Essentially creates absolute liability for crimes of general intent and constructive liability for crimes of specific intent – question is simply whether accused ‘could have formed the requisite intent’
To successfully rebut the presumption that a man intends the natural and probable consequences of his acts an accused must present evidence of severe intoxication
Dead letter in common law and unconstitutional: ignores requirement of subjective MR
The accused only has to point to evidence to put the matter of intoxication in issue. Any suggestion that the accused has the burden of proof is a fatal error
R. v. George, 1960
Several definitions of offences in the code require that the prohibited conduct be committed with an intent to achieve a particular result
This form of intent has been variously labelled ‘ulterior’, ‘further’ or, more commonly, ‘specific’
Court in George, in the context of setting the ambit to the defence of voluntary intoxication, created extensive tests to differentiate specific from general intent offences
“A general intent attending the commission of an act is, in some cases, the only intent required to constitute the crime while, in others, there must be, in addition to that general intent, a specific intent attending the purpose for the commission of the act.”
Leary v. The Queen, 1977
BCCA had ruled that rape was a crime of general intent whilst OCA had ruled that it was of specific intent, such that intoxication was a defence in Ontario but not BC
Pigeon J., based on a highly technical examination of precedent, that rape is a general intent crime for which intoxication is not a defence
Did not bother applying George tests; probably decided that rape was not deserving of the excuse of intoxication and ruled accordingly
Dixon J. vigorously dissented, holding that there was no principled justification for the specific – general intent dichotomy
R. v. Bernard, 1988
Majority upheld Leary re: sexual assault being a crime of general intent to which intoxication defence was inapplicable
There was logic to the distinction, and any weaknesses were overcome by policy considerations
“The general intent offence is one in which the only intent involved relates solely to the performance of the act in question with no further ulterior intent or purpose. The minimal intent to apply force in the offence of common assault affords an example. A specific intent offence is one which involves the performance of the actus reus, coupled with an intent or purpose going beyond the mere performance of the questioned act. Striking a blow or administering poison with the intent to kill, or assault with intent to maim or wound, are examples of such offences.”
Dixon CJC once again dissented, holding that the rule that intoxication was no defence to a general intent crime violated the s. 7 (principles of fundamental justice – voluntariness and fault) and 11(d) (presumption of innocence) under the Charter
McIntyre disagreed, finding the moral blameworthiness in the intoxication itself – substituting the one blameworthy act for the other
“In Re B.C. Motor Vehicle Act… and in R. v. Vaillancourt… it was held that the requirement for a minimum mental state before the attachment of criminal liability is a principle of fundamental justice. Criminal offences, as a general rule, must have as one of their elements the requirement of a blameworthy mental state.”
“In my opinion, the Leary rule clearly does not offend this essential principle of criminal law but rather upholds it. The Leary rule recognizes that accused persons who have voluntarily consumed drugs or alcohol, thereby depriving themselves of self-control leading to the commission of a crime, are not morally innocent and are, indeed, criminally blameworthy”
Court split in ambiguous ways: either 4-3 upholding Leary on exclusiveness of intoxication in specific intent or 5-2 allowing a flexible drunkenness defence to any mens rea offence (i.e., evidence of intoxication can go to the trier of fact in general intent offences) “if there is evidence of extreme intoxication involving an absence of awareness akin to a state of insanity or automatism” Wilson J.
R. v. Davidault, 1994
Majority
The strict application of the rule established in this Court’s decision in Leary that the mens rea of a general intent offence cannot be negated by drunkenness offends both ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms.
The mental aspect of an offence has long been recognized as an integral part of crime, and to eliminate it would be to deprive an accused of fundamental justice.
The necessary mental element [of general intent offences] can ordinarily be inferred from the proof that the assault was committed by the accused, but the substituted mens rea of an intention to become drunk cannot establish the mens rea to commit the assault.
Moreover, the presumption of innocence requires that the Crown bear the burden of establishing all elements of a crime, including the mental element of voluntariness.
Assuming that voluntary intoxication is reprehensible, it does not follow that its consequences in any given situation are either voluntary or predictable. Further, self-induced intoxication cannot supply the necessary link between the minimal mens rea required for the offence and the actus reus.
