Academic journal article Review of Constitutional Studies

Daviault Dialogue: The Strange Journey of Canada's Intoxication Defence

Academic journal article Review of Constitutional Studies

Daviault Dialogue: The Strange Journey of Canada's Intoxication Defence

Article excerpt

The mechanics of the inter-institutional "dialogue" between courts and legislatures under the Canadian Charter of Rights and Freedoms can be more subtle and strategic than is generally understood. This paper explores the somewhat surprising dialogic twists and turns generated by the Supreme Court's 1994 Daviault judgment, which established a new defence of extreme drunkenness for such crimes as sexual assault. Parliament's 1995 "legislative sequel"--s 33.1 of the Criminal Code of Canada (1)--which overruled Daviault without using the Charters section 33 notwithstanding clause, has long been expected to generate a "second look" at the issue by the Supreme Court. Twenty years have passed, however, and that second look has not occurred, at least not directly. Why not? We offer some answers.

Parliament's response to Daviault exhibited a much higher level of disagreement with the Court than do most legislative sequels. Generally, legislatures exploit the room for manoeuvre provided by the section 1 "reasonable limits" clause of the Charter. (2) That is, legislatures seek a more reasonable limit than the one that has been judicially rejected: a limit that more minimally impairs the relevant right(s). (3) Whether the legislature has gone far enough in fine-tuning the law may be further litigated in so-called 'second look cases', which review "the validity of legislation enacted to replace a law" found unconstitutional "in a previous Charter decision." (4) However, Parliament was not interested in such fine-tuning of reasonable limits within parameters established by Daviault. Instead, s 33.1 of the Criminal Code overruled Daviault by explicitly denying the extreme drunkenness defence for "bodily integrity" crimes, including sexual assault.

The Charter provides a mechanism for this level of disagreement with judicial rulings. If a legislature disagrees outright with a judicial decision based on sections 2 and 7-15 of the Charter, it may re-enact the invalidated rule with a section 33 notwithstanding clause. There is a five-year limit on a notwithstanding clause, but it can be renewed. Such section 33 dialogue puts an end to additional Charter litigation on issues covered by the notwithstanding clause unless and until that clause is allowed to lapse. There are no second look cases while a notwithstanding clause is in effect.

Yet, Parliament's sequel to Daviault did not contain a section 33 notwithstanding clause. The legitimacy of this kind of dialogue with the judiciary, which has also occurred in other instances, (5) is controversial. Because it involves a "legislative reversal of judicial decisions" that is achieved through "simple statutory amendments," it has been termed by some scholars as "notwithstanding-by-stealth." (6) Others have called it an "in your face" response. (7) In such circumstances, second look cases pose a more dramatic question than they do with respect to "reasonable limits" dialogue. (8) With the legislature re-enacting precisely what the Court has invalidated, the real issue concerns the extent to which the judges will stick to their guns or back down. (9)

This paper examines the long-standing inter-institutional standoff arising out of the Daviault case and Parliament's "in your face" legislative sequel. Should Parliament's legislative disagreement with the Court be struck down because it omits a notwithstanding clause, or is it a legitimate dialogic response? Two decades have now passed without this question coming to our highest Court in a second look case. The strange and seemingly incomplete journey of Canada's intoxication defence has puzzled many observers.

We offer a twofold explanation for the puzzle. First, several second look cases have actually been launched, but have, for a variety of reasons, stalled in the lower courts and failed to reach the Supreme Court. Second, and perhaps more important, while the constitutional issues have not come to the Supreme Court directly and explicitly, they have arguably been indirectly decided by that court under the guise of statutory interpretation. …

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