry by
    using finger-print recognition on the home security system. He confronted Dr.
    Chan in the kitchen. Dr. Chan said, Thomas, its Daddy. Its Daddy, but Mr.
    Chan did not appear to recognize him and stabbed him repeatedly. Dr. Chan died
    of his injuries.

[19]

Mr. Chan then began
    attacking Dr. Chans partner, Ms. Lynn Witteveen. Ms. Witteveen said, Thomas,
    its Lynnie, its Lynnie. I love you, but she did not think he recognized her.
    Mr. Chan stabbed her in the abdomen, arm, back, and chest. At some point after
    Ms. Witteveen called 9-1-1, Mr. Chan also stabbed her right eye and slashed her
    neck.

[20]

When the police
    arrived, Mr. Chan immediately complied with their demands to raise his hands
    and drop to the ground. After the police handcuffed him, he began to struggle. Police
    Constable Heenan described him as having super-strength.

[21]

Mr. Chan offered
    alternative arguments to support his claim that s. 33.1 is unconstitutional.
    First, he urged that since s. 33.1 was declared to be unconstitutional in
R.
    v. Dunn
(1999), 28 C.R. (5th) 295 (Ont. S.C.), it no longer had force or
    effect in Ontario, and that the trial judge was bound to disregard it. In the
    alternative, he asked the trial judge to find that the provision violates ss. 7
    and 11(d) of the
Charter
and cannot be demonstrably justified under s.
    1.

[22]

As described, the trial
    judge denied Mr. Chans
Charter
challenge. Since s. 33.1 applied, Mr.
    Chans non-mental disorder automatism defence was unavailable.

[23]

Mr. Chans mental
    disorder defence was also denied. The trial judge found that although Mr. Chans
    rugby career had left him with cognitive deficits linked to a mild traumatic
    brain injury, and although Mr. Chan was incapable at the time of the attack of
    knowing that his actions were morally wrong, his psychosis was the direct result
    of self-induced intoxication through the ingestion of psilocybin. Since the
    psychosis was not caused by a disease of the mind, the mental disorder defence would
    not apply.

[24]

In his reasons for
    judgment in finding Mr. Chan guilty of the grave charges he faced, the trial judge
    remarked, Mr. Chan is not a danger to the public. He is a good kid who got
    super high and did horrific things while experiencing a drug-induced psychosis.

THE
CHAN
APPEAL:
    THE ISSUES

[25]

Mr. Chan appeals his
    convictions. He argues that the trial judge erred in denying his
Charter
challenge
    to s. 33.1, both because the trial judge was bound by the declaration of
    unconstitutionality in
Dunn
, and that, in any event, s. 33.1 cannot be
    demonstrably justified under s. 1 of the
Charter
. He asks that
    acquittals be entered if either of these grounds of appeal succeed.

[26]

Alternatively, Mr. Chan
    argues that the trial judge erred in rejecting the mental disorder defence and
    asks us to set aside his convictions and to either substitute findings of not criminally
    responsible by reason of mental disorder or order a new trial.

[27]

The Crown contends that
    the trial judge was correct in the ultimate conclusions he reached but erred in
    finding s. 33.1 to be in
prima facie
violation of the
Charter
.

[28]

Mr. Chans appeal
    therefore raises the following issues:

A.

Was the trial judge bound by precedent to
    accept the unconstitutionality of s. 33.1?

B.

Was the trial judge correct in finding s.
    33.1 to be in
prima facie
violation of the
Charter
?

C.

If s. 33.1 is in
prima facie
violation
    of the
Charter
, can it be saved by s. 1 of the
Charter
?

D.

If s. 33.1 cannot be saved by s. 1 of the
Charter
and is of no force or effect, should Mr. Chans acquittal be ordered?

E.

Did the trial judge err
    in rejecting Mr. Chans mental disorder defence?

[29]

I agree with the trial
    judge that he was not bound by prior authority to treat s. 33.1 as having no
    force or effect. I also agree with the trial judge that s. 33.1 violates ss. 7
    and 11(d) of the
Charter
. However, the trial judge erred in finding
    that these violations are demonstrably justifiable under s. 1. Mr. Chans
    appeal must be allowed.

[30]

Mr. Chan asks us to
    substitute verdicts of acquittal. I would not do so and would order a new
    trial. Given this, I need not determine whether the trial judge erred in
    rejecting the mental disorder defence. This ground of appeal is largely fact
    driven, and if it arises again, that issue should be decided by the trial judge
    at the re-trial.

A.

Was the trial judge bound by precedent to accept
    the unconstitutionality of s. 33.1?

[31]

Mr. Chan argues that
    once a superior court judge declares a law to be unconstitutional, that
    declaration is binding on other superior court judges, unless the Crown has
    successfully appealed that decision. He recognises that this position is inconsistent
    with the ordinary principles of
stare decisis
, which hold that lower
    courts are required to follow only binding precedent of higher courts but are
    not strictly bound to follow earlier decisions in the same court: Robert J.
    Sharpe,
Good Judgment: Making Judicial Decisions
, (Toronto: University
    of Toronto Press, 2018), at pp. 153-155.

[32]

Mr. Chan points out
    that it in
Nova Scotia (Workers Compensation Board) v. Martin; Nova Scotia
    (Workers Compensation Board) v. Laseur
, 2003 SCC 54, [2003] 2 S.C.R. 504,
    at para. 28, the Supreme Court of Canada recognized that the invalidity of a
    legislative provision inconsistent with the
Charter
does not arise
    from the fact of its being declared unconstitutional by a court, but from the
    operation of s. 52(1). The result, he says, is that s. 52(1) governs the
    binding effect of superior court declarations of unconstitutionality, and the
    principles of
stare decisis
do not. Section 52(1) provides that any
    law that is inconsistent with the provisions of the Constitution is, to the
    extent of the inconsistency, of no force or effect. Therefore, once a superior
    court judge makes a s. 52(1) declaration, all other superior court judges within
    the province are bound to treat it as such. On that basis, he contends that
    since s. 33.1 was found to be unconstitutional in
Dunn
prior to Mr.
    Chans prosecution, and that decision was not appealed and set aside, the trial
    judge erred in relying on s. 33.1, as it was of no force or effect.

[33]

As the decision in
R.
    v. McCaw
, 2018 ONSC 3464, 48 C.R. (7th) 359 reveals, superior court case
    law in Ontario is split on whether this is correct. There does not appear to be
    appellate authority directly on point, although in an
obiter
comment
    made in another context, in
R. v. Boutilier
, 2016 BCCA 24, 332 C.C.C.
    (3d) 315, at para. 45, Neilson J.A. commented that a declaration is a final
    order in the proceeding directed at the constitutionality of [the impugned
    provision], binding on the Crown
and on other trial
    courts of [the] province
 (emphasis added).

[34]

With respect, I cannot
    agree. I am persuaded that the ordinary principles of
stare decisis
apply, and that the trial judge was not bound by the
Dunn
decision.
    The authorities relied upon by Mr. Chan do not purport to oust these principles.
    In
Nova Scotia (Workers Compensation Board)
,

at para. 28, Gonthier
    J. was simply explaining that a provision that is inconsistent with the
    Constitution is invalid from the moment it is enacted, and a judicial declaration
    to this effect is but one remedy amongst others to protect those whom it adversely
    affects. He was not attempting to alter the principles of
stare decisis
where
    s. 52(1) declarations have been made.

[35]

Similarly, in none of
    the other passages relied upon by Mr. Chan was the Supreme Court of Canada
    purporting to oust the principles of
stare decisis
where s. 52(1)
    declarations have been made. The passages he refers to proclaim that after a s.
    52(1) declaration is made, the law: is invalid for all future cases; cannot
    be enforced; and is null and void, and is effectively removed from the
    statute books, such that [t]he ball is thrown back into Parliaments court: see
    respectively
Nova Scotia (Workers Compensation Board)
, at para. 31;
Canada
    (Attorney-General) v. Hislop
, 2007 SCC 10, [2007] 1 S.C.R. 429, at para.
    82; and
R. v. Ferguson
, 2008 SCC 6, [2008] 1 S.C.R. 96, at para. 65.
    These passages describe the effects of a s. 52(1) declaration that has been affirmed
    or made by the Supreme Court of Canada, the apex court. Those passages cannot
    be taken as describing the effect of declarations made by lower courts. After
    all, declarations made by trial courts are subject to appeal, and if overturned
    on appeal, will have no effect. Even on Mr. Chans theory, superior court
    declarations are not binding outside of the province in which they are made. In
    these circumstances, it cannot be said that a superior court declaration determines
    the validity or enforcement of the statute for all future cases, effectively
    removes the impugned provision from the statute books, or throws the ball back
    into Parliaments court. These things happen only if the Supreme Court of
    Canada affirms or makes a s. 52(1) declaration.

[36]

Nor can Mr. Chan find
    assistance in McLachlin C.J.s observation in
Canada (Attorney General) v.
    Bedford,
2013 SCC 72, [2013] 2 S.C.R. 1101, at paras. 43-44, that the
    common law principle of
stare decisis
is subordinate to the
    Constitution.
Bedford
recognized that the principles of
stare
    decisis
cannot be relied upon to perpetuate a statute, where that statute
    is unconstitutional when viewed again through a new lens. Specifically, a trial
    judge can depart from binding precedent when a new legal issue is raised, or
    if there is a significant change in the circumstances or evidence:
Bedford
,
    at para. 44. However,
Bedford
does not hold that the principles of
stare
    decisis
are ousted whenever constitutional issues are at stake.

[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 judges 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.

[38]

The application of the principles
    of
stare decisis
to s. 52(1) declarations made by superior court
    judges does not mean that a superior court declaration will have no effect in
    other cases. Other 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:
R. v. Scarlett
,
    2013 ONSC 562, at para. 43;
Re Hansard Spruce Mils Ltd.
, [1954] 4
    D.L.R. 590 (B.C.S.C.), at p. 592. It is obvious that a superior court judge
    cannot determine that there is cogent reason to conclude that the earlier
    decision is plainly wrong without the benefit of argument, facilitated by fair
    notice to the parties. Therefore, where a party seeks to rely on a statutory
    provision that has been declared to be unconstitutional by a superior court
    judge, a subsequent trial judge should apply that earlier declaration of
    invalidity and treat the statutory provision as having no force or effect,
    unless the underlying constitutional issue has been raised by the Crown before
    them through submissions that the earlier decision is plainly wrong. In this
    way, the principles of
stare decisis
can operate, while recognizing
    that the effect of a s. 52(1) declaration is not confined to the litigation in
    which the declaration is made.

[39]

The application of the
    ordinary principles of
stare decisis
to s. 52(1) declarations in no
    way collapses the structural distinction between s. 52(1) and s. 24(1) of the
Charter
,
    or amounts to a constitutional exemption, as Mr. Chan argues. The fact that
    cases at the superior court trial level may produce different outcomes for respective
    accused persons does not mean that the remedies are personal. The disparity in
    outcome simply reflects the developing state of the authority on the
    constitutional validity of a provision, as advanced by judges of competent
    jurisdiction.

[40]

The trial judge was
    correct in finding that he was not bound by
Dunn
. He was also correct
    in considering the issue anew, as the issue of the constitutionality of s. 33.1
    was put before him, and the authority he encountered was inconsistent. He had
    no choice, in the circumstances, but to consider whether to deviate from
Dunn
.

[41]

I would therefore reject
    this ground of appeal.

B.

Was the
Chan
trial judge correct in
    finding s. 33.1 to be in
prima facie
violation of the
Charter
?

[42]

The trial judge was
    correct in finding s. 33.1 to be in
prima facie
violation of both ss.
    7 and 11(d) of the
Charter
. Section 33.1 violates each of the
    constitutional principles that were identified by Cory J. for the majority in
R.
    v. Daviault
, [1994] 3 S.C.R. 63. In
Daviault
, the Supreme Court
    of Canada modified the common law rule that eliminated the defence of extreme
    intoxication because the common law rule was in breach of the
Charter
in
    three ways. I will describe these breaches as the voluntariness breach, the
    improper substitution breach, and the
mens rea
breach. Although
    there has been some variation in articulation and emphasis, virtually all the
    judges who have considered this issue have found that the legislation breaches
    the
Charter
in one or more of these respects.

[43]

I will begin by introducing
    the relevant constitutional principles in the context of the
Daviault
decision.
    I will then address and reject general arguments made before us that the
    constitutional principles recognized in
Daviault
do not govern whether
    s. 33.1 is in
prima facie
violation of the
Charter
. I will
    then analyse these principles in detail and explain why s. 33.1 contravenes ss.
    7 and 11(d) of the
Charter
in these respects.

(1)

THE ROAD TO s. 33.1
DAVIAULT

[44]

Mr. Daviault was
    charged with sexual assault. The sexual act he was charged with committing
    occurred after Mr. Daviault had been drinking heavily. He claimed he was so
    extremely intoxicated that, at the time of the act, he was in a state of
    automatism. The decision in
Leary v. The Queen
, [1978] 1 S.C.R. 29 imposed
    an impediment to Mr. Daviaults attempt to rely on his extreme intoxication as
    a defence. Under the
Leary
rules voluntary intoxication can be
    presented as a defence only to a specific intent offence, but not a general
    intent offence, and sexual assault is a general intent offence.

[45]

There are policy
    reasons that support criminal consequences when general intent offences are
    committed by those who choose to become intoxicated. However, the primary
    distinction between general intent and specific intent offences lies in the
    complexity of the thought and reasoning process required to commit the relevant
    offence:
R. v. Tatton
, 2015 SCC 33, [2015] 2 S.C.R. 574, at para. 21.
    The mental states required to commit general intent offences simply relate to
    the performance of the illegal act with no further ulterior purpose; therefore,
    they involve minimal mental acuity:
Tatton
, at paras. 35, 41;
Daviault
,
    at p. 89,
per
Cory J.; and
R. v. Bernard
, [1988] 2 S.C.R.
    833, at p. 863,
per
McIntyre J. These mental states tend to be so
    basic or rudimentary that, ordinarily, it is not realistic to believe that
    intoxication could prevent an accused who has committed the prohibited act from
    having the mental state the offence requires. Proof of intoxication is
    typically irrelevant in general intent offences, as the requisite mental state
    can usually be inferred from the mere commission of the act:
Bernard
,
    at p. 878,
per
McIntyre J.;
Daviault
, at p. 123,
per
Sopinka J. (dissenting on other grounds).

[46]

In contrast, specific
    intent offences tend to require more complex mental elements over and above the
    minimal intent required for general intent offences:
Daviault
, at pp.
    123-124,
per
Sopinka J. (dissenting on other grounds). The
actus
    reus
must be coupled with an intent or purpose going beyond the mere
    performance of the prohibited act; for example, striking a blow with the intent
    to kill:
Bernard
, at p. 863,
per
McIntyre J. For specific
    intent offences, the fact of intoxication may well be relevant in deciding
    whether the accused had the more complex specific intent and so, proof of
    self-induced intoxication is permitted.

[47]

The majority in
Daviault
qualified this sharp general intent offence/specific intent offence divide
    by accepting the view expressed by Wilson J. in
Bernard
, at p. 887,
    that evidence of
extreme intoxication
involving an
    absence of awareness akin to a state of automatism is not irrelevant on issues
    of general intention. Such evidence can raise a reasonable doubt as to the
    existence of even the minimal intent required for a general intent offence such
    as sexual assault. Given that this is so, the
Daviault
majority
    concluded that the
Charter
requires both the admissibility of evidence
    of extreme self-induced intoxication, as well as access to the defence of
    automatism, even when the automatism is the result of self-induced
    intoxication. To do otherwise, would contravene the right to life, liberty, and
    security of person in a manner that does not accord with the principles of
    fundamental justice (
Charter
, s. 7) and the presumption of innocence (
Charter
,
    s. 11(d)). More specifically:

1.

The Voluntariness Breach
 It would be contrary to the principles
    of fundamental justice (
Charter
, s. 7) and the presumption of
    innocence (
Charter
, s. 11(d)) to permit accused persons to be
    convicted for their involuntary acts, as those acts are not willed and
    therefore not truly the acts of the accused:
Daviault
, at pp. 74, 91;

2.

The Improper Substitution Breach
 It would be contrary to the presumption
    of innocence (
Charter
, s. 11(d)) to convict accused persons in the
    absence of proof of a requisite element of the charged offence, unless a
    substituted element is proved that inexorably or inevitably includes that
    requisite element. A prior decision to become intoxicated cannot serve as a
    substituted element because it will not include the requisite mental state for
    the offences charged:
Daviault
, at pp. 89-91; and

3.

The Mens Rea
    Breach
 It would be
    contrary to the principles of fundamental justice (
Charter
, s. 7) to
    convict accused persons where the accused does not have the minimum
mens

rea

that reflects the nature of the crime:
Daviault
, at pp.
    90-92.

[48]

The
Daviault
majority
    went on to find that the identified
Charter
violations could not be
    justified under s. 1 of the
Charter
. It held that there is no pressing
    and substantial purpose in preventing access to the rare and limited defence
    of automatism arising from self-induced intoxication, and the deleterious
    effects of doing so are not overcome by proportionate benefits:
Daviault
,
    at p. 103.

[49]

The
Daviault
majority
    did hold, at p. 101, however, that it is a reasonable limitation on the
Charter
rights identified to require accused persons to establish automatism with
    the assistance of expert evidence, on the balance of probabilities.

