GENERAL AND SPECIFIC INTENT: THE QUIET DEATH OF THE SUBSTANTIVE UNDERSTANDING.

• Author: O'brien, Marc-Etienne

INTRODUCTION

Criminal liability for subjective mens rea offences like assault or murder is engaged when a guilty act converges with a guilty mind. The requirement of a guilty mind presents a dilemma when a person voluntarily ingests intoxicants to the point of losing contact with reality or preventing their mental processes from developing the intent, knowledge, or recklessness required by an offence. (1) In such cases, should the principles of criminal liability be strictly applied, and the intoxicated person acquitted, even though he caused harm? Or should the intoxicated person be found guilty of the offence charged even though he lacked the required subjective mental state? This is the difficult and evolving question of the admissibility of the defence of voluntary intoxication, which has grave implications regarding deterrence, denunciation, accountability, punishment, fairness, protection of the most vulnerable persons in society, and coherence within the law. (2) Some Supreme Court Justices approach this question with a result-oriented perspective, while others adopt a subjectivist perspective. (3) In time, majority judgments recognized two distinct intoxication defences predicated on the notions of general and specific intent. This article examines the shift in the meaning of the notions of general and specific intent, from purportedly substantive to admittedly functional.

1. THE COMPETING PERSPECTIVES

   According to the result-oriented perspective, the person who gets intoxicated voluntarily should be held liable for his acts. (4) This perspective acknowledges that intoxication may prevent a person from possessing the mental state required by a subjective mens rea offence and that this would normally lead to an acquittal. It considers, however, that allowing the voluntarily intoxicated person to get off scot-free is a perverse and undesirable outcome, and one which rewards one's own turpitude. (5) The result-oriented perspective avoids this outcome by deriving moral guilt from the act of getting in a state of advanced or extreme intoxication. This way, the intoxicated person can be found guilty because, although they did not have the requisite mental state at the time of the act, they were reckless (6) (or perhaps negligent) (7) at the time of the consumption of the intoxicating substance. And so, deterrence, denunciation, accountability, and punishment are extended to those who voluntarily put themselves in an intoxicated state which causes them to inflict harm onto others and protection is afforded to the victims of intoxicated harm, who are largely women and children. (8)

   The subjectivist perspective rejects this reasoning. Like the result-oriented perspective, it acknowledges that intoxication may prevent a person from forming the mental state required by an offence but it also deems that recklessness cannot be attributed to the mere act of consuming intoxicants to the point of advanced or extreme intoxication. This is because recklessness requires the adoption of a risky behaviour with the awareness of the risk involved and persons who consume intoxicants do not typically anticipate that they may later perform a guilty act since their guilty acts most often arise out of unforeseen circumstances. (9) Since intoxication can negate the formation of a mental state at the time of the offence and recklessness cannot be attributed to the act of consuming intoxicants, the subjectivist perspective would recognize the defence of voluntary intoxication. (10) Indeed, it cautions that refusing to allow this defence would recast subjective mens rea offences into absolute liability offences and thus run afoul of the guarantee of fundamental justice provided by section 7 of the Canadian Charter of Rights and Freedoms. (11)

   Subjectivists acknowledge that those who voluntarily put themselves in an intoxicated state and subsequently cause harm to others are not entirely blameless such that the strict application of the principles of criminal liability can lead to distasteful outcomes. (12) Some of them thus advocate for the enactment of an offence of dangerous intoxication. The mental requirement, stigma and punishment of this offence would be lesser than those of the subjective mens rea offence whose actus reus is performed. (13) The interplay between this offence and a defence of voluntary intoxication would ensure that the principles of criminal liability are respected and that the persons who get intoxicated voluntarily answer for their acts in a proportionate manner. Others, like Don Stuart, would rather have the legislator assert general principles of responsibility that distinguish between subjective and objective fault standards:

