R. v. Sullivan, 2022 SCC 19 (39270) 

“After having voluntarily taken an overdose of a prescription drug and falling into an impaired state, S attacked his mother with a knife and injured her gravely. He was charged with several offences, including aggravated assault and assault with a weapon. In unrelated circumstances, C fell into an impaired stated after he voluntarily ingested magic mushrooms containing a drug called psilocybin. He attacked his father with a knife and killed him, and seriously injured his father’s partner. C was tried for manslaughter and aggravated assault. Both S and C argued at their respective trials that their state of intoxication was so extreme that their actions were involuntary and could not be the basis of a guilty verdict for the violent offences of general intent brought against them. C also argued that an underlying brain injury was the significant contributing cause of his psychosis, rather than his intoxication alone, such that he was not criminally responsible.

In the case of S, the trial judge accepted that S was acting involuntarily but decided that the defence of extreme intoxication akin to automatism was not available by virtue of s. 33.1 of the Criminal Code. S was convicted of the two assault charges. The trial judge in C’s case dismissed C’s constitutional challenge to s. 33.1, during which C had argued that previous decisions of the same court that declared s. 33.1 unconstitutional were binding on the trial judge. C’s brain trauma was held to be a mental disorder but not the cause of C’s incapacity, which was the result of the voluntary ingestion of magic mushrooms. C was convicted of manslaughter and aggravated assault.

The Court of Appeal heard appeals by S and C together and held that s. 33.1 violates ss. 7 and 11(d) of the Charter and is not saved by s. 1. S and C were therefore entitled to raise the defence of automatism. The Court of Appeal also addressed the issue of whether the trial judge in C’s case was bound by precedent of a court of coordinate jurisdiction in the province to accept the unconstitutionality of s. 33.1. It held that the ordinary rules of stare decisis apply when superior courts in first instance consider whether to follow previous declarations of unconstitutionality. The trial judge was correct to decide that he was not bound by previous decisions and entitled to consider the issue afresh. In the result, S’s convictions were set aside and acquittals entered. The Court of Appeal ordered a new trial for C because no finding of fact had been made in respect of non-mental disorder automatism. The Crown appeals to the Court from the Court of Appeal’s decision in respect of both S and C, and C applies for leave to cross‑appeal the order of a new trial, seeking an acquittal or, in the alternative, a stay of proceedings.”

The SCC (9:0) dismissed the appeals; application for leave to cross‑appeal quashed for want of jurisdiction.

Justice Kasirer wrote as follows (at paras. 5-6, 8, 43-33, 86):

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

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

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


For the reasons that follow, I agree with the Crown that the trial judge was not strictly bound by the prior declaration by a court of coordinate jurisdiction by virtue of s. 52(1). In my respectful view, Mr. Sullivan’s understanding of the effect of a declaration under s. 52(1) is mistaken. A s. 52(1) declaration of unconstitutionality reflects an ordinary judicial task of determining a question of law, in this case with respect to the consistency of a law with the requirements of the Charter. Questions of law are governed by the normal rules and conventions that constrain courts in the performance of their judicial tasks. In the result, I agree with the conclusion reached by Paciocco J.A. that the ordinary principles of stare decisis govern the manner in which a declaration issued by a court under s. 52(1) affects how courts of coordinate jurisdiction in the province should decide future cases raising the same issue. I would however clarify the situations when a superior court may depart from a prior judgment of a court of coordinate jurisdiction. The standard is not that the prior decision was “plainly wrong”. A superior court judge in first instance should follow prior decisions made by their own court on all questions of law, including questions of constitutional law, unless one or more of the exceptions in Spruce Mills are met.

To summarize, a court is required by the principles of judicial comity and horizontal stare decisis to follow a binding prior decision of the same court in the province. A decision may not be binding if it is distinguishable on its facts or the court has no practical way of knowing it existed. If it is binding, a trial court may only depart if one or more of the Spruce Mills exceptions apply.”