Intoxication
| Author | Kent Roach |
| Profession | Faculty of Law and Centre of Criminology.University of Toronto |
| Pages | 252-284 |
252
CHA PTER 7
INTOXICATION
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 5). Some extreme forms of intoxi-
cation may even result in involuntary conduct which, as discussed in
Chapter 3, is increasingly seen as inconsistent with proof of the prohib-
ited act. Nevertheless, the intoxication defence has been influenced by
policy considerations beyond those th at relate to the fault element or
the prohibited act of the particular offence. For these reasons, it will be
examined here in a sepa rate 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 centur y, 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 i ntoxicated, 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, a nd they placed
restrictions on the avai lability 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
the immediate act. It was not, however, admissible when the accused w as
1 Reniger v. Fogossa (1548), 75 E.R. 1 (Ex.).
Intoxication 253
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 specific intent offences has fre-
quently been criticized. As examined in Ch apter 5, there are different
levels of men s 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 m ens re a and how they may be affected by the accused’s
intoxication. The classification of a part icular fault element as general
or specific intent may be uncertain. The Court has recently made it
clear that in cases of uncertainty, policy considerations should play a
role. It also noted that “logic, intuition, and policy” all play a role and
that the process of cla ssification “has proved formidable to those who
have been schooled in crimi nal law, and daunting to those who have
no t.” 2 In any event, the classification of intent as either general or spe-
cific remains a relevant and often decisive factor in the administration
of the intoxication defence. Its continued relevance reveals concerns
about whether voluntary intoxication 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 ultim ate disposi-
tion 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 .3 In that case, the Court articu-
lated the follow ing propositions:
1) “[T]hat intoxication could be a ground for an i nsanity defence if
it produced a diseas e of the mind.”
2) “That evidence of drun kenness which renders t he accused 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 ev idence of drunkennes s falling short of a proved inca-
pacity in the accu sed to form the intent necess ary to constitute
2 R. v. Tatton, 2015 SCC 33 at para. 31 [Tat to n].
3 [1920] A.C. 479 (H.L.) [Beard].
CR IMIN AL LAW254
the crime, and merel y establishing that his m ind was affected by
drink so t hat he more readily gave way to some violent pa ssion,
does not rebut the presumption t hat a man intends the n atural
consequences of hi s acts.”4
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 answering “not unintelligently certai n questions
which were put to him.” The House of Lords confir med his conviction
for constructive murder in the course of a rape by stating: “[D]runken-
ness in this case could be no defence unless it could be established t hat
Beard at the time of committing the rape was so drunk 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.”5
B. THE DISTINCTION BETW EEN GENER AL
AND SPECIFIC INTENT OFFENCES
Courts in England and Canada have taken the reference in B eard
to “forming the specific intent essential to commit the crime” as draw-
ing a distinction between c rimes of specific intent and those of gen-
eral intent. It is arguable, however, that the word “specific” was used in
Beard only to refer to the particular cr ime, 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. More-
over, the relevance of intoxication to rape was considered even though
that offence has subsequently been classified as a general intent offence.
Nevertheless, Beard h as been interpreted in England a nd Canada as
establishing a di stinction between crimes of specific and general intent,
with intoxication traditionally being a defence only with respect to the
for mer.
4 Ibid. at 500–2.
5 Ibid. at 504–5. Constr uctive or felony murder bases liab ility for murder on the
commission of a se rious underlying offence such a s rape, whether or not the
accused intende d to kill the victim or kn ew that death was likely. If Bea rd’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 (19 90),
58 C.C.C. (3d) 353 (S.C.C.), discussed i n Chapters 2 and 5. Evidence of intoxi-
cation would be releva nt in determining not whether B eard would have the
intent for sexua l assault, but for murder. The focus today would be on inte nt,
not capacity for intent . In other words, the question would be whet her given the
evidence of intoxic ation and any other factors, the pros ecutor had established
that Bear d knew that his victim w as likely to die.
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