normal intoxication vs. extreme/

• 
  BCCA in Robinson : jury must acquit if accused did not have MR
  
• 
  The dissents in several cases (including Daviault) prefer to use the blameworthiness of getting belidge to substitute MR
  

2. 
   general intent vs. specific intent offences – ONLY relevant to defence of intoxication (see Handout) (Beard in England, George in Canada, Bernard post-Charter)
   

• 
  general = a knee-jerk reaction, momentary passions
  
• 
  specific = requires a plan/agenda/strategy/motive
  
  • 
    distinction has been heavily criticized as being arbitrary and interchangeable depending on wording
    
  • 
    Berger thinks distinction serves as an excuse to make policy decisions re: intoxication
    

1. 
   For specific intent offences, normal intoxication is a defence (Beard, George)
   
2. 
   For general intent offences, normal intoxication is NOT a defence
   

- burden is on accused to prove this extreme state of intoxication (Daviault)

3) BUT if the offence interferes with bodily integrity = NO DEFENCE (s. 33.1)

- language of “marked departure” of standard of reasonableness – sounds like Penal Negligence

- legislative response essentially codifies the dissent in Daviault that substitutes MR for the offence with the moral blameworthiness of getting that drunk

- Since the burden of proof is reversed, is this an imposition of absolute liability?

- some lower courts have ruled s.33.1 unconstitutional, but no SCC or CA judgments on it yet

D.P.P. v. Beard 1920 HL

- made this rule and made up vocabulary of “specific intent” offences

- death penalty in effect, so incentive to use rule and lower charge to manslaughter
R. v. George 1960 SCC

- accused charged of robbery (assault with intent to steal)

- Canada adopts the specific intent from Beard and creates distinction from general offences

- rationale: where mental element is so low (general intent), normal intoxication is

not a defence
R. v. Bernard 1988 SCC

- sexual assault causing bodily harm (general offence)

- court confirms specific/general distinction post-Charter

- court split on whether extreme intoxication can be used as defence in general offences

- 2 judges: getting that drunk is blameworthy enough = substitute MR
R. v. Daviault 1994 SCC

- medical testimony that his blood alcohol was between .4 and .6 and that he should have been dead = incapable of any sort of intent = automatism

- Held: for extreme intoxication, defence available to general intent offences BUT burden of proof is on accused

- dissent: use blameworthiness of getting that drunk as substitute MR

1. 
   verdict rendered: guilty or not guilty
   
2. 
   verdict entered (conviction or acquittal)
   
3. 
   sentence may be imposed
   

• 
  refers to mental state of accused at time of trial
  
• 
  described in s.2 of the Code:
  
  • 
    “on account of MD person cannot conduct a defence…esp.
    

b) understand possible consequences

c) communicate with counsel”

- if any of these 3 criteria are not met, accused is UST

- relatively low threshold: bare mental ability to go through

trial (Whittle)

• 
  accused is presumed fit to stand trial unless court is convinced on BOP that they’re unfit
  
  • 
    burden is on whichever party raises the issue
    
• 
  issue of UST can be raised at any time, up until the finder of fact renders (says) the verdict
  
• 
  Procedure:
  
  • 
    Prosecutor or accused applies to judge to have issues of fitness determined
    
  • 
    If judge is convinced on reasonable grounds of UST (is this like air of reality?), judge orders trial for fitness (672.23)
    
    • 
      Psych. Assessment ordered by court (672.11-19)
      
• 
  Trial for fitness either with judge and jury or judge alone
  
  • 
    If found fit, trial continues (672.28)
    
  • 
    If found unfit
    
    • 
      Disposition hearing is held (672.31)
      
    • 
      Jury let go, new jury when trial resumes (672.26)
      
• 
  If accused is found UST, a stop on proceedings and NOT a defence
  
  • 
    restarts when person recovers
    
• 
  Disposition Hearing (672.54): either judge or review board decides whether accused will be:
  
  • 
    released on conditions until recovery, or
    
  • 
    detained in a hospital
    
    • 
      treatment/medication can only be imposed in very limited circumstances (distinct from NCRMD) (s. 672.58)
      
    • 
      max. 60 days
      
    • 
      only for purpose of helping them become fit for trial
      
    • 
      expert medical opinion must address 4 criteria (s.672.59):
      
