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ACTUS REUS + MENS REA = CRIMINAL LIABILITY / DEFENCES, EXCUSES OR JUSTIFICATION = NO CRIMINAL LIABILITY
Intoxication
Intoxication as a defence is closely linked to the doctrine of mens rea because it is said to negate the criminal intent.
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That said, it is not a true defence because a true defence becomes an excuse or justification for mens rea that was present.
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Its relevance is always related to the issue of mens rea. It is sometimes called a partial defence, but it is not an excuse/justification and therefore not a true defence.
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This rule applies not only to alcohol, but to drugs as well.
Note on Beck and Parker: Intoxication has the effect of lowering inhibitions and our ability to control ourselves.
R. v. Bernard [1988] Leary Rule: Drunkenness no defence against offences of general intent.
2 S.C.R. 833
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FACTS
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Bernard charged with sexual assault causing bodily harm. Despite having been drinking, Bernard was able to walk and see and speak clearly as well as put albums on the record player. Bernard stated that his drunkenness caused the attack. Bernard was convicted at trial. His appeal was dismissed since Ont. C.A. held that sexual assault causing bodily harm is an offence of general intent, to which drunkenness cannot apply as a defence.
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ISSUES
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Is sexual assault causing bodily harm an offence of general or specific intent? Is self-induced drunkenness relevant to the issue of guilt or innocence in an offence of general intent?
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HELD
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Bernard’s appeal dismissed.
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RATIO
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Reckless behaviour in attaining an acute level of intoxication affords the necessary evidence of the culpable mental condition in an offence of general intent.
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NOTES
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General/Specific intent distinction:
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General intent: only intent involved relates solely to the performance of the act with no ulterior intent or purpose.
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Specific intent: involves performance of the actus reus coupled with intent or purpose going beyond mere performance of the questioned act. E.g. assault with intent to maim.
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This distinction is logically problematic because assault is just as specific as murder because the force applied on its own is nothing (shaking a fist) but when applied to a person’s jaw for instance, it becomes assault. There is a specific intent in applying it to another’s jaw, yet assault is a crime of “general intent.”
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Plus sexual assault requires a state of mind with regards to the issue of consent, just like theft is specific intent because it involves the specific intent to deprive the owner of his property by fraudulent means.
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Point: the distinction relies less on logic and more on policy.
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Perhaps the distinction can be made on whether the state of mind goes beyond what is contemporaneous with the act.
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Leary v. The Queen [1978] (this is the leading case): Sexual assault is a crime of violence with no requirement of an intent or purpose beyond the intentional application of force.
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Wilson J.: (She agreed to dismiss the appeal but…) “I am less confident about the proposition accepted by my colleague that self-induced intoxication may substitute for the mental element required [when the offence occurred].” Wilson J. held that in this case the accused wasn’t drunk enough but in other cases, extreme intoxication can be put forth as a defence for offences of general intent.
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Dickson J.: dissenting because he feels the issue is not a “defence of drunkenness” but rather “whether the Crown should be relieved of [proving mens rea for the offence] because the accused was intoxicated.”
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Dickson acknowledges that it would be of no avail to an accused to the extent that the alcohol just lowered inhibitions, etc. because this does not go to the mens rea.
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Interesting note: Dickson held that if it happens a second time that one becomes violent after drinking, the accused can be found guilty on the grounds of recklessness.
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Liponan [1969] 3 All E.R. 410: Drugs are subject to the same intoxication analysis as alcohol. Concerned a man on LSD strangling his companion because he thought he was fighting giant serpents in the centre of the earth. Convicted of manslaughter (general intent crime because there was the general intent to apply force).
R. v. Daviault [1994] Limiting the Leary Rule: Accused can try to establish defence of extreme intoxication akin to automatism.
3 S.C.R. 63
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FACTS
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Daviault, aged 69 and a chronic alcoholic, was charged with sexually assaulting a wheelchair-bound woman, aged 65, in her home after drinking 7 bottles of beer and the better part of a bottle of brandy. That amount of alcohol would kill or render comatose the average person. The trial judge acquitted on account of his reasonable doubt that Daviault had the necessary minimal intent by virtue of his extreme intoxication to the point of automatism as per Wilson J. in Bernard. Qc C.A. convicted.
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ISSUES
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Can extreme intoxication closely resembling a disease of the mind/automatism constitute a defence to the offence of general intent?
