Intoxication

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This page was last substantively updated or reviewed January 2021. (Rev. # 76947)

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.
History

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), per Smith JA, at para 46
  6. ↑ R v Szanyi, 2010 ONCA 316 (CanLII), 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

Offences of Violence

Self-induced Intoxication

When defence not available

33.1 (1) It is not a defence to an offence referred to in subsection (3) [criminal fault by reason of intoxication – application] that the accused, by reason of self-induced intoxication, lacked the general intent or the voluntariness required to commit the offence, where the accused departed markedly from the standard of care as described in subsection (2) [criminal fault by reason of intoxication].

Criminal fault by reason of intoxication

(2) For the purposes of this section, a person departs markedly from the standard of reasonable care generally recognized in Canadian society and is thereby criminally at fault where the person, while in a state of self-induced intoxication that renders the person unaware of, or incapable of consciously controlling, their behaviour, voluntarily or involuntarily interferes or threatens to interfere with the bodily integrity of another person.

Application

(3) This section applies in respect of an offence under this Act or any other Act of Parliament that includes as an element an assault or any other interference or threat of interference by a person with the bodily integrity of another person.
1995, c. 32, s. 1.
[annotation(s) added]

– CCC

Note up: 33.1(1), (2) and (3)

Section 33.1 will exclude intoxication as a defence for general intent offences or involuntariness due to intoxication where the following conditions are met:[1]

  1. the accused was intoxicated at the time of the offence;
  2. the intoxication was self-induced; and
  3. the accused departed from the standard of reasonable care generally recognized in Canadian society by interfering or threatening to interfere with the bodily integrity of another person

This section applies to any mental condition that arises directly from a state of intoxication, including toxic psychosis.[2]

There is "no specific level of intoxication associated with either the defence of extreme intoxication [under s. 33.1] or negating the intent for second degree murder".[3]

Where both s. 33.1 and common law intoxication defences are at issue, it is "preferable for the trial judge to have explicitly instructed the jury that the level of intoxication required to negate the specific intent to kill could be less than intoxication akin to automatism".[4]

Constitutionality

In Ontario, s. 33.1 was found to be unconstitutional for violating s. 7 and 11(d) of the Charter and is of no force or effect.[5]

  1. ↑ R v Bouchard-Lebrun, 2011 SCC 58 (CanLII), [2011] 3 SCR 575, per LeBel J
  2. ↑ Bouchard-Lebrun, ibid.
  3. ↑ R v Jensen, 2005 CanLII 7649 (ONCA), per Simmons and Laforme JJA, at para 22
  4. ↑ Jensen, ibid., at para 22
  5. ↑ R v McCaw, 2018 ONSC 3464 (CanLII), per Spies J

Murder

See also: Provocation

Where the accused raises the defence of both intoxication and provocation in the context of a murder trial, the judge must ensure that the jury does not confuse the differences between the two defences.[1] A jury should be instructed on intoxication first, specifically on the logical connection between intoxication and the relevant intent for murder. If intoxication raises a doubt, then provocation does not need to be considered. It is only where the requisite intent for murder is found should the jury then consider whether provocation applies.[2] Any instruction on provocation should include consideration of the effect any intoxication may have on the accused.[3]

  1. ↑ R v Rothgordt, 2013 BCCA 37 (CanLII), per Finch JA
  2. ↑ Rothgordt, ibid., at para 20
  3. ↑ Rothgordt, ibid., at para 20

Evidence

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), 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), per Berger JA (2:1)

Case Digests

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