      • 
        i) person UST
        
      • 
        ii) treatment recommended will work in 60 days
        
      • 
        iii) risk of harm not disproportionate to benefit
        
      • 
        iv) least intrusive treatment possible
        
• 
  Basis for decision at Disposition Hearing (672.54):
  
  • 
    Protect public
    
  • 
    Mental condition of accused
    
  • 
    Reintegration of accused
    
  • 
    Other needs of accused
    

• 
  codified in s. 16
  
  • 
    presumes sanity unless proven otherwise (since M’Naughten 1840s)
    
  • 
    “disease of mind” is a legal term, to be determined by JUDGE and NOT the medical profession/medical evidence (Simpson, upheld in Cooper)
    
• 
  twin goals (McLachlin in Winko)
  

2) treat mentally ill

• 
  Development of law:
  
  • 
    Pre-1991, if found NCR by reason of insanity = acquittal
    
    • 
      Rationale: if you don’t have bare mental capacity at time of offence, can’t be morally blameworthy = can’t punish
      
  • 
    Presumptions of dangerousness of mentally ill breach s. 7 = unconstitutional (Swain) – have to treat them not punish them
    
  • 
    Code Amendments 1991 (constitutionality upheld by Winko)
    
    • 
      Renamed not-guilty by insanity to NCRMD to reduce stigma
      
    • 
      Accused no longer acquitted or convicted = brand new dispositions
      
    • 
      Go through disposition hearing (much like UST), if found NCRMD can give 1 of 3 dispositions
      
      • 
        1) released unconditionally
        
      • 
        2) released with conditions
        
      • 
        3) detained in custody in psych. Institution (could be held longer than if sentenced!!)
        
    • 
      Disposition will turn on factors in s. 672.54 (same 4 criteria as UST)
      
      • 
        i) need to protect public
        
      • 
        ii) mental condition of accused
        
      • 
        iii) reintegration of accused into society
        
      • 
        iv) other needs of accused
        
    • 
      Treatment of accused can ONLY be ordered as part of disposition with consent of accused (672.55) (different than UST)
      
    • 
      If not released unconditionally, review board must reconsider conditions of release/detention every 12 months (672.81) or at requires of any person including accused (672.82)
      
• 
  Now: Test and Procedure
  
  • 
    “mental disorder” means a “disease of the mind” (s. 2)
    
  • 
    Test for NCRMD in s. 16:
    
    • 
      1) MD rendered someone “incapable of appreciating the nature and quality of act or omission (first branch) OR incapable of knowing that it was wrong (second branch)
      
    • 
      2) presumed non-MD until proven otherwise on BOP
      
    • 
      3) burden of proof for MD on party that raises issue
      
      • 
        = burden of proof is reversed if accused raises issue – its constitutional (Chaulk & Morrissette)
        
  • 
    When can issue be raised?
    
    • 
      Accused: any time, even after verdict is rendered but BEFORE
      

• 
  Crown: 2 choices
  

1. 
   AFTER verdict rendered but BEFORE entered
   

• 
  rationale: evidence of MD may sway jury and/or render wrong verdict
  

2. 
   If accused puts mental capacity at issue (Swain) ex: automatism akin to intoxication
   

• 
  First Branch – “…appreciate the nature and quality of act or omission”
  
  • 
    “appreciate” test: Was the accused (by reason of MD) deprived of capacity to know what they’re doing and ALSO deprived on the capacity to measure and foresee consequences (Cooper)
    
  • 
    “appreciate” test has since been narrowed:
    
    • 
      does not require appropriate feelings of guilt or remorse (Kjelcken 1981)
      
    • 
      appreciation of penal consequences NOT required (Abbey)
      
    • 
      narrowing upheld in Landry
      
• 
  Second Branch – “…knowing that it was wrong”
  
  • 
    “wrong” could be:
    
    • 
      illegal and/or,
      
    • 
      immoral
      
      • 
        do YOU view it as wrong
        
      • 
        do you appreciate that society views it as wrong?
        
