C. The Intoxication Defence for Specific Intent Offences

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

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Since Beard,12it has been possible for an accused to be acquitted of a specific intent offence where evidence of intoxication alone or in com-

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bination with other factors produced a reasonable doubt as to whether he or she had the intent required for the offence. The role of the intoxication defence in relation to specific intent offences has not been as controversial as the possibility that extreme intoxication might be a defence to a general intent offence. The practical reason is that an accused acquitted of a specific intent offence because of intoxication will almost always be convicted of a lesser general intent offence. For example, evidence of intoxication could raise a reasonable doubt to the specific intent of murder, but would normally not be considered in determining whether the accused was guilty of the general intent offence of manslaughter. In George, the accused was acquitted of the specific intent offence of robbery because of intoxication, but was convicted of assault because his intoxication was not so extreme as to prevent the Crown from proving the minimal intent required for that general intent offence.

1) Intent Not Capacity to Commit the Offence

In Beard, the House of Lords referred to evidence of intoxication that would render the accused incapable of forming a specific intent. This seems to require the trier of fact to have a reasonable doubt about whether the accused was capable of forming an intent, whereas general mens rea principles would suggest that the actual intent, not the capacity for intent, should be the issue. Nevertheless, in a long line of cases, Canadian courts followed Beard and held that the issue was whether evidence of drunkenness raised a reasonable doubt as to the accused’s capacity to form a specific intent.13In R. v. Robinson,14the Supreme Court held that the Beard rules violated sections 7 and 11(d) of the Charter because they required the jury to convict even if it had a reasonable doubt about the accused’s actual intent. In other words, the Court was concerned that an accused who was not so intoxicated as to lack the capacity to form the intent may nevertheless have not exercised that capacity and formed the specific intent. A conclusion that evidence of intoxication did not raise a reasonable doubt as to the accused’s capacity to form the specific intent did not lead...

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