From Criminal Law Notebook
This page was last substantively updated or reviewed January 2021. (Rev. # 92416)

General Principles

Generally, intoxication does not excuse a criminal act where the accused has the requisite intent. As it were a "drunken intent is nonetheless an intent."[1]

The law recognizes three degrees of intoxication:[2]

  1. Mild Intoxication: alcohol-induced relaxation of inhibitions and acceptable behaviour. This does not affect the mens rea of an offence and requires no special instructions.
  2. Advanced Intoxication: intoxication to the point of the accused lacking any specific intent to an offence. There is an impairment of the accused's foresight of the consequences of his acts, raising a reasonable doubt on the requisite mens rea. This will only apply to specific intent offences. This level of intoxication will vary depending on the necessary specific intent forming the mens rea of the offence.
  3. Extreme Intoxication: intoxication to the point of automatism-like state. This degree of intoxication negates the voluntariness of the accused's actions and would be a complete defence to any criminal act. It is a rare defence that only applies to non-violent offences (as per s. 33.1)
  1. R v Canute, 1993 CanLII 403 (BC CA), 80 CCC (3d) 403, per Wood JA at 49
  2. R v Daley, 2007 SCC 53 (CanLII), [2007] 3 SCR 523, per Bastarache J, at para 41

Jury Instructions

Jury Threshold

Before any defence relating to intoxication can be put to the jury there must be evidence supporting a "reasonable inference" that the accused did not foresee the consequences of their actions due to their level of intoxication. [1] The jury does not need to find that the accused as a fact lacked capacity, only that they are left in doubt as to capacity.[2]

Jury Instruction

In jury trials where this defence is used, the judge must give instruction that "actual" intent to commit the offence was present.[3]

A judge should instruct a jury that there is a common sense inference (not presumption) that a person intends the consequences of their actions. But that "the reasonable common sense inference may be drawn only after an assessment of all of the evidence, including the evidence of intoxication". And further that "the inference cannot be applied if the jury is left with a reasonable doubt about the accused’s intention.."[4]

On a murder trial, where the instruction to the jury relates to intoxication, the jury must be instructed that:[5]

  1. that the evidence of intoxication may rebut the common sense inference, and
  2. if the jury has a reasonable doubt about the accused’s intention it must not apply the common sense inference.

The instruction must also "link the common sense inference to the evidence of impairment and intoxication."[6]

The jury must understand the following:[7]

  1. that they are not bound to draw the inference,
  2. that the inference may only be drawn after a consideration of all the evidence, including the evidence of intoxication, and
  3. that the inference cannot be applied if the jury is left with a reasonable doubt about the accused’s intention
Single vs Two-step Instructions

The instruction should usually be a single-step and should focus should be on intent, not the capacity or capability of the accused.[8] An exception may be made where expert evidence focuses on the question of capacity, in which case a two-step instruction may be more appropriate.[9]

Where a two-step instruction is used, the judge must consider whether there is a "reasonable possibility" that the evidence misleads the jury to believing that capacity is "the only relevant inquiry". To that end, judges should consider:[10]

  1. the number of times that reference to capacity is used;
  2. the number of times that reference to the real inquiry of actual intent is used;
  3. whether there is an additional "incapacity" defence;
  4. the nature of the expert evidence (i.e., whether the expert's evidence relates to the issue of capacity rather than to the effect of alcohol on the brain);
  5. the extent of the intoxication evidence;
  6. whether the defence requested that references to "capacity" be used in the charge to the jury;
  7. whether during a two‑step charge it was made clear that the primary function of the jury was to determine whether they were satisfied beyond a reasonable doubt that the accused possessed the requisite intent to commit the crime.

The law used to follow the rules set out in Public Prosecutions v Beard, [1920] A.C. 479, which states that (1) intoxication is only relevant insofar as it removes the accused's capacity to form the necessary intent and (2) there is a presumption that a person intends the natural consequences of their acts, which can only be rebutted by evidence of incapacity. However, this approach was found not to comply with the Charter as it infringed s. 7 and 11(d) of the Charter of Rights and Freedoms.[11]

  1. R v Lemky, 1996 CanLII 235 (SCC), [1996] 1 SCR 757, per McLachlin J
  2. Lemky, ibid.
  3. Lemky, ibid., at paras 15 to 16
  4. R v Seymour, 1996 CanLII 201 (SCC), [1996] 2 SCR 252, per Cory J, at para 23
  5. R v Kahnapace, 2010 BCCA 227 (CanLII), 255 CCC (3d) 342, per Smith JA, at para 46
  6. R v Szanyi, 2010 ONCA 316 (CanLII), 254 CCC (3d) 528, per Blair JA, at para 22
  7. Szanyi, ibid., at para 22
  8. R v Robinson, 1996 CanLII 233 (SCC), [1996] 1 SCR 683
  9. Robinson, ibid.
  10. Robinson, ibid.
  11. Robinson, supra


Evidence of intoxication should be treated as going jointly to the intent of the offence and the "common sense inference" of intention.[1]

A determination of intoxication must be made "in light of all the circumstances."[2]

An accused advancing an intoxication defence is permitted to testify as to amount of alcohol consumed and the apparent effects it had on them.[3] However, simply establish evidence of consumption of alcohol is not sufficient to rely on intoxication as a defence.[4]

There is no requirement that the accused call expert evidence to establish automatism-like level of intoxication.[5]

  1. R v Carriere, 2001 CanLII 8609 (ON CA), 159 CCC (3d) 51, per Doherty JA
  2. R v Holland, 2013 NBCA 69 (CanLII), 1070 APR 384, per Richard JA, at para 20
  3. R v Daviault, 1994 CanLII 61 (SCC), [1994] 3 SCR 63, per Cory J
  4. Holland, ibid., at para 20
  5. R v SJB, 2002 ABCA 143 (CanLII), 166 CCC (3d) 537, per Berger JA (2:1)


Case Digests