(2)

SECTION 33.1 OF THE
CRIMINAL CODE

[50]

The
Daviault
decision,
    with its notion that extreme intoxication could provide a pathway to
    exoneration for sexual assault, created significant public outcry. Parliament
    responded by passing Bill C-72
, An Act to amend the Criminal Code
    (self-induced intoxication)
, 1st Sess, 35th Parl, 1995 (assented to 13
    July 1995), which added s. 33.1 to the
Criminal Code
. Bill C-72 included
    an extensive preamble [the Preamble]:

WHEREAS the Parliament of Canada is
    gravely concerned about the incidence of violence in Canadian society;

WHEREAS the Parliament of Canada
    recognizes that violence has a particularly disadvantaging impact on the equal participation
    of women and children in society and on the rights of women and children to
    security of the person and to the equal protection and benefit of the law as
    guaranteed by sections 7, 15 and 28 of the Canadian Charter of Rights and
    Freedoms;

WHEREAS the Parliament of Canada
    recognizes that there is a close association between violence and intoxication
    and is concerned that self-induced intoxication may be used socially and
    legally to excuse violence, particularly violence against women and children;

WHEREAS the Parliament of Canada
    recognizes that the potential effects of alcohol and certain drugs on human
    behaviour are well known to Canadians and is aware of scientific evidence that
    most intoxicants, including alcohol, by themselves, will not cause a person to
    act involuntarily;

WHEREAS the Parliament of Canada
    shares with Canadians the moral view that people who, while in a state of
    self-induced intoxication, violate the physical integrity of others are
    blameworthy in relation to their harmful conduct and should be held criminally
    accountable for it;

WHEREAS the Parliament of Canada
    desires to promote and help to ensure the full protection of the rights
    guaranteed under sections 7, 11, 15 and 28 of the Canadian Charter of Rights
    and Freedoms for all Canadians, including those who are or may be victims of
    violence;

WHEREAS the Parliament of Canada
    considers it necessary to legislate a basis of criminal fault in relation to
    self-induced intoxication and general intent offences involving violence;

WHEREAS the Parliament of Canada
    recognizes the continuing existence of a common law principle that intoxication
    to an extent that is less than that which would cause a person to lack the
    ability to form the basic intent or to have the voluntariness required to
    commit a criminal offence of general intent is never a defence at law;

AND WHEREAS the Parliament of Canada
    considers it necessary and desirable to legislate a standard of care, in order
    to make it clear that a person who, while in a state of incapacity by reason of
    self-induced intoxication, commits an offence involving violence against
    another person, departs markedly from the standard of reasonable care that
    Canadians owe to each other and is thereby criminally at fault;

[51]

Section 33.1 of the
Criminal
    Code
provides:

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

(2) For the purposes of this
    section, a person departs markedly from the standard of reasonable care
    generally recognized in Canadian society and is thereby criminally at fault
    where the person, while in a state of self-induced intoxication that renders
    the person unaware of, or incapable of consciously controlling, their
    behaviour, voluntarily or involuntarily interferes or threatens to interfere
    with the bodily integrity 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 or any other interference or
    threat of interference by a person with the bodily integrity of another person.

(3)

ANALYSIS: THE
DAVIAULT
PRINCIPLES APPLY

[52]

Arguments were
    presented before us that the principles identified in
Daviault
do not
    govern the constitutional validity of s. 33.1. I do not agree.

[53]

First, I do not accept
    the Crowns contention that the
Charter
principles identified in
Daviault
apply only to common law rules, not statutory ones such as s. 33.1, or
    that
Daviault
provides only that
courts
cannot water down the requirements of statutory offences by omitting the need
    for
statutorily defined
essential elements
    (emphasis in original). The
Daviault
decision is not about the division
    of powers between Parliament and the courts. The sole reason that the Supreme
    Court of Canada reconfigured the common law
Leary
rules in
Daviault
was that, without reconfiguration, the
Leary
rules infringed
    principles of fundamental justice assured by s. 7 of the
Charter
, as
    well as the presumption of innocence under s. 11(d). Those principles of
    fundamental justice were not created in
Daviault
. They had already
    been recognized by other Supreme Court of Canada authority.

Nor does
    the reach or definition of those
Charter
principles vary depending
    upon whether the law being tested is a common law or statutory rule. As s.
    52(1) of the
Constitution Act, 1982
makes clear, subject to s. 1 of
    the
Charter
, these constitutionally-protected principles must be
    respected by any law, common law or statutory. If the law does not do so, it
    will be of no force or effect to the extent of the inconsistency.

[54]

In
Daviault
,
    the Supreme Court of Canada occasionally referenced the limits on judicially
    developed policy or the ability of courts to eliminate elements of a crime.
    These are contextual allusions to the fact that the rules under challenge in
    that case were common law rules. In making these comments, the
Daviault
majority
    was not attempting to confine the reach of the constitutional principles relied
    upon. When Cory J. recognized that it was open to Parliament to legislate in
    this area, he was accepting that there are ways for Parliament to address
    extreme intoxication, but he was not suggesting that Parliament could do so in
    disregard of the constitutional principles described.

[55]

To be clear, no one
    questions that Parliament has the authority to amend criminal offences, and
    that courts do not. The instant point is that when Parliament purports to make
    statutory changes, it must do so consistently with the
Charter
, and in
    determining whether this is so, the
Charter
principles identified in
Daviault
apply.

[56]

Nor do I accept the
    argument advanced by the intervener, the Womens Legal Education Action Fund [LEAF],
    that s. 7 of the
Charter
requires internal balancing in identifying the
    relevant principles of fundamental justice for consideration. Specifically, LEAF
    argued that in determining whether there is a
prima facie
breach, we
    must balance the accuseds interests and public interests, such as equality and
    the human dignity of women and children, who are disproportionally victimized
    by intoxicated offenders.

[57]

Generally, there is no
    place for internal balancing in defining the principles of fundamental justice.
    As Lamer C.J. explained in
R v. Swain
, [1991] 1 S.C.R. 933, at p. 937,
    it is not appropriate to thwart the exercise of the accuseds s. 7 rights by
    trying to bring societal interests into the principles of fundamental justice
    to limit those rights. If societal interests should limit those rights, it is
    for the Crown to show this under s. 1. This was the law when
Daviault
was decided and it remains the law, having recently been reaffirmed in
Bedford
,
    at paras. 124-127, and
Carter v. Canada (Attorney General)
, 2015 SCC 5,
    [2015] 1 S.C.R. 331, at paras. 78-80.

[58]

I recognize that in
R.
    v. Mills
, [1999] 3 S.C.R. 668, the Supreme Court of Canada did conduct internal
    balancing of competing
Charter
-protected interests. This exercise was
    required because the issue in
Mills
was whether the legislative
    accommodation between the privacy and equality rights of sexual offence
    complainants, on the one hand, and the right of the accused to access
    information, on the other, infringed Mr. Mills s. 7 right to full answer and
    defence. No such internal balancing is required in this case. It is not about
    the constitutionality of a legislated compromise between protected interests.
    Moreover, as about to be explained, the reach of the principles of fundamental
    justice at issue have already been authoritatively determined, and this has
    occurred in a body of law that has not engaged in internal balancing. I propose
    to rely on these principles and to consider the important interest identified
    by LEAF under s. 1.

[59]

Finally, at trial, the
    Crown argued that the court must follow the analysis in
Bedford
,
    meaning that the court must measure s. 33.1 against the principles of arbitrariness,
    overbreadth and gross disproportionality:
see R. v. Chan,
2018 ONSC
    3849, 365 C.C.C. (3d) 376, at para. 92. None of the parties before us argued,
    as the trial Crown had, that
Bedford
has changed the way that s. 7
    analysis is to be conducted, but the impact of
Bedford
and
Carter
was
    raised during oral argument and by my colleague in his concurring decision. I
    will therefore address the issue briefly.

[60]

I do not share my
    colleagues view that we are bound by
Bedford
or
Carter
to apply
    the principles of arbitrariness, overbreadth and gross disproportionality to
    the issue of whether s. 33.1 limits s. 7
Charter
rights. Arbitrariness,
    overbreadth and gross disproportionality are engaged if the s. 7 challenge is
    that the effect of the law is not connected to its objective (arbitrariness),
    that the law catches situations that have no connection to its objective
    (overbreadth), or that the law imposes consequences that are grossly disproportionate
    to its objective (gross disproportionality):
Bedford
, at paras.
    97-105. These principles all stem from what Professor Hamish Stewart calls failures
    of instrumental rationality:
Fundamental Justice: Section 7 of the
    Canadian Charter of Rights and Freedoms
(Toronto: Irwin Law, 2012), at p.
    151, cited in
Bedford
, at para. 107. Many principles of fundamental
    justice have little or nothing to do with instrumental rationality, in any of
    these senses.

[61]

The principles of
    fundamental justice identified in
Daviault
,

which the
    appellants now rely upon, do not address the link between the objective and
    effects of s. 33.1. Instead, these principles identify what is constitutionally
    required before a criminal conviction is permitted. In other words, they impose
    constitutional limits on criminal accountability. The principles affirmed in
Daviault
have not been modified in any way by subsequent authority, as the trial Crown
    suggested, nor do I read the
Bedford
and
Carter
cases as
    requiring consideration of arbitrariness, overbreadth and gross
    disproportionality in all s. 7 cases, as my colleague maintains. Those
    principles were considered in
Bedford
and
Carter
because, in
    substance, the challenges before those courts alleged failures of instrumental
    rationality: see
Bedford
, at para. 96;
Carter
, at para. 46. They
    were not considered in
R. v. Morrison
, 2019 SCC 15, 432 D.L.R. (4th)
    637, at paras. 74-91, where, as in this case, the challenge was to the
    compliance of a
Criminal Code
provision with the minimum level of
    constitutionally required fault. In my view, the trial judge was correct in
    rejecting the trial Crowns invitation to consider these principles, and in
    addressing only the principles identified in
Daviault
. I will proceed
    in the same manner.

(4)

ANALYSIS: SECTION 33.1 IS IN
PRIMA FACIE
VIOLATION
    OF THE
CHARTER

[62]

I do not accept that
    the Supreme Court of Canada implicitly suggested that s. 33.1 is
    constitutionally valid because it did not cast doubt on the constitutionality
    of s. 33.1 when deciding
R. v. Bouchard-Lebrun
, 2011 SCC 58, [2011] 3
    S.C.R. 575. Lebel J. noted expressly that the constitutional validity of s.
    33.1 was not before the court in that case: at para. 28. The issue was whether
    the trial judge erred by treating s. 33.1 as limiting the scope of the mental
    disorder defence in s. 16 of the
Criminal Code
, an entirely different
    question.
[1]
The trial judge was correct in rejecting the suggestion that
Bouchard-Lebrun
supports the constitutional validity of s. 33.1.

[63]

With that said, I will now
    describe with specificity the ways I would find s. 33.1 to be in
prima
    facie
infringement of the
Charter
.

(a)

The Voluntariness Breach: Section 33.1 infringes
    ss. 7 and s. 11(d)

of the
Charter
,

as it is contrary to the
    voluntariness principle of fundamental justice and permits conviction without
    proof of voluntariness

[64]

Section 33.1 provides
    expressly that [i]t is not a defence to [a violence-based offence] that the
    accused, by reason of self-induced intoxication, lacked general intent or
the voluntariness required to commit the offence

    (emphasis added). The principles of fundamental justice require that
    voluntariness is an element of every criminal offence. It is therefore contrary
    to the principle of fundamental justice affirmed in
Daviault
, at p. 91,
    to remove the voluntariness element from an offence. It is also contrary to s.
    11(d) to convict someone where there is a reasonable doubt about voluntariness.

[65]

The Crown does not
    dispute the importance of voluntariness. It argues instead that the
    voluntariness inherent in voluntary intoxication supplies the required voluntariness
    element for the violence-based charges. With respect, the Crowns reliance on
    the voluntariness of intoxication is misplaced. The purpose of the principle of
    voluntariness is to ensure that individuals are convicted only of conduct they
    choose. What must be voluntary is the conduct that constitutes the criminal
    offence charged, in this case, the assaultive acts by Mr. Chan. Without those
    assaultive acts, his voluntary intoxication would be benign. The converse is
    not so. It is an offence to engage in assaultive acts, even without voluntary
    intoxication. Clearly, the prohibited conduct that constitutes the offences Mr.
    Chan is charged with are the assaults, not the self-induced intoxication, and
    it is the assaults to which voluntariness must attach to satisfy the
Charter
.

[66]

Case law is clear on
    this point. The Supreme Court of Canada has consistently affirmed that
    voluntariness must be linked to the prohibited conduct. As Lebel J. put it in
Bouchard-Lebrun
,
    at para. 45, it is unfair to convict an accused who did not voluntarily commit
an act that constitutes a criminal offence
 (emphasis
    added). In
R. v. Théroux
, [1993] 2 S.C.R. 5, at p. 17, McLachlin J. (as
    she then was), in speaking of the elements of the crime, said the act must be
    the voluntary act of the accused for the
actus reus
to exist. In his dissenting
    reasons from
Rabey
, at p. 522, Dickson J. (as he then was) spoke of the
    basic principle that the absence of
volition in respect
    of the act involved
is always a defence to a crime (emphasis added).
    This passage was subsequently quoted by LaForest J., writing for the majority,
    in
R. v. Parks
, [1992] 2 S.C.R. 871, at p. 896. The act involved in a
    violence-based offence is the act of violence. The principle of voluntariness
    is not satisfied by relying on the voluntariness of conduct other than the act that
    constitutes the criminal offence charged.

[67]

The decision in
R.
    v. Penno
, [1990] 2 S.C.R. 865, relied upon by the Crown, does not
    establish otherwise.
Penno
dealt with a constitutional challenge to
    the offence of care or control of a motor vehicle while impaired. The
    constitutional challenge in that case was untenable because the accused argued
    that significant impairment should be a defence to the charge, even though
    impairment is an element of the offence. The court divided in explaining why
    that constitutional challenge had to fail. However, most of the judges found
    that since impairment is not only an element of the offence, but also the
    gravamen of the offence, the voluntariness principle is satisfied by requiring
    voluntary impairment. The current constitutional challenge differs. The
    gravamen of the offences Mr. Chan is charged with is not impairment, but his
    assaultive behaviour, and he is not attempting to convert an element of the
    offences charged into a defence. The inapplicability of
Penno
is
    underscored by the fact that in
Daviault
, at p. 102, Cory J. cited
Penno
but nonetheless decided that the
Leary
rules would contravene the
    principle of voluntariness.

[68]

Moreover, Wilson J., the
    only judge to address the point in
Penno
, said that the reasoning in
Penno
does not apply for offences where intoxication is not made part of the
actus
    reus
but is relevant only to assess the presence of
mens rea
:

at pp. 891-892. When speaking of offences where intoxication is not an
    element of the offence, she reaffirmed her position in
Bernard
that the
    defence of non-mental disorder automatism will be a defence:
Penno
, at
    pp. 889-890.

[69]

I do not accept the
    Crowns attempt to overcome the problem that the principle of voluntariness
    presents by arguing that s. 33.1 creates a new and different mode of committing
    all
Criminal Code
offences that include as an element an assault or
    any other interference or threat of interference by a person with the bodily
    integrity of another person. In effect, the Crowns position is that s. 33.1 adds
    new, alternative elements to those offences, which permit conviction based on
    voluntary intoxication, even in the absence of the
mens rea
specified
    in the affected sections. On this basis, the voluntariness of the intoxication
    satisfies the voluntariness requirement.

[70]

In support of this
    interpretation, the Crown relies on the language of s. 33.1(3), which provides:

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

[71]

I cannot agree. Read in
    context and in its entirety, s. 33.1 does not create a new mode of committing
    violent offences. The opening words of s. 33.1(3), This section, are a
    reference to s. 33.1 as a whole, which begins by stating its function in s.
    33.1(1): It is
not a defence
to an offence
    referred to in subsection (3) (emphasis added). The wording of s. 33.1 removes
    a defence. This is as expected, since Parliament enacted s. 33.1 as a direct
    response to a common law rule that recognized involuntariness as a defence.

[72]

Moreover, if the function
    of s. 33.1 was to amend the elements of those offences, one would expect it to
    be in Part VIII of the
Criminal Code
, Offences Against the Person and
    Reputation, where those offences are found. Instead, the section is placed
    alongside the defences addressed in the
Criminal Code
.

[73]

Quite plainly, Parliament
    did not pass s. 33.1 as a one fell swoop amendment to a raft of offences. It
    was passed to eliminate the defence of non-mental disorder automatism for the
    offences referenced.

[74]

Even if s. 33.1 could
    somehow be interpreted as creating a parallel cast of offences, this would not
    solve the voluntariness problem. The act prosecuted would remain the commission
    of the prohibited act specified in the offence charged. As explained, in this
    case, the prohibited act is Mr. Chans assaultive behaviour, as the act of
    voluntary intoxication is benign without such behaviour.

[75]

The trial judge was
    correct to find that s. 33.1 contravenes ss. 7 and 11(d) of the
Charter
because it bypasses the requirement of voluntariness, which is a principle of
    fundamental justice.

