Common Law Defence of Intoxication

Intoxication and Specific Intent

• 
  Specific intent: should have ulterior element, some other
  

Bernard v The Queen SCC 1988 p 853 [Has imported objective Reasonable Person Test when you use defence of intoxication]

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  2-2-3 split. Law is unsettled until the next case comes along.
  
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  This is a crime of general intent, should be acquitted, but now SCC Is deciding Bernard.
  
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  In Intoxication you will be judged by standard of ordinary non-drunk person.
  

Issue:

Reason: (McIntyre J + Beetz)

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  Distinction is not artificial
  
  • 
    General Intent: intent relates solely to the performance of the act in question with no further ulterior intent or purpose
    
  • 
    Specific Intent: involves performance of AR, coupled with intent going beyond mere performance ie. Striking with intent to kill
    
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  Drunkenness is not a true defence. But where the accused is so affected he lacks the capacity to form specific intent, it may apply
  
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  No application to crimes of general intent
  
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  Criticisms of defence of drunkenness: 1) distinction btw general/specific is artificial 2) illogical to apply to some & not all crimes/depends on policy decision made by judge
  
  • 
    1) Reject first ground of criticisms
    
  • 
    2) No apologies for policy  society condemns those who, by voluntary consumption of alcohol, render themselves incapable of self-control so that they commit act so violence causing injury to their neighbours
    
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  Defence of drunkenness accords with crim law theory
  
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  Not sustainable that defence of drunkenness be extended to all criminal charges
  
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  CJ has expressed view that evidence of self-induced intoxicant should be relevant consideration in determining MR of ANY offence
  
  • 
    Effect: more drunk person is, more extended his opportunity for successful defence against conviction for those offences caused by such drinking, regardless of the intent required for those offences
    
  • 
    Court in Leary approved majewski approach  Leary should not be overruled
    
    • 
      Crown still must prove MR. State of mind may be proved in two ways in general intent crimes
      
    • 
      1) ToF can infer MR from AR: a person is presumed to have intended the natural and probable consequences of his actions
      
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      2) where accused was so intoxicated as to raise doubt to voluntary nature of conduct, Crown can meet evidentiary obligation by proving the fact of self-induced intoxication by drugs or alcohol
      
    • 
      Metaphysically impossible for person to be so drunk as to be incapable of forming minimal intent to apply force
      
      • 
        HENCE, second method only used in EXTREME SELF-INTOXICATION,
        

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  Sexual assault causing bodily harm is offence of general intent requiring only minimal intent to apply force
  
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  Not necessary to resort to self-induced intoxication as substituted form of MR
  
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  Concerns as to whether imposition on that basis would survive charter challenge
  
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  Rule in Leary be preserved and applied
  
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  Sexual Assault = crime of violence. First an assault, then nature of sex objectively viewed
  
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  Evidence shows: There was intentional and voluntary application of force
  
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  He had the wits to hide bloodied towel/pillowcase from police = NOT Extreme intoxication, verging on insanity or automatism capable of negating inference that minimal intent apply
  
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  Less confident about proposition that : self-induced intoxication may substitute for mental element required to be present at time of offence  although this court has clearly adopted that proposition (majewski)
  

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  THERE will be some cases where we override policy concerns, and if they are so intoxicated to the extreme, that renders them involuntary, they can get off
  

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  Only issue: should evidence of self-induced intoxication be considered by the ToF, in determining whether the prosecution has proved BYD the MR required to constitute the offence?
  
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  Yes. It should be considered.
  
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  Does not make sense to allow this offence for certain offences and not for others. It is legal fiction
  
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  If the law is to be altered in the name of policy, that is surely a task for parliament rather than courts
  
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  It abandons basic MR principles that it is a required precondition for every crime
  
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  Furthermore even if policy is valid, there is no evidence that the artificiality of the specific intent req. is actually required for social protection
  

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  He is not convinced that in most cases of drunkenness will actually deprive an accused of the required MR
  
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  “An unrestrained application of MR would not open a gaping hole in the criminal law contrary to social protection”
  

Summary on Bernard

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  Two judges say: the Beard rule should be preserved: intoxication only relevant to specific intent offences
  
• 
  Three judges say intoxication relevant to all crimes
  
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  Two judges say intoxication normally only relevant to specific intent; but in “extreme cases of intoxication, relevant to all
  

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