Criminal Responsibility: Part II

• Author: Hy Bloom, Richard D Schneider
• Pages: 202-218

202

chapter six

Criminal Responsibility: Part II

A. INTRODUCTION

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 external factors,

internal factors, or the ingestion of dr ugs — where its effect may be to reduce

rather than eliminate an accused’s criminal responsibil it y.

B. INTOXICATION

1) Common Law

A drug may intoxicate an individual 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 origins 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 II203

intent” crimes to distinguish circumstances in which the intoxication de-

fence might be permissible. A general intent crime requires 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. Specif‌ic 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 Beard, an English case which was re-

aff‌irmed by the 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 Criminal Code, then the verdict should 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. An intoxication de-

fence is only relevant to a crime of specif‌ic intent, and if successful, would

lead to an absolute acquittal. Under the Beard rules, a level of intoxication

falling short of preventing a person 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 evidence may assist the court in determining 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 “voluntary.” For example,

a toxicologic expert can help establish t he fact of intoxication 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 determining whether the accused’s def‌icits were the

result of some abnormal condition, or whether he was simply intoxicated

under normal circumstances. As with other defences where psychiatric evi-

dence is adduced, the question for the expert is not whether a particular de-

fence has been established. That is a function 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.