(b)

The Improper Substitution Breach: Section 33.1
    infringes the presumption of innocence guaranteed by s. 11(d) of the
Charter
by permitting conviction without proof of the requisite elements of the
    offence

[76]

In
Morrison
, at
    para. 51, Moldaver J., for the majority of the Supreme Court of Canada,
    recently reaffirmed the s. 11(d) principle relied upon in
Daviault
:

Section 11(
d
)
    of the
Charter

protects the accuseds right to be presumed
    innocent until proven guilty. Before an accused can be convicted of an offence,
    the trier of fact must be satisfied beyond a reasonable doubt that all of the essential
    elements of the offence have been proved. This is one of the principal
    safeguards for ensuring, so far as possible, that innocent persons are not convicted.
    The right to be presumed innocent is violated by any provision whose effect is
    to allow for a conviction despite the existence of a reasonable doubt.
    [Citations omitted.]

[77]

As
Daviault
recognizes,
    at p. 91, substituting voluntary intoxication for the required elements of a
    charged offence violates s. 11(d) because doing so permits conviction where a reasonable
    doubt remains about the substituted elements of the charged offence. As the
    trial judge pointed out in this case, that is the unconstitutional effect of s.
    33.1 on Mr. Chan. It purports to permit Mr. Chan to be convicted of
    manslaughter and aggravated assault without proof of the mental state required
    by those offences, namely, the intention to commit the assaults.

[78]

Of course, if everyone
    who becomes voluntarily intoxicated necessarily has the intention to commit the
    charged offences, this constitutional problem would not arise. By proving Mr.
    Chans voluntary intoxication, the Crown would inexorably or inevitably also be
    proving his intention to commit the assaults that supported his manslaughter
    and aggravated assault convictions. Permitting the Crown to rely on voluntary
    intoxication in these circumstances would not leave a reasonable doubt about
    the required elements of the charged offences:
R. v. Vaillancourt
, [1987]
    2 S.C.R. 636, at p. 656;
R. v. Whyte,
[1988] 2 S.C.R. 3, at pp. 18-19;
Daviault
, at pp. 90-91; and
Morrison
, at paras. 52-53. This
    argument is not available to the Crown, since proving voluntary intoxication
    does not necessarily or even ordinarily prove the intention to commit assaults,
    let alone the assaults charged. The materials before us from the Standing
    Committee that was considering Bill C-72 emphasize the correlation between
    intoxication (particularly alcohol intoxication) and violence, and that link
    cannot be questioned. However, that link falls far short of showing that those
    who become intoxicated intend to commit assaults.
By
    enabling the Crown to prove voluntary intoxication instead of intention to
    assault,
s. 33.1 relieves the Crown of its burden of establishing all the
    elements of the crimes for which Mr. Chan was prosecuted, contrary to s. 11(d)
    of the
Charter
.

(c)

The
Mens Rea
Breach: Section 33.1
    infringes s. 7 of the
Charter
by permitting convictions where the
    minimum level of constitutional fault is not met

[79]

Section 33.1 also
    infringes s. 7 of the
Charter
by enabling the conviction of accused
    persons who do not have the constitutionally required level of fault for the
    commission of a criminal offence. The Crown argues that the fault inherent in
    voluntary intoxication suffices where a person commits an act that includes as
    an element an assault or any other interference or threat of interference by a
    person with the bodily integrity of another person. I do not agree.

[80]

In
R. v. Creighton
,
    [1993] 3 S.C.R. 3, at pp. 61-62, the Supreme Court of Canada held that where an
    offence provides no other
mens rea
or fault requirement, the Crown
    must at least establish penal negligence to satisfy the principles of
    fundamental justice. Put otherwise, penal negligence is the minimum,
    constitutionally-compliant level of fault for criminal offences. The general
    intent offences Mr. Chan was charged with have never been found to require more
    than the minimum level of fault. Nor is there any reason to conclude that they
    fall within the small group of offences that require a purely subjective
    standard of fault:
Morrison
, at para. 75. The standard of penal
    negligence is therefore the appropriate measure for testing the constitutional
    validity of s. 33.1, which modifies the fault standard for violence-based
    offences committed while voluntarily intoxicated.

[81]

Indeed, s. 33.1 is
    built on a theory of negligence. As the Preamble confirms, and the Crown
    arguments before us suggest, the underlying theory of fault supporting s. 33.1 rests
    in the irresponsibility of self-induced intoxication and the close association
    between violence and intoxication: see Preamble to Bill C-72. Section 33.1 also
    draws on the language of negligence, referring to a marked departure from
    reasonable standards of care.

[82]

The instant question,
    then, is whether the fault imposed by s. 33.1 satisfies the penal negligence
    standard? It does not.

[83]

In
Creighton
,
    at p. 59, the Supreme Court of Canada defines penal negligence as negligence
    that constitutes a marked departure from the standard of a reasonable person.
    The concept of negligence that girds this standard, which is common to the tort
    of negligence, operates as an objective measure that involves an assessment of the
    relationship between an act or omission and a damaging consequence:
Mustapha
    v. Culligan Canada Ltd.
, 2008 SCC 27, [2008] 2 S.C.R. 114, at paras. 6-15.
    Negligence is not based on whether the person intended or foresaw the
    damaging consequence, but on whether a reasonable person would have foreseen
    and avoided the risk that the damaging consequence could occur by not engaging
    in the allegedly negligent act or omission. If this is so, civil negligence is
    established. For penal negligence to exist so that criminal liability can be
    imposed, the relevant risk must be reasonably foreseeable such that it not only
    falls below standards of ordinary prudence to engage in the risky behaviour but
    doing so amounts to a
marked departure
from standards
    of ordinary prudence:
Creighton
, at p. 59. Section 33.1 fails to meet
    this standard in several ways.

[84]

First, s. 33.1 does not
    require a foreseeability link between voluntary intoxication and the relevant
    consequence, the act of violence charged. In
Bouchard-Lebrun
, at para.
    89, Lebel J. set out the elements of s. 33.1:

This provision
    applies where three conditions are met: (1) the accused was intoxicated at the
    material time; (2) the intoxication was self-induced; and (3) the accused
    departed from the standard of reasonable care generally recognized in Canadian
    society by interfering or threatening to interfere with the bodily integrity of
    another person. [Citations omitted.]

[85]

Note that on this
    authoritative description of the elements of s. 33.1, there is no prescribed
    link between the voluntary intoxication and the violent act. It does not matter
    how unintentional, non-wilful, unknowing, or unforeseeable the interference
    with bodily integrity or threatening is. So long as these components each
    occur, s. 33.1 operates. This is problematic because without a foreseeable risk
    arising from the allegedly negligent act, negligence cannot be established, and
    without negligence, the minimum constitutional standard of penal negligence
    cannot be met.

[86]

Second, even if s. 33.1
    had required such a link, the charged violent behaviour is not invariably going
    to be a foreseeable risk of voluntary intoxication, yet s. 33.1 will
    nonetheless enable conviction. Cory J. made this point in the context of the
    sexual assault charge before him, in
Daviault
, at p. 91:

It simply cannot
    be automatically inferred that there would be an objective foresight that the
    consequences of voluntary intoxication would lead to the commission of the
    offence. It follows that it cannot be said that a reasonable person, let alone
    an accused who might be a young person inexperienced with alcohol, would expect
    that such intoxication would lead to either a state akin to automatism, or to
    the commission of a sexual assault.

[87]

Mr. Chans case
    illustrates the point. A reasonable person in Mr. Chans position could not
    have foreseen that his self-induced intoxication might lead to assaultive
    behaviour, let alone a knife attack on his father and his step-mother, people
    he loved.

[88]

Third, the normative
    element of penal negligence  that the allegedly negligent conduct be a
marked departure
from the standards of a reasonable
    person  is absent. It is important to appreciate that the voluntary
    intoxication required by s. 33.1 does not require an accused person to intend
    to become intoxicated to the point of automatism, or even to become extremely
    intoxicated. It is enough to meet the elements of s. 33.1 that a person takes a
    substance intending to become intoxicated:
R. v. Vickberg
(1998), 16
    C.R. (5th) 164 (B.C.S.C.), at para. 68. This is made clear in
Bouchard-Lebrun
where Lebel J., recognized, at para. 91, that the self-induced
    intoxication requirement of s. 33.1 is met even where a voluntary choice to
    become intoxicated produces abnormal effects. The implication is that a
    decision to become intoxicated to any degree is enough to trigger s. 33.1, even
    where the accused person cannot reasonably expect that, as a result of that
    intoxication, they may become unaware of their behaviour or incapable of
    consciously controlling their behaviour.

[89]

Indeed, the Crown
    before us goes further. It contends that a person who takes a prescription drug
    for health-related reasons, and who knows or
should know
that the drug carries the risk of intoxicating side effects, is under
    self-induced intoxication if intoxication happens to occur. Relying on non-s. 33.1
    cases, the Crown also contends that a person will be voluntarily intoxicated,
    as in Mr. Sullivans case, if they take an intoxicating substance not to become
    intoxicated, but in an attempted suicide:
R. v. Turcotte
, 2013 QCCA
    1916, [2013] R.J.Q. 1743, leave to appeal refused, [2014] S.C.C.A. No. 7;
R.
    v. Honish
,

1991 ABCA 304,

120 A.R. 223, at para. 9, affd
    [1993] 1 S.C.R. 458.

[90]

I will leave aside
    whether the reach of s. 33.1 goes as far as the Crown suggests and focus
    exclusively on those who intend to become intoxicated, including those who
    intend for their intoxication to be no more than mild. The notion that it is a
    marked departure from the standards of the norm to become intoxicated, let
    alone mildly intoxicated, is untethered from social reality, particularly in a nation
    where the personal use of cannabis has just been legalized. Voluntary mild
    intoxication is not uncommon. Whatever one may think of voluntary mild
    intoxication, it is difficult to accept that it is a marked departure from the
    norm.

[91]

Finally, even if moral fault
    can be drawn from voluntary intoxication, it is far from self-evident as a
    normative proposition that such intoxication is irresponsible enough to
    substitute for the manifestly more culpable mental states provided for in the
    general intent offences, such as intention or recklessness relating to sexual
    assault.

[92]

It appears from s.
    33.1(2) that Parliament attempted to overcome these challenges by using the
    language of marked departure and by referencing the standards of reasonable
    persons. Subsection 33.1(2) provides:

For the
    purposes of this section,
a person departs markedly from the standard of
    reasonable care generally recognized in Canadian society
and is thereby
    criminally at fault where the person, while in a state of self-induced intoxication
    that renders the person unaware of, or incapable of consciously controlling,
    their behaviour, voluntarily or involuntarily interferes or threatens to
    interfere with the bodily integrity of another person. [Emphasis added.]

[93]

I do not accept the
    submission made by the intervener, LEAF, that s. 33.1 satisfies minimum
    standards of constitutional fault because it describes an adequate standard of
    fault. Whether minimum standards of constitutional fault are met depends on the
    reach of the section, not the language Parliament uses to describe the level of
    fault it seeks to impose. For the reasons described, the reach of s. 33.1 does
    not comply with minimum standards of constitutional fault.

[94]

This problem is not
    overcome by conceiving of the violent act itself as the marked departure, as
    expressed in the elements of s. 33.1, which were laid out by Lebel J. in
Bouchard-Lebrun
,
    at para. 89. This is because moral fault cannot come from a consequence alone. Instead,
    in the case of negligence, the mental fault lies in failure to direct the mind
    to a risk which the reasonable person would have appreciated:
Creighton
,
    at p. 58. If a consequence that society judges to be a marked departure from
    the norm could ground criminal liability, the law would countenance criminal
    fault based on absolute liability, which would itself violate the
Charter
:
    see
Reference re Section 94(2) of the B.C. Motor Vehicle Act
, [1985] 2
    S.C.R. 486.

C.

If s. 33.1 is in
prima facie
violation of
    the
Charter
, can it be saved by s. 1 of the
Charter
?

[95]

The trial judge was
    therefore correct in finding that s. 33.1 violates the
Charter
in
    three distinct ways: (a) a voluntariness breach of ss. 7 and 11(d); (b) an
    improper substitution breach of s. 11(d); and (c) a
mens rea
breach of
    s. 7. Since s. 33.1 is in
prima facie
violation of ss. 7 and 11(d) of
    the
Charter
in these ways, it is of no force or effect unless the
    Crown can demonstrate, pursuant to s. 1 of the
Charter
that s. 33.1 is
    a reasonable limit prescribed by law as can be demonstrably justified in a
    free and democratic society. The trial judge found that the Crown met this
    burden, and therefore, dismissed Mr. Chans
Charter
challenge to s.
    33.1.

[96]

With respect, I would
    find that the trial judge committed several errors in coming to this conclusion.
    Most significantly, the trial judge misstated the object of s. 33.1. The
    purposes he ascribed to s. 33.1 were too broad. These errors are critical
    because, as I will explain, the trial judges mistaken determination of purpose
    tainted each stage of his s. 1 analysis, contributing to errors in his rational
    connection, minimal impairment, and overall proportionality analysis.

[97]

I would also find that
    s. 33.1 cannot be justified under s. 1. Section 1 analysis is grounded in a
    contextual application of the framework set out in
R. v. Oakes
, [1986]
    1 S.C.R. 103. In
R.J.R.-MacDonald Inc. v. Canada (Attorney General)
,
    [1995] 3 S.C.R. 199, at paras. 126-130, the Supreme Court of Canada refined
    without altering the framework for establishing a reasonable limitation finding
    under s. 1. The Crown must demonstrate:

(1)

Pressing and
    Substantial Purpose
 the
    objective of the law limiting the
Charter
right [is] of sufficient
    importance to warrant overriding it; and

(2)

Proportionality
 the means chosen to achieve the
    objective must be proportional, in the sense that,

(a)
Rational Connection
 the measures chosen
    [are] rationally connected to the objective;

(b)
Minimal Impairment
 the measures chosen must
    impair the guaranteed right or freedom as little as reasonably possible, and

(c)
Overall Proportionality
 there must be
    overall proportionality between the deleterious effects of the measures and the
    salutary effects of the law.

[98]

Section 33.1 would be
    of no force or effect if the Crown has failed to demonstrate any of these
    components on a balance of probabilities. I would find that the Crown has not demonstrated
    the rational connection, minimal impairment, or the proportionality required to
    save the provision.

[99]

In coming to this
    conclusion, I recognize that courts are to approach constitutional challenges,
    including s. 1 evaluations, with a posture of respect to Parliament:
Mills
,
    at para. 56. I also recognize Parliaments core competency in creating criminal
    offences. However, courts have core competency in identifying constitutional
    principles that determine the proper reach of criminal liability in our free
    and democratic society, and the responsibility to protect those principles from
    unconstitutional laws:
Reference re Section 94(2) of the B.C. Motor Vehicle
    Act
, at para. 15. As Vertes J. observed in
R. v. Brenton
,
    deference is not the same thing as merely taking Parliaments choice at face
    value. That would be an abdication of [judicial] responsibility: (1999), 180
    D.L.R. (4th) 314 (N.W.T.S.C.), at para. 78, revd for other reasons, 2001 NWTCA
    1, 199 D.L.R. (4th) 119. Even after due deference is accounted for, Parliaments
    choice in enacting s. 33.1 cannot be demonstrably justified in a free and
    democratic society.

(1)

Pressing
    and Substantial Purpose

[100]

The Crown argued before
    the trial judge, and on appeal, that s. 33.1 has two pressing and substantial
    purposes: (1) holding individuals accountable for intoxicated violence; and (2)
    protecting the security of the person and equality rights of others,
    particularly women and children, from violent crimes at the hands of
    intoxicated offenders. The trial judge accepted that these stated purposes
    accurately reflect the object of s. 33.1 and that both are pressing and
    substantial purposes, satisfying the first
Oakes
requirement.

[101]

I agree that Parliament
    did have an accountability purpose and a protective purpose in mind.
    However, the Crown expresses these purposes too generally, and the trial judge
    erred in following the Crowns lead. The accountability purpose and the
    protective purpose are more specific than the Crown and the trial judge
    conceive. Stated properly, the accountability purpose is to hold individuals
    who are in a state of automatism due to self-induced intoxication accountable
    for their violent acts. The protective purpose is to protect potential victims,
    including women and children, from violent acts committed by those who are in a
    state of automatism.

(a)

The Crowns stated purposes do not accurately reflect the object of
    s. 33.1

[102]

I accept that the
    purposes as stated by the Crown find support in the Preamble to s. 33.1. I also
    recognize that Parliament is entitled to identify its legislative objectives in
    a statutory preamble, and that those stated objectives must be considered by
    courts undertaking s. 1 analysis. However, there are constitutional principles
    that courts must respect in identifying the object of legislation under a s. 1
    analysis. Parliamentary declarations of purpose must be measured against those
    principles so that the task of identifying whether the object of legislation is
    constitutionally sound is not delegated to Parliament. As Wagner C.J. stated in
Frank v. Canada (Attorney General),
2019 SCC 1, [2019] 1 S.C.R. 3, at
    para. 46, the integrity of the justification analysis requires that the
    legislative objective be properly stated: see also
Bedford
, at para.
    78;
Carter
, at para. 77. When those principles are applied here, it is
    apparent that the Crowns stated purposes cannot be accepted, and the purposes
    stated in the Preamble must be refined.

[103]

First, the Supreme Court
    of Canada has repeatedly stressed [t]he critical importance of articulating
    the measures purpose at an appropriate level of generality:
Frank
,
    at para. 46. This is because [t]he relevant objective is that of the
    infringing measure:
Frank
, at para. 46. As McLachlin C.J. explained
    in
R.J.R.-MacDonald Inc.
, at para. 144, this must be so since it is
    the infringing measure and nothing else which is sought to be justified.

