Criminal Responsibility: Part II

AuthorHy Bloom, Richard D Schneider
chapter six
Criminal Responsibility: Part II
In Part I we considered mental disorder as a central or primar y factor in an
accused’s criminal responsibility. In Part II we consider mental disorder as
an ingredient in what would other wise constitute a “free standing” defence.
We are considering mental disorder whether caused by extern al factors,
internal factors, or the ingestion of dr ugs — where its effect may be to reduce
rather than elimin ate an accused’s criminal responsibil it y.
1) Common Law
A drug may intoxicate an indiv idual to an extent that the requisite intent is
negatived. Where the offence is one which requires “specif‌ic intent,” a drug
may diminish an accused’s capacity to form the requi red spe cif‌ic intent.1
2) Diminished Responsibility — Intoxication and Intent
Keiter has described the histor y of the intoxication defence in North America,
tracing its origi ns in English law as far back as 1551, when the voluntary con-
sumption of alcohol, even when it was associated with lack of understandi ng
or memory of the act, did not lead to an acquittal on a murder charge.2 More
recently, courts have developed the notion of “specif‌ic intent” and “general
1 DPP v Beard, [1920] AC 479 (HL) [Beard], as adopted by the Supreme C ourt of Canada
in R v Bernard (1988), 67 CR ( 3d) 113 (SCC).
2 Mitchell Keiter, “Just Say No Excuse: The R ise and Fall of the Intoxication Defe nse”
(1997) 87 Journal of Crimin al Law and Criminolog y 482.
Chapter Six: Criminal Responsibility: Part II 203
intent” crimes to disti nguish circumst ances in which the intoxication de-
fence might be permissible. A general intent crime requi res only the intent
to commit that act, whereas a specif‌ic intent cr ime goes beyond that, with an
intent, for example, to strike a blow in order to kill a person. Speci f‌ic intent
crimes include murder, whereas common assault is a general or basic intent
crime. The court s have carefully categorized crimes as general or specif‌ic i n-
tent crimes, although t he basis for deciding whether they are one or the other
has not always been clear. Impaired drivi ng is a general intent crime.
a) The Beard Rules
Canadian law was inf‌luenced by Be ard, an English case which was re -
aff‌irmed by t he Canadian Supreme Court.3 The implications of the Beard
case in Canada are as follows. Intoxication is different from mental d isorder.
If, however, intoxication induces a mental disorder, and it meets the test in
section 16 of the Crimina l Code, then the verdict shou ld be “not guilty by
reason of insanity” (now NCR) and should lead to a custodial or community
order or an absolute discharge, that is, a special verdict. A n intoxication de-
fence is only relevant to a crime of specif‌ic intent, and if successfu l, would
lead to an absolute acquittal. Under the Beard rules, a level of intoxication
falling short of preventing a per son from having the capacity to form the
intent necessary for committing a spec if‌ic intent crime would be irrelevant.
b) The Exp ert’s Role
Expert ev idence may assist the court in determini ng whether a person had
the capacity to form intent, not whether intent existed . It may also shed li ght
on the extent to which the accused’s actions were “voluntar y.” For ex ample,
a toxicologic expert can help establish t he fact of i ntoxication and provide an
opinion regarding the accused’s blood alcohol level (BAL) at the time of the
event (see Chapter 6, Section B(4)b, below). In particular, the exp ert evidence
will be of assistance in deter mining whether the accuse d’s def‌icits were the
result of some abnormal condition, or whether he was simply intoxicated
under normal circumst ances. As with other defences where psychiatr ic evi-
dence is adduced, the question for the expert is not whether a par ticular de-
fence has been established. That is a fu nction for the court. Policy concerns
regarding self-induced intoxication will, aga in, be matters for the court to de-
termine. The ex pert will give her best interpretation of the fact s and offer the
court the most parsimonious expla nation for t he be haviour of the accused.
3 Beard, above note 1.

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