Reasons for Judgment — Brown J. (Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Côté, Brown Rowe and Martin JJ. concurring)
Brown J. — We would allow the appeal. At trial and during oral argument at the Court of Appeal, the Crown conceded the availability of the defence of extreme intoxication akin to automatism, to a charge of failing to provide a breath sample. In light of this, and in our respectful view, the majority at the Court of Appeal erred in raising and deciding the availability of that defence. Having regard to the Crown’s concession, we are not persuaded that the trial judge erred in law in his understanding or application of the defence of automatism. In these unusual circumstances, it would not be in the interests of justice to overturn this acquittal, and we therefore restore it. In doing so, however, we expressly refrain from deciding the availability of this defence in the absence of an adequate record on the constitutional issues, full submissions and notice to the proper parties.