[104]

Put otherwise, since
    the Crown is obliged to demonstrate the need for the infringement under s. 1,
    the purpose it relies upon should relate to that infringement. Here, the
    infringing measure, s. 33.1, does not address the prosecution of intoxicated
    offenders generally. It applies only to those who commit violence-based offences
    while in a state of automatism due to self-induced intoxication. Properly
    stated, the object of s. 33.1 must be related to these offenders, and not to
    intoxicated violent offenders generally.

[105]

In
Sauvé v. Canada
    (Chief Electoral Officer)
, 2002 SCC 68, [2002] 3 S.C.R. 519, McLachlin
    C.J. expanded on this point. She said that [t]o establish justification, one
    needs to know what problem the government is targeting, and why it is so
    pressing and important that it warrants limiting a
Charter
right:
Sauvé
,
    at para. 24. In
Frank
, at paras. 129-130, Côté and Brown JJ.,
    dissenting but not on this point, counseled courts to look at the state of the
    law prior to the impugned legislation, and the scope that the legislature
    sought to regulate with the impugned law. It cannot be said that the government
    was targeting the general problem of intoxicated violence when it passed s.
    33.1. When s. 33.1 was passed, the general problem of intoxicated violence had
    already been targeted by the
Leary
rules, as modified in
Daviault
,
    which s. 33.1 leaves untouched. Instead, the scope of s. 33.1 makes clear that
    it targets the one exception to the
Leary
rules created in Daviault,
    namely, violent offences committed by those who are in a state of automatism
    due to self-induced intoxication. It is an overstatement to claim that the
    mission of s. 33.1 is directed at intoxicated violence generally.

[106]

It is important to
    avoid overstating legislative objectives, as the Crown and trial judge have
    done. McLachlin C.J. cautioned in
R.J.R.-MacDonald Inc.
, at para. 144,
    that if the objective is stated too broadly, its importance may be exaggerated,
    and the entire s. 1 analysis compromised. As she pointed out in
Alberta v.
    Hutterian Brethren of Wilson Colony
, 2009 SCC 37, [2009] 2 S.C.R. 567, at
    para. 76, the first three stages of
Oakes
are anchored in an
    assessment of the laws purpose.

[107]

The issue now under
    consideration demonstrates the importance of stating the purpose accurately. As
    Spies J. noted in
McCaw
, at para. 31, in all four of the cases to save
    s. 33.1 under s. 1, the courts accepted that the objective of s. 33.1 is
    consistent with the Preamble.
[2]
None of the six cases that struck down s. 33.1 did so.
[3]
They each recognized that s.
    33.1 is not targeted at alcohol-induced violence in general, but at the
    uncommon circumstance of violence committed by offenders while in a state of
    automatism as the result of self-induced intoxication.

[108]

Just as it is perilous
    to overstate the objective of challenged legislation, it is perilous to
    understate that objective when approaching s. 1. It understates the objective
    of s. 33.1 to accept, as some courts have, that the real purpose of s. 33.1 is
    to remove the narrow defence in
Daviault
: see
Dunn
, at para. 34;
Brenton
, at paras. 102-103; and
McCaw
, at para. 129. Casting
    the object of s. 33.1 in this way masks the underlying reason why Parliament
    wanted to remove that narrow defence, and it improperly confuses the means of
    the legislation with its purpose, which the Supreme Court of Canada has held to
    be erroneous in
R. v. K.R.J.
, 2016 SCC 31, [2016] 1 S.C.R. 906, at
    para. 63.

[109]

When McLachlin C.J. and
    Major J., said, in
Harper v. Canada (Attorney General)
, 2004 SCC 33,
    [2004] 1 S.C.R. 827, at para. 25 (dissenting on other grounds) that, the
    proper question at this stage of the analysis is whether the Attorney General
has asserted
a pressing and substantial objective
    (emphasis in original), they were not saying that the principles I have just
    identified should be forgotten and the s. 1 analysis is to be based solely on
    the governments articulation of the objective. They were making the point that
    in judging whether a purpose is pressing and substantial, evidence is not
    required, and courts may consider the identified objective using common sense alone
    to determine if it is pressing and substantial.

[110]

Accordingly, as the
    principles I have identified verify, in conducting a s. 1 analysis, courts must
    look at the substance of what is being done to determine the purpose of the
    legislation. On this basis, this court refined the Attorney Generals asserted
    purpose in
Longley v. Canada (Attorney General)
, 2007 ONCA 852, 88
    O.R. (3d) 408, at para. 49, and the Supreme Court of Canada recently did so in
Frank
,
    at paras. 49 and 54. This enterprise is not about passing judgment on whether
    the Crown acted in good faith in describing the purpose as it did. It is about
    ensuring that the constitutional issues raised are addressed in context.

[111]

Properly stated, the underlying
    purposes or objectives of s. 33.1 are: (1) to hold individuals who are in a
    state of automatism due to self-induced intoxication accountable for their violent
    acts [the accountability purpose]; and (2) to protect potential victims,
    including women and children, from violence-based offences committed by those
    who are in a state of automatism due to self-induced intoxication [the protective
    purpose].

(b)

Only the protective purpose is pressing and substantial

(i)

The accountability
    purpose cannot serve as a purpose under s. 1

[112]

The accountability
    purpose is an improper purpose for s. 1 evaluation. Therefore, it cannot
    serve as a pressing and substantial purpose.

[113]

The reason can be
    stated simply. The constitutional principles at issue define when criminal
    accountability is constitutionally permissible, given entrenched, core values. To
    override principles that deny accountability, for the purpose of imposing
    accountability, is not a competing reason for infringing core constitutional
    values. It is instead a rejection of those values. It cannot be that a
    preference for other values over constitutionally entrenched values is a
    pressing and substantial reason for denying constitutional rights. The point
    can be put more technically by examining two principles that govern s. 1
    evaluation.

[114]

First, legislation is
    unconstitutional if its purpose is unconstitutional:
R. v. Big M. Drug Mart
    Ltd.
, [1985] 1 S.C.R. 295, at p. 333. Since the
Charter
principles
    at stake here describe when it is unconstitutional to hold someone criminally accountable
    (i.e. in the absence of voluntariness or penal negligence), passing legislation
    to impose criminal accountability despite those principles is an
    unconstitutional purpose. A purpose cannot at once be unconstitutional and a
    pressing and substantial reason for overriding constitutional rights.

[115]

Second, all criminal
    legislation exists to hold offenders accountable. If accountability could serve
    as a pressing and substantial objective in criminal cases, the pressing and
    substantial purpose standard would be met whenever Parliament chooses to
    criminalize conduct. The Supreme Court of Canada has cautioned against
    accepting purposes that would inoculate any criminal legislation
: R. v.
    Zundel
, [1992] 2 S.C.R. 731, at p. 761;
Sauvé
, at para. 24.

[116]

For these reasons, the
    trial judge erred in relying on accountability as a pressing and substantial
    purpose and in using that purpose to frame the balance of his analysis.

(ii)

The protective purpose
    is pressing and substantial

[117]

In
Daviault
,
    Cory J. concluded that the protective purpose is not a pressing and substantial
    basis for infringing
Charter
principles. Given the infrequency of non-mental
    disorder automatism, there is no pressing need to remove the defence. At pp.
    92-93, he explained:

The experience of
    other jurisdictions which have completely abandoned the
Leary
rule,
    coupled with the fact that under the proposed approach, the defence would be
    available only in the rarest of cases, demonstrate that there is no urgent
    policy or pressing objective which need to be addressed.

[118]

However, this analysis
    from
Daviault
is not binding because it addressed the state of the
    common law, not the constitutionality of s. 33.1.
[4]
The pressing and substantial
    purpose holding is, therefore, open for reconsideration, and I am persuaded by
    my colleague that the existence of a pressing and substantial purpose should
    not turn solely on the infrequency of the problem addressed. As the tragic
    outcome in the cases now before this court demonstrate, even though acts of
    violence may only rarely be committed by individuals in a state of intoxicated
    automatism, the consequences can be devastating. This is enough to satisfy me
    that seeking to protect potential victims, including women and children, from
    violence-based offences committed by those who are in a state of automatism due
    to self-induced intoxication is a pressing and substantial purpose.

(2)

Proportionality

(a)

The
    rational connection test is not met

[119]

The rational connection
    requirement describes the link between the legislative objective and the
    legislative means chosen to achieve that objective. This rational connection
    need not be proven on a rigorous scientific basis. A causal connection based on
    reason or logic may suffice:
R.J.R.-MacDonald Inc.
, at paras. 137, 156.
    The Crown must establish a reasoned basis for concluding that the legitimate
    and important goals of the legislature are logically furthered by the means the
    government has chosen to adopt:
Lavigne v. Ontario Public Service
    Employees Union
, [1991] 2 S.C.R. 211, at p. 291.

[120]

The trial judge in
Chan
held that only the accountability purpose identified by the Crown
    satisfied this standard. He concluded that the protective purpose, even when
    expressed as broadly as it was by the Crown, did not.

[121]

I agree with the trial
    judge on the latter point. As the Crown recognized, deterrence is the means s.
    33.1 relies upon to achieve its protective purpose. The trial judge was
    unpersuaded, as a matter of common sense, that many individuals are deterred
    from drinking, in the off chance that they render themselves automatons and hurt
    someone. I share that position. Effective deterrence requires foresight of the
    risk of the penal consequence. I am not persuaded that a reasonable person
    would anticipate the risk that, by becoming voluntarily intoxicated, they could
    lapse into a state of automatism and unwilfully commit a violent act. Even if
    this remote risk could be foreseen, the law already provides that reduced
    inhibitions and clouded judgment, common companions of intoxication, are no
    excuse if a violent act is committed. It is unlikely that if this message does
    not deter, removing the non-insane automatism defence will do so. Even bearing
    in mind the admonition in
R. v. Malmo-Levine; R. v. Caine,
2003 SCC 74,
    [2003] 3 S.C.R. 571, at para. 177, to exercise caution in accepting arguments
    about the ineffectiveness of legislative measures, I am not persuaded that s.
    33.1 furthers the public protection purpose.

[122]

Nor can a rational
    connection be built upon the accountability purpose. I accept that the
    legislation is effective at achieving accountability, however, for the reasons
    already explained, accountability cannot be relied upon as a proper objective
    for s. 33.1. To use the language from
Lavigne
, a rational connection
    must be built upon legitimate and important goals: at p. 291,
per
Wilson J. Accountability is not a legitimate goal to employ to override
Charter
rights, which are designed to limit accountability. The trial judge erred
    in building a rational connection on the accountability objective.

(b)

The minimal impairment test is not met

[123]

In
Morrison
,
    at para. 68, Moldaver J. reaffirmed that [t]o show minimal impairment, the
    party seeking to justify the infringement must demonstrate that the impugned
    measure impairs the right in question as little as reasonably possible in
    order to achieve the legislative objective. This does not require Parliament to
    adopt the least restrictive means possible. The issue is whether Parliament
    could reasonably have chosen an alternative means which would have achieved the
    identified objective as effectively:
R. v. Chaulk,
[1990] 3 S.C.R.
    1303, at p. 1341.

[124]

The trial judge found
    s. 33.1 to be minimally impairing. He accepted the Crowns submissions that: (1)
    s. 33.1 is narrowly tailored because s. 33.1 is confined to violence-based,
    general intent offences involving self-induced intoxication; (2) Parliament had
    valid reasons for rejecting the only alternative that would directly achieve
    the objective of the legislation in a less impairing way; and (3) he should
    defer to the choice of Parliament.

[125]

I have concluded that
    the trial judge erred in making each of these decisions.

(i)

Section 33.1 is not
    narrowly tailored

[126]

The purported narrow
    tailoring of s. 33.1 does not provide a basis for a minimal impairment finding,
    as the identified limitations are not substantial.

[127]

By its terms, s. 33.1
    is not confined to general intent offences. Section 33.1 prevents self-induced
    intoxication from being relied upon to establish that the accused lacked the general
    intent
or the voluntariness
required to commit the
    [violence-based] offence (emphasis added). On the face of s. 33.1, self-induced
    intoxicated automatism cannot be used to rebut voluntariness for any
    violence-based offence, regardless of whether it involves general or specific
    intent.

[128]

Moreover, s. 33.1 was
    confined to violence-based offences not to confine its reach but because, as
    the Preamble and the history of the provision confirms, this is the problem
    that Parliament was addressing. The mischief Parliament set out to address is
    covered completely. There is therefore no realistic foundation for the
    suggestion that the reach of s. 33.1 has been curtailed to achieve restraint.

[129]

Finally, and as already
    explained, the conception of the kind of self-induced intoxication that will
    undermine an automatism defence is aggressive in its scope. It is not confined
    to those who choose to become extremely intoxicated and to thereby court the remote
    risk of automatism. The Crowns position is that anyone consuming an
    intoxicant, including prescription medication that they know can have an
    intoxicating effect, is caught, as are those who become intoxicated in the
    course of suicide attempts.

[130]

I would also note that,
    for those who are caught by s. 33.1, the relevant
Charter
rights are
    not merely infringed or compromised. They are denied entirely. I do not agree
    that s. 33.1 is narrowly tailored.

(ii)

Parliament did not have
    valid reasons for rejecting alternatives

[131]

However, narrow tailoring
    is not the central concern. Ultimately, minimal impairment is tested not by whether
    efforts were made to confine its reach, but by whether, given the context,
    Parliament could reasonably have chosen less intrusive alternative means, which
    would have achieved the identified objective as effectively. In my view, the
    Crown has failed to demonstrate that there are not less intrusive reasonable alternatives.

[132]

First, I agree with the
    trial judge that the option of a stand-alone offence of criminal intoxication
    would achieve the objective of s. 33.1. Making it a crime to commit a
    prohibited act while drunk is the response Cory J. invited in
Daviault,
at p. 100, and that was recommended by the Law Reform Commission of Canada: see
Recodifying Criminal Law
, Report 30, vol. 1 (1986), at pp. 27-28. It
    is difficult to reject this option as a reasonable alternative given the
    impressive endorsements it has received.

[133]

But would this new offence
    be equally effective as s. 33.1? Creating such an offence would arguably be
    more effective in achieving the Preamble objective of protecting against acts
    of intoxicated violence, as it would serve to deter voluntary intoxication directly
    and more broadly than s. 33.1 does. It would do so by making the act of
    intoxication itself the gravamen of the offence, and its reach would not be
    confined to those who are in a state of automatism because of self-induced
    intoxication. Instead, its reach would depend on whether the intoxication was
    dangerous, as demonstrated by the commission of a violence-based offence.

[134]

Certainly, this option
    would also be less impairing than s. 33.1 since it does not infringe, let alone
    deny, the
Charter
rights that s. 33.1 disregards. It would criminalize
    the very act from which the Crown purports to derive the relevant moral fault,
    namely, the decision to become intoxicated in those cases where that
    intoxication proves, by the subsequent conduct of the accused, to have been dangerous.

[135]

I do not agree with the
    trial judge, or the Crown, that Parliament had valid reasons for choosing s.
    33.1 instead of this option. Two of the reasons relied upon for doing so are
    legally invalid and it was an error for the trial judge to accept them. More
    specifically, the objections that such an offence would: (1) appear to create a
    sentencing discount for intoxicated offenders; or (2) undermine the object of
    accountability by suggesting that the accused is not guilty of the
    violence-based act, are accountability concerns. As indicated, the desire to
    impose accountability cannot support a reasonable limit on
Charter
rights that exist to restrict the reach of accountability, such as the
Charter
rights denied by s. 33.1. In any event, it would not be the offence of
    intoxicated violence that suggests that the accused is not guilty of the
    violence-based act. It is the presumption of innocence and the principles of
    fundamental justice that produce this result.

[136]

Nor can the rejection
    of the criminal intoxication option be justified on the basis that such an
    offence may have other constitutional problems of its own. I understand that
    the unconstitutionality of an option would make that option unreasonable, but I
    cannot accept that a constitutional infringement can be justified as a
    stratagem for avoiding another possible constitutional infringement.

[137]

The alternative option
    that the Crown has not disproved is to simply permit the
Daviault
decision
    to operate. By design, the non-mental disorder automatism defence is difficult
    to access. As with other defences, if there is no air of reality to the defence
    based on the evidence, it should not be considered:
Stone
, at paras. 166-168.
    It is also a reverse onus defence, and it requires expert evidence:
Daviault
,
    at p. 101. If the defence is not established on the balance of probabilities,
    it fails:
Stone
, at para. 179. Indeed, it may well have failed for Mr.
    Daviault had the complainant not died before his retrial. According to evidence
    that Parliament has accepted, alcohol intoxication is not capable, on its own,
    of inducing a state of automatism: see Preamble of Bill C-72. Had similar
    evidence been presented and accepted at Mr. Daviaults retrial, he would have
    been convicted.

[138]

Moreover, even in those
    few cases where the accused might succeed in demonstrating automatism as the
    result of the voluntary consumption of intoxicants, the accused may not be
    acquitted. If the accused is unable to establish that the cause of the
    automatism was not a disease of the mind, which it will be if the automatism is
    internally caused or there is a continuing danger of further episodes of automatism,
    the accused will not be acquitted, but found not criminally responsible on
    account of mental disorder:
Stone
, at paras. 197-217. The accused
    would then be subject to a disposition hearing driven by public safety
    considerations.

