Intoxication
| Author | Kent Roach |
| Profession | Faculty of Law and Centre of Criminology. University of Toronto |
| Pages | 226-255 |
226
CHA PTER 7
INTOX IC ATION
Intoxication from alcohol or drugs may be a condition that prevents the
Crown f rom proving that the accused had t he fault element required
for a particular offence (see chapter 5). Some extreme forms of intoxi-
cation may even result in involuntar y conduct which, as discussed in
chapter 3, is increasingly seen as inconsistent with proof of the pro-
hibited act. Nevertheless, the i ntoxication 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 avail ability 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 accuse d was charged w ith
general intent offences, which required proof only of an intent to perform
the i mmediate 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 m anslaughter 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 t he various degrees of
subjective mens rea and how they may be affected by t he accused’s in-
toxication. The classification of a pa rticular fault element a s general or
specific intent may be uncertain and will likely be driven by policy con-
cerns about the ult imate di sposition of the accu sed. In any event, the
classification of intent as either general or specific remains a relevant
factor in the adm inistration 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 diseas e of the mind.”
2) “That e vidence of drunke nness which render s the accused in-
capable of form ing 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 whethe r or not he had this intent.”
3) “That evidence of d runkenness falli ng short of a proved incapa-
city in t he accused to form the inte nt necessary to const itute
the crime, and merely est ablishing that h is mind was affected by
drink s o that he more readily g ave way to some v iolent passion,
does not rebut the presumpt ion that a man intend s the natur al
consequences of hi s acts.”3
2 [1920] A.C. 479 (H.L.) [Beard].
3 Ibid. at 500–2.
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