215. Sullivan, Chan, and Brown: Striking Down Section 33.1 of the Criminal Code and What Comes Next

Hosts Hailey Berge and Kelley Humber are joined by uOttawa Law Professor, Carissima Mathen, to discuss the implications of the recent May 13, 2022 Supreme Court of Canada decisions which struck down section 33.1 of the Criminal Code, declaring it to be unconstitutional. As Professor Mathen explains, even though Parliament had good intention to protect victims of crime with this provision, it ultimately resulted in violations of section 7 and 11(d) of the Charter of Rights and Freedoms that could not be justified. Even so, this unanimous 9-0 ruling resulted in a lot of public scrutiny and has left many of us wondering what it means and how the public will be affected.  

We also discuss different ways that the intention of section 33.1 to protect vulnerable groups from violence can still be met in the future, specifically through new constitutionally compliant legislation. Ultimately, the ball is in Parliament’s court now. 

Note: since recording, Federal Justice Minister David Lametti has proposed a single-provision bill, Bill C-28, to address the gap that was left by section 33.1 being struck down. This amendment to the Criminal Code would mean that “an individual would be held responsible for the violence they commit while in a state of extreme intoxication if they ended up in that state through their own criminal negligence.” (Ottawa proposes narrower self-induced extreme intoxication defence to violence to ‘fill legal gap’, Cristin Schmitz, 

Ottawa proposes narrower self-induced extreme intoxication defence to violence to ‘fill legal gap’ - The Lawyer's Daily (thelawyersdaily.ca)). 

If you reach the end of the episode and still want to know more, check out the below resources: 

• Supreme Court of Canada full decisions: R. v. Sullivan - SCC Cases (scc-csc.ca), R. v. Brown - SCC Cases (scc-csc.ca)

• Cases in Brief: R v Sullivan and R v Chan SCC Case Brief and R v Brown SCC Case Brief

• Leaf’s Intervener Factum LEAF Intervenes in the Appeal of R v Sullivan and R v Chan - LEAF; R. v. Brown - LEAF

Plaxton, Michael, and Carissima Mathen. “What’s Right With Section 33.1” (2021), 25 Can. Crim. L.R. 255