Nicholas Kasirer

Judicial Profile: Supreme Court of Canada judge whose most controversial rulings include the unanimous R. v. Brown decision on self-induced extreme intoxication and the R. v. Hills mandatory-minimum sentencing decision involving firearm offences.

Overview

Summary of Controversy

Justice Kasirer’s most publicly controversial ruling is R. v. Brown, where he wrote for a unanimous Supreme Court of Canada striking down the former section 33.1 of the Criminal Code. That provision barred accused persons from relying on self-induced extreme intoxication akin to automatism as a defence to violent general-intent offences, including assault, sexual assault, and manslaughter.

The ruling triggered immediate public concern because many critics understood it as reopening a route for accused persons to raise extreme intoxication in violent-crime cases. Women’s groups and sexual-assault survivor advocates warned that the decision could undermine accountability in cases of gender-based violence. The federal government responded quickly with Bill C-28, which amended section 33.1 to create a new criminal-negligence-based path to liability for violent acts committed while in a state of self-induced extreme intoxication.

A second controversy is R. v. Hills, where Justice Kasirer joined the majority striking down a four-year mandatory minimum sentence for intentionally discharging a firearm into or at a house. Critics of the ruling argued that it weakened Parliament’s ability to impose strong punishments for dangerous firearm offences and relied on hypothetical low-danger cases to invalidate a sentence for conduct that, in the actual case, terrified a family in an occupied home. Supporters argued that the law was overbroad because it captured low-risk conduct involving some air-powered guns that legally count as firearms but may not be capable of penetrating a typical wall.

Most Controversial Rulings

R. v. Brown, 2022 SCC 18

Subheadline: The Supreme Court ruling that struck down Canada’s ban on using self-induced extreme intoxication as a defence to violent offences.

Case Summary: Matthew Brown consumed alcohol and magic mushrooms at a party, entered a state of extreme intoxication, broke into two homes, and violently attacked a woman, causing serious injuries. He challenged section 33.1 of the Criminal Code, which prevented accused persons from relying on self-induced extreme intoxication akin to automatism as a defence to certain violent offences. The trial judge held the provision unconstitutional, the Alberta Court of Appeal disagreed, and the case went to the Supreme Court of Canada.

What the Court Decided: Justice Kasirer wrote for a unanimous Court. The Court held that the former section 33.1 violated sections 7 and 11(d) of the Charter because it allowed conviction and punishment without proof of the constitutionally required mental fault and voluntariness for the violent offence. The Court emphasized that ordinary drunkenness remains no defence to violent crimes such as assault or sexual assault, and that Parliament could pursue a constitutionally compliant law targeting extreme intoxicated violence.

Consequences for Victims or Society: The ruling had immediate consequences for victims, survivors, police, prosecutors, Parliament, and the public. It reopened the possibility that accused persons in rare cases could raise self-induced extreme intoxication akin to automatism in violent-crime prosecutions. The issue was especially sensitive because intoxicated violence disproportionately affects women, children, and vulnerable communities, and because many Canadians feared the ruling could be misunderstood or misused as a broad “drunkenness defence.”

Why the Ruling Was Controversial: Critics argued that the ruling risked weakening accountability for violent crime, including sexual assault and intimate-partner violence. The Ontario Coalition of Rape Crisis Centres said it was alarmed by the implications of the ruling and frustrated by renewed reliance on the defence. Women’s Legal Education and Action Fund said the case concerned the ability to use self-induced extreme intoxication as a defence to assault and sexual assault offences, while also noting that the Court clarified that drunkenness without automatism is not a defence to sexual assault.

Public Reaction: The federal government responded within weeks with Bill C-28. Parliament’s Justice Committee later said the bill was accelerated because Parliament had to quickly fill a void in the Criminal Code after the Supreme Court decision. Minister David Lametti and Minister Marci Ien stated that the new law was intended to ensure people who consume drugs or alcohol in a criminally negligent manner can be held criminally responsible if they harm others while extremely intoxicated, while supporting victims and survivors of crime.

Counterpoint / Supportive View: Supporters of the ruling argued that serious crimes require proof of fault and voluntary action, and that the Charter does not permit Parliament to convict people for involuntary conduct without a proper fault requirement. The Court itself stressed that Parliament had a legitimate and pressing objective in protecting victims of extreme intoxicated violence, particularly women and children, but held that the old law was drafted in a way that violated basic principles of criminal responsibility.

