Charter + evidence 1

Daviault (1994)

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  Facts: Daviault, a chronic alcoholic, raped a disabled woman while extremely intoxicated. He claimed no memory of what happened. His level of intoxication would’ve killed an ordinary person, and a pharmacist claimed that he could’ve blacked out and dissociated from normal mental functioning. Sexual assault is a general intent offence.
  
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  Dissent (Sopinka J):
  
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    Society is entitled to punish and stigmatize people who voluntarily become so drunk that they become a danger to the community
    
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    There is no breach of a principle of fundamental justice to punish the voluntarily intoxicated person who commits a crime of general intent – they are not morally innocent, and it would undermine the ascription of moral responsibility to citizens to allow it.
    
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    It is not necessary as a principle of fundamental justice (though it is a general rule) that the intent to perform an actus reus be part of the offence (no need for symmetry)
    
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    The distinction between general and specific intent offences is valid for policy grounds – considering the purpose of the crime and the harm it sought to combat
    
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    General rule – self-induced automatism is not a defence, and a disease of the mind does not encompass intoxication because a person can freely choose not to get intoxicated
    
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  La Forest and Lamer JJ held that the issue here is actus reus, not mens rea
  
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  Majority (Cory J)
  
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    Extreme intoxication can be treated as akin to automatism regarding the ability to form general intentions, and has to be proven on balance of probabilities; expert evidence is almost certainly necessary
    
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    Punishing people for extreme intoxication can amount to punishing people who could not have voluntarily willed their conduct
    
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    Leary rule substitutes the intention to get intoxicated for the mens rea, the intention to commit the actus reus, which violates principles of fundamental justice; for crimes where you can infer the mens rea from the commission of the actus reus, evidence of extreme intoxication can refute the inference, and there is no general close temporal connection between the intoxication and the actus reus. You cannot eliminate the mens rea for a general intent crime by substituting an intention to commit another act, and you cannot infer that voluntary drunkenness will lead to the commission of a crime.
    
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    Only when there is intoxication tantamount to automatism can there be a reasonable doubt about the ability to form a general intention
    
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    The prohibition of advanced intoxication as a defence to general intent crimes still stands
    

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  First identified in Perka
  
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  Only applies once actus reus and mens rea for an offence are proven; it’s an excuse not a justification
  
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  Accused only has to raise defence (tactical burden); if it passes air of reality test (Cinous) then the Crown must prove it doesn’t apply beyond a reasonable doubt
  
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  Purpose of excuse is to recognize human frailty leading to morally involuntary conduct (principle of fundamental justice – Ruzic)
  
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  ELEMENTS OF THE DEFENCE:
  
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    There must be a clear, imminent, and emergent peril which requires a sudden response and was not reasonably foreseeable by the accused
    
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      Speculative or foreseeable harm does not count – it has to be present or virtually certain to occur
      
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    Compliance with the law must be demonstrably impossible
    
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      If there is a reasonable legal alternative, then necessity does not have an air of reality
      
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      However, it does not require that it be the only possibility – “realistic appreciation of the alternatives” (Latimer)
      
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    The harm avoided is proportional to the harm caused by breaking the law
    
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  A modified objective test is used for the first two parts:
  
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    The accused must have subjectively known that there was an emergency and that compliance with the law was impossible
    
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    Objectively, a reasonable person similarly situated would have thought it was an emergency and that compliance with the law was impossible
    
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  The proportionality test is purely objective – based on social values
  
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  The defence of necessity can apply where the conduct that led to the emergency was negligent or illegal or immoral, though it does not preclude guilt for the conduct that led to the necessitous circumstances
  

Perka

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  Facts: the accused were smuggling marijuana on a boat, and they had mechanical trouble; they offloaded their cargo and were charged with possession for the purpose of trafficking.
  
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  The defence of necessity applies where it is unjust to attach criminal liability to a criminal act due to the force of circumstances
  
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  There are two interpretations of necessity – non-compliance during an emergency (which exists) and inflicting a harm in the name of a greater good (which is not a defence because it makes the law too subjective)
  
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  Justifications vs excuses – justifications challenge the wrongfulness of the criminal act, whereas excuses recognize it’s wrongful but provide conditions under which it is excusable
  
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  Akin to automatism’s loss of physical voluntariness – necessity and duress recognize moral involuntariness, and ONLY moral involuntariness
  
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  The only time that necessity recognizes “contributory fault” is when the circumstances that give rise to the illegal conduct are clearly foreseeable to a reasonable observer
  
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  Since in the circumstances there were reasonable alternatives that complied with the law (tossing the cargo overboard) the defence did not have an air of reality