9. Intoxication

Summary of Intoxication #

General Points #

The courts have distinguished three distinct defences involving intoxication:

a. self-induced intoxication;

b. extreme intoxication; and

c. involuntary intoxication

Crimes of Specific and General Intent: #

The application of the first two defences involves a distinction between crimes of ‘specific intent,’ which require “an ulterior object beyond the immediate act,” and crimes of ‘general intent,’ which require “proof only of an intent to perform the immediate act.” (K. Roach on Beard)

A 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.” (Bernard)

A specific intent offence is one that involves the performance of the actus reus, coupled with an intent or purpose going beyond the mere performance of the act in question; for example: “[s]triking a blow … with the intent to kill.” (Bernard)

Self-Induced Intoxication: #

An accused may rely on the defence of self-induced intoxication in the case of a crime of specific intent. (Bernard)

(i.e., an accused can point to the mere fact that they were drunk to raise a reasonable doubt about whether, in the course of assaulting the victim, they had also formed the intent to kill, rob, etc.)

Self-induced intoxication (to a degree less than extreme) is not a defence to a crime of general intent. (Leary, Bernard)

Why is self-induced intox not a defence GI offences?

Where a person is intoxicated to a degree less than “extreme intoxication” (see below), the SCC has held that evidence of intoxication cannot form the basis for a doubt as to whether a person lacked the voluntariness or the minimal intent (i.e., intention or recklessness) for an offence of general intent. It may not do so because the Court held that mere intoxication cannot rebut the common law presumption that an accused acted voluntarily (i.e., that they intended the natural and probable consequences of their actions).

Put otherwise, on the basis of the fact that the accused has committed the actus reus of a general intent offence, together with other supporting evidence, a court may infer the voluntariness and minimal intent for the offence – and that inference may not be refuted by the mere fact that the accused was drunk. [Note that the accused may still seek to raise a doubt about voluntariness or intent through other evidence.] (Bernard)

Does this rule violate section 7?

A majority of the SCC in Bernard held that the rule in Leary that self-induced intoxication (less than extreme) is not a defence to an offence of general intent is consistent with section 7 of the Charter, on the basis that an intoxicated person who commits the actus reus of a general intent offence demonstrates the voluntariness and minimal intent to render them morally culpable.

By contrast, where an accused seeks to rely on the defence of self-induced intoxication in the case of a specific intent offence, facts about intoxication may serve to raise a doubt about whether the accused had formed the required specific intent. (Bernard)

The accused bears an evidentiary burden to establish an air or reality for the defence of intoxication. This requires some evidence on which a properly instructed jury acting reasonably could acquit on the basis that the evidence raises a reasonable doubt about intent. Once an air of reality is established, the persuasive burden shifts to the Crown to prove, BARD, that the accused had the necessary intent. (George, Bernard)

A person who is acquitted of a specific intent offence can be convicted of a lesser included offence if there is no reasonable doubt about whether they had the requisite intent for that lesser (general intent) offence. (George, Bernard)

The following have all been held to be offences of specific intent: murder, theft, robbery, aiding and abetting a crime and attempting a crime. The following have all been held to be crimes of general intent: manslaughter, assault, sexual assault, sexual assault causing bodily harm, and mischief. (Bernard; K. Roach, Criminal Law, 5^th^ edition.)

If the Crown establishes that an accused, due to intoxication, lacked the specific intent for murder but had the intent for an unlawful act resulting in death, the accused should be convicted of manslaughter. (Beard)

Self-induced intoxication is not a defence to any offence in which intoxication is an element. (Penno) But this rule appears to be qualified by the holding in Daviault (see below) that extreme intoxication can negate both voluntariness (actus reus) and the minimal intent in crimes of general intent.

Extreme Intoxication: #

At common law, extreme intoxication is a defence to both general and specific intent offences (Daviault). (This proposition is now qualified by the application of s. 33.1, discussed below.)

For extreme intoxication, the accused bears the burden of establishing, on a balance of probabilities, that she was so intoxicated at the time of the offence as to be in a state akin to automatism or a disease of the mind, and, as a result, was incapable of forming the requisite intent for the offence or acted involuntarily. (Daviault)

Placing the persuasive burden on the accused in extreme intoxication violates section 11(d) but is saved by section 1, on the basis that the accused is in the best position to prove the amount of alcohol consumed and its effect on him or her. (Daviault)

Subject to s. 33.1, where extreme intoxication establishes that the accused was in a state akin to automatism or a mental disorder and acted involuntarily, she would have a defence to crimes of objective fault and absolute liability (which require that the actus reus be committed voluntarily). (The exceptions here are any such offences that contain as an element assault or the threat of bodily integrity, pursuant to s. 33.1.)

Sections 7 and 11(d) are violated where an accused is convicted of a general intent offence if, at the time of the offence, he or she was in a state of extreme intoxication (akin to automatism or a mental disorder) and lacked consciousness or control of their actions. (It remains to be seen whether such a violation – as contemplated by section 33.1 – could be saved by section 1 of the Charter.)

Section 33.1: #

Section 33.1 of the Criminal Code qualifies the rule in Daviault by excluding the defence of self-induced extreme intoxication as a basis for arguing that one lacked either the general intent or voluntariness for offences in which assault is an element or for offences involving the interference or threat of interference with another person’s bodily integrity.

Section 33.1(2) addresses the necessary mens rea and voluntariness issue in such instances by stating that “a person departs markedly from the standard of reasonable care generally recognized in Canadian society and is thereby criminally at fault” where, by self-induced (extreme) intoxication, they become unaware of their “behavior” or incapable of “controlling” it and they “interfere with the bodily integrity of another person.”

(Thus where a person becomes severely intoxicated, loses control or awareness of their actions, and threatens someone’s bodily integrity, they depart markedly from a standard of care. The fault appears to rest not only on becoming very drunk but on getting very drunk and interfering.)

Section 33.1 would arguably violate sections 7 and 11(d) on the basis that it entails a substitution of the fault of becoming intoxicated (and departing from a standard) for the mens rea of the general intent offence at issue or the voluntariness necessary for the actus reus of that offence. It is expected to be challenged eventually at the SCC, with the main issue being whether the violation is a reasonable limit under section 1.

Involuntary Intoxication: #

An accused may rely on the defence of ‘involuntary intoxication’ where she commits an offence after consuming a substance that (i) she did not know would result in her intoxication, and (ii) she could not reasonably have known. (King)

The defence may apply to negate either voluntariness of the actus reus or the mens rea or both, depending on the offence and the facts of the case.

Section 33.1 does not preclude the operation of the involuntary intoxication defence to crimes of general or specific intent, including those involving assault or interferences with bodily integrity, since that section is limited to cases of self-induced intoxication.

The Nova Scotia Court of Appeal has held that intoxication will be held to be “self-induced” where the accused knew or ought to have known that a substance they consumed would result in their intoxication. (Chaulk)

© Robert Diab, TRU Law, 2022