[139]

I do not accept the
    Crowns submission that accepting this do nothing option cannot operate as a
    more minimally impairing strategy because it directly subverts Parliaments
    goal by allowing extremely intoxicated violent offenders to escape liability.
    Again, this is an accountability argument and, as I have indicated, given that
    the principles of fundamental justice at stake exist to define the
    constitutional preconditions to criminal accountability, the desire to impose
    accountability is itself an unconstitutional purpose.

[140]

This submission also
    materially understates the effect of the common law after
Daviault
. As
    demonstrated, in the few cases where there will be an air of reality to the
    concern that extreme intoxication has led to automatism and then to violence,
    the prospects of escaping liability are slim. I have already expressed my view
    that it is unrealistic to think that s. 33.1 adds any meaningful deterrence
    augmentation to the
Leary
rules, as modified in
Daviault
.
    Realistically, who would choose to consume intoxicants because they have
    reasoned that, if all goes wrong, they will have the non-mental disorder automatism
    defence? However, assuming for the sake of the exercise that s. 33.1 could have
    some additional deterrent effect, one would think that the unlikelihood of the common
    law defence succeeding would have a comparable deterrent effect.

[141]

In the circumstances, I
    am satisfied that the Crown has not disproved that the
Daviault
regime
    is not a reasonable and equally effective but less impairing alternative to s.
    33.1, in protecting potential victims from violence committed by those who are
    in a state of automatism as the result of self-induced intoxication.

(iii)

Deferring to Parliament
    was not appropriate in this case

[142]

Third, I disagree with
    the trial judges reliance on deference to support his finding that minimal impairment
    had been demonstrated. The trial judge was correct to turn his mind to this. The
    context-driven inquiries that s. 1 entails generally call for deference,
    particularly in examining minimal impairment. However, this is not a case where
    there is room for the kind of reasonable disagreement that could trigger deference.
    The minimal impairment test is simply not met.

[143]

I would therefore hold
    that the trial judge erred in finding that the Crown demonstrated minimal impairment,
    and find that s. 33.1 is not, in fact, minimally impairing.

(c)

Overall proportionality is not achieved

[144]

Overall proportionality
    entails the proper identification of the salutary or positive effects of the
    legislation, and its deleterious or negative effects on the
Charter-
protected
    interests at stake. To save legislation that is in
prima facie
violation
    of the
Charter
, the Crown must demonstrate on the balance of
    probabilities, that there is proportionality between those salutary and deleterious
    effects.

[145]

The trial judge found,
    in this case, that the Crown had demonstrated overall proportionality. I accept
    the trial judges conclusion that no right is sacrosanct. Each must be
    considered in context and each may at times bend to other pressing rights or
    concerns. However, with respect, I would find that he erred in his reasoning,
    and in the result he achieved.

[146]

First, the trial
    judges analysis rests heavily on the salutary effects of imposing accountability.
    As explained, I am persuaded that the accountability purpose cannot be relied
    upon in the s. 1 evaluation, given that infringing constitutional limits on
    accountability in order to impose accountability is itself an unconstitutional
    purpose.

[147]

Second, the trial judge
    predicated his balancing on the generic proposition that [t]hose who self-intoxicate
    and cause injury to others are not blameless. He did so without apparent recognition
    of the expansive grasp of the concept of self-induced intoxication, catching as
    it does, even those who would fall into a state of automatism after choosing to
    become mildly intoxicated, and perhaps even those who are complying with a
    prescribed, medically-indicated drug that they know may cause intoxicating
    effects. The theory of moral fault that he relied upon cannot be sustained.

[148]

Third, the trial judge gave
    undue weight to the extent to which s. 33.1 provides for the safety of the potential
    victims, including women and children. As I have indicated, I am persuaded that
    the protection thesis cannot be supported on a reasoned basis. Viewing the
    matter realistically, the deterrence that the law achieves must come from the
Leary
rules, as modified in
Daviault,
not from the added and
    remote prospect that if a rare and unforeseen case of automatism should happen
    to occur and lead to violence, non-mental disorder automatism is off the table.

[149]

Fourth, despite
    recognizing that the identified
Charter
infringements are serious, the
    trial judge minimized their impact by observing that they arise in very few
    cases. The proper measure is the impact of s. 33.1 on those it affects, not its
    lack of impact on those it does not affect.

[150]

For these reasons, I
    would conclude that the trial judge erred in applying the overall proportionality
    test, and I would find that the Crown has failed to demonstrate that overall
    proportionality is attained.

[151]

The deleterious effects
    of s. 33.1 are profound. Specifically, s. 33.1 enables the conviction of
    individuals of alleged violence-based offences, even though the Crown cannot
    prove the requisite elements of those offences, which is contrary to the principles
    of fundamental justice and the presumption of innocence. It enables the
    conviction of individuals for acts they do not will. It enables the conviction
    of individuals of charged offences, even though those individuals do not
    possess the
mens rea
required by those offences, or even the minimum
    level of
mens rea
required for criminal fault. And it does so,
    predicated on a theory of moral fault linked to self-induced intoxication,
    expressed by the Crown before us in language captured in
R. v. Decaire
,
    [1998] O.J. No. 6339 (Ct. J. (Gen. Div.)), at para. 20: People who consume
    alcohol should recognize that continuing to drink after they sense a loss of
    control of inhibitions, poses a danger to themselves and others. Yet, s. 33.1 is
    not confined to those who set out to become extremely intoxicated. It employs a
    definition of self-induced intoxication that catches anyone who has consumed an
    intoxicant, including with restraint or perhaps even for medically-indicated
    purposes.

[152]

Moreover, as Cory J.
    recognized in
Daviault
, at p. 87, even leaving aside the other
    objections I have identified, it is not appropriate to transplant the mental
    element from the act of consuming intoxicants for the mental element required
    by the offence charged, particularly where the act of self-inducing
    intoxication is over before the
actus reus
of the offence charged
    occurs. This is what s. 33.1 seeks to do. This transplantation of fault is
    contrary to the criminal law principle of contemporaneity, which requires the
actus
    reus
and
mens rea
to coincide at some point: see
R. v. Williams
,
    2003 SCC 41, [2003] 2 S.C.R. 134, at para. 35.

[153]

Put simply, the
    deleterious effects of s. 33.1 include the contravention of virtually all the
    criminal law principles that the law relies upon to protect the morally innocent,
    including the venerable presumption of innocence.

[154]

Only the most
    compelling salutary effects could possibly be proportional to these deleterious
    effects. Yet, s. 33.1 achieves little. If not entirely illusory, its
    contribution to deterrence is negligible. I have already explained that the
    protective purpose relied upon carries little weight.

[155]

The Crown and
    supporting interveners argue that s. 33.1 has collateral salutary effects, such
    as: (i) encouraging victims to report intoxicated violence, (ii) recognizing
    and promoting the equality, security, and dignity of crime victims,
    particularly women and children who are disproportionately affected by
    intoxicated violence, and (iii) avoiding normalizing and/or incentivizing
    intoxicated violence.

[156]

I see no reasoned basis
    for concluding that victims who would have reported intoxicated violence would be
    unlikely to do so because of the remote possibility that a non-mental disorder
    automatism defence could be successfully raised, or that s. 33.1 plays a
    material role in preventing the normalization and incentivization of
    intoxicated violence. Section 33.1 addresses a miniscule percentage of
    intoxicated violence cases.

[157]

As for recognizing and
    promoting the equality, security, and dignity of crime victims, it is obvious that
    those few victims who may see their offenders acquitted without s. 33.1 will be
    poorly served. They are victims, whether their attacker willed or intended the
    attack. However, to convict an attacker of offences for which they do not bear
    the moral fault required by the
Charter
to avoid this outcome, is to
    replace one injustice for another, and at an intolerable cost to the core
    principles that animate criminal liability.

[158]

What, then, of the
    benefits of imposing accountability on those who are in a state of non-mental
    disorder automatism when they commit violent acts? If I am mistaken, and this
    is a proper s. 1 consideration, would the benefit of doing so alter the
    balance? Not in my view.

[159]

My colleague describes the
    accountability benefit as ensuring that those who are in a state of
    self-induced intoxicated automatism are subject to the same penal consequences
    for violent acts as those whose state of intoxication fall just below a state
    of automatism. With respect, the move to accountability should not be seen as
    an exercise in eliminating a distinction based on degree. The material
    distinctions are between: those who act wilfully and those who do not; those
    who are proved to have the
mens rea
for the charged offence and those
    who do not; and those who have the constitutionally minimum level of fault and
    those who do not. When balancing the competing interests, it must be remembered
    that the decision to impose accountability is in direct contravention of the
    relevant
Charter
principles. Even if accountability is a proper s. 1
    consideration, the benefits it brings must be seen in that light, and its value
    diminished accordingly. The benefit of accountability is not, alone or when
    combined with other salutary effects, proportional to its deleterious effects

[160]

Recently, in
Morrison
,
    at para. 72, the Supreme Court of Canada held that the promise of additional
    convictions for the serious offence of child luring could not outweigh the
    deleterious effect of sweeping in accused persons whose
mens rea
may
    be the subject of reasonable doubt. The circumstances are distinguishable, but
    the outcome is the same. With very little true gain, Parliament has attempted
    to cast aside the bedrock of moral fault. I would find that the Crown has not
    shown that s. 33.1 achieves overall proportionality.

(3) Conclusion
    on s. 1

[161]

I would conclude that the
    Crown has not demonstrated that s. 33.1 is a demonstrably justifiable limit on
    the
Charter
rights at stake, in a free and democratic society.
    Accordingly, I would declare s. 33.1 to be of no force or effect, pursuant to s.
    52(1) of the
Constitution Act
,
1982
.

D.

If s. 33.1 cannot be saved by s. 1 of the
Charter
and is of no force OR effect, should Mr. Chans acquittal be ordered?

[162]

Since Mr. Chan should
    have been provided with the opportunity to invoke the non-mental disorder automatism
    defence, I would set aside his convictions and order a new trial.

[163]

Mr. Chan urges that the
    proper outcome is an acquittal. He contends that since the trial judge found
    Mr. Chan to be incapacitated, other than by reason of mental disorder, the automatism
    defence is satisfied. I do not agree.

[164]

The trial judge made no
    finding that Mr. Chan was not acting voluntarily. Instead, he found that as a
    result of psychosis induced by intoxication, Mr. Chan was incapable of knowing
    that his actions would be considered wrong according to moral standards of
    reasonable members of society. This is not a finding of non-mental disorder automatism.
    A person can lack the capacity to know their acts are wrong, yet still
    voluntarily choose to engage in those acts.

[165]

Mr. Chan sought to
    overcome the distinction I have identified by relying on Cory J.s references in
Daviault
to extreme intoxication akin to automatism or insanity. Mr.
    Chan argues that non-mental disorder automatism, as described in
Daviault
,
    encompasses his situation because his mental state was akin to insanity or
    mental disorder, even if caused by extreme intoxication. I do not accept this
    submission. That language was not intended to extend the non-mental disorder
    automatism defence beyond cases of automatism. In
Daviault
, at p. 100,
    Cory J. emphasized that:

drunkenness akin
    to insanity or automatism describes a person so severely intoxicated that he
    is incapable of forming even the minimal intent required of a general intent
    offence. The phrase refers to a person so drunk that he is an automaton.

[166]

Since the trial judge
    did not consider whether Mr. Chan had reached the stage of automatism, he is
    entitled to a new trial, not an acquittal.

THE
CHAN
APPEAL:
    CONCLUSION

[167]

I would therefore allow
    Mr. Chans appeal, set aside his convictions, and order a new trial.

[168]

As a result of the
    COVID-19 emergency, the panel relieved Mr. Chan from the term of his bail that
    requires him to surrender into custody prior to this decision being released.

THE
SULLIVAN
APPEAL: MATERIAL FACTS

[169]

Mr. Sullivans extreme
    intoxication resulted from his ingestion of the drug, Wellbutrin. The
    Wellbutrin was prescribed to help him stop smoking. Psychosis is one of its
    known side effects. From the time Mr. Sullivan began taking and occasionally
    abusing Wellbutrin, he experienced episodes where he believed aliens he called
    Archons were living in the condominium he shared with his mother.

[170]

On December 1, 2013,
    after ingesting between 30 to 80 of the Wellbutrin tablets in a suicide attempt,
    he had a profound break with reality. He believed he had captured an Archon in
    the condominium living room. He brought his mother into the living room to show
    her. As she tried to assure him that there was nothing in the room, believing
    her to be an alien, he attacked her, stabbing her several times with two
    kitchen knives.

[171]

During the attack, his
    mother screamed, David, Im your mother. Mr. Sullivan dropped the knives and
    ran to a bedroom. Emergency services were called. When the police arrived, Mr.
    Sullivan was outside of the apartment complex screaming incoherently and
    running erratically. His mother survived the attack but died of unrelated
    causes before trial.

[172]

At his trial, it was
    not disputed that Mr. Sullivan was acting involuntarily when he stabbed his
    mother. Mr. Sullivan attempted to rely on the defence of non-mental disorder automatism
    but did not challenge the constitutional validity of s. 33.1. He argued,
    instead, that s. 33.1 did not apply in his case since his intoxication was not voluntary.
    In the alternative, he invoked the mental disorder defence.

[173]

The trial judge agreed
    that Mr. Sullivans attack against his mother was involuntary. In considering
    the implications of that finding, he began with the mental disorder defence,
    which is presumed to apply where automatism has been established:
Stone
,
    at para. 199. Taking a holistic approach to determine the nature of the
    automatism, the trial judge concluded that the cause of Mr. Sullivans
    automatism was external, and that he did not pose a continuing danger. The trial
    judge found that this is one of the rare cases where automatism was not caused
    by mental disorder, but by intoxication. He therefore rejected the mental
    disorder defence under s. 16 of the
Criminal Code
.

[174]

The trial judge then considered
    the non-mental disorder automatism defence. He found that this defence was
    prevented by s. 33.1 because Mr. Sullivans intoxication had been voluntary. The
    trial judge applied the following test in making that determination: Voluntary
    intoxication means that Mr. Sullivan consumed Wellbutrin when he knew or had
    reasonable grounds to believe that it might cause him to be impaired.

[175]

Accordingly, Mr.
    Sullivan was convicted of aggravated assault, contrary to
Criminal Code
,
    s. 268(1), and using a weapon, a knife, in committing an assault, contrary to
Criminal
    Code
, s. 267(a).

[176]

At his trial, Mr.
    Sullivan was also convicted of four counts of failing to comply with
    recognizance orders, relating to post-attack communications he had with his
    sister, in breach of a December 4, 2013 non-communication order prohibiting him
    from contacting her. Those calls occurred between December 29, 2013 and January
    5, 2014.

[177]

Mr. Sullivan attempted
    to defend these charges by maintaining that he was unaware of the communication
    order. He testified to that effect.

[178]

The trial judge did not
    believe that testimony because of his low credibility and reliability. He then
    said:

Mr. Sullivan had
    multiple court appearances before December 24, 2013. The non-communication
    order would have been discussed at some, if not all, of those appearances. Mr.
    Sullivans psychosis had resolved and he is a very intelligent person. Im
    satisfied beyond a reasonable doubt that prior to December 24, 2013, Mr.
    Sullivan was aware that there was a court order prohibiting him from
    communicating with both his mother and his sister.

THE
SULLIVAN
APPEAL:
    ISSUES

[179]

In Mr. Sullivans
    conviction appeal,
[5]
he submits that he should be permitted to raise a
Charter
challenge to
    s. 33.1 of the
Criminal Code
on appeal for the first time, and that s.
    33.1 should be found to be unconstitutional. He also argues that in the course
    of his judgment, the trial judge erred in defining voluntary intoxication.
    Finally, Mr. Sullivan contends that the trial judge erred in finding him guilty
    of breach of recognizance charges without proof that he knew the terms of his
    recognizance. He requests verdicts of acquittal on all charges.

[180]

The appeal issues can
    therefore be stated as follows:

A.

Should Mr. Sullivan be
    permitted to challenge the constitutional invalidity of s. 33.1 for the first
    time on appeal?

B.

Did the trial judge err
    in relying on s. 33.1?

C.

Did the trial judge err
    in law in applying an incorrect test for voluntary intoxication?

D.

Did the trial judge err
    in finding Mr. Sullivan guilty of breach of recognizance charges without proof
    that he knew of the terms of his recognizance?

[181]

Since I would resolve
    the first two grounds of appeal in the affirmative and they resolve the s. 33.1
    issues, the third ground of appeal need not be addressed.

A.

Should Mr. Sullivan be permitted to CHallenge the constitutional
    invalidity of s. 33.1 for the first time on appeal?

[182]

The Crown agrees that
    the trial judges reasons disclose that s. 33.1 was the sole basis for Mr.
    Sullivans convictions of the violence-based offences. The Crown conceded that
    if this court declares s. 33.1 unconstitutional in the
Chan
appeal, Mr.
    Sullivans violence-based convictions should be set aside, even though he did
    not raise the constitutional validity of s. 33.1 at his trial. This concession
    is obviously correct since Mr. Sullivans case is still in the system and
    convictions that depend upon a law that is of no force or effect cannot be
    upheld on appeal.

B.

Did the trial judge err in relying on s. 33.1?

[183]

Given the conclusion in
Chan
that s. 33.1 is of no force or effect, I would conclude that the
    trial judge erred in relying on s. 33.1 and allow this ground of appeal. As
    conceded by the Crown, the trial judge found Mr. Sullivan to have been in a
    state of non-mental disorder automatism at the time of the attacks that led to
    his convictions of aggravated assault and assault using a weapon.

C.

