R. v. Daviault

R. v. Daviault
Collection
Supreme Court Judgments
Date
1994-09-30
Report
[1994] 3 SCR 63
Case number
23435
Judges
Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.
On appeal from
Quebec
Subjects
Constitutional law
Criminal law
Notes
SCC Case Information: 23435
Decision Content
R. v. Daviault, [1994] 3 S.C.R. 63
Henri Daviault Appellant
v.
Her Majesty The Queen Respondent
Indexed as: R. v. Daviault
File No.: 23435.
1994: February 4; 1994: September 30.
Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
on appeal from the court of appeal for quebec
Criminal law ‑‑ Sexual assault ‑‑ Mens rea ‑‑ Intoxication ‑‑ Accused acquitted of sexual assault on account of his extreme intoxication at time of incident ‑‑ Acquittal overturned on appeal ‑‑ Whether evidence of extreme intoxication tantamount to state of automatism can negative intent required for general intent offence.
Constitutional law ‑‑ Charter of Rights ‑‑ Fundamental justice ‑‑ Accused acquitted of sexual assault on account of his extreme intoxication at time of incident ‑‑ Acquittal overturned on appeal ‑‑ Whether rule that mental element of general intent offence cannot be negated by drunkenness violates principles of fundamental justice ‑‑ If so, whether infringement justifiable ‑‑ Canadian Charter of Rights and Freedoms, ss. 1 , 7 .
Constitutional law ‑‑ Charter of Rights ‑‑ Presumption of innocence ‑‑ Accused acquitted of sexual assault on account of his extreme intoxication at time of incident ‑‑ Acquittal overturned on appeal ‑‑ Whether rule that mental element of general intent offence cannot be negated by drunkenness violates presumption of innocence ‑‑ If so, whether infringement justifiable ‑‑ Canadian Charter of Rights and Freedoms, ss. 1 , 11 (d).
The complainant, a 65‑year‑old woman who is partially paralysed and thus confined to a wheelchair, knew the accused through his wife. At about 6:00 p.m. one evening, at her request, the accused arrived at her home carrying a 40‑ounce bottle of brandy. The complainant drank part of a glass of brandy and then fell asleep in her wheelchair. When she awoke during the night to go to the bathroom, the accused appeared, grabbed her chair, wheeled her into the bedroom, threw her on the bed and sexually assaulted her. He left the apartment at about 4:00 a.m. The complainant subsequently discovered that the bottle of brandy was empty. The trial judge found as a fact that the accused had drunk the rest of the bottle between 6:00 p.m. and 3:00 a.m. The accused was a chronic alcoholic. He testified that he had spent the day at a bar where he had consumed seven or eight bottles of beer. He recalled having a glass of brandy upon his arrival at the complainant's residence but had no recollection of what occurred between then and when he awoke nude in the complainant's bed. He denied sexually assaulting her. The pharmacologist called by the defence as an expert witness testified that an individual with the blood‑alcohol ratio he hypothesized the accused would have had after consuming that amount of alcohol might suffer a blackout. In such a state the individual loses contact with reality and the brain is temporarily dissociated from normal functioning. The individual has no awareness of his actions when he is in such a state and will likely have no memory of them the next day. The trial judge found as a fact that the accused had committed the offence as described by the complainant, but acquitted him because he had a reasonable doubt about whether the accused, by virtue of his extreme intoxication, had possessed the minimal intent necessary to commit the offence of sexual assault. The Court of Appeal allowed the Crown's appeal and ordered that a verdict of guilty be entered. It held that the defence of self‑induced intoxication resulting in a state equal to or akin to automatism or insanity is not available as a defence to a general intent offence.
Held (Sopinka, Gonthier and Major JJ. dissenting): The appeal should be allowed and a new trial ordered.