  • 
    old common law from Schwartz says wrong = illegal (though strong dissent from Dickson)
    
  • 
    Chaulk & Morrissette – expanse of the defence from Schwartz
    
    • 
      wrong means more than just illegal, also means society’s view of morality (NOT an individual’s morality = avoid floodgates)
      
    • 
      Rationale:
      
      • 
        French word is “mauvais” which means more than illegal
        
      • 
        M’Naughten more about good v. evil as opposed to legal v. illegal
        
      • 
        Parliament could have used “unlawful” but they didn’t
        
      • 
        Purpose of s.16 is to protect morally blameless – if someone is incapable of understanding morality, shouldn’t be punished
        
  • 
    someone’s incapacity to appreciate that something is illegal or viewed by society as immoral must stem from a disease of the mind (Chaulk & Morrissette) = another way to stave off floodgates
    
  • 
    even if someone has the capacity to know right from wrong, must be able to apply this capacity to make a rational choice (Oomen)
    
  • 
    summary of 2^nd Branch:
    
    • 
      “Determining whether an accused was incapable of knowing that it was wrong means asking whether, owing to a disease of the mind (Chaulk), an accused was incapable of rationally evaluating and making a rational choice (Oomen) whether the act was wrong in either a legal sense or as a matter of society’s moral views (Chaulk)
      

- s.16 means these people are sick, NOT blameworthy, should be treated rather than punished

- Test for UST is much different (very low threshold to be able to stand trial) than for NCRMD
R. v. Swain 1991 SCC

- common law rule that Crown can raise defence of insanity during trial against wishes of accused in unconstitutional

- violates s. 7 and 9 and NOT saved by s. 1

- infringes on accuses’s right to control her defence

- New Rules:

- A can raise defence any time

- Crown can only raise during trial if A has raised it/made it an issue

- can be raised after verdict of guilty but before verdict entered (bifurcated trial)

• 
  2 youths accused of B&E and killing occupant
  
• 
  knew acts were illegal, but believed they were above law and ruled the world
  
  • 
    killing on an order from God made accused believe that society would NOT view their actions as morally wrong
    
• 
  reversal of burden of proof in s. 16(3) IS constitutional (offends presumption of innocence but is justified under s. 1)
  
• 
  Justification in s. 1 – would put unreasonable burden on Crown (but doesn’t Crown always have a tough burden?)
  
• 
  Main reason: been this way for centuries
  
• 
  Wilson’s dissent: burden on Crown works well in US
  
• 
  McLachlin’s dissent: would have stuck with Schwartz (knowing it’s illegal is enough)
  
  • 
    Would convict accused
    
  • 
    **Society’s moral views can be disputed**
    
  • 
    if person is trying to decide what society thinks then they have the capacity to know right from wrong
    

• 
  accused argued new regime still violated s. 7 and 15
  
• 
  Majority:
  
  • 
    Upheld constitutionality of new regime
    

- term “disease of mind” is a legal concept – what it means is a question of law for judge and NOT for medical profession

• 
  Confirms Simpson
  
• 
  Accused choked victim to death – must know he was choking and that is could cause death
  
• 
  “appreciate” is more than knowing that you’re committing act, but also calculating the consequences of act
  
  • 
    knowledge and capacity to measure and foresee
    
• 
  “appreciate” test: Was the accused (by reason of MD) deprived of capacity to know what they’re doing and ALSO deprived on the capacity to measure and foresee consequences
  
• 
  the word “appreciate” is cognitive and mechanical
  

- accused charge with possession/trafficking/importing cocaine

- appreciation of penal consequences NOT required

- mention of defence of “irresistible impulse”

- NOT a freestanding defence

- volitional impairment does NOT count – only cognitive impairment rationalizes

the defence


R. v. Oomen 1994 SCC

- accused is paranoid psychotic: heard buzzer at appt, thought it was the signal for GF to kill him so he shot her

- accused generally had capacity to know right/wrong BUT must also be able to apply this and reason in the circumstances (make a rational choice)
R. v. Landry 1988 SCC

- applied narrow definition of “appreciate” after QCA gave it a wider meaning

• 
  Defence based on concept of voluntariness
  
• 
  Not conscious of actions (impaired consciousness), dissociative state
  
• 
  Ex: Daviault intoxication
  
• 
  Major distinction: b/w MD automatism and non-MD automatism
  
  • 
    MD automatism = NCRMD
    
  • 
    Non-MD automatism = acquittal
    

• 
  can arise from:
  
