Intoxication

• Author: Kent Roach
• Pages: 275-310

275

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 re-

quired for a particular offence (see Chapter 5). Some extreme forms of

intoxication may even result in involuntary conduct that, 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 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 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. In-

toxication was admissible and could raise a reasonable doubt to the

mental element for specif‌ic intent offences, which required a more

1 Reniger v Fogossa(1548), 75 ER 1 (Ex).

CRIMIN AL LAW276

complex form of subjective fault, often an ulterior objective beyond

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

was charged with genera l intent offences, which require d proof only of

an intent to perform the immediate act or objective fault. In practice,

this meant th at 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 5, 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 men s rea and how they may be affected by the ac-

cused’s intoxication.

The classif‌ication of a particular fault element as general or specif‌ic

intent may be uncertain and has “proved formidable to those who have

been schooled in criminal law, and daunting to those who have not.”2

In making this classif‌ication, courts should examine the complexity of

the fault level for the particular offence. In cases of uncertainty, “logic,

intuition, and policy” play a role. For example, the Court indicated t hat

assaulting with intent to resist arrest is a specif‌ic intent offence that

requires a complex mens rea. But in cases where evidence of intoxi-

cation creates a reasonable doubt about that particular fault element,

the accused will often be convicted of the lesser included offence of

assault, which has consistently been classif‌ied as a general intent of-

fence. The same is true for the specif‌ic intent offence of murder and the

general intent offence of manslaughter. The classif‌ication of intent as

either general or specif‌ic remain s 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 ul-

timate disposition of the accused.

It would also be wrong to suggest that intoxication can never be

a defence to a general intent offence in Canadian criminal law. The

Supreme Court in the 1994 case of R v Daviault3 controversially recog-

nized a separate extreme intoxication defence that the accused must

establish on a balance of probabilities and with expert evidence. Such

an extreme intoxication defence would not simply raise a reasonable

2 R v Tatton, 2015 SCC 33 at para 31 [Tatton].

3 [1994] 3 SCR 63.

Intoxication 277

doubt about the accused’s actual intent, as is the cas e with the ordinary

intoxication defence that is available for offences classif‌ied as specif‌ic

intent offences. Rather, the extreme intoxication defence would be in-

consistent with the accused’s capacity to have the minimal intent for

offences classif‌ied as general intent offences and the accused’s capacity

to act in a voluntary manner, which has been recognized as a require-

ment for the commission of the prohibited act or actus reus. The Court

held that the substitution of becoming voluntarily intoxicated for the

fault and voluntariness of the general i ntent crime violated sections 7 and

11(d) of the Charter and could not be justif‌ied as a reasonable limit on

the accused’s rights. The extreme intoxication defence was controver-

sial because it was recognized in a case where an accused was charged

with the general intent crime of sexual assault. Although the Supreme

Court accurately predicted that the e xtreme intoxication defence would

be rare, it could result in an extremely intoxicated accused being ac-

quitted of all criminal offences, even violent ones.

Within a year of the Daviault decision and even though intoxica-

tion has historically been a common law defence, Parliament enacted

section 33.1–3 of the Code to deny an extreme intoxication defence

whenever the accused is charged with an offence “that includes as

an element an assault or any other interference or threat of interfer-

ence by a person with the bodily integrity of another person.”4 This

new provision follows the pre-Daviault caselaw deeming the fault of

becoming voluntarily intoxicated as a suff‌icient and substituted form

of fault even if the accused at the time of the commission of the pro-

hibited act “lacked the basic intent or the voluntariness required” to

commit the general intent violent offence such as manslaughter, sex-

ual assault, or assault.

The constitutionality of section 33.1–3 still has not been def‌initely

decided by the Supreme Court. It would seem that the substitution of

the fault of voluntarily becoming extremely intoxicated for the fault

and voluntariness of a general intent offence would still violate the

accused’s rights under sections 7 and 11(d) of the Charter unless the

Court overrules Daviault. The fate of section 33.1–3 would then depend

on whether it can be justif‌ied as a reasonable limit on the accused’s

rights. The restriction is designed to aff‌irm responsibility for intoxicat-

ed violence and aff‌irm the rights of those victimized by such violence.

It denies the accused the benef‌it of the Daviault defence of extreme

intoxication, but only with respect to general intent offences that in-

volve an assault or interference or threatened interference with bodily

4 Criminal Code, RSC 1985, c C-46, s 33.1(3) [Code].