   Automatic rules of criminal responsibility for those voluntarily intoxicated should be limited to offences which specifically target drunkenness such as impaired driving or those offences based on negligence such as manslaughter. Where the fault is intent or recklessness (awareness of risk), subject to a greater penalty, the trier of fact should be satisfied by consideration of all the circumstances, including intoxication, that the accused was aware of the risk. (14) B. THE INTOXICATION DEFENCES

   The push and pull of these two perspectives has caused the defence of voluntary intoxication to go through a number of permutations in the past decades. Ultimately, neither perspective fully prevailed and the law recognized two limited intoxication defences. (15)

   The first defence pertains to advanced intoxication. Advanced intoxication is situated between mild intoxication, which is characterized by the relaxation of both inhibitions and socially acceptable behaviour, and extreme intoxication, which is characterized by a loss of voluntariness (i.e., a loss of conscious control on the body). In R v Daley, the Supreme Court explains that advanced intoxication "occurs where there is intoxication to ... the extent of an impairment of the accused's foresight of the consequences of his or her act sufficient to raise a reasonable doubt about the requisite mens rea." (16) This level of intoxication may be raised as a defence to specific intent offences but not to general intent offences. Though the definitions have evolved over time, the current understanding is that specific intent offences typically involve a heightened mental component such as an ulterior intent or a knowledge component which requires complex thought and reasoning processes. Specific intent offences include murder, attempted murder, breaking and entering with intent, robbery, perjury and theft. Often, a specific intent offence includes a lesser general intent offence. For instance, murder, a specific intent offence, includes the lesser general intent offence of manslaughter. General intent offences commonly involve minimal thought and reasoning processes. In addition to manslaughter, they notably include common assault and sexual assault.

   In rare cases where the guilty act is performed in a state of extreme intoxication akin to automatism, the accused can raise voluntary intoxication as a defence. (17) Pursuant to the current version of section 33.1 of the Criminal Code, the defence of extreme intoxication is excluded where three conditions are met: (1) the offence includes as an element an assault or any other interference or threat of interference by a person with the bodily integrity of another person; (2) all the elements of the offence other than the general intent or voluntariness ordinarily required to commit the offence are present; and (3), before becoming in a state of extreme intoxication, the accused departed markedly from the standard of care expected of a reasonable person in the circumstances with respect to the consumption of intoxicating substances. This iteration of section 33.1 comes on the heels of the recent Brown decision, where the Supreme Court held that the previous iteration of section 33.1 was unconstitutional pursuant to section 52(1) of the Charter. (18) The Court thereby put an end to the ongoing debate as to the constitutionality of the initial draft of section 33.1. (19)

3. THE UNDERSTANDING OF GENERAL AND SPECIFIC INTENT

   In its early jurisprudence, the Supreme Court developed a substantive understanding of general and specific intent. At that time, the Court defined general intent as the intent to perform the actus reus (i.e., a minimal intent) and specific intent as the intent extending beyond the performance of the actus reus (i.e., an ulterior intent). (20) The classification of an offence as one of general or specific intent then conveyed two facts: one about the availability of the defence of voluntary intoxication and another about the nature or complexity of the mental element of the offence.

   From the onset, the notions of general and specific intent attracted a heavy barrage of criticism from commentators for lacking a proper legal and rational basis. According to many, the dichotomy stems from a poor reading of Lord Birkenhead's reasons in DPP v Beard, which were imported in Canadian law in MacAskill v The King, (21) and is little more than a rhetorical subterfuge employed to dress up policy preferences as principled decisions. (22)

   An early commentator called specific intent "a meaningless expression [which does] discredit to English law" and "meaningless verbiage". (23) For Professors Stanley M Beck and Graham E Parker, the Supreme Court's early rationalization of the "fiction" or "false dichotomy" was "purely a play with words". (24) Professor Parker reiterated this opinion when he called the distinction "a mere subterfuge", an "artifice or fiction" and a "myth" which "makes no logical sense" and stated that, "[i]f one were uncharitable, an explanation would be that the specific intent notion has been a substitute for thought--courts have found another category which had nothing to recommend it but the fact that it was a rationalisation". (25) Professor Berner agreed...