Did the trial judge err in finding Mr. Sullivan guilty of breach of
    recognizance charges without proof that he knew of the terms of his
    recognizance?

[184]

There is controversy
    nationally about whether a breach of a term of recognizance contrary to s.
    145(3) of the
Criminal Code
requires a subjective or objective
mens

rea.
[6]

Binding authority of this court in
R. v. Legere
(1995), 22 O.R.
    (3d) 89 (C.A.) has applied a subjective
mens rea
standard. Therefore, the
    Crown must establish that the accused had actual knowledge of the condition. Mr.
    Sullivans appeal proceeded on this basis.

[185]

Mr. Sullivan does not
    take issue with the trial judges finding that he had the ability to understand
    what transpired in court. His issue is with the trial judges finding that he
    had the requisite subjective knowledge of the conditions to support his
    convictions. Specifically, Mr. Sullivan challenges the trial judges assumption
    that the conditions of the non-communication order would have been discussed at
    some, if not all, of his court appearances.

[186]

I need not decide
    whether the trial judge erred in making this finding because Mr. Sullivan joined
    in an agreed statement of facts that contained two relevant passages that confirm
    his subjective knowledge:

On December 4, 2013, during an appearance in
    bail court, the accused was ordered not to communicate, directly or indirectly,
    with a number of individuals (principally witnesses, as well as his mother and
    other members of his family) while he was remanded to custody pending a bail
    hearing

The accused acknowledges that the
    non-communication order was in place and was valid at the relevant times, that
    it was imposed by a competent court in his presence,
and that he made the phone calls contrary to the order while he
    was remanded in custody at the Central East Correctional Centre. However, he
    disputes that he knew he was not allowed to contact his mother and sister. [Emphasis
    added.]

[187]

During his testimony, Mr.
    Sullivan did not resile from the position that the order was imposed by a
    competent court in his presence. Even if the trial judge should not have found
    on the evidence that the terms would have been discussed during Mr. Sullivans
    multiple court appearances, no miscarriage of justice has occurred. The trial judges
    conclusion that the terms of the recognizance had been communicated to Mr.
    Sullivan is supported by the uncontested facts. I would therefore reject this
    ground of appeal.

THE
SULLIVAN
APPEAL:
    CONCLUSION

[188]

I would therefore allow
    Mr. Sullivans appeal from his convictions of aggravated assault, contrary to
Criminal
    Code
, s. 268(1), and using a weapon, a knife, in committing an assault,
    contrary to
Criminal Code
, s. 267(a). I would set aside those
    convictions and substitute verdicts of acquittal. I would reject Mr. Sullivans
    appeal of his breach of recognizance convictions and affirm those convictions.
    Since Mr. Sullivan has already served his sentence on the breach of
    recognizance offences, there is no need to adjust his sentence to reflect the
    mixed success of his appeal.

David M. Paciocco
    J.A.

I agree. David Watt J.A.

Lauwers
    J.A. (Concurring):

[189]

I concur in the result reached by my
    colleague. I agree that: s. 33.1 of the
Criminal Code
, R.S.C. 1985, c.
    C-46 limits the
Charter
rights of the appellants under ss. 7 and
    11(d); the Crown has not met its burden under s. 1 of the
Charter
of
    demonstrating that the limits s. 33.1 imposes are reasonable limits prescribed
    by law as can be demonstrably justified in a free and democratic society; and,
    consequently, s. 52(1) of the
Constitution Act,

1982
deems s.
    33.1 to be of no force or effect, to the extent of any inconsistency with the
Charter
.

[190]

I concur without
    reservation with my colleagues reasons as expressed in the overview, his
    analysis concluding that the
Chan
trial judge was not bound by
    precedent to accept the unconstitutionality of s. 33.1, and the disposition.

[191]

I have reservations in
    two areas. First, I agree generally with my colleagues analysis of the limits imposed
    by s. 33.1 on the ss. 7 and 11(d) rights of the appellants but make additional
    observations that are especially pertinent to the subsequent s. 1 analysis.

[192]

Second, I believe that
    this court is bound by the Supreme Courts decisions in
Bedford
and
Carter
to apply the
Bedford/Carter
framework to the issue of whether s.
    33.1 limits s. 7
Charter
rights, in addition to the more traditional
    analysis my colleague undertakes:
Canada (Attorney General) v. Bedford
,

2013 SCC 72, [2013] 3 S.C.R. 1101;
Carter v. Canada (Attorney General)
,

2015 SCC 5, [2015] 1 S.C.R. 331.

[193]

Finally, I disagree
    with the substance and tone of my colleagues analysis of s. 1 of the
Charter
and its application to s. 33.1 of the
Criminal Code
, while I concur in
    the result.

[194]

I address each
    reservation in turn.

(1)

Does
    s. 33.1 limit the appellants ss. 7 and 11(d)
Charter
rights?

[195]

R. v. Daviault
modified the
Leary
rule: [1994] 3
    S.C.R. 63, [1994] S.C.J. No. 77;
Leary v. The Queen
, [1978] 1 S.C.R.
    29. The
Daviault
majority held that to be
Charter
-compliant,
    evidence of extreme self-induced intoxication must be admissible in defence,
    whether the offence is one of general intent or specific intent. An accused
    person who can establish that the offence was committed in a state of
    automatism resulting from self-induced intoxication, on the balance of
    probabilities and with the assistance of expert evidence, is entitled to be
    acquitted.

[196]

With respect to these
    appeals, I note that, but for s. 33.1, the defence of intoxication would have
    been available to Mr. Chan and Mr. Sullivan on the basis of
Daviault
.
    The charges at issue in these appeals are almost all general intent offences.
    Mr. Chan was convicted of manslaughter, contrary to s. 234 of the
Criminal
    Code
, and aggravated assault, contrary to s. 268. Mr. Sullivan was charged
    with aggravated assault, contrary to s. 268; assault with a weapon, contrary to
    s. 276(a); possession of weapon for dangerous purpose, contrary to s. 88; and
    failure to comply with recognizance, contrary to s. 145(3) of the
Criminal
    Code
. He was convicted of aggravated assault, assault with a weapon, and
    breach of recognizance. Only possession of weapon for dangerous purpose is a
    specific intent offence. The rest are general intent offences.

[197]

The trial judge in
Chan
correctly held that s. 33.1 limits the ss. 7 and 11(d)
Charter
rights
    at issue in these appeals

by substituting the mental element and
    thereby bypassing the voluntariness and mental element requirements for
    criminal convictions and the presumption of innocence on the predicate violent
    offences. Section 33.1 replicates the same defects in the
Leary
rule
    that the Supreme Court corrected in
Daviault
. The trial judge rightly
    recognized that s. 33.1 does the very thing that was  held unconstitutional
    in
Daviault
, albeit in a narrower compass: at para. 72. His analysis
    in paras. 46, 48, 72, and 79-80 is particularly trenchant, and I would agree
    with it.

[198]

Section 33.1 tries to
    sidestep
Daviault
by substituting the mental element associated with
    penal negligence for the mental element ordinarily required for the predicate
    violent acts. But, in
Daviault
, the Supreme Court found that this type
    of substitution  replacing the mental element for sexual assault with the
    mental element required for intoxication, for example  was a fatal flaw in the
Leary
rule. Did the design of s. 33.1 overcome the courts concern? I
    agree with my colleague that it did not.

[199]

The outcome of these
    appeals turns on whether the limits s. 33.1 imposes on the appellants ss. 7 and
    11(d)
Charter
rights can be justified under s. 1.

(2)

The
    Application of the
Bedford/Carter
s. 7 Framework to s. 33.1

[200]

The trial judge in
Chan
referred to the Crowns suggestion that, following
Bedford
and
Carter
,
    the court must measure s. 33.1 against the principles of arbitrariness,
    overbreadth and gross disproportionality: at para. 92. The trial judge
    declined to do so because the point had not been fully argued before him, and
    because Mr. Chan chose to rely on the other fundamental principles discussed above.

[201]

Bedford
and
Carter
were raised in these
    appeals, along with this courts decision in
R. v. Michaud
in which
    this court was the first in Canada to uphold a limit on a s. 7 right under s. 1
    of the
Charter
: 2015 ONCA 585, 127 O.R. (3d) 81, leave to appeal
    refused, [2015] S.C.C.A. No. 450.
Bedford
and
Carter
reframed
    the relationship between ss. 7 and 1 of the
Charter
, as was explained
    in
Michaud
, at para. 62. Consequently, the trial judge was, and this
    court is, obliged to consider the
Bedford/Carter
reframing.

[202]

Before addressing the
    s. 7 analysis under the
Bedford/Carter
framework, I consider the
    restated relationship between ss. 7 and 1 of the
Charter
.

a.

The Relationship Between ss. 7 and 1 of the
Charter
Post-
Bedford/Carter

[203]

Section 7 of the
Charter
is meant to assess the negative effect on the individual against the purpose
    of the law,
not
against societal benefit that might flow from the law
    (emphasis in original):
Bedford
, at para. 121. Section 7 focuses on
    the relationship between the individual claimant and the law, while s. 1 of the
Charter
focuses on the relationship between the private impact and the
    public benefit of the law:
Bedford
,

at paras. 124-129. The
    balancing function  whether the negative impact of the law on the rights of
    individuals is proportional to the pressing and substantial goal of the law in
    furthering the public interest  is addressed only in the s. 1
Charter
analysis, after the claimant has established the s. 7 limit:
Bedford
,

at para. 125.

[204]

I would therefore not
    give effect to the submission of the intervener LEAF that s. 7 of the
Charter
requires internal balancing in identifying the relevant principles of
    fundamental justice for consideration. It is the courts task under s. 1 of the
Charter
, not under s. 7, to carry out any balancing between the
    accuseds interests and the public interest that LEAF asserts  equality and
    the human dignity of women and children who are disproportionally victimized by
    intoxicated offenders.

[205]

I next carry out the s.
    7 analysis under the
Bedford/Carter
framework before conducting the s.
    1 analysis.

b.

The Governing Principles under the
Bedford/Carter
Framework

[206]

The analytical
    framework established in the s. 7 jurisprudence requires an assessment of three
    negative principles of fundamental justice: arbitrariness, overbreadth, and
    gross disproportionality:
Bedford
,

at paras. 94, 96. In
Bedford
,
    the Supreme Court described these principles as "failures of instrumental
    rationality": at para. 107; see Professor Hamish Stewart,
Fundamental
    Justice: Section 7 of the Canadian Charter of Rights and Freedoms
(Toronto: Irwin Law Inc., 2019), at pp. 150, 187.

[207]

Professor Stewart
    points out that each of these principles is not a silo operating entirely
    independently; they are connected:
Fundamental Justice
,

at p.
    189;
Bedford
, at para. 109;
Canada (Attorney General) v. PHS
    Community Services Society
, 2011 SCC 44, [2011] 3 S.C.R. 134, at para.
    127. Each case usually responds more aptly to one principle, while the other
    principles offer different perspectives. Moreover,
it is possible for a law to offend one of these norms
    without offending the other two:
Fundamental Justice
,

at p. 189.

[208]

The Supreme Court
    identified two evils at which these principles are directed. The "first
    evil" is the absence of connection between the law's purpose and the s. 7
    deprivation, which engages the principles of arbitrariness and overbreadth:
Bedford
,
    at para. 108.
The second evil arises
    where the laws effects on an individuals life, liberty, or security of person
    operate in a manner that is grossly disproportionate to the laws objective,
    and therefore engages the third principle of gross disproportionality:
Bedford
, at para. 109.

[209]

Overbreadth is engaged
    when a law is so broad it captures some conduct that bears no rational
    connection to its purpose:
Bedford
, at para. 112. This principle
    recognizes that the law may be rational in some cases, but that it overreaches
    in its effect in others:
Bedford
,

at para. 113. Professor
    Stewart describes overbreadth as the dominant principle of the three:
Fundamental
    Justice
, at p. 152.

[210]

The principle of
    arbitrariness exists where there is no direct or rational connection
    between the purpose of the law and the impugned effect on the individual, or
    if it can be shown that the impugned effect undermines the laws objective:
Bedford
,

at para. 111. In the area of any overreach, the law is to be understood as
    arbitrary. That is why the principles of arbitrariness and overbreadth are
    related but distinct principles:
Bedford
,

at para. 117.

[211]

Gross
    disproportionality considers whether the law's effects on life, liberty or
    security of the person are so disproportionate that the deprivation is
    totally out of sync with the objective of the measure:
Bedford
, at
    para. 120.

[212]

If a law violates one
    of these principles, there is a mismatch between the legislatures objective
    and the means chosen to achieve it:
Fundamental Justice
, at p. 150.

c.

The Principles under the
Bedford/Carter
Framework
    Applied

[213]

Methodologically, it is
    necessary to first identify
the
    objective of s. 33.1 in order to execute the s. 7 analysis. The trial judge
    identified the laws objectives in his s. 1 analysis, which will serve the
    purpose here.
He found that
    the objectives of s. 33.1 are those stated in the Preamble to Bill C-72 and
    are: the protection of women and children from intoxicated violence and
    ensuring the accountability of those who commit offences of violence while
    intoxicated: at paras. 115, 121.

[214]

I agree that Parliament
    was seeking to discourage self-induced intoxication, which it described as
    blameworthy, in order to prevent violence, particularly violence against
    women and children, for which persons should be held accountable: see
    Preamble to Bill C-72. As noted, there is a high correlation between
    self-induced alcohol intoxication and violence, particularly violence by
    intoxicated men against women and children. This is the protective objective
    of s. 33.1.

[215]

The trial judge
    referred to accountability as another objective of s. 33.1. I interpret his
    use of accountability as intending to capture the penal objective of s. 33.1.
    In submissions to Parliament prior to the enactment of Bill C-72, there was a
    pervasive sense of outrage at the prospect that a person who sexually assaulted
    an elderly disabled woman might be permitted to escape punishment on the ground
    of excessive intoxication, as was the case in
Daviault
. This reflects
    a deep intuition of justice that those who commit such terrible acts should be
    equally subject to penal consequences and should pay the same price,
    excessively intoxicated or not. Such acts should never be consequence free.
    More precisely, those who could have sheltered under the defence of non-mental
    disorder automatism are now, under s. 33.1, subjected to the same penal
    consequences for their violent acts as those whose state of intoxication was
    slightly less so as not to be in a state of automatism when committing those
    same acts. This is the penal objective of s. 33.1. The protective and the
    penal objectives are related but also separate and distinct.

[216]

Although it is
    plausible that the legislation could discourage people from extreme alcohol
    intoxication, that dynamic would not apply to people like Mr. Chan and Mr.
    Sullivan. Neither was drinking. Neither had any reason to believe that their
    voluntary self-intoxication would culminate in violent psychosis. Common sense
    suggests that s. 33.1 would not discourage people who lack any basis for
    believing that self-intoxication would cause them to become psychotic from
    self-intoxicating. Because their conduct was captured under s. 33.1, the
    provision is overbroad in the
Bedford
sense because there is no
    connection between the laws objectives and its effects on the appellants:
Bedford
,
    at para. 112. The law is also arbitrary in the area of overbreadth because its
    effects on Mr. Chan and Mr. Sullivan bear no connection to its stated
    objectives: it punishes those who did not foresee that self-intoxication would
    lead to acts of violence.

[217]

An overbroad law
    adversely impacting an individuals s. 7 rights is sufficient to establish a
    limit. The Supreme Court stated in
Bedford
:
The question under s. 7 is whether
anyones
life, liberty or security of the person has been denied by a law that is
    inherently bad; a grossly disproportionate, overbroad, or arbitrary effect on
    one person is sufficient to establish a breach of s. 7 (emphasis in original):
    at para. 123.

It is plain that the s. 7 rights of both
    Mr. Chan and Mr. Sullivan have been limited by s. 33.1 of the
Criminal Code
,
    along with other similarly situated persons.

d.

Conclusion on
the
    Application of the
Bedford/Carter
Framework

[218]

The s. 7 analysis in
    these appeals proceeds at two levels. The first is the assessment undertaken by
    the trial judge in the more traditional pattern of
Daviault
. It
    identified several limits resulting from bypassing the voluntariness and mental
    element requirements and the presumption of innocence for criminal convictions
    on the predicate violence-based charges. These limits apply generally to all
    those to whom s. 33.1 applies and are about as fundamental as rights get in the
    criminal context.

[219]

The application of the
Bedford/Carter
framework adds an element. It shows that s. 33.1 is overbroad and arbitrary in
    its application specifically to Mr. Chan and Mr. Sullivan. Their s. 7 rights
    were limited by the operation of s. 33.1 in the sense that there is no
    connection between the laws two objectives, protective and penal, and the
    laws effects on the appellants.

[220]

The next question is
    whether the identified limits can be demonstrably justified under s. 1 of the
Charter
.

(3)

Are
    the rights limits imposed by s. 33.1 of the
Criminal Code
demonstrably
    justified under s. 1 of the
Charter
?

[221]

Section 33.1 of the
Criminal
    Code
limits the
Charter
rights of the appellants under ss. 7 and
    11(d). If the Crown fails to discharge its burden under s. 1 of demonstrating
    that s. 33.1 imposes reasonable limits prescribed by law as can be
    demonstrably justified in a free and democratic society, then s. 52(1) of the
Constitution
    Act,

1982
will deem s. 33.1 to be of no force or effect, to the
    extent of any inconsistency with the
Charter
.

a.

Overview

[222]

I need not restate the
Oakes
framework:
R. v. Oakes
, [1986] 1 S.C.R. 103, [1986] S.C.J. No. 7.