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HELD
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Yes. Daviault’s appeal allowed; new trial ordered.
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RATIO
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Complying with the Charter means that an accused can try to establish as a defence that, at the time of the offence of general intent, he was in a state of extreme intoxication akin to automatism or insanity.
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NOTES
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Leary Rule violates s. 7 of the Charter:
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An accused under this rule still can’t be acquitted even if there is a reasonable doubt as to his capacity to form the minimal mental element required for a general intent offence.
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The burden of proof shifted to the accused to establish that he was in a state of extreme intoxication akin to insanity. Being intoxicated to such a degree is rare.
Sklar Comments on Daviault
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But Mr Justice Cory clearly says that he is not overruling Leary for its main point: the general/specific dichotomy. It is only in extreme cases where intoxication is so high that the accused does not know what he is doing. This would be in a very rare number of cases. Juries are not likely to accept the defence. Cory J. was “very sloppy, with all due respect” in his treatment of Leary.
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The question should always be whether the evidence proves beyond a reasonable doubt that the accused did or didn’t do it.
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Minimal intent: the notion of a substituted mens rea is unconstitutional… the fact that the intoxication was self-induced.
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Bill C-72 was enacted in 1995 by then Justice Minister Allan Rock to counter the decision in Daviault.
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It removes the defence of self-induced intoxication to most general intent offences, most of which involve at least threats to bodily integrity.
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It does not, however, affect the common law defence of drunkenness regarding specific intent crimes like murder and robbery.
We have to assume that Daviault is good law until there is a decision on the following section (though Sklar doesn’t doubt that the law will be upheld)…
Criminal Code: S. 33.1 (Attempt to overrule Daviault)
Self-induced Intoxication
When defence not available
33.1 (1) It is not a defence to an offence referred to in subsection (3) that the accused, by reason of self-induced intoxication, lacked the general intent or the voluntariness required to commit the offence, where the accused departed markedly from the standard of care as described in subsection (2).
Criminal fault by reason of intoxication
(2) For the purposes of this section, a person departs markedly from the standard of reasonable care generally recognized in Canadian society and is thereby criminally at fault where the person, while in a state of self-induced intoxication that renders the person unaware of, or incapable of consciously controlling, their behaviour, voluntarily or involuntarily interferes or threatens to interfere with the bodily integrity of another person.
Application
(3) This section applies in respect of an offence under this Act or any other Act of Parliament that includes as an element an assault or any other interference or threat of interference by a person with the bodily integrity of another person.
1995, c. 32, s. 1.
A few words on 33.1
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P. 904 (9th ed.): Parliament did not make it a crime to be drunk and dangerous which Cory J. said it was open to Parliament to do. Instead, Parliament chose to overrule Daviault. Drunkenness no defence to sexual assault (as in Daviault) and no defence to manslaughter (as in Liponan). It only applies in general intent violent crimes.
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33.1 doesn’t touch the Leary general/specific dichotomy. It only throws out Daviault.
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Interesting but not required knowledge for this course: This section has laid down a gauntlet for the courts because it clearly violates s. 7 of the Charter (lower courts have saved it under s.1). Is it not paradoxical to say that a violation of fundamental justice be justified in a free and democratic society?
R. v. Robinson [1996] Test on instructing the jury on intoxication defence.
1 S.C.R. 683
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FACTS
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Accused charged with second degree murder. He struck the victim with a rock after the victim said something to him. He then fatally stabbed him. Robinson was convicted at trial. B.C. C.A. overturned this on the basis of misdirection as to the defence of intoxication. Supreme Court of Canada dismissed the Crown’s appeal from the B.C. C.A.
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ISSUE
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How should a jury be instructed on the relationship between intoxication and defence?
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TEST
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Before a trial judge is required by law to charge the jury on intoxication, he or she must be satisfied that the effect of the intoxication was such that its effect might have impaired the accused’s foresight of consequences sufficiently to raise a reasonable doubt. Once satisfied of this, the judge must make it clear to the jury that the issue before them is whether the Crown has satisfied them beyond a reasonable doubt that the accused had the requisite intent. In the case of murder, the issue is whether the accused intended to kill or cause bodily harm with the foresight that the likely consequence was death.
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Forget the second half of Robinson. Robinson basically clarifies that the jury should be told that the issue is whether the accused had the intent to kill or to steal (to see if there is specific intent).
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