To deny that even a very minimal mental element is required for sexual assault offends the Charter in a manner that is so drastic and so contrary to the principles of fundamental justice that it cannot be justified under s. 1 of the Charter
Test (per Wilson in Bernard): evidence of intoxication could properly go before a jury in general intent offences if it demonstrated such extreme intoxication that there was an absence of awareness which was akin to a state of insanity or automatism
Extreme intoxication akin to automatism or insanity should, like insanity, be established by the accused on a balance of probabilities.
While such a burden constitutes a violation of the accused’s rights under s. 11(d) of the Charter, it can be justified under s. 1
Dissent
The requirements of the principles of fundamental justice are satisfied by proof that the accused became voluntarily intoxicated.
The general rule that the mental fault element of a crime must extend to the actus reus, including consequences forming part thereof, is subject to exceptions.
While as a general rule an act must be the voluntary act of an accused in order for the actus reus to exist, the rules of fundamental justice are satisfied by a showing that the drunken state was attained through the accused’s own blameworthy conduct.
Individuals who render themselves incapable of knowing what they are doing through the voluntary consumption of alcohol or drugs possess a sufficiently blameworthy state of mind that their imprisonment does not offend the principle of fundamental justice which prohibits imprisonment of the innocent.
Although distinguishing between offences of specific and general intent may lead to some illogical results, the underlying policy of the Leary rule is sound.
Statutory Reform: s. 33.1
Abolishes Daviault defence
Substitutes a marked departure from standard of care for mens rea in crimes involving a threatened or actual interference with another person’s bodily integrity
‘Deemed fault’ for most general intent offences
Not been put in front of SCC; trial level courts have found that it violates 7 and 11(d) but mixed results as to s. 1 (saved: Vickberg, 1988, BCSC)
Defence still applies to high stigma crimes under Martineau and Creighton principles – constitutionally protected
Only available to the crime of murder, and even then it serves only to reduce to manslaughter
Necessary elements to give rise to the defence: 1) sudden provocation, 2) a wrongful act or insult, 3) sufficient to deprive an ordinary person of self-control, and 4) actual retaliation by the accused ‘on the sudden’
R. v. Hill, 1985
Follows Champlin (H.L.) in establishing an ‘individualised’ objective test, agreeing that age and sex can be relevant at the objective stage of the provocation inquiry
Partial softening of the objective standard that takes into account some, but not all, of the individual characteristics that are relevant to the insulating nature of the victim’s behaviour
BUT it is not necessary to specify the individualised nature of the objective test to the jury
Test for provocation
Would an ordinary person be deprived of self-control by the act or insult?
Modified-objective test
“the ordinary or reasonable person has a normal temperament and level of self-control. It follows that the ordinary person is not exceptionally excitable, pugnacious or in a state of drunkenness.
The jury may rely in its ‘collective good sense’ “to ascribe to the ordinary person any general characteristics relevant to the provocation in question”
Did the accused act in response to the provocative acts
Subjective test
The jury’s “task “at this point is to ascertain whether the accusedwas in fact acting as a result of provocation”
“involves an assessment of what actually occurred in the mind of the accused”
Was the accused’s response sudden and before there was time for passion to cool?
Subjective test
R. v. Thibert, 1996
The objective element requires that there be a wrongful act or insult of such a nature that it is sufficient to deprive an ordinary person of the power of self control.
In summary then, the wrongful act or insult must be one which could, in light of the past history of the relationship between the accused and the deceased, deprive an ordinary person, of the same age, and sex, and sharing with the accused such other factors as would give the act or insult in question a special significance, of the power of selfcontrol.
The subjective element requires that the accused act upon that insult on the sudden and before there was time for his passion to cool.
To be sudden provocation, the wrongful act or insult must strike upon a mind unprepared for it, and it must make an unexpected impact that takes the understanding by surprise and sets the passions aflame.
Under the subjective element, the history and background of the relationship between the victim and the accused should also be taken into consideration.
While both elements are clearly questions of fact which the jury must decide, before leaving the defence with the jury the trial judge must determine if there is any evidence upon which a reasonable jury properly instructed and acting judicially could find that there had been provocation.
