Section 1 of the Charter allows the government to pass laws that breach our Rights and Freedoms… if they can justify it.
Think of it as “The Section 1 Override”.
Lower courts could not agree whether s. 33.1 – breaching our Charter rights as it does – is nonetheless justifiable. Some said yes, some said no.
Now the Court of Appeal has settled it: Section 33.1 cannot be justified. There is no good reason to breach our Rights and Freedoms, so Section 33.1 cannot stand.
The test for the “Section 1 Override” basically asks this:
- What is the purpose of the law Parliament passed?
- Is that purpose important?
- Does the law they chose to pass fix the problem in our society?
- And if it does, is it proportionate to the harm the law causes to our rights?
Section 33.1 has two purposes:
#1: To protect victims from violent acts committed by self-intoxicated automatons.
#2: To hold self-intoxicated automatons accountable for the violence that they cause
Neither purpose justifies the law. Let’s look at each in turn.
The Court of Appeal agrees that this is a laudable goal. It is an important goal.
The problem, though, is that the law (s. 33.1) does nothing to achieve its goal.
Theoretically, the idea is that victims can be protected if we can pass a law that prevents the crime from being committed in the first place.
Most criminal laws achieve this to some degree: if you steal, we will put you in jail … do not steal. And many people, scared of jail, won’t steal. If you assault or sexually assault somebody, we will put you in jail. And many people scared of jail won’t assault or sexually assault anyone.
But that doesn’t work here. What effect is s. 33.1 to stop people from being hurt? None, because the act of violence cannot be deterred: it is involuntary and unintended.
And realistically, section 33.1 was not stopping anybody in the world from drinking or taking drugs.
Don’t forget, s. 33.1 does not only prohibit the defence for people who purposely got extremely intoxicated. It captured people like Mr. Sullivan who did not want to get intoxicated at all.
Self-intoxicated automatism is so rare. As it is, 99.9% of violence caused by intoxication carries with it no legal protection. That does not stop people from becoming intoxicated. The prospect that the s. 33.1 prohibition on the automatism defence was stopping anybody from using drugs or alcohol is so remote … it certainly does not justify an unconstitutional law.
For anybody who disagrees and feels that s. 33.1 imposed a significant deterrent that is now missing: I presume you have not been drinking or taking any recreational drugs since 1995, for fear that your ensuing automatism and crime spree would have no viable legal defence. And that now the lid is off, you are free to imbibe without concern for your legal prospects.
The Court of Appeal dismisses this one pretty easily. Parliament’s stated purpose of “accountability” is essentially to undermine the Charter right itself. That is not a legitimate purpose.
To explain: Section 1 balances two things: The Charter breach vs. Parliament’s competing interest.
What is s. 33.1’s Charter breach?
That it holds Canadians criminally accountable even when they did not voluntarily commit the act or have the mental state. That violates the Charter.
What is Parliament’s Competing Interest?
That it really wants to hold those people accountable regardless. Come, on please can it hold those people accountable?
The purpose, that is, is to hold accountable people that the Charter specifically maintains are not accountable.
The Court of Appeal properly points out … this is not a competing interest. It is a desire to do something that directly contradicts the Charter. The Charter is the highest law in the land and it takes precedence.