  • 
    physical blows (Bleta)
    
  • 
    physical conditions (ex: Diabetes in Quick, stroke in Hill)
    
  • 
    psychological blow (Stone) = very controversial
    

• 
  defence of automatism firm recognized in Rabey
  
  • 
    external/internal test to distinguish b/w non-MD and MD automatism
    
  • 
    Internal = MD automatism
    
    • 
      Can be psychological blows as slight as the dissapointments of everyday life
      
  • 
    External = non-MD automatism
    
    • 
      Can be from physical blow
      
    • 
      Can be from a psychological blow (new in Rabey!) BUT must be an extreme event
      
      • 
        Ex: watching a loved one die in front of you
        
• 
  Parks adds a 2^nd test
  
  • 
    Internal/external doesn’t apply neatly to sleepwalking (held to be NON-MD)
    
  • 
    LaForest adopts continuing danger test from Dickson’s dissent in Rabey– more applicable to facts of this case
    
• 
  after Rabey and Parks there are 2 tests out there to distinguish b/w non-MD and MD automatism
  
• 
  Stone restricts the defence of automatism and expands NCRMD defence – CURRENT LAW
  
  • 
    2-Stage Test
    
    • 
      1) Judge must assess whether a proper foundation is laid for a defence of automatism (essentially air of reality test)
      
    • 
      2) Determine whether condition is MD or non-MD
      
      • 
        i) If dissociative state is from disease of mind/internal = MD
        
      • 
        ii) presumption that it IS from disease of mind, which must be rebutted by accused to be considered non-MD (reversal of burden of proof)
        
      • 
        iii) new holistic approach informed by:
        
        • 
          internal/external test
          
        • 
          continuing danger test
          
        • 
          when unclear, look at policy concerns
          
          • 
            easy to feign
            
          • 
            reputation of justice system
            
          • 
            acquittal = no mechanism of control
            
      • 
        iv) psychological blow (non-MD) will be VERY RARE, requires an extremely SHOCKING trigger that would cause a NORMAL person to become an automaton
        
        • 
          contextual objective test
          
• 
  state of the defence post-Stone
  
  • 
    Still possible to claim non-MD automatism = full acquittal
    
    • 
      Graveline: abuse + battered woman syndrome = psychological blow
      
    • 
      Jiang: falling asleep behind wheel, chronic insomnia
      
  • 
    Sleepwalking IS a disease of the mind (Campbell Ont. SCJ) = goes against decision in Parks
    
    • 
      shows restriction of automatism and expansion of NCRMD
      
    • 
      based mostly on continuing danger and policy concerns
      
  • 
    Sleepwalking sexual assault is rejected as non-MD automatism (Luedecke)
    
• 
  In 1993 Parliament proposed (but never passed) a law restricting automatism defence to NCRMD only
  
  • 
    This policy concern seems to have been addressed in Stone
    

• 
  How to distinguish b/w non-MD and MD automatism?
  
• 
  Burden of Proof
  
• 
  Dangers of allowing defence:
  
  • 
    Ease of fabrication
    
  • 
    Difficulty of Crown disproving automatism
    
  • 
    If found to be a non-MD automaton, NO basis for holding them = MAIN policy concern is the unqualified acquittal
    
• 
  Social aspects of the defence
  
  • 
    Tends to be claimed by men being violent towards women
    
    • 
      What is it about our society that an insult to a man’s virility is enough to raise a defence of automatism?
      
• 
  as in NCRMD, judges are the ones deciding what is NCRMD and what is non-MD but they are NOT experts in field, concerned only with legal definitions = problematic
  

• 
  U of T boy called a “nothing” by his girlfriend, hits with geology rock, doesn’t kill her
  
• 
  Maj: MUST be mental disorder – applies s.16
  
  • 
    Based on internal/external test
    
    • 
      If dissociative state arises internally it is MD
      
      • 
        Psychological blow (normal disappointments of life)
        
