Chapter Sixteen: Defenses – Capacity: Intoxication

Chapter Sixteen: Defenses – Capacity: Intoxication

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  General Intoxication Rules:
  
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    For an accused to be found guilty the Crown must prove the actus reus and fault.
    
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    Offences of subjective fault: general or specific intent.
    
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    Mens rea is proved through evidence.
    
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    There is no “intoxication defense.”
    
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    Evidence of intoxication is or is not relevant to the issue of whether A had the specific intent for an offence.
    
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    Merely helps to rebut mens rea or voluntariness of the actus reus.
    
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    Historically: Not admissible to rebut the offence – an aggravating factor. Violated Charter. Accused carried the burden of providing evidence that could support the inference that A lacked the specific intent for the offence. The accused must be acquitted if they raise a reasonable doubt as to capacity. The Crown must disprove capacity beyond a reasonable doubt.
    
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    Later view: not admissible to rebut the fault for an objective fault or general intent for an offence; was admissible to rebut the inference for a specific intent offence; BUT evidence had to show that A was not capable of forming the specific intent for the offence;
    
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    Current View: intoxication evidence is admissible not only on the issue of capacity to form specific intent, but, more importantly, on the issue of whether A in fact formed the specific intent. (ONLY in specific intent offences, however). Accused only needs to raise enough evidence to put intoxication into play and the trier must determine whether the accused formed the specific intent  Crown must prove this beyond a reasonable doubt
    
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    The jury should not be charged on capacity but only specific intent. The question is whether the accused in fact formed the specific intent. Practically, only evidence of very extreme intoxication might raise a doubt of intent.
    
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  Voluntary and Involuntary Intoxication:
  
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    Voluntary: the accused intentionally consumed intoxicants; rules are more strict.
    
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    Involuntary: the accused had an unexpected reaction to medicine or unwittingly consumed intoxicants (without fault on the accused’s part).
    
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  If an offence or a defense involves the application of an objective standard, intoxication evidence cannot diminish the accused’s fault. The reasonable person is not intoxicated. It may actually render the accused more culpable if the accused should have foreseen that intoxication would increase the likelihood of the proscribed result.
  
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  Reasons for the Restriction of the Admissibility of Intoxication Evidence:
  
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    Public policy: protecting the public from those who make themselves risks by way of intox.
    
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    Can still convicted on a usually included general intent offence.
    
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  An accused may be so intoxicated that they enter a state akin to automatism where they are incapable of acting voluntarily or of forming any intention, whether general or specific.
  
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  R v Daley: enunciated three different types of intoxication:
  
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    1. “Mild intoxication:” inhibitions are relaxed; NEVER been accepted as a defense,
    
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    2. “Advanced Intoxication:” the most common defense; the accused lacks the specific intent to the extent of an impairment of the accused’s foresight of the consequences of his or her act sufficient to raise a reasonable doubt about the requisite mens rea; issue here in determining whether the accused foresaw that his or her actions were likely to cause the death of the victim; applies only to SPECIFIC INTENT offences;
    
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    3. “Extreme intoxication akin to automatism:” negates voluntariness as is a complete defense; extremely rare; will be limited by section 33.1 of the Code (see below)
    
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    In cases involving mild intoxication the trial judge is not required to instruct on intoxication as mild intoxication has never been a defense.
    
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    In cases involving advanced intoxication where the judge is satisfied that the effect of the intoxication was such that it might have impaired the accused’s foresight of consequences sufficiently to raise a reasonable doubt.
    
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    The evidentiary burden for extreme intoxication akin to automatism is that the accused must satisfy the trial judge that there is evidence upon which a properly instructed jury could find that the accused acted involuntarily on a balance of probabilities.
    
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    Once the threshold for instructing on the defense of intoxication was met, the trial judge “must make 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.
    
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  R v Daviault: V was physically disabled, confined to a wheelchair; A was an acquaintance; A got extremely drunk (BA 400-600mg/100mL – would normally kill a person or cause them to go comatose); A had non-consensual sexual contact with V; sexual assault is a general intent offence; Intoxication Inducing a State Akin to Automatism; expert evidence: A was blacked out – he had no awareness of his actions;
  
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    Is evidence of intoxication admissible for the general intent offence of sexual assault?
    
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    Majority says yes.
    
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    Is s. 7 engaged? Which principle of fundamental justice?
    
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    Cannot couple absolute liability with imprisonment.
    
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    Also raised the issue of proportionality, minimal impairment and rational connection.
    
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    When intoxication is so extreme as to be akin to automatism it will rebut even a general intent offence.
    
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    Ratio: If an accused is intoxicated to the extent that they have no control over their action and they are acting autonomously then they cannot form the necessary mens rea to commit crimes, or be said to act voluntarily; thus, being this intoxicated is a defense to crimes requiring both general and specific intent. The burden of proof is on the accused to prove this on a balance of probabilities
    
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  S. 33.1 provides that self-intoxication will not be a defense to assault, interference or threat of interference with bodily integrity of another person, if the accused departed markedly from the standard of care recognized in Canada (Only personal injury offences).
  
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  R v Bouchard-Lebrun (2011 SCC): A took ecstasy and caused toxic psychosis; he severely injured two victims (charged with aggravated assault) while in a state of “religious delirium;” claims that at the time he could not distinguish right from wrong – he had an unexpected reaction; A had no history of mental illness and no history of drug addiction;
  
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    Is it a disease of the mind? If no, under s. 33.1 the accused remains fully criminally responsible.
    
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    Held: self-induced substance-induced psychosis is not a disease of the mind.
    
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    Apply “internal cause test” and “continuing danger test” to determine mental disorder.
    
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    Internal Cause Test: How would a “normal person” have reacted? Objective test taking circumstances into account (e.g. substances, quantity, fatigue, pace of consumption, etc.)
    
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    Continuing Danger Test: no, the danger subsided as the accused came off drugs.
    
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    On evidence: NOT an abnormal reaction. Accused failed to rebut the presumption of sanity.
    
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    The accused is responsible under s. 33.1 of the Code.
    
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    Was suggested that a drug addict with a propensity for psychosis on drug use may constitute disease of the mind. Not the case here as the accused is not an addict.