[223]

I begin by addressing
    whether the s. 1 analysis in
Daviault
is dispositive of these appeals.
    From there, I continue with observations about the contextual approach to the
    s. 1 analysis; the role of judicial deference to Parliament; and the current
    approach to the
Oakes
analysis. The interplay of ss. 7 and 1 in the
    proportionality analysis makes these appeals somewhat unusual.

i.

Is the Supreme Courts Analysis in
Daviault
Dispositive of these Appeals?

[224]

While
Daviault
provides guidance, it is not dispositive of the s. 1 analysis. As with any
    legal doctrine, earlier holdings are subject to modification by later doctrinal
    developments.

[225]

The
Daviault
majority found that similar rights limitations established by the common law in
Leary
could not be justified under s. 1 of the
Charter
. Cory
    J. explained, this rare and limited defence in general intent offences is
    required so that the common law principles of intoxication can comply with the
Charter
:
    at para. 67. This conclusion flowed from his earlier statement that: the
Leary
rule applies to all crimes of general intent, it cannot be said to be well
    tailored to address a particular objective and it would not meet either the
    proportionality or the minimum impairment requirements: at para. 47. Cory J.
    added that, because there was an insufficient link between intoxication and
    criminal acts and, under the proposed approach, the defence would be available
    only in the rarest of cases  there is no urgent policy or pressing objective
    which needs to be addressed: at para. 47.

[226]

However, the
Daviault
majority held that the reverse onus created by placing the burden on the
    accused to establish automatism on the balance of probabilities, with the
    assistance of expert evidence, was a reasonable limit of the accuseds
Charter
rights: at para. 63. The reverse onus has not been raised as an issue in these
    appeals.

[227]

Since 1994, when
Daviault
was decided, the doctrine has evolved with experience and is considerably more
    nuanced, particularly as the result of
Alberta v. Hutterian Brethren of
    Wilson Colony
, 2009 SCC 37, [2009] 2 S.C.R. 567,
Bedford
, and
Carter
.
    Further, Parliaments legislative response to
Daviault
must be
    assessed with fresh judicial eyes:
R. v. Mills
, [1999] 3 S.C.R. 668.

ii.

A Contextual Approach to s. 1 of the
Charter
is Required

[228]

It is now trite law
    that the s. 1 analysis is contextual and fact-specific. McLachlin J. (as she
    then was) observed that the
Oakes
test must be applied flexibly,
    having regard to the factual and social context of each case:
RJR-MacDonald
    Inc. v. Canada (Attorney General)
, [1995] 3 S.C.R. 199, at para. 132. The
    court's proper role will vary according to the right at issue and the context
    of each case and cannot be reduced to a simple test or formula:
Doucet-Boudreau
    v. Nova Scotia (Minister of Education)
, 2003 SCC 62, [2003] 3 S.C.R. 3, at
    para. 36.

iii.

Judicial Deference to Parliament is Due in the Criminal Law

[229]

There are several
    considerations that bear on the legitimacy of judicial review of legislation
    and on how that power should be exercised by courts.

[230]

The first is the
    separation of powers and the development of certain core competencies in the
    various institutions:
Ontario v. Criminal Lawyers' Association of Ontario
,
    2013 SCC 43, [2013] 3 S.C.R. 3 (
CLAO
), at para. 28,
per
Karakatsanis J.

[231]

The branches of
    government, with their different institutional capacities, play critical and
    complementary roles in our constitutional democracy . [which] each branch will
    be unable to fulfill  if it is unduly interfered with by the others:
CLAO
,
    at para. 29. This requires the judiciary to be deferential not only to policy
    objectives, but also to the specific means Parliament chooses to achieve those
    objectives:
Doucet-Boudreau
, at para. 57.

[232]

The court must respect
    the core competencies to which Karakatsanis J. referred in
CLAO
.
    Criminalizing socially harmful conduct is a core competency conferred on
    Parliament:
Constitution Act, 1867
, s. 91. This is where the
    democratic principle has its greatest force. The
Criminal Code
embodies Parliaments primacy in creating criminal offences; the court is
    prohibited from creating both common law criminal offences and new common law
    defences that would be inconsistent with the
Codes
provisions: ss.
    8(3), 9.

[233]

The core competency of
    Parliament over the criminal law is implicated deeply in these appeals. In
    assessing the constitutionality of legislation, the court must be mindful that
    in certain types of decisions there may be no obviously correct or obviously
    wrong solution, but a range of options each with its advantages and
    disadvantages:
Newfoundland (Treasury Board) v. Newfoundland and Labrador
    Association of Public and Private Employees
, 2004 SCC 66, [2004] 3 S.C.R.
    381, at para. 83,
per
Binnie J. While judicial deference is due, it
    never amounts to submission because that would abrogate the court's
    constitutional responsibility:
Gordon v. Canada (Attorney General)
,
    2016 ONCA 625, at para. 236, leave to appeal refused, [2016 S.C.C.A. No. 444],
    [2016 S.C.C.A. No. 445]; see also
PSAC v. Canada
, [1987] 1 S.C.R. 424,
    [1987] S.C.J. No. 9, at para. 36;
RJR-MacDonald
, at para. 136.

iv.

The Approach to the
Oakes
Analysis

[234]

The
Oakes
framework is intended to structure the legal analysis and thereby to constrain
    and discipline courts, in order to render the final balancing step as
    intelligible and as transparent as possible.

[235]

The
Oakes
test
    was not mandated by s. 1. It was developed by the Supreme Court as a means of
    structuring the inquiry into whether a limit on the exercise of a
Charter
right is demonstrably justified in a free and democratic society. A flexible,
    contextual approach has won out over a rigid application of
Oakes
,
    especially in the wake of
Hutterian Brethren, Bedford
, and
Carter
;
    see also Gérard La Forest, The Balancing of Interests under the
Charter

    (1992) 2 N.J.C.L 133 at 145-148. In La Forest J.s view, the
Oakes
test is not a set of rigid rules, but a checklist, guidelines for the
    performance of judicial duties: at 148.

v.

What Does the
Bedford/Carter
Framework
    Bring to the s. 1 Analysis?

[236]

The
Bedford/Carter
framework
    for assessing s. 7 limits introduces a new dynamic into the s. 1
    proportionality analysis. The Supreme Court prescribed a division of labour
    between ss. 7 and 1. As noted earlier, the s. 7 analysis addresses the impact
    on the individual in isolation from society. It is only in the s. 1 analysis
    that the common good is considered:
Bedford
, at paras. 121, 124-129.

[237]

Given this analytical
    division, it is important to stress that a finding that a s. 7 right has been
    limited is not determinative of the s. 1 analysis.

[238]

In
Bedford
,
    the Supreme Court did not discount the prospect that a s. 7 limit could be
    justified under s. 1, despite statements in earlier cases that considered this
    to be unlikely given the significance of the fundamental rights protected by
    s. 7: at para. 129. The court did not undertake the s. 1 analysis in
Bedford
,
    but did so in
Carter
, and agreed with the trial judge that the
    absolute prohibition on physician-assisted dying was overbroad in s. 7 terms and
    was not minimally impairing in s. 1 terms:
Carter
, at paras. 86, 88
    and 121.

[239]

The individualized
    application of the
Bedford/Carter
framework to Mr. Chan and Mr.
    Sullivan found s. 33.1 to be overbroad. Where does a finding of overbreadth
    under s. 7 fit into the s. 1 analysis? The question has not yet been answered
    definitively. In
Heywood
, Cory J. said that it fits best into the
    minimal impairment step:
R. v. Heywood
, [1994] 3 S.C.R. 761, [1994]
    S.C.J. No. 101, at para. 69. The Supreme Court took the same approach in
Carter
:
    at paras. 102-121.

[240]

In my view, although it
    provides additional conceptual tools, the
Bedford/Carter
framework
    does not displace, but rather supplements, the traditional approach taken in
Daviault
and by the trial judge in
Chan
.

b.

The First
Oakes
Stage: Are the Objectives
    of s. 33.1 Pressing and Substantial?

i.

The Governing
    Principles

[241]

In the s. 1 analysis,
    the Crown must first establish that the legislation is in pursuit of a
    sufficiently important objective that is consistent with the values of a free
    and democratic society and is of sufficient importance to warrant overriding
    a constitutionally protected right or freedom:
R. v. K.R.J.
, 2016 SCC
    31, [2016] 1 S.C.R. 906
,
at para. 61;
Oakes
, at para. 69.

[242]

Determining whether an
    objective is pressing and substantial is usually not an evidentiary contest. As
    the Supreme Court has explained: The proper question at this stage of the
    analysis is whether the Attorney General has asserted a pressing and
    substantial objective; even a "theoretical objective asserted as pressing
    and substantial is sufficient for purposes of the s. 1 justification
    analysis":
Harper v. Canada (Attorney General)
, 2004 SCC 33,
    [2004] 1 S.C.R. 827, at paras. 25-26.

ii.

The Trial Judge's
    Assessment

[243]

As noted earlier, the
    trial judge identified the objectives of s. 33.1 as those stated in the
    Preamble to Bill C-72: the protection of women and children from intoxicated
    violence and the accountability of those who commit offences of violence
    while intoxicated: at para. 121.

iii.

The Principles Applied
    on Pressing and Substantial Objectives

[244]

In my view, this is not
    a case in which there is a live issue about how the legislative objectives are
    to be identified, as in
Bedford
,
Carter
, and
Frank v.
    Canada (Attorney General)
, 2019 SCC 1, [2019] 1 S.C.R. 3. Nor do the
    appellants argue that Parliament proceeded in bad faith or had an unexpressed
    ulterior motive, as was alleged in
PSAC
.

[245]

There is a debate on
    whether the objectives stated in the Preamble can be taken at face value, or
    whether the real objectives of s. 33.1 lie elsewhere. On the one hand, the
    appellants argue that the trial judge in
Chan
overstated the objective
     s. 33.1 was designed to abolish the
Daviault
defence in the wake of
    public pressure. On the other hand, the Crown argues that such a narrow
    interpretation of the objective implies bad faith and undermines the
    presumption that Parliament intends to enact constitutional legislation: see
Mills
,
    at paras. 48, 56-60.

[246]

I find arguments that
    the objectives are either too broadly or too narrowly framed in the Preamble
    not to be compelling.

[247]

What was Parliament
    trying to do by enacting s. 33.1? In its own words, Parliament was seeking to
    discourage self-induced intoxication, which it described as blameworthy, in
    order to prevent violence, particularly violence against women and children,
    for which persons should be held accountable: Preamble to Bill C-72.

[248]

It is noteworthy that
    Canada is not alone in enacting such legislation. The United Kingdom,
    Australia, and the United States have enacted similar laws that go further in
    their application. For instance, in the United Kingdom, voluntary intoxication
    is never a defence for general intent offences. Compared to those jurisdictions,
    Canadas approach is narrower: the application of s. 33.1 is limited to violent
    general intent offences.

[249]

Some interveners argued
    that whether an objective is pressing and substantial depends in part on the
    incidence of the application of the limiting measures. If something is rarely
    applied, goes the argument, the objective cannot be pressing and substantial.
    This seems to have been Cory J.s thinking in
Daviault
, when he said
    that because: the defence would be available only in the rarest of cases
    there is no urgent policy or pressing objective which need[s] to be addressed:
    at para. 47.

[250]

I would reject this
    argument. The determination of whether a matter is of sufficient importance to
    the public good does not turn on statistical frequency. There are several
    criminal offences whose commission is quite rare, like treason or espionage,
    but no one would argue that Parliaments objectives in criminalizing such
    conduct are not pressing and substantial. Rarity of occurrence, in itself, does
    not impugn the pressing and substantial nature of Parliaments objectives.

iv.

Conclusion on Pressing
    and Substantial Objectives

[251]

It bears repeating
    that the focus at this step of the analysis is whether the Crown has asserted
    a pressing and substantial objective, even a theoretical one:
Harper
,
    at paras. 25-26. From a democratic viewpoint, the court should presume that
    Parliament intended to enact constitutional legislation and strive, where
    possible, to give effect to this intention:
Mills
, at para. 56.

[252]

In my view, Parliament
    has answered the question at this stage of the analysis  its protective and
    penal objectives in enacting s. 33.1 are self-evidently pressing and
    substantial objectives.

[253]

The next stage of the
    analysis asks if the methods Parliament chose to achieve these objectives are
    proportional.

c.

The Second
Oakes
Stage: Are the Measures
    in s. 33.1 Proportional?

[254]

The task in the second
    stage of
Oakes
is to make the proportionality determination. As noted,
    the court must assess whether the means chosen by Parliament to accomplish its
    ends are: first, rationally connected with the ends; second, minimally
    impairing; and third, proportional as between the deleterious and salutary
    effects of the law:
Oakes
, at para. 70;
Carter
, at para. 94;
K.R.J.
,
    at para. 58;
Frank
, at paras. 38-39. The measures identified in these
    reasons as limiting the appellants
Charter
rights are the means to be
    assessed against Parliaments ends in determining whether it is just for
    Parliament to require some individuals to bear the negative effects of the
    measures in order to secure the positive effects of the ends for the common
    good.

[255]

To recapitulate, s.
    33.1 removes the common law defence of non-mental disorder automatism created
    by the Supreme Court in
Daviault
. Now, those who could have sheltered
    under the defence of non-mental disorder automatism are subjected to the same
    penal consequences for their violent acts as those who commit the same acts
    while in a less intoxicated, non-automatistic state.

i.
Are the Measures in s. 33.1 Rationally
    Connected?

1.

The Governing Principles on Rational Connection

[256]

The evidentiary burden
    at this stage of the proportionality analysis is not particularly onerous
    and, as Professor Peter Hogg commented, the requirement of a rational
    connection has very little work to do:
Little Sisters Book and Art
    Emporium v. Canada (Minister of Justice)
, 2000 SCC 69, [2000] 2 S.C.R.
    1120, at para. 228; Peter Hogg,
Constitutional Law of Canada
, 5th ed.,
    vol. 2 (Toronto: Carswell, 2019) (loose-leaf updated 2019), at s. 38.12.

[257]

A rational connection
    need not be proven on a rigorous scientific basis. A causal connection based on
    reason or logic may suffice
: RJR-MacDonald
, at paras. 137, 153 and
    156;
Carter
, at para. 99. Provided that the impugned measure
    shows care in design and a lack of arbitrariness, and provided that it furthers
    an important government aim in a general way, it will pass the rational
    connection branch of the analysis:
Canada (Human Rights Commission) v.
    Taylor
, [1990] 3 S.C.R. 892, [1990] S.C.J. No. 129, at para. 56.

[258]

The Crown need only
    demonstrate a reasonable prospect that the limiting measure will further the
    objective to some extent, not that it will certainly do so:
Hutterian
    Brethren
, at para. 48. In the absence of dispositive social science
    evidence, Parliament need only establish a reasoned apprehension of the harm
    it aims to prevent:
R. v. Butler
, [1992] 1 S.C.R. 452, [1992] S.C.J.
    No. 15, at para. 107. For example, in
McKinney v. University of Guelph
,
    some evidence showed a correlation between mandatory retirement and generating
    new jobs for younger faculty, while other evidence suggested that there was
    none: [1990] 3 S.C.R. 229, [1990] S.C.J. No. 122, at para. 65. The court found
    that this conflicting evidence provided a sufficient basis to meet the rational
    connection test: at para. 66.

[259]

Where the legislation
    at issue has more than one objective, any of them can be relied upon to meet
    the s. 1 test:
Hutterian Brethren
, at paras. 44-45.

2.

The Trial Judge's Decision

[260]

The trial judge in
Chan
expressed the view that s. 33.1 does not do much to protect women and children
    from violence. He said: I have a hard time believing, as a matter of common
    sense, that many individuals are deterred from drinking, in the off chance that
    they render themselves automatons and hurt someone: at para. 123. While he
    accepted the evidence that: there is a strong linkage between intoxication and
    violence, he stated that because: the self-induced automatism defence arises
    very rarely and is successful even more rarely  I am unable to conclude what
    the actual connection is between the objective and what the law will actually
    achieve in terms of reducing violence against women and children: at paras.
    125-126. While he found that the limiting measures in s. 33.1 were not rationally
    connected to the protective objective, he concluded that they were rationally
    connected to the penal objective: at paras. 126-127.

3.

The Rational Connection Principles Applied

a.

Both
    the federal and Ontario Crowns, joined by LEAF, argue that Parliament acted
    rationally in its enactment of s. 33.1. Parliament had before it two issues on
    which the social science evidence was inconclusive but highly suggestive. The
    expert evidence before the Standing Committee emphasized the high correlation
    between intoxication (particularly alcohol-induced intoxication) and violence,
    particularly violence against women and children. The Ontario Crowns summary
    of the evidence is fair:

While scientific research does not show
    that intoxication
causes
violence, there is a correlation between them.
    Statistics confirm that intoxication creates an environment conducive to
    violence and, in the domestic violence context, alcohol is linked to an
    increase in the severity of violence. [Emphasis in original.]

[261]

The Preamble to Bill
    C-72 (the legislation enacting s. 33.1) expressly points to the close
    association between violence and intoxication. That correlation is
    well-established in the evidence considered by Parliament in its deliberations
    on s. 33.1, but it falls short of showing that those who become intoxicated
    intend to commit assaults. Correlation  a statistical concept  and causation,
    which is essential to criminal liability, are quite different. It is not
    obvious that substantial correlation cannot form the basis of a legislative
    response.

