Supreme Court of Canada declares Criminal Code provisions unconstitutional twice in the same month

May of 2022 was a significant month in the development of criminal law in Canada.

On May 24, 2022, the Supreme Court declared section 745.51 of the Criminal Code as contrary to s. 12 of the Charter (the right to be free from cruel and unusual punishment). The law was deemed of no force and effect all the way to the time it was introduced in 2011. Section 745.51 of the Criminal Code gave authority to a Court sentence an accused convicted of multiple murders to serve the parole ineligibility period consecutively.

This meant that if a person was convicted of committing first degree murder twice, they would not be eligible for parole for 50 years (25 years on the first murder plus 25 years on the second murder). The Supreme Court of Canada ruled that the effects of a sentence of imprisonment for life without a realistic possibility of parole supports the conclusion that it is degrading and incompatible with human dignity.

On May 27, 2022, the Supreme Court declared section 33.1 of the Criminal Code as contrary to s. 7 of the Charter by allowing a conviction without proof of mens rea or proof of voluntariness. Section 7 of the Charter provides that everyone has the right to life, liberty and security of the person. The law was deemed of no force and effect.

Section 33.1 of the Criminal Code eliminated the defence of self‑induced intoxication akin to automatism applied to the violent offences identified in s. 33.1(3) where the accused departs markedly from the standard of care described in s. 33.1(2). The Supreme Court of Canada ruled that the law’s fundamental flaw is the risk of wrongful convictions.