Intoxication

• Author: Kent Roach
• Profession: Faculty of Law and Centre of Criminology University of Toronto
• Pages: 215-244

Intoxication from alcohol or drugs may be a condition that prevents

the Crown from proving that the accused had the fault element

required for a particular offence (see chapter 4). Some extreme forms

of intoxication may even result in involuntary conduct which, as dis-

cussed in chapter 2, is increasingly seen as inconsistent with proof of

the prohibited act. Nevertheless, the intoxication defence has been

influenced by policy considerations beyond those that relate to the

fault element or the prohibited act of the particular offence. For these

reasons, it will be examined here in a separate chapter.

Intoxication was historically considered an aggravating factor to a

crime because it “was occasioned by [the accused’s] own act and folly,

and he might have avoided it.”1In the nineteenth century, as greater

emphasis was placed on subjective mens rea, courts became more con-

cerned about the relevance of intoxication as a possible defence. The

object was not to determine whether the accused was intoxicated, but

whether intoxication, combined with any other factors, prevented the

formation of the fault element required for the particular offence. At

the same time, however, courts never completely abandoned the older

idea that an intoxicated offender was not morally innocent, and they

placed restrictions on the availability of the intoxication defence.

Intoxication was admissible and could raise a reasonable doubt to the

215

Intoxication

chapter 6

1Reniger v. Fogossa (1548), 75 E.R. 1 (Ex.).

mental element for specific intent offences, which required an ulterior

objective beyond the immediate act. It was not, however, admissible

when the accused was charged with general intent offences, which

required proof only of an intent to perform the immediate act. In prac-

tice, this meant that intoxication could be a defence to more serious

crimes such as murder and robbery, but not to less serious offences

such as manslaughter and assault.

The distinction between general and specific intent offences has

frequently been criticized. As examined in chapter four, there are dif-

ferent levels of mens rea, but fault elements are not usually classified as

either general or specific intent. At best, the general/specific intent

dichotomy serves as a rough and ready distinction between the various

degrees of subjective mens rea and how they may be affected by the

accused’s intoxication. The classification of a particular fault element as

general or specific intent may be uncertain and will likely be driven by

policy concerns about the ultimate disposition of the accused. In any

event, the classification of intent as either general or specific remains a

relevant factor in the administration of the intoxication defence. Its

continued relevance reveals concerns about whether voluntary intoxi-

cation by the accused should lead to a complete acquittal. As will be

seen in this and the next two chapters, defences are often influenced by

concerns about the ultimate disposition of the accused.

A. Beard’s Case

The genesis of the modern defence of intoxication is found in the

House of Lords’ 1920 decision in D.P.P. v. Beard.2In that case, the Court

articulated the following propositions:

1) [T]hat intoxication could be a ground for an insanity defence if

it produced a disease of the mind.

2) “That evidence of drunkenness which renders the accused inca-

pable of forming the specific intent essential to constitute the

crime should be taken into consideration with the other facts

proved in order to determine whether or not he had this intent.”

3) “That evidence of drunkenness falling short of a proved incapac-

ity in the accused to form the intent necessary to constitute the

crime, and merely establishing that his mind was affected by

216 Criminal Law

2 [1920] A.C. 479 (H.L.) [Beard].