[262]

The second issue was
    whether excessive alcohol intoxication can physiologically lead to non-mental
    disorder automatism. The Ontario Crowns factum again fairly summarizes the
    expert evidence:

The expert testimony before the Standing
    Committee on Justice and Legal Affairs on Bill C-72 explained that the legal
    defence of alcohol induced intoxication akin to automatism  is indefensible
    in scientific terms. This is because alcohol is
not
a dissociative
    drug: on its own, alcohol is incapable of creating an automatistic state.
    [Emphasis in original.]

[263]

In my view, the social
    science evidence on these two points, even though not dispositive, does
    establish a reasoned apprehension capable of grounding s. 33.1 as a
    rational social policy response by Parliament to a real problem. The Preamble
    reflects both these issues and expressly refers to the social science evidence.

[264]

Does this evidence
    support both the protective objective and the penal objective of s. 33.1?

4.

Conclusion on Rational Connection

[265]

I would agree with the
    trial judge that the introduction of the non-mental disorder automatism
Daviault
defence is unlikely, as a matter of logic and common sense, to have encouraged
    any excessive drinkers, in the moment, to cross the brink into automatism in
    order to get access to the new defence. Nor is it likely that the removal of
    the defence, conversely, will encourage excessive drinkers, in the moment, to
    drink less. Furthermore, there is no evidence before this court to support the
    Crowns argument that the measure will discourage excessive drinking. On this
    basis, the trial judge correctly found that s. 33.1s measures are not
    rationally connected to the protective objective.

[266]

However, the penal
    objective is not merely ancillary to the protective objective. It has
    independent status, in view of the public outrage that greeted the
Daviault
decision, the social science evidence, and the submissions to Parliament that
    demanded full criminal liability for those who, having committed a violent
    assault, would be able to shelter under the new non-insane automatism defence.
    The measures in s. 33.1 are rationally connected to the penal objective.

ii.
Were the Measures Minimally Impairing?

1.
The
    Governing Principles on Minimal Impairment

[267]

More recently, the
    Supreme Court outlined this step of the
Oakes
test in
Carter
and explained that the analysis at this stage is meant to ensure that the
    deprivation of
Charter
rights is confined to what is reasonably
    necessary to achieve the state's object: at para. 102. The question at this
    stage, therefore, is whether the limit on the right is reasonable tailored to
    the objective  [in particular] whether there are less harmful means of
    achieving the legislative goal (internal citations omitted): at para. 102. As
    such, the government bears the burden of demonstrating that less drastic
    means were unavailable to [achieve] the objective in a real and substantial
    manner: at para. 102.

[268]

Judicial deference to
    Parliament at the minimal impairment stage is sensitive to the context of the
    law in issue. The Supreme Court has affirmed that Parliament is not held to a
    standard of perfection: If the law falls within a range of reasonable
    alternatives, the courts will not find it overbroad merely because they can
    conceive of an alternative which might better tailor objective to
    infringement:
Libman v. Quebec (Attorney General)
, [1997] 3 S.C.R.
    569, at para. 58, citing McLachlin J.'s formulation of the test in
RJR-MacDonald
,
    at para. 160; see also
Montreal (City) v. 2952-1366 Quebec Inc.
, 2005
    SCC 62, [2005] 3 S.C.R. 141, at para. 94. Rather, the court will consider
    whether the government has established that it has tailored the limit to the
    exigencies of the problem in a reasonable way:
Montreal (City)
, at
    para. 94; see also
Nova Scotia (Workers Compensation Board) v. Martin;
    Nova Scotia (Workers Compensation Board) v. Laseur
, 2003 SCC 54, [2003] 2
    S.C.R. 504, at para. 112,
per
Gonthier J.;
Lavigne v. Ontario
    Public Service Employees Union
, [1991] 2 S.C.R. 211, [1991] S.C.J. No. 52,
    at para. 170,
per
Wilson J.

[269]

It is not always the
    case that an overbroad law will automatically fail at the minimal impairment
    stage:
Fundamental Justice
, at pp. 364-365; see also
Bedford
,
    at para. 144;
Carter
, at paras. 102-121;
Michaud
, at paras.
    73-74. As Professor Stewart explains, under section 1, the issue is whether
    the limit on the right impairs the section 7 right
no
    more than reasonably necessary
to achieve the purpose of that limit
    (emphasis added):
Fundamental

Justice
, at p. 364.

2. The Trial Judge's Assessment of Minimal Impairment

[270]

The trial judge found
    that s. 33.1 was minimally impairing because its limits were tailored to its
    objectives and the provision fell within a range of reasonable alternatives:
    at paras. 140-141, citing
RJR-MacDonald
, at para. 160,
per
McLachlin J.

[271]

While he recognized
    that the law impaired Mr. Chans rights in a certainly not minimal manner,
    the trial judge noted that s. 33.1 has three mitigating features: the section
    only applies to general intent offences, not the more serious specific intent
    offences; it only applies to offences relating to bodily integrity and not to
    property-based offences; and it only applies to voluntary self-induced
    intoxication: at paras. 131-133, 141. In his view: There is a moral
    blameworthiness attached to getting oneself so intoxicated as to lose control
    of one's faculties: at para. 134.

[272]

The trial judge did not
    accept that creating a stand-alone offence of criminal intoxication was a
    reasonable alternative to the measures in s. 33.1. He noted that Parliament had
    rejected this option on the reasoned basis that: there might be seen to be a
    discount available for some intoxicated offenders in the form of a reduced
    sentence; it would undermine the objective of accountability, or, as I have
    framed the point, it would not advance Parliaments penal objective; and it
    would require prosecutors to argue somewhat inconsistently that an accused was
    not so intoxicated to avoid responsibility for the predicate offence, but was
    sufficiently intoxicated to be guilty of criminal intoxication: at para. 139.

3. The Minimal Impairment Principles Applied

[273]

There is no doubt, on
    the evidence presented, that Parliament wanted to achieve the penal objective:
    to subject those who could have sheltered under the defence of non-mental
    disorder automatism to the same penal consequences for their violent acts as
    those who commit the same acts in less intoxicated, non-automatistic states.
    This is what must run the gauntlet at the balancing step of the proportionality
    assessment, giving due weight to Parliaments authority to criminalize socially
    harmful conduct.

[274]

The s. 7 finding of
    overbreadth must now be considered. The application of the
Bedford/Carter
framework shows s. 33.1 does not limit s. 7 rights in a minimally impairing
    manner. It is overbroad as applied to Mr. Chan and Mr. Sullivan. Their
    s. 7 rights are limited by the application of s. 33.1 because there is no
    connection between the laws two objectives, protective and penal, and the
    laws effects on them. Neither Mr. Chan nor Mr. Sullivan was drinking. Neither
    had any reason to believe that his voluntary self-intoxication would culminate
    in violent psychosis.

[275]

These observations
    apply to similarly situated individuals who have no reason to believe that
    their voluntary self-intoxication would culminate in violent psychosis. For
    instance, similarly situated individuals who take prescription drugs and
    experience unanticipated side effects, or people who voluntarily consume
    intoxicants other than alcohol and could not foresee that doing so would lead to
    violent psychosis, are captured by the law, according to the Crown. By
    attaching criminal liability to involuntary conduct or situations where an
    individual consumes a drug in circumstances where violent psychosis is not
    reasonably foreseeable, s. 33.1 creates a standard of absolute liability.
    Moreover, common sense suggests that s. 33.1 would not discourage people
    who lack any reasonable basis for believing that self-intoxication would cause
    them to become psychotic from becoming intoxicated. While it is open to
    Parliament to craft an offence for committing a prohibited act while drunk,
    the means employed would not be minimally impairing if they bear no connection
    to the laws objectives:
Daviault
, at para. 61.

4. Conclusion on Minimal Impairment

[276]

Parliament took pains
    to tailor s. 33.1 to its stated objectives, as noted by the trial judge. In my
    view, the result of those efforts falls within the range of reasonable
    alternatives, since: The tailoring process seldom admits of perfection and the
    courts must accord some leeway to the legislator:
Libman
, at para.
    58;
RJR-MacDonald
, at para. 160.

[277]

However, because s.
    33.1 does not contain an exception for people like Mr. Chan and Mr.
    Sullivan and those similarly situated, it is not minimally impairing. But s.
    33.1 still must be evaluated for proportionality under s. 1, to which I now
    turn.

iii.
The Balancing Step: Do the Salutary Effects
    Outweigh the Deleterious Effects?

1.

The Governing Principles

[278]

In
Hutterian
    Brethren
, McLachlin C.J. set out the basic question at the third step of
    the proportionality analysis: Is the limit on the right proportionate in
    effect to the public benefit conferred by the limit?: at para. 73. Or, as she
    put it in
Bedford
, whether the negative impact of a law on the rights
    of individuals is proportionate to the pressing and substantial goal of the law
    in furthering the public interest: at para. 125; see also
Carter
, at
    para. 95. This analysis takes full account of the 'severity of the deleterious
    effects of a measure on individuals or groups:
Hutterian Brethren
,
    at para. 76. It entails a broad assessment of whether the benefits of the
    impugned law are worth the cost of the rights limitation, or whether the
    deleterious effects are out of proportion to the public good achieved by the infringing
    measure: at paras. 77-78.

2.

The Trial Judge's Decision

[279]

The trial judge noted,
    adverting to
Bedford
, that the broader social goals of s. 33.1 were to
    be taken into account in the balancing of rights: at para. 150. He noted: The
    entire history of the defence of intoxication has been about finding the
    appropriate balance between the fundamental rights of accused persons and the
    rights of others  particularly women and children  to be protected from
    intoxication-fueled violence: at para. 153. He deferred to Parliaments view
    of the morally appropriate balance between intoxicated offenders and the rest
    of society and to hold intoxicated offenders to account: at para. 154. The
    trial judge concluded that he was satisfied that there is proportionality
    between the salutary and deleterious effects of the provision: at para. 157.

3.

The Balancing Principles Applied

[280]

In the balancing step,
    the court is required to consider proportionality as between the deleterious
    and salutary effects of the law, in order to determine whether it is just for
    the legislation to require some individuals to bear the burden of the negative
    effects in order to secure the benefits of the positive effects for the common
    good  a good that benefits the offender as well:
Oakes
, at para. 70;
Carter
,
    at para. 94;
K.R.J.
, at para. 58;
Frank
, at paras. 38-39.

i.

The Benefits

[281]

The parties supporting
    the constitutionality of s. 33.1 identified several benefits that inure to the
    common good. First, the section satisfies the deep-seated conviction that it
    would be wrong and unjust to allow a person like Mr. Daviault, who committed a
    violent sexual assault on a disabled elderly woman while voluntarily
    self-intoxicated, to escape penal consequences. This conviction drove the
    submissions to Parliament, and Parliament itself in enacting the legislation.
    It is not a conviction to be taken lightly in a free and democratic society.

[282]

Second, s. 33.1
    subjects all those who voluntarily self-intoxicate and then commit violent
    assaults to the same penalties, which sends a strong message of deterrence to
    the public that this conduct will not be tolerated.

[283]

Third, LEAF asserts
    that protecting the security of the person and equality rights of others,
    particularly women and children, from violent crimes at the hands of
    intoxicated offenders depends on the reporting of violent abuse by victims and
    witnesses. As the Minister of Justice explained in Parliamentary debate, the
    uncertainty left by
Daviault
would discourage victims and witnesses
    from reporting such drunken assault. Removing the defence would, it is argued,
    remove a disincentive to report.

[284]

Fourth, these benefits
    all inure to the special benefit of women and children who are the primary
    victims of intoxicated violence, and who have been recognized in many legislative
    enactments as being vulnerable and requiring legal protection.

[285]

Fifth, s. 33.1 places
    the fault where it belongs  with those who would voluntarily self-intoxicate
    to excess, which is not a morally blameless act.

[286]

All of these benefits
    are not
ex post facto
rationalizations but appear in some form in the
    Preamble to Bill C-72.

ii.

The Burdens

[287]

The countervailing
    burdens are weighty. The fundamental rights of persons caught by s. 33.1 under
    ss. 7 and 11(d) of the
Charter
are severely limited: these are, to
    repeat, the presumption of innocence and the strong criminal law requirement
    that the Crown prove beyond a reasonable doubt that the violent acts of the
    accused were voluntary and met the mental element requirements for criminal
    convictions on the predicate violence-based charges.

[288]

While it is true that
    the incidence of the application of s. 33.1 is rare, that does not justify
    depriving even such a small number of persons of their fundamental rights. The
    dramatic effect on these rights is disproportionate to the small number of
    individuals affected. Further, Parliaments core target under s. 33.1 was the
    person whose extreme alcohol intoxication would cause non-mental disorder
    automatism. But it is not clear that extreme alcohol intoxication causes non-mental
    disorder automatism as a matter of basic science. In short, the defence might
    not even be viable as a matter of fact. (Mr. Daviault was not tried again
    because his victim died before the second trial of unrelated causes.)

4.

Conclusion on Balancing

[289]

The final step of the
    proportionality analysis turns on a conviction sedimented deeply into the rule
    of law. The principle that the innocent [should] not be punished has been
    recognized from time immemorial [as] part of our system of laws, a system
    founded upon a belief in the dignity and worth of the human person and the
    rule of law:
Re B.C. Motor Vehicle Act
, [1985] 2 S.C.R. 486, at p.
    513,
per
Lamer J. The Supreme Court reiterated a variant of this
    conviction in
Carter
, explaining that a law that runs afoul of the
    principles of fundamental justice is not easily justified or overridden by
    competing societal interests (internal citations omitted): at para. 95.

[290]

I share the conviction
    stated in these authorities. Section 33.1 cannot be justified under s. 1 of the
Charter
, as a matter of simple justice and what our law requires the
    Crown to prove in order to secure a criminal conviction for the predicate
    violent offences. The required mental and voluntariness elements and the
    presumption of innocence cannot be bypassed.

[291]

Finally, focusing
    specifically on Mr. Chan and Mr. Sullivan, there is no good reason for them to
    have been swept into the net of s. 33.1. Section 33.1 is overbroad in its
    application to them because there is no connection between the laws two
    objectives  protective and penal  and the laws effects on them. The
    justification of enforcement practicality does not apply to them, nor does
    the phenomenon of line-drawing apply, as in
Michaud
, which can give
    rise to incidental overbreadth and arbitrariness:
Bedford
, at para.
    113;
Michaud
, at paras. 144-145. Section 33.1 imposes an even more
    intense limit on their rights than the general operation of s. 33.1 and
    attracts the same evaluation of unconstitutionality.

[292]

For these reasons, in
    my view, s. 33.1 of the
Criminal Code
limits the
Charter
rights of the appellants under ss. 7 and 11(d) and the Crown has not
    demonstrated that those limits are justified. Consequently, s. 52(1) of the
Constitution
    Act,

1982
deems s. 33.1 to be of no force or effect, to the
    extent of any inconsistency with the
Charter
. I therefore concur with
    my colleague in the result.

Released:
    JUN 03, 2020 DW

P. Lauwers J.A.

[1]

In
Bouchard-Lebrun
, at paras. 36 and 42, Lebel J.,
    for the court, ultimately held that s. 33.1 should not be interpreted as
    limiting the scope of s. 16 of the
Criminal Code
, but the trial judge
    had not done so.

[2]

R. v. Vickberg
(1998), 16 C.R. (5th) 164 (B.C.S.C.),
R.
    v. Decaire
, [1998] O.J. No. 6339 (C.J.),
R. v. Dow
, 2010 QCCS 4276,
    261 C.C.C. (3d) 399; and
R. v. S.N
., 2012 NUCJ 2.

[3]

R. v. Brenton
(1999), 180 D.L.R. (4th) 314 (N.W.T.S.C.),
    reversed for other reasons, 2001 NWTCA 1, 199 D.L.R. (4th) 119;
R. v. Dunn
(1999),
    28 C.R. (5th) 295 (Ont. S.C.),
R. v. Jensen
, [2000] O.J. No. 4870
    (S.C.),
R. v. Cedeno
, 2005 ONCJ 91, 195 C.C.C. (3d) 468,
R. v.
    Fleming
, 2010 ONSC 8022; and
R. v. McCaw
, 2018 ONSC 3464, 48 C.R.
    (7th) 359.

[4]
Various arguments have been made to justify reconsidering the
    pressing and substantial nature of the protective purpose, as decided in
Daviault
.
    The Crown argued that, in passing s. 33.1, Parliament was responding to a material
    change in circumstances. I disagree. If anything, scientific evidence rehearsed
    in the Preamble, that most intoxicants, including alcohol, by themselves, will
    not cause a person to act involuntarily supports Cory J.s conclusion that
    this defence will rarely be available. Nor do I share my colleagues view that
    the applicable legal doctrine has evolved since
Daviault,
permitting
    Cory J.s conclusion to be re-opened. I need not engage that issue because I
    accept that the s. 1 analysis from
Daviault
is not binding because it
    addressed the state of the common law, not the constitutionality of s. 33.1.

[5]

This court has
    already heard Mr. Sullivans sentence appeal, with reasons reported at 2019
    ONCA 412.

[6]

At the time of the relevant offences, s. 145(3) of the
Criminal
    Code
applied. On December 13, 2019, amendments came into force, resulting
    in changes to s. 145: see
An Act to amend the Criminal Code and the
    Department of Justice Act and to make consequential amendments to another Act
,
    S.C. 2018, c. 29.