The rule in Leary that holds that becoming intoxicated could supply the mens rea for general intent offences was vulnerable under the Charter because 1) it departed from the requirement that the mens rea occur at the same time as the actus reus; 2) it transferred the general or at-large fault of becoming intoxicated for the fault of the particular general intent offence; and 3) it would allow the conviction of a person who was so severely intoxicated that he or she acted involuntarily or without the intent required for the particular general intent offence.
The Supreme Court first considered the constitutionality of the Leary RUIE in Bernard.25The Court was deeply divided. Two judges would have upheld the Leary rule in its full vigour so that even if the accused "was so intoxicated as to raise doubts as to the voluntary nature of his conduct," the Crown could demonstrate the necessary mens rea from the fact of voluntary self-intoxication. MCINTYRE J. argued for the traditional position that proof of the accused’s "voluntary drunkenness can be proof of his guilty mind"26even though this fault would not necessarily be present when the prohibited act was committed, or have been directed at the prohibited act.
At the other end of the spectrum, Chief Justice Dickson, with the concurrence of Justices Lamer and La Forest, not only adhered to his strong dissent in Leary, but argued that the Leary rule violated sections 7 and 11(d) of the Charter by substituting the intent of becoming intoxicated for the intent of the particular general intent offence. He concluded:
The effect of the majority holding in Leary is to impose a form of absolute liability on intoxicated offenders, which is entirely inconsistent with the basic requirement for a blameworthy state of mind as a prerequisite to the imposition of the penalty of imprisonment [under section 7 of the Charter] . . . .
The majority holding in Leary also runs counter to the s. 11(d) right to be presumed innocent until proven guilty. With respect to crimes of general intent, guilty intent is in effect presumed upon
proof of the fact of intoxication. Moreover, the presumption of guilt created by the Leary rule is irrebutable.27The exclusion of evidence of intoxication converted general intent of-fences to absolute liability offences by not considering a potentially crucial factor in determining whether the accused had the required mens rea. In addition, the presumption of innocence was violated when the fault of becoming intoxicated was substituted for the fault of the particular general intent offence. Dickson C.J. also concluded that the Leary rule could not be justified under section 1 of the Charter be-cause it would require people to be convicted for unintended or unforeseen crimes. He argued: "[I]t has not been demonstrated that risk of imprisonment of a few innocent persons is required to attain the goal of protecting the public from drunken offenders."28If public protection required special measures to deal with intoxicated offenders, that should be done by Parliament, not the courts. This could be done through the creation of an offence that punished the accused for being drunk and dangerous.
Justice Wilson fashioned a novel compromise position that was later to command support from a majority of the Court in Daviault. Unlike Dickson C.J., she retained the distinction between general and specific intent offences. In most cases, the minimal intent required for the commission of a general intent offence could be inferred from the commission of the act. In Bernard, for example, the accused was guilty of the general intent offence of sexual assault causing bodily harm because it was clear that he engaged in "intentional and voluntary, as opposed to accidental or involuntary, application of force."29Wilson J. also disagreed with Dickson C.J. that the Leary rule violated section 7 of the Charter. An accused who voluntarily became so intoxicated as not to have the minimal awareness required for a general intent of-fence was not a morally innocent person who should be protected from conviction under section 7 of the Charter.30However, the "real concern" for Wilson J. arose under section 11(d), because the fault of becoming
drunk would under the Leary rule be substituted for the fault of the particular offence charged. Wilson J. elaborated:
While this court has recognized that in some cases proof of an essential element of a criminal offence can be replaced by proof of a different element, it has placed stringent limitations on when this can happen . . . . In my tentative view, it is unlikely that in those cases in which it is necessary to resort to self-induced intoxication as the substituted element for the minimal intent, proof of the substituted element will "inexorably" lead to the conclusion that the essential element of the minimal intent existed at the time the criminal act was committed.31Wilson J. would apply the basic Leary rule in a more flexible fashion that would allow "evidence of extreme intoxication involving an absence of awareness akin to a state of insanity or automatism" to go to the trier of fact in "those rare cases in which the intoxication is extreme enough to raise doubts as to the existence of the minimal intent which characterizes conscious and volitional conduct."32Six years later, Justice Wilson’s approach, with some variations, commanded support from a majority of the Supreme Court. In Daviault,33the Supreme Court decided that extreme intoxication could in rare cases be a defence to general intent offences such as assault or sexual assault. In such cases, the minimal intent required for a general intent offence could not be inferred from the commission of the prohibited act because "the very voluntariness or consciousness of that act may be put in question by the extreme intoxication of the accused."34
The focus in Daviault was on extreme intoxication that negated the accused’s capacity for voluntary conduct and the minimal mens rea necessary for a general intent offence as opposed to evidence of intoxication that could raise a reasonable doubt about the more complex mental processes required in specific intent offences. Moreover, the application of the Leary and Majewski rule would violate both sections 7 and 11(d) of the Charter by substituting the intent of becoming intoxicated for the intent of the offence. Cory J. concluded:
The consumption of alcohol simply cannot lead inexorably to the conclusion that the accused possessed the requisite mental element to commit a sexual assault, or any other crime. Rather, the substituted mens rea rule has the effect of eliminating the minimal mental element required for sexual assault. Furthermore, mens rea for a crime is so well recognized that to eliminate that mental element, an integral part of the crime, would be to deprive an accused of fundamental justice.35Not considering evidence of intoxication in cases of extreme intoxication could lead to conviction without proof that the accused had the mens rea required for the general intent offence. Whatever fault element could be inferred from becoming intoxicated did not prove beyond a reasonable doubt that the accused had the fault element for a general intent offence, in this case, sexual assault.
In Daviault, the Supreme Court purported to adopt Wilson J.’s position in Bernard, but the Court’s reasoning differed in two respects. First, the Court held that the Leary rule violated not only section 11(d), but also section 7 of the Charter. In contrast, Wilson J. suggested in Bernard that a person who voluntarily became so intoxicated that he or she did not have the minimal intent necessary to commit a general intent offence was not a morally innocent person protected from punishment under section 7 of the Charter.36This is not a doctrinal quibble given that the courts have been much more willing to uphold violations of section 11(d) under section 1 than violations of section 7 of the Charter.37Second, the Court in Daviault required an accused to prove extreme intoxication as a defence to a general intent crime on a balance of probabilities, whereas Wilson J. would have allowed such evidence to rebut the Crown’s usual duty to prove the fault element beyond a reasonable doubt. Cory J. explained that the burden on the accused to prove extreme intoxication violated the presumption of innocence in section 11(d), but was justified because "it is only the accused who can give evidence as to the amount of alcohol consumed and its effect upon him. Expert evidence would be required to confirm that the accused was probably in a state akin to automatism or insanity as a
result of his drinking."38Because of concerns about social protection, the Supreme Court violated the presumption of innocence in its own development of the common law. As will be seen in chapter 8, an accused wishing to take advantage of the mental disorder or automatism defences must also prove the defence on a balance of probabilities. At the same time, the reversal of the burden can be criticized as unprincipled. In countries such as Australia and New Zealand, which have abandoned the specific and general intent distinction, the accused has no burden to establish the defence of intoxication and will be acquitted whenever the evidence of intoxication raises a reasonable doubt about the intent of the offence charged. There is no compelling evidence that social protection has been sacrificed by maintaining the presumption of innocence.
The defence contemplated in Daviault applies only if the accused is extremely intoxicated. Cory J. argued:
those who are a "little" drunk can readily form the requisite mental element to commit the...