Before going to the jury, the trial judge must be satisfied
Objective: that there is some evidence to suggest that the particular wrongful act or insult alleged by the accused would have caused an ordinary person to be deprived of self-control and
Subjective: that there is some evidence showing that the accused was actually deprived of his or her self-control by that act or insult.
R. v. Daniels, 1983
“The Court there did not focus on the insult but rather on whether the accused may have acted in the heat of passion. It said the victim’s words were a ‘final taunt’ in the context of a situation where the accused had suffered a long series of assaults and indignities from the person who uttered the words.” Tran
“The requirement for suddenness of insult and reaction does not preclude a consideration of past events. The incident which finally triggers the reaction must be sudden and the reaction must be sudden, but the incident itself may well be coloured and given meaning only by a consideration of the events which proceeded it.” Daniels
R. v. Tran, 2008
Issue: “‘there was no air of reality to the assertion that there was a “wrongful act or insult’… Although it is a question of fact as to whether ‘a particular wrongful act or insult’ amounts to provocation… the evidence was incapable of taking the trier of fact past the issue of whether there was a wrongful act or insult.”
“The juxtaposition of the terms ‘wrongful act’ and ‘insult’ in section 232(2), however, implies at least a minimum degree of moral wrongdoing on the part of the person ‘causing’ the insult.”
“The animating thesis of the excuse is to recognize that there may be circumstances which absolve even murder, not by holding that the actus reus is justified, but by absolving the murderous intent as an extreme outburst of shared human frailty.
That public policy is Canadian society saying that it will excuse the intent of the specific accused person under the circumstances defined by s. 232 – but not less.
Insult tested on the modified objective standard: “To qualify as an ‘insult’, even under this adaptable form of ‘ordinary person’ standard, the ‘insult’ must still be one that would be of such a quality and character in the context that it would drive an ordinary person…
not merely into an uncontrollable and homicidal rage at the author of the insult but
into also acting upon that rage by a violent attack and further yet
that such be a sustained state of rage that it would last until the accused has killed the victim”
“Accordingly, the fact that an accused personally takes in a set of circumstances as being an ‘insult’ to him does not of itself mean that the ‘insult’ therefore exists in law:”
Mental Disorder and Insane Automatism
Non-insane Automatism R. v. Rabey, 1977 (OCA)
A successful defence of non-insane automatism must identify an external factor
A transitory mental state produced by an external factor will not be disease of the mind
The disorder of the mind must not relate to some subjective weakness of the accused
Obiter: even without an external factor, sleepwalking was not a disease of the mind and thus could ground a defence of automatism
R. v. Parks, 1992
R. v. Stone, 1999
Two forms of automatism are recognized at law.
Non-insane automatism arises where involuntary action does not stem from a disease of the mind and entitles the accused to an acquittal.
Insane automatism, on the other hand, arises only where involuntary action is found, at law, to result from a disease of the mind and is subsumed by the defence of mental disorder.
A successful defence of insane automatism will trigger s. 16 of the Criminal Code and result in a verdict of not criminally responsible on account of mental disorder.
The law presumes that people act voluntarily. Since a defence of automatism amounts to a claim that one’s actions were not voluntary, the accused must establish a proper foundation for this defence before it can be left with the trier of fact.
This is the equivalent of satisfying the evidentiary burden for automatism.
Once the evidentiary foundation has been established, the trial judge must determine whether the condition alleged by the accused is mental disorder or non-mental disorder automatism.
A two-step approach should therefore apply to all cases involving claims of automatism.
The defence must establish a proper foundation for automatism.
This burden is only met where the trial judge concludes that there is evidence upon which a properly instructed jury could find that the accused acted involuntarily on a balance of probabilities.
In all cases, this will require that the defence make an assertion of involuntariness and call confirming psychiatric evidence.
Other relevant factors to be considered in determining whether this defence burden has been satisfied include: the severity of the triggering stimulus; corroborating evidence of bystanders; corroborating medical history of automatistic-like dissociative states; whether there is evidence of a motive for the crime; and whether the alleged trigger of the automatism is also the victim of the automatistic violence. No one factor is determinative.
The trial judge must weigh all of the available evidence on a case-by-case basis.
Placing this burden on the defence, while constituting a limitation of an accused’s s. 11(d) Charter rights, is justified under s. 1.
