Law360 Canada ( May 13, 2022, 4:49 PM EDT) -- Appeal by the Crown from a decision of the Ontario Court of Appeal setting aside the conviction of Sullivan and ordering a new trial for Chan on the basis that s.33.1 of the Criminal Code violated ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms and was not saved by s.1. Sullivan and Chan were separately tried on charges arising from unrelated incidents. After having voluntarily taken an overdose of a prescription drug and falling into an impaired state, Sullivan attacked his mother with a knife and injured her gravely. In unrelated circumstances, Chan also fell into an impaired state after voluntarily ingesting “magic mushrooms”. Chan attacked his father with a knife and killed him and seriously injured his father’s partner. Both Sullivan and Chan argued at their respective trials that their state of intoxication was so extreme that their actions were involuntary and could not be the basis of a guilty verdict. The trial judge in Sullivan’s case accepted that he acted involuntarily but decided that the defence of extreme intoxication akin to automatism was not available by virtue of s. 33.1 of the Criminal Code and convicted him on assault charges. The trial judge in Chan’s case dismissed a constitutional challenge to s. 33.1 and convicted Chan of manslaughter and aggravated assault. Appeals by Sullivan and Chan were heard together. The Court of Appeal held that s. 33.1 violated ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms and was not saved by s.1. Sullivan’s convictions were set aside, and acquittals entered. The Court ordered a new trial for Chan because no finding of fact had been made in respect of non-mental disorder automatism in his case. Sullivan’s appeal also raised the issue of whether a declaration made under s. 52(1) was binding on courts of coordinate jurisdiction in future cases due to the principle of constitutional supremacy, or whether the ordinary rules of horizontal stare decisis applied. Chan sought leave to cross appeal and substitute an acquittal for the order of a new trial....