In Sullivan, The SCC Clarifies Role Of Stare Decisis In Constitutional Litigation

• Published date: 23 May 2022
• Law Firm: Borden Ladner Gervais LLP
• Author: Ms Nadia Effendi, Pierre N. Gemson, Laura M. Wagner, Ashley Maciuk, Mohit Sethi and Anthony Cianfarani

The Supreme Court of Canada's decisions in the companion appeals in R v. Brown¹ (Brown) and R v. Sullivan² (Sullivan) were released on May 13, 2022. In Brown, the Court invalidated on constitutional grounds s. 33.1 of the Criminal Code - a provision that prohibits an accused from asserting an automatism defence against "general intent" crimes. In Sullivan, the Court also held that a superior court's declaration of unconstitutionality under s. 52(1) of the Constitution Act would only be binding on judges within a province according to the rules of horizontal stare decisis. The criminal law bar is abuzz regarding the Court's ruling in Brown on section 33.1 and its implications on the prosecution of violent crimes against women. This article focuses on the Court's decision in the companion appeal in Sullivan, which holds significant consequences for constitutional litigation across the country.

What you need to know

• A superior court's declaration of unconstitutionality under section 52(1) of the Constitution Act will be binding on other superior court judges within the same province according to the ordinary rules of horizontal stare decisis and judicial comity. This can only be displaced in narrow prescribed circumstances.
• Due to the operation of the constitutional principle of federalism, a section 52(1) declaration of unconstitutionality by a superior court judge will not be binding on superior court judges in other provinces, although the reasons may be persuasive.

Facts and trial decisions

The decision in Sullivan involved appeals of two accused heard together - David Sullivan and Thomas Chan - who each argued that their violent actions were involuntary due to extreme intoxication akin to automatism.³ Chan's case revealed inconsistent conclusions in the lower courts about how stare decisis can and should be applied to declarations of unconstitutionality.

David Sullivan

Sullivan ingested 30 to 80 tablets of Wellbutrin in a suicide attempt, a drug known to have psychosis as a side effect. Believing his mother was an alien, he stabbed her several times and injured her. Sullivan was charged with aggravated assault and assault with a weapon, among other offences.

The trial judge found as a fact that Sullivan experienced a state of non-mental disorder automatism due to his ingestion of Wellbutrin. This resulted in his actions being involuntary. However, section 33.1 of the Criminal Code (section 33.1)⁴ prohibited Sullivan from relying on his...