1. Intoxication February 9, 2010

2. The issues The distinction between general and specific intent The distinction between general and specific intent The burden on the Crown to prove Mens rea The burden on the Crown to prove Mens rea What is blameworthy What is blameworthy

3. Defence of Intoxication Refers only to voluntary intoxication Refers only to voluntary intoxication Usually refers to mens rea Usually refers to mens rea Undergone change in the last few years but how much? Undergone change in the last few years but how much? Raises conflicting policy concerns Raises conflicting policy concerns

4. Prior to Daviault Intoxication a limited defence to crimes of specific intent, an entirely judge made concept Intoxication a limited defence to crimes of specific intent, an entirely judge made concept Crimes of specific intent have a purposive element Crimes of specific intent have a purposive element Often crimes of specific intent have included offences Often crimes of specific intent have included offences And, courts refused to allow the defence for rape, sexual assault as crimes of general intent And, courts refused to allow the defence for rape, sexual assault as crimes of general intent

5. Origin of the Defence Rules from Beard(H.L.) Rules from Beard(H.L.) 1. Drunkeness where the accused incapable of forming the specific intent evidence falling short is not sufficient 2. Only to crimes of specific intent, not general intent, rape a general offence (Leary adopts this in Canada)

6. Leary (S.C.C) Rape is an offence of general intent Rape is an offence of general intent Important Dissent on distinction between crimes of general and specific intent -- General intent offences become absolute liability where alcohol prevents formation of intent Important Dissent on distinction between crimes of general and specific intent -- General intent offences become absolute liability where alcohol prevents formation of intent Relieves Crown of proving mens rea Sober accused in better position than drunk accused Cannot simply punish people for drinking too much, although Parliament could create a new crime eg drunk and dangerous

7. Bernard : Argument Distinction specific and general intent irrational, and violates ss 7 and 11 of the Charter, results in absolute liability for offences of general intent Distinction specific and general intent irrational, and violates ss 7 and 11 of the Charter, results in absolute liability for offences of general intent Argument, intoxicated accused can be convicted even though he has no mens rea because he is too drunk Argument, intoxicated accused can be convicted even though he has no mens rea because he is too drunk

8. McIntyre J (with Beetz, J) Legitimate distinction because different level of intent required for gen and spec.p.10-3 Legitimate distinction because different level of intent required for gen and spec.p.10-3 The rule does not convert crimes of general intent into absolute liability p. 10-6, 10-7 The rule does not convert crimes of general intent into absolute liability p. 10-6, 10-7 Can infer mens rea by looking at the conduct, or Can infer mens rea by looking at the conduct, or Fact that person is voluntarily drunk is the blameworthy state!! 10-7 Fact that person is voluntarily drunk is the blameworthy state!! 10-7

9. Wilson, J (with Heureux Dube, J) Agrees that sexual assault causing bodily harm is general intent Agrees that sexual assault causing bodily harm is general intent Agree that in most cases jury can infer mens rea from actus reus Agree that in most cases jury can infer mens rea from actus reus Intent for this offence is minimal, would take intoxication verging on insanity or automatism to negate mens rea (not found here) Intent for this offence is minimal, would take intoxication verging on insanity or automatism to negate mens rea (not found here) Expressly disagrees that self-induced intoxication can be a substitute for mens rea Expressly disagrees that self-induced intoxication can be a substitute for mens rea Not morally innocent but have a right to be protected against disproportionate punishment Not morally innocent but have a right to be protected against disproportionate punishment

10. Dickson, CJC (with Lamer, J) Overall disagreement with distinction between offences of specific intent and general intent Overall disagreement with distinction between offences of specific intent and general intent Question is simply mens rea Question is simply mens rea Crown must prove blameworthy state of mind, intoxication is relevant along with all other evidence Crown must prove blameworthy state of mind, intoxication is relevant along with all other evidence

11. Summary Majority of the judges uphold distinction Majority of the judges uphold distinction Majority of the judges would support putting intox to the jury with extreme intoxication akin to insanity or automatism Majority of the judges would support putting intox to the jury with extreme intoxication akin to insanity or automatism

12. R. v. Daviault Facts: Facts: Accused elderly alcoholic Accused elderly alcoholic Victim elderly woman, partially paralyzed Victim elderly woman, partially paralyzed Accused remembered he drank 7-8 beers in the afternoon, then 1 glass of brandy, empty 35 oz bottle found Accused remembered he drank 7-8 beers in the afternoon, then 1 glass of brandy, empty 35 oz bottle found Toxicologist said this quantity of alcohol would have caused death or coma in an average person Toxicologist said this quantity of alcohol would have caused death or coma in an average person

13. Cory, J (for the Majority) Options:p. 10-15 Options:p. 10-15 1. Keep the Leary rule about the defence 1. Keep the Leary rule about the defence 2. Send intoxication to the jury for all offences 2. Send intoxication to the jury for all offences 3. Intoxication akin to automatism should go to the jury for general intent offences 3. Intoxication akin to automatism should go to the jury for general intent offences

14. Why no Leary Blameworthiness for becoming intoxicated not a sufficient substitute for mr for general intent offence Blameworthiness for becoming intoxicated not a sufficient substitute for mr for general intent offence Intoxication does not inevitably lead to assault p 10-17 Intoxication does not inevitably lead to assault p 10-17

15. Exception carved out Distinction between specific and general intent upheld Distinction between specific and general intent upheld In a small number of cases of extreme intoxication (akin to automatism), violate s. 7 to rule out intoxication for general intent offences In a small number of cases of extreme intoxication (akin to automatism), violate s. 7 to rule out intoxication for general intent offences To deny requirement of even mininal element of intent offends Charter so drastically, cannot be upheld under s. 1 To deny requirement of even mininal element of intent offends Charter so drastically, cannot be upheld under s. 1 P.10-19 P.10-19

16. And then, oddly Burden of proof on the accused to prove he/she was so intoxicated as to be akin to automatism or insanity Burden of proof on the accused to prove he/she was so intoxicated as to be akin to automatism or insanity This may violate s. 11(d) but reasonable under s. 1 This may violate s. 11(d) but reasonable under s. 1

17. Great Public outcry after Daviault Intoxication a defence to sexual assault Intoxication a defence to sexual assault On a constiutional basis On a constiutional basis In very limited circumstances In very limited circumstances Parliament legislated quite quickly by enacting section 33.1 Parliament legislated quite quickly by enacting section 33.1

18. Is the defence of extreme intoxication available to: 1. personation at an examination (s. 404) 1. personation at an examination (s. 404) 2. robbery (s. 343(a)) 2. robbery (s. 343(a)) 3.robbery (s. 343(d)) 3.robbery (s. 343(d)) 4.first-degree murder (ss. 229(a)(i) and 231(2)) 4.first-degree murder (ss. 229(a)(i) and 231(2)) 5. sexual assault with a weapon (s. 272(1)(a) 5. sexual assault with a weapon (s. 272(1)(a)