      • 
        
        
    • 
      If dissociative state arises externally it is non-MD
      
      • 
        Can only arise from EXTREME psychological blows
        
        • 
          Ex: seeing a loved one die in front of you
          
• 
  Dickson dissent: objects to internal/external divide
  
  • 
    Says majority CANNOT apply an objective test
    
  • 
    Prefers a continuing danger test (OBITER, but idea is now out there)
    
    • 
      If there’s a chance of recurrence, then accused is MD-automatism
      

• 
  accused hit head and automaton then killed
  
• 
  Held: defence allowed – physical blow
  

• 
  accused sleepwalks, drives 23 km and kills mother-in-law
  
• 
  psych evidence: sleepwalking NOT a neurological illness
  
• 
  trial judge
  
  • 
    puts non-MD automatism to jury, but Crown pushes for MD
    
• 
  SCC unanimous
  
  • 
    Sleepwalking NOT a disease of the mind = FULL acquittal
    
  • 
    LaForest: says external/internal not really applicable
    
    • 
      Adopts Dickson’s continuting danger test
      

• 
  Stabbed wife to death after long drive, she told him she’d been cheating, attacked his virility
  
• 
  Bastarache (majority)
  
  • 
    Wants 1 test to draw line b/w non-MD and MD automatism
    
  • 
    Defines automatism: “a state of impaired consciousness, rather than unconsciousness, in which an individual, though capable of action, has no voluntary control over that action”
    
  • 
    The moment accused raises defence of automatism, Crown can raise issue of NCRMD
    
  • 
    Reversal of burden of proof
    
    • 
      Instead of “air of reality”, accused must prove automatism on BOP
      
    • 
      JUSTIFIED under s.1, rationale (same reasons as for Daviault reversal):
      
      • 
        Don’t want impossible burden on Crown esp. b/c automatism is easy to feign
        
      • 
        Accused in better position to prove
        
      • 
        Presumption of voluntariness unless otherwise proven
        
        • 
          Dissent vigorously objects to this point
          
• 
  Dissent
  
  • 
    HUGELY objects to burden reversal
    
  • 
    Esp. presumption of voluntariness
    
  • 
    Even though already reversed onus in Daviault, self-induced intoxication seen as being more blameworthy than automatism
    
• 
  Now a 2-part test for automatism (see above)
  
• 
  Effects of test:
  
  • 
    Hugely narrows automatism defence
    
  • 
    Expands NCRMD defence
    

• 
  accused abused by husband for 32 years, shot him with rifle but didn’t remember
  
• 
  psych. Evidence said she snapped, battered woman syndrowm + abuse can be considered a psych. Blow
  
• 
  jury acquitted, SCC affirmed decision
  

• 
  sleepwalking is a disease of mind = NCRMD
  

• 
  sleepwalking sexual assault
  
• 
  trial: non-MD automatism
  
• 
  CA: sent trial back, if anything, NCRMD
  

• 
  an offence-specific defence – ONLY FOR MURDER
  
  • 
    (other offence-specific defence is the “colour of right” for theft)
    
• 
  Affirmative Defence – an excuse – concession to human failty (Thebert)
  
• 
  PARTIAL defence only – a sentencing provision - reduces murder to manslaughter which has no minimum sentence and a maximum of life
  
  • 
    = if there wasn’t a minimum sentence for 2^nd degree murder, this defence wouldn’t exist
    
• 
  Historically applied to 4 situations:
  
  • 
    1) sudden falling out b/w men (chance medley)
    
  • 
    2) spontaneous fight (barroom brawl)
    
  • 
    3) discovery of wife engaged in adultery
    
  • 
    4) father finding son being sodomized
    

• 
  s.232(1): “Culpable homicide that would otherwise be murder may be reduced to manslaughter if the person who committed it did so in the heat of passion cause by sudden provocation”
  
• 
  s.232(2): “A wrongful act or insult that is of such a nature as to be sufficient to deprive an ordinary person of self-control is provocation…” (objective part)
  
  • 
    So need to determine 2 things from objective part:
    
    • 
      1) gravity of insult
      
    • 
      2) given gravity, whether an ordinary person would lose self-control
      
  • 
    Does NOT have to be an illegal act to be a wrongful act! = very broad
    
  • 
    Who is an ordinary person?
    