Per L'Heureux‑Dubé, Cory, McLachlin and Iacobucci JJ.: The strict application of the rule established in this Court's decision in Leary that the mens rea of a general intent offence cannot be negated by drunkenness offends both ss. 7 and 11 (d) of the Canadian Charter of Rights and Freedoms . The mental aspect of an offence has long been recognized as an integral part of crime, and to eliminate it would be to deprive an accused of fundamental justice. The mental element in general intent offences may be minimal; in this case it is simply an intention to commit the sexual assault or recklessness as to whether the actions will constitute an assault. The necessary mental element can ordinarily be inferred from the proof that the assault was committed by the accused, but the substituted mens rea of an intention to become drunk cannot establish the mens rea to commit the assault. Moreover, the presumption of innocence requires that the Crown bear the burden of establishing all elements of a crime, including the mental element of voluntariness. Assuming that voluntary intoxication is reprehensible, it does not follow that its consequences in any given situation are either voluntary or predictable. Further, self‑induced intoxication cannot supply the necessary link between the minimal mens rea required for the offence and the actus reus. To deny that even a very minimal mental element is required for sexual assault offends the Charter in a manner that is so drastic and so contrary to the principles of fundamental justice that it cannot be justified under s. 1 of the Charter . The experience of other jurisdictions which have completely abandoned the Leary rule, coupled with the fact that under the proposed approach, the defence would be available only in the rarest of cases, demonstrate that there is no urgent policy or pressing objective which need to be addressed. Studies on the relationship between intoxication and crime do not establish any rational link. Finally, as the Leary rule applies to all crimes of general intent, it cannot be said to be well tailored to address a particular objective and it would not meet either the proportionality or the minimum impairment requirements.
The flexible approach suggested by Wilson J. in Bernard, whereby evidence of intoxication could properly go before a jury in general intent offences if it demonstrated such extreme intoxication that there was an absence of awareness which was akin to a state of insanity or automatism, should be adopted. Given the minimal nature of the mental element required for crimes of general intent, even those who are significantly drunk will usually be able to form the requisite mens rea and will be found to have acted voluntarily. Extreme intoxication akin to automatism or insanity should, like insanity, be established by the accused on a balance of probabilities. It will only be on rare occasions that evidence of such an extreme state of intoxication can be advanced. While such a burden constitutes a violation of the accused's rights under s. 11 (d) of the Charter , it can be justified under s. 1 . It is only the accused who can give evidence as to the amount of alcohol consumed and its effect upon him. Expert evidence would be required to confirm that the accused was probably in a state akin to automatism or insanity as a result of his drinking.
Should it be thought that the mental element involved relates to the actus reus rather than the mens rea, the result must be the same. The actus reus requires that the prohibited criminal act be performed voluntarily as a willed act. A person in a state of automatism cannot perform a voluntary willed act, and someone in an extreme state of intoxication akin to automatism must also be deprived of that ability. It would equally infringe s. 7 of the Charter if an accused who was not acting voluntarily could be convicted of a criminal offence. Here again the voluntary act of becoming intoxicated cannot be substituted for the voluntary action involved in sexual assault. To convict in the face of such a fundamental denial of natural justice could not be justified under s. 1 of the Charter .
Per Lamer C.J.: Cory J.'s position on the law was agreed with, and the carving out of an exception to the rule laid down in Leary was supported.
Per La Forest J.: Dickson C.J.'s view in Bernard and Quin which strongly challenged the rule in Leary having been rejected by a majority of the Court, Wilson J.'s approach in that case as developed in Cory J.'s reasons was preferred.
Per Sopinka, Gonthier and Major JJ. (dissenting): This Court's decision in Leary still stands for the proposition that evidence of intoxication can provide a defence for offences of specific intent but not for offences of general intent. Since sexual assault is a crime of general intent, intoxication is no defence. This rule is supported by sound policy considerations. One of the main purposes of the criminal law is to protect the public. Society is entitled to punish those who of their own free will render themselves so intoxicated as to pose a threat to other members of the community. The fact that an accused has voluntarily consumed intoxicating amounts of drugs or alcohol cannot excuse the commission of a criminal offence unless it gives rise to a mental disorder within the terms of s. 16 of the Criminal Code .
Since the Leary rule does not relieve the Crown of the responsibility of proving the existence of a mens rea or any of the other elements of the offence of sexual assault which are required by the principles of fundamental justice, it does not violate s. 7 or s. 11 (d) of the Charter . While this is one of the rare cases in which the accused was sufficiently intoxicated to raise a reasonable doubt as to whether he intended to commit the offence of sexual assault, none of the relevant principles of fundamental justice require that the intent to perform the actus reus of an offence of general intent be an element of the offence. The requirements of the principles of fundamental justice are satisfied by proof that the accused became voluntarily intoxicated. The general rule that the mental fault element of a crime must extend to the actus reus, including consequences forming part thereof, is subject to exceptions. The principