Intoxication

• Author: Kent Roach
• Pages: 289-325

289

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 oence (see Chapter 5). Some extreme forms of intoxica-

tion may even result in involuntary conduct that, as discussed in Chap-

ter3, 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 oence. 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 oence. At the

same time, however, courts never completely abandoned the older idea

that an intoxicated oender 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 oences, which required a more complex form of

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

CRIMIN 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 oences, 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 oences such as manslaughter and assault.

The distinction between general and specif‌ic intent oences has

frequently been critici zed. As examined in Chapter 5, there are di erent

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 rea and how they may be aected by the accused’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 oence. 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 oence 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 oence of assault, which has consistently been clas-

sif‌ied as a general intent oence. The same is true for the specif‌ic intent

oence of murder and the general intent oence 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 oence 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 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 oences classif‌ied as specif‌ic intent

oences. Rather, the extreme intoxication defence would be inconsistent

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

3 [1994] 3 SCR 63.

Intoxication 291

with the accused’s capacity to h ave the minima l intent for oences clas-

sif‌ied as general intent oences 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 the

substitution of becoming voluntarily intoxicated for the fault and volun-

tariness 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 assault. 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 crim-

inal oences, 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 oence “that includes as an ele-

ment an assault or any other interference or threat of interference by

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

followed the pre-Daviault caselaw deeming the fault of becoming vol-

untarily intoxicated as a sucient and substituted form of fault even if

the accused at the time of the commission of the prohibited act “lacked

the basic intent or the voluntariness required” to commit the general

intent violent oence such as manslaughter, sexual assault, 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 stranger in her home while in an unexpected

psychotic state caused by taking magic mushrooms on top of much

alcohol. The Court rearmed that a conviction of an accus ed who acted

involuntarily and without at least criminal 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 substances for the fault of a general intent oence

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 eects of intoxication resulting 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].

5 2022 SCC 18 [Brown].