    • 
      Ireland uses purely subjective standard – only looks to mind of accused = constitutionally barred by statute in Canada
      
    • 
      Australia is purely objective – imputes no personal traits to the ordinary person
      
    • 
      Canada, of course, takes middle road = modified objective test
      
• 
  s. 232(2) cont’d: “…if the accused acted on it on the sudden and before there was time for his passion to cool” (subjective part)
  
• 
  s. 232(3): “…no one shall be deemed to have given provocation to another by doing anything that he had a legal right to do, or by doing anything that the accused incited him to do in order to provide the accused with an excuse for causing death or bodily harm to any human being”
  
  • 
    No provocation where
    
    • 
      1) person alleged to have provoked had legal authorization (a positive right) to do something
      
    • 
      2) can’t prod someone until they insult, then claim provocation (can’t be incited)
      

• 
  3 elements of provocation drawn from statue:
  

1. 
   wrongful act/insult was sufficient to deprive an ordinary person of self-control (objective)
   

• 
  excluding situations where:
  
  • 
    provoker had legal authority to act
    
  • 
    provoker was incited by accused to provide an excuse
    
• 
  wrongful does NOT mean illegal
  
• 
  Canada’s ordinary person established through a modified objective test:
  
  • 
    Ordinary person + certain features of accused that inform ONLY the gravity of the insult (NOT the standard of control)
    
  • 
    But what traits can be considered?
    
    • 
      Personal history (Thebert)
      
    • 
      Age and sex do NOT need to be told to jury b/c they will consider them regardless (Hill)
      
    • 
      Culture (Nahar) = VERY CONTROVERSIAL
      
      • 
        Criticized in Humaid – ordinary person can’t have beliefs that are antithetical to Cdn. Values
        
      • 
        Privileging culture over gender?
        

2. 
   accused did, in fact, lose self-control in response to this wrongful act/insult (subjective)
   
3. 
   it happened “on the sudden, and before there was time for passion to cool” (subjective)
   

• 
  defence limited to murder, which is a gendered offence
  
• 
  turns on EMOTION – but privileges emotion of anger over others (compassion/Assisted suicide?)
  
• 
  allows for homophobia? (Hill)
  
• 
  what traits do you impute to the ordinary person?
  
  • 
    What about intersectionality???
    
  • 
    Isn’t the modified objective test artificial?
    
  • 
    Nahal decision privileges culture over gender, but the Constitution says there’s no hierarchy of rights
    

• 
  defence does no more than recognize human frailties
  
• 
  Establishes the modified objective test for ordinary person ONLY to determine gravity of insult and NOT to determine standard of conduct
  
  • 
    looks at personal history of accused (how it would affect gravity of insult)
    
• 
  
  

- 16 yr old killed someone who was hitting on him (gay older guy)

- ordinary person is not pugnacious or intoxicated

- breaks down the first part of provision into

1) wrongful insult would provoke a reasonable person and (objective)

2) must have actually been provoked (subjective

- Held: NOT necessary to tell jury to consider age and sex (they will anyway)
R. v. Nahar BCCA

- man murders wife, claims her conduct was particularly provoking b/c of his culture (Muslim)

- Held:

- “whether having regard for the cause and duration of the couple’s trouble relationship, an insult that carried the same emotional impact for an ordinary young married man of the same cultural background as it apparently carried for Mr. Nahar, would cause such a man to lose his power of self-control”

• 
  martial status
  
• 
  cultural background = VERY controversial
  

- Doherty (majority)

- in obiter: ordinary person cannot be fixed with beliefs that are irreconcilable with Canadian values = questions culture as a factor

- don’t want to privilege culture over gender equality

• 
  ancient, universal defence
  
• 
  affirmative, justification (acting rightfully but illegally)
  
• 
  See Berger’s Chart for the state of the law now!
  

• 
  pre-Code, at common law you can respond proportionately to prevent your own death
  
• 
  for a long time Baxter was law (referred to in Pawliuk) that distinguished b/w 34(1) and 34(2) based on INTENTION to cause death/GBH
  
  • 
    34(2) allows for intention, while 34(1) does not
    
  • 
    problem: if 34(2) is more permissive, then this distinction doesn’t make sense – give more concessions to those who apply more force
    
• 
  Pawliuk 2001 BCCA changes law
  
  • 
    
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