Appeal History: This was a final Supreme Court of Canada decision. The ruling declared the former section 33.1 of the Criminal Code unconstitutional. Parliament subsequently enacted Bill C-28, creating a revised section 33.1 based on criminal negligence in consuming intoxicants.

R. v. Hills, 2023 SCC 2

Subheadline: The Supreme Court ruling that struck down a four-year mandatory minimum for discharging a firearm into or at a house.

Case Summary: Jesse Dallas Hills consumed a large amount of prescription medication and alcohol, left his home with a baseball bat and a loaded rifle, swung the bat at a passing car, fired a shot at it, smashed the windows of a parked car, and then fired rounds into an occupied family home. A couple and their two children were inside. The family retreated to the basement and waited for police. Hills pleaded guilty to several offences, including discharging a firearm into or at a house, an offence that then carried a four-year mandatory minimum sentence.

What the Court Decided: Justice Kasirer joined the majority. The majority, written by Justice Sheilah Martin, held that the four-year mandatory minimum was cruel and unusual punishment under section 12 of the Charter because the offence captured a wide range of conduct, including reasonably foreseeable lower-risk cases involving some air-powered rifles or paintball guns that legally count as firearms but may be unable to penetrate a typical residential wall. The Court declared the mandatory minimum of no force or effect and restored Hills’s three-and-a-half-year sentence.

Consequences for Victims or Society: The ruling affected firearm sentencing, public safety, legislative authority, and Charter limits on punishment. In the actual case, the victims were a family inside their home when bullets entered areas where someone could have been hit. More broadly, the ruling removed Parliament’s four-year mandatory minimum for this offence and confirmed that courts may use reasonable hypotheticals to strike down mandatory punishments even when the actual offender’s conduct was dangerous and frightening.

Why the Ruling Was Controversial: Critics argued that the ruling was too soft on firearm crime because it invalidated a mandatory minimum in a case involving real shots fired into an occupied home. Critics of the section 12 framework also objected to the use of hypothetical offenders to invalidate a sentence that many would consider proportionate for the actual facts. Earlier, members of the Alberta Court of Appeal had sharply criticized existing section 12 jurisprudence and urged the Supreme Court to revisit the use of reasonable hypotheticals.

Public Reaction: Legal commentary noted that Hills was part of a broader line of Supreme Court cases striking down Harper-era mandatory sentencing provisions. Supporters, including civil-liberties advocates, welcomed the ruling as a reaffirmation of proportionality in sentencing. Critics, especially those focused on deterrence and public safety, argued that mandatory minimums are an appropriate parliamentary response to serious gun offences and that striking them down weakens denunciation and deterrence.

Counterpoint / Supportive View: Supporters argued that the decision did not excuse Hills’s conduct. He still received a prison sentence of three and a half years. The majority’s concern was that the same mandatory minimum applied to far less serious cases captured by the broad statutory definition of “firearm,” creating grossly disproportionate punishment in reasonably foreseeable scenarios.

Appeal History: The sentencing judge found the mandatory minimum unconstitutional and imposed a sentence of three and a half years. The Alberta Court of Appeal allowed the Crown’s appeal and imposed four years. The Supreme Court of Canada allowed Hills’s appeal, struck down the mandatory minimum, and restored the three-and-a-half-year sentence.

Sources

• Supreme Court of Canada — official biography and current status
• Prime Minister of Canada — 2019 appointment to the Supreme Court of Canada
• Commissioner for Federal Judicial Affairs — Nicholas Kasirer questionnaire and judicial appointment date
• McGill University — appointment to the Court of Appeal of Quebec announced by Rob Nicholson
• Justice Canada — report following the appointment of Justice Kasirer to the Supreme Court of Canada
• CanLII — R. v. Brown, 2022 SCC 18
• Supreme Court of Canada — full judgment, R. v. Brown
• LEAF — R. v. Brown case summary
• Ontario Coalition of Rape Crisis Centres — response to the Brown ruling
• Justice Canada — Charter Statement for Bill C-28 responding to R. v. Brown
• House of Commons Justice Committee — study of legislative response to R. v. Brown
• Justice Canada — joint statement on Bill C-28 receiving Royal Assent
• CanLII — R. v. Hills, 2023 SCC 2
• Supreme Court of Canada — Case in Brief, R. v. Hills
• Neuberger & Partners — critical commentary on Hills and reasonable hypotheticals
• TheCourt.ca — legal analysis of R. v. Hills and mandatory minimums
• Canadian Civil Liberties Association — supportive commentary on proportionality in Hills and Hilbach