Criminal Law Notebook

Intoxication

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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)
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. [3] 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.[4]

  1. ↑ R v Canute, 1993 CanLII 403 (BCCA), per Wood JA at 49
  2. ↑ R v Daley, 2007 SCC 53 (CanLII), [2007] 3 SCR 523, per Bastarache J, at para 41
  3. ↑ R v Lemky, [1996] 1 SCR 757, 1996 CanLII 235 (SCC), per McLachlin J
  4. ↑ Lemky, ibid.

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) 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

(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.


– CCC

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]

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.[3]

  1. ↑ R v Bouchard-Lebrun, 2011 SCC 58 (CanLII), [2011] 3 SCR 575, per LeBel J
  2. ↑ Bouchard-Lebrun, ibid.
  3. ↑ 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, per Finch JA
  2. ↑ Rothgordt, ibid., at para 20
  3. ↑ Rothgordt, ibid., at para 20

Evidence

A determination of intoxication must be made "in light of all the circumstances".[1]

An accused advancing an intoxication defence is permitted to testify as to amount of alcohol consumed and the apparent effects it had on them.[2] However, simply establish evidence of consumption of alcohol is not sufficient to rely on intoxication as a defence.[3]

There is no requirement that the accused call expert evidence to establish automatism-like level of intoxication.[4]

  1. ↑ R v Holland, 2013 NBCA 69 (CanLII), per Richard JA, at para 20
  2. ↑ R v Daviault, [1994] 3 SCR 63(complete citation pending)
  3. ↑ Holland, ibid., at para 20
  4. ↑ R v SJB, 2002 ABCA 143 (CanLII), per Berger JA (2:1)

Case Digests

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