Regina v. McCaw: Offering Clarity to s. 52(1) Constitutional Declarations of Invalidity

  • September 10, 2018
  • Eric Neubauer

The recent Ontario Superior Court decision of Regina v. McCaw, 2018 ONSC 3464 has attracted the attention of both the legal community and the public. For many, the decision’s importance lies in its confirmation that section 33.1 of the Criminal Code - prohibiting the defence of automatism via self-induced intoxication - is unconstitutional and of no force and effect. The public discourse has largely begun and ended with this aspect of the decision.

However, the decision has equally important things to say about constitutional litigation in provincial Superior Courts, and provides much-needed clarity on an issue that has remained stubbornly opaque, namely:  what happens to a law when it gets declared unconstitutional by a Superior Court Judge. It is this aspect of Justice Spies’ decision that I will examine in this article.


Cameron McCaw currently stands charged with sexual assault. His trial is proceeding in the Ontario Superior Court of Justice. At trial, Mr. McCaw intends to advance a defence of automatism brought on via self-induced intoxication.  Section 33.1 of the Criminal Code - if operational - would bar him from advancing the defence of automatism via self-induced intoxication; and, accordingly, Mr. McCaw brought a constitutional challenge to section 33.1 so as to avail himself of this defence. 

However, Mr. McCaw’s primary position was not that the provision ought to be struck down. Rather, Mr. McCaw argued that section 33.1 was already of no force and effect in the province of Ontario - that it was not operational because it had been found unconstitutional by an Ontario Superior Court nearly 20 years ago, in the 1999 decision of R. v. Dunn, [1999] O.J. No. 6339 (S.C.G.D.). The Crown Respondent took the position that s. 33.1 was alive and well because the constitutionality had not been determined by a Court of Appeal. Inherent to the Respondent’s position was that Superior Courts could not bind each other, even when exercising their authority to make constitutional declarations.

The Decision

In deciding whether the constitutionality of section 33.1 remained a “live” issue even after it was declared unconstitutional, Justice Spies’ decision grapples with two competing lines of authority. The first issues from the text of section 52(1) of the Constitution Act itself, as interpreted by the Supreme Court in decisions such as R. v. Ferguson, [2008] S.C.J. No. 6 (S.C.C.) and R. v. Lloyd, [2016] S.C.J. No. 13 (S.C.C.). These decisions suggest that Superior Courts possess an inherent jurisdiction to declare unconstitutional laws invalid under section 52(1), and that the effect of such declarations to render the offending laws null and void in all future cases. In this regard, the following from Ferguson is instructive:

65  … [Section 52(1)’s] mandatory wording suggests an intention of the framers of the Charter that unconstitutional laws are deprived of effect to the extent of their inconsistency, not left on the books subject to discretionary case-by-case remedies … [t]o the extent that the law is unconstitutional, it is not merely inapplicable for the purposes of the case at hand.  It is null and void, and is effectively removed from the statute books.

The alternative line of authority addressed in the McCaw decision suggests that constitutional declarations are not determinative of the issue, but rather, are subject to the related principles of stare decisis and judicial comity. Within this model, constitutional declarations do not bind Superior Courts of coordinate jurisdiction, but rather, should be generally followed unless “plainly wrong.” As identified by Justice Spies, this alternative line of authority finds root in the decision of R. v. Scarlett, [2013] O.J. No. 644 (S.C.) a Superior Court decision by Justice Strathy (as he then was). This decision had been endorsed in subsequent cases, and more importantly, used by many Crowns to argue that constitutional declarations of invalidity could be revisited by subsequent courts.

Ultimately, Justice Spies agreed with the Applicant, finding that constitutional declarations of invalidity render a law null and void for all future courts, unless and until the Crown successfully appeals to a higher court. Spies J. concluded that to find otherwise was to render the Superior Court’s unique inherent power to strike down laws, as well as the functional distinction between a s. 52(1) constitutional declaration of invalidity and a s. 24(1) constitutional exemption, largely illusory. Her Honour found that Scarlett’s suggestion, that section 52(1) declarations were subject to judicial comity, could not be reconciled with the clear language of the Supreme Court in Ferguson.

Accordingly, Justice Spies held that the constitutionality of section 33.1 of the Criminal Code was no longer a live issue to be litigated. The provision was null and void, and had been since being declared unconstitutional in the Dunn decision in 1999.

Conclusion:  Why McCaw Matters

The importance of the McCaw decision lies jointly in its clarity and its potential impact on future constitutional litigation. Justice Spies’ reasons make clear that legislative provisions declared null and void are not available for re-litigation by subsequent trial courts. If followed, this will positively impact constitutional litigation in the province of Ontario by curtailing the practice of Crowns seeking that courts uphold legislation which a prior Superior Court has struck down. As this practice has historically both inserted uncertainty into the law (by inviting courts of coordinate jurisdiction to reach conflicting constitutional decisions), and expanded the cost of constitutional litigation (by repeatedly re-litigating issues best determined via appeal), the clarity offered by the McCaw decision can only be viewed as for the good.

About the author

Eric Neubauer is a criminal defence lawyer practicing in Toronto. He can be reached at or at 416.596.2861. 

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