D. Liability for the Intoxicated Commission of General Intent Offences

Author:Kent Roach
Profession:Faculty of Law and Centre of Criminology. University of Toronto

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In R. v. Leary,19the Supreme Court followed R. v. Majewski20and decided that intoxication could not be a defence to a general intent offence. In Majewski, Lord Elywn-Jones relied on the controversial proposition that the accused, by becoming voluntarily intoxicated, had committed the mens rea for a general intent offence such as assault causing bodily harm. He stated:

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If a man of his own volition takes a substance which causes him to cast off the restraints of reason and conscience, no wrong is done to him by holding him answerable criminally for any injury he may do while in that condition. His course of conduct in reducing himself by drugs and drink to that condition in my view supplies the evidence of mens rea, of guilty mind certainly sufficient for crimes of basic intent. It is a reckless course of conduct and recklessness is enough to constitute the necessary mens rea in assault cases.21Under this approach, the recklessness of becoming drunk is deemed to be sufficient to supply the fault element for the commission of the particular general intent offence. This creates an exception to the general proposition, examined in chapter 3, that the fault element should occur at the same time as the actus reus. The fault element would be formed not when the assault took place, but before that time while the accused was becoming intoxicated. At the time the assault was committed, the accused would have no fault element. It also creates an exception to the general proposition, examined in chapter 5, that the fault element should be directed towards the actus reus. An extremely intoxicated person may not necessarily have formed the intent to commit the general intent offence while he or she was becoming intoxicated.

In a strong dissent in Leary,22Dickson J. argued that the recklessness in becoming intoxicated was not legally sufficient because "recklessness in a legal sense imports foresight. Recklessness cannot exist in the air; it must have reference to the consequences of a particular act," namely, the crime charged. He argued that the dichotomy between general and specific intent was irrational and that evidence of drunkenness should be left to the jury regardless of the offence charged. "In the case of an intoxicated or drugged accused, the jury may have little difficulty in drawing an inference of intent or recklessness in the relevant sense, but that remains an issue of fact for the jury to determine in each particular...

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