Intoxication
| Author | Kent Roach |
| Pages | 289-325 |
289
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 oence (see Chapter 5). Some extreme forms of intoxica-
tion may even result in involuntary conduct that, as discussed in Chap-
ter3, 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 oence. For these reasons, it will be exam-
ined 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 mens 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 oence. At the
same time, however, courts never completely abandoned the older idea
that an intoxicated oender 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 intent oences, which required a more complex form of
CR IMIN AL LAW290
subjective fault, often an ulterior objective beyond the immediate act. It
was not, however, admissible when the accused was charged with gen-
eral intent oences, which required proof only of an intent to perform
the immediate act or objective fault. In practice, this meant that intoxica-
tion could be a defence to more serious crimes such as murder and rob-
bery, but not to less serious oences such as manslaughter and assault.
The distinction between general and speci fic intent oences has
frequently been critici zed. As examined in Chapter 5, there are di erent
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 aected by the accu sed’s
intoxication.
The classification of a particular fault element as general or specific
intent has “proved formidable to those who have been schooled in crim-
inal law, and daunting to those who have not.”2 In making this classifi-
cation, courts should examine the complexity of the fault level for the
particular oence. In cases of uncertainty, “logic, intuition, and policy”
play a role. For example, the Court indicated that assaulting with intent
to resist arrest is a specific intent oence that requires a complex mens rea.
But in cases where evidence of intoxication creates a reasonable doubt
about that particular fault element, the accused will often be convicted of
the lesser included oence of assault, which has consistently been clas-
sified as a general intent oence. The same is true for the specific intent
oence of murder and the general intent oence of manslaughter. The
classification of intent as either general or specific remains a relevant and
often decisive factor in the administration of the intoxication defence. Its
continued relevance reveals concerns about whether voluntary intoxica-
tion 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.
It would also be wrong to suggest that intoxication can never be
a defence to a general intent oence in Canadian criminal law. The
Supreme Court in the 1994 case of R v Daviault3 controversi ally recog-
nized a separate extreme intoxication defence that the accused must
establish on a balance of probabilit ies and with expert evidence. Such an
extreme intoxication defence would not simply raise a reasonable doubt
about the accused’s actual intent, as is the c ase with the ordinary i ntoxi-
cation defence that is available for oences classi fied as specific intent
oences. Rather, the extreme intoxication defence would be inconsistent
Intoxication 291
with the accused’s capacity to h ave the minima l intent for oences clas-
sified as general intent oences and the accused’s capacity to act in a
voluntary manner, which has been recognized as a requirement for the
commission of the prohibited act or actus reus. The Court held that t he
substitution of becoming voluntarily intoxicated for the fault and volun-
tarines s of the general intent crime violated sections 7 and 11(d) of the
Charter and could not be justified as a rea sonable limit on the accused’s
rights. The extreme intoxication defence was controversial because it
was recognized i n a case where an accused was charged with t he general
intent crime of sexual a ssault. Although the Supreme Court accurately
predicted that the extreme intoxication defence would be rare, it could
result in an extremely intoxicated accused being acquitted of all cri m-
inal oences, 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 of the Code to deny an extreme intoxication defence when-
ever the accused is charged with an oence “that includes as an ele-
ment an assault or any other interference or threat of interference by
a person with the bod ily integrity of another person.”4 This provision
followed the pre-Daviault caselaw deeming the fault of becoming vol-
untarily intoxicated as a sucient and substituted form of fault even if
the accused at the time of the comm ission of the prohibited act “lacked
the basic intent or the voluntariness required” to commit the general
intent violent oence such as manslaughter, sexual ass ault, or assault.
In R v Brown,5 a unanimous Supreme Court rea rmed its commit-
ment to Daviault and struck down section 33.1 as an unjustified viola-
tion of both sections 7 and 11(d) of the Charter. The Court acquitted an
accused who assaulted a stra nger in her home while in an unexpected
psychotic state caused by ta king magic mushrooms on top of much
alcohol. The Court rearmed that a conviction of an accus ed who acted
involuntarily and without at least cr iminal negligence would violate
section 7 of the Charter. The new restrictions on the defence also vio-
lated section 11(d) by substituting the fault-less act of voluntarily con-
suming intoxicating subst ances for the fault of a general intent oence
of violence. Although protecting victims from intoxicated v iolence and
holding people accountable for such violence were objectives import-
ant enough to limit Charter rights, Parliament could have enacted less
rights-invasive measures. These measures include requiring criminal
negligence so that the eects of intoxication result ing in violence be at
least reasonably foreseeable at the time of consumption. Alternatively,
4 Criminal Code, RSC 1985, c C-46, s 33.1(3) [Code].
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