Second, given the establishment of a proper foundation, the trial judge must determine whether the condition alleged by the accused is mental disorder or non-mental disorder automatism.
The assessment of which form of automatism should be left with the trier of fact comes down to the question of whether or not the alleged condition is a mental disorder.
Mental disorder is a legal term defined in the Code as “a disease of the mind”.
The question of what conditions are included in that term is a question of mixed law and fact because it involves an assessment of the particular evidence in the case rather than a general principle of law.
Trial judges should start from the proposition that the condition is a disease of the mind and then determine whether the evidence in the particular case takes the condition out of the disease of the mind category.
Self-defence against unprovoked assault where there is no intent to kill or do grievous bodily harm – 34(1) CCC
Not covered
Self-defence against an assault where the defender causes death of grievous bodily harm – 34(2) CCC
Elements (from Petel)
(1) the existence of an unlawful assault;
(2) a reasonable apprehension of a risk of death or grievous bodily harm;
(3) a reasonable belief in the absence of alternatives to killing
“The requirement is that the accused have believed on reasonable grounds that there was no alternative course of action open to him at that time, so that he reasonably thought he was obliged to kill in order to preserve himself from death or grievous bodily harm” Cinous
All three of these elements must be established on a modified-objective basis in order for the defence to succeed.
R. v. Lavallee, 1990
Issue 1: Temporal connection between apprehension of harm and the accused’s use of force – no requirement of waiting until the physical assault is underway (rejects ‘raised knife standard)
Test: Did A reasonably perceive the harm, given her situation and experience
Issue 2: requirement that the accused’s belief in the need for self-defence be based on reasonable and probably grounds
The (modified) objective test of reasonable belief required under s. 32(2) had to account for the perspective of the abused woman
Further, expert opinion on the psychological effect of battering of partners was relevant and necessary to determine the accused’s state of mind
Test: “I think the question the jury must ask itself is whether, given the history, circumstances and perceptions of the appellant, her belief that she could not preserve herself from being killed by Rust that night except by killing him first was reasonable. To the extent that expert evidence can assist the jury in making that determination, I would find such testimony to be both relevant and necessary”
R. v. Malott, 1998
Lavalleé did not establish a defence of being a battered woman – but directed court to consider situation and experience of battered woman in applying legal tests of reasonableness.
May equally apply to duress, provocation, necessity.
Court should resist “syndromization” by focusing on reasonableness of A’s actions in light of her personal experiences and experiences as a woman
R. v. Petel, 1994
The existence of an actual assault is not a prerequisite for a defence under s. 34(2).
It is not necessary that the accused actually be assaulted to trigger s. 34(2) so long as she reasonable believed an assault was taking place – reasonable mistake allowed
R. v. McIntosh, 1995
Problem is that s. 35 significantly restricts the right of self-defence by an aggressor; on its face, however, s. 34(2) does not have that problem
Nevertheless, minority, believes that based on pervious iterations of the CCC, policy and consistency with ss. 34(1) & 35 the words ‘without having provoked the assault’ should be read into s. 34(2)
“At first blush the argument seems attractive that the absence of the phrase ‘without having provoked the assault’ in s. 34(2) makes it applicable to all cases of self-defence, even those where the accused provoked the attack. Yet, a closer look at the language, history and policy of ss. 34 and 35 of the Criminal Code suggests that this argument should not prevail” McLachlin J
Sections 34(1) and (2) used to be one paragraph (old s. 45), and the words “Every one who is unlawfully assaulted without having provoked the assault” were connected to the substantive elements of what is now 34(2) by the words “and every one so assaulted is justified, though he causes death or grievous bodily harm, if he causes it under reasonable apprehension of death…”
Minority wanted a much more restrictive defence, a la s. 35, including the requirement to retreat
Majority disagreed, finding that a s. 34(2) defence was available to initial aggressors – in its plain and grammatical meaning the section is silent on the provocation
Generally, invoking s. 35 by analogy to impose a duty to retreat on an initial aggressor is inconsistent with the clear trend of Canadian jurisprudence allowing flexibility in judging claims of self-defence
Defence of a person to prevent an assault – 37(1-2) CCC
