Intoxication

• Author: Kent Roach
• Pages: 246-278

246

CHA PTER 7

INTOXICATION

Intoxication from alcohol or drugs may be a condition that prevents the

Crown from proving that t he accused had the fault element required for

a particular of fence (see chapter 5). Some extreme forms of intoxication

may even result in involuntary conduct which, as d iscussed in chapter 3,

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 pro-

hibited act of the particular offence. For these reasons, it will be ex am-

ined here in a separate chapter.

Intoxication was historically considered an aggravating factor to a

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

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

emphasis was placed on subjective me ns 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 particul ar 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 rai se a reasonable doubt to the mental element

for specif‌ic intent offences, which required an ulterior objective beyond

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

Intoxication 2 47

the immediate act. It was not, however, admissible when the accused wa s

charged with general intent offences, which required proof only of an

intent to perform the immedi ate act. In practice, this meant that intoxi-

cation could be a defence to more serious crimes such as murder and rob-

bery, but not to less serious offences such as manslaughter and a ssault.

The distinction between general and spec if‌ic intent offences has

frequently been critici zed. As examined in chapter 5, there are differ-

ent levels of mens rea, but fault elements are not usually cl assif‌ied as

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

chotomy serves as a rough and ready distinction between the various

degrees of subjective me ns rea and how they may be affected by the ac-

cused’s intoxication. The classif‌ication of a part icular fault element as

general or specif‌ic intent may be uncert ain and will likely be driven by

policy concerns about the ultimate di sposition of the accused. In any

event, the classif‌icat ion 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 t he next two chapters, defences are often inf‌luenced by

concerns about the ultimate dis position of the accused.

A. BEAR D’S CASE

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

of Lords’ 1920 decision in D. P.P. v. Be ard .2 In that case, the Court articu-

lated the follow ing propositions:

1) “[T]hat intoxication could be a ground for an ins anity defence if

it produced a diseas e of the mind.”

2) “That evidence of drunke nness which renders the acc used in-

capable of forming the sp ecif‌ic intent essenti al to constitute the

crime should be take n into consideration with t he other facts

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

3) “That evidence of d runkenness f alling short of a proved incapa-

city in the accus ed to form the intent necessa ry to constitute

the crime, and merely e stablishing that his m ind was affected by

drink so t hat he more readily gave way to some violent pa ssion,

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

CR IMIN AL LAW248

does not rebut the presumption t hat a man intends the n atural

consequences of hi s acts.”3

In the actual case, Beard had been drinking when he killed a woman

in the course of a rape. Shortly after the killing, he was accepted into

a trade union after answer ing “not unintelligently certai n questions

which were put to him.” The House of Lords conf‌irmed his conviction

for constructive murder in the course of a rape by stating: “[D]runken-

ness in this c ase could be no defence unless it could be established that

Beard at the time of committing the rape was so drun k that he was

incapable of forming the intent to commit it, which was not in fact, and

manifestly, having regard to t he evidence, could not be contended.”4

B. THE DISTINCTION BETWEEN GENER AL

AND SPECIFIC INTENT OFFENCES

Courts in England and Canada have taken the reference in B eard to

“form ing the specif‌ic intent essential to commit t he crime” as drawing a

distinction between cr imes of specif‌ic intent and those of general intent.

It is arguable, however, that the word “specif‌ic” was used in Bea rd only

to refer to the particula r crime, and not to a distinct category of offences.

No reference is made in Beard to “general intent” offences as a category

of offences distinct from “specif‌ic intent” offences. Moreover, the rel-

evance of intoxication to rape was considered even though that offence

has subsequently been cl assif‌ied as a general intent offence. Neverthe-

less, Be ard has been interpreted in England and Canad a as establishing

a distinction between cr imes of specif‌ic and general intent, with intoxi-

cation traditionally being a defence only with respect to the former.

In R. v. Ge orge, the Supreme Court held that robbery was a specif-

ic intent offence to which drunkenness wa s relevant, but assault was

3 Ibid. at 500–2.

4 Ibid. at 504–5. Const ructive or felony murder bases l iability for murder on the

commission of a se rious underlying offence such a s rape, whether or not the

accused intend ed to kill the victim or k new that death was likely. If Be ard’s case

arose today i n Canada, he could not be charged w ith constructive murder. See

R. v. Vaillancourt (1987), 39 C.C.C. (3d) 118 (S.C.C.) and R. v. Martineau (199 0),

58 C.C.C. (3d) 353 (S.C.C.), discussed in ch s. 2 and 5. Evidence of intoxication

would be relevant in dete rmining not whether Bea rd would have the intent for

sexual a ssault, but for murder. The focus today would be on intent, n ot capacity

for intent. In other words , the question would be whether given t he evidence

of intoxication and a ny other factors, the prosecutor had e stablished that Bea rd

knew that hi s victim was likely to d ie.