In Brown v R, 2022 SCC 18 (May 13, 2022) the Supreme Court of Canada declared unconstitutional, and of no force or effect, s 33.1 of the Criminal Code.
The effect of s 33.1 was to remove a defence of automatism to crimes of general intent.
This provision was contrary to the principles of fundamental justice in that it allowed criminal liability for acts that were not voluntary. This infringed s 7 of the Canadian Charter of Rights and Freedoms. It also breached the presumption of innocence by replacing the prosecution’s obligation to prove mens rea with mere proof of intoxication. This infringed s 11(d) of the Charter.
On the critical question of whether the limits on rights imposed by s 33.1 were justified in a free and democratic society under s 1 of the Charter, the Court held that, while there was a rational connection between s 33.1 and Parliament’s purpose, the impairment of rights was not minimal because alternative means of achieving the purpose could be devised. The benefits of s 33.1 were outweighed by its negative effects: the risk of wrongful conviction, the failure to distinguish between grades of moral culpability, and the disproportionate punishment that would have to be imposed.
In a companion judgment delivered the same day, two Crown appeals were dismissed because of the invalidity of s 33.1: R v Sullivan, 2022 SCC 19. This judgment addresses stare decisis issues, particularly horizontal stare decisis: when a court is bound to follow a decision of a court at the same level in the hierarchy in the same Province.
The power to declare statutory provisions unconstitutional is in s 52(1) of the Constitution Act, 1982, which states: “The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.”
In New Zealand we don’t have a provision corresponding to s 52(1). Our courts have no power to declare a parliamentary enactment to be of no force or effect. We do have an equivalent of s 1 of the Charter. This is s 5 of the New Zealand Bill of Rights Act 1990 (NZBORA).
However, our Supreme Court has held that there is a power to make a declaration of inconsistency with NZBORA: Attorney-General v Taylor [2018] NZSC 104 per Glazebrook and Ellen France JJ at [65], Elias CJ at [74], (William Young and O’Regan JJ dissenting at [122]).
What should be the consequences of such a declaration? These are still to be worked out.
Possibilities are the taking into account of a declaration as a mitigating factor when determining an appropriate sentence, or when deciding whether to discharge an offender without conviction. Where a provision unjustifiably limits the right to be presumed innocent and the right to a fair trial, dismissal of a charge at trial or quashing a conviction on appeal should be appropriate. As we say these days, the consequences of a declaration of inconsistency will probably be contextual and evaluative judgement will be necessary.
