Intoxication

• Author: Kent Roach
• Profession: Faculty of Law and Centre of Criminology. University of Toronto
• Pages: 226-255

226

CHAPTER 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 pro-

hibited 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.”1 In the nineteenth centur y, as greater em-

phasis was placed on subjective men s rea, courts became more concerned

about the relevance of intoxication as a possible defence. The object was

not to determine whether the accused was intoxicated, but whether in-

toxication, 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 intoxi-

cated 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 mental element for specif‌ic in-

tent o ffences, w hich req uired an ulterior o bjective b eyond the immedi ate

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

Intoxication 227

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 practice, this meant t hat intoxication could be a

defence to more serious cr imes 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 5, there are different

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 reaand how they may be affected by the accused’s in-

toxication. The classif‌ication of a particular fault element as general or

specif‌ic intent may be uncertain and will likely be driven by policy con-

cerns 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 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 ultimate disposition of the accused.

A.

BE AR 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. Beard.2 In that case, the Court articu-

lated the following propositions:

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

it produced a disease of the mind.”

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

capable of forming the s pecif‌ic intent essenti al to constitute the

crime should be taken into considerat ion with the other facts

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

3) “That evidence of d runkenness falli ng short of a proved incapa-

city in the accused to form the intent necessary to constitute

the crime, and merely est ablishing that his mind was affected by

drink s o that he more readily gave way to some v iolent passion,

does not rebut the presumption that a man intend s the natural

consequences of his acts.”3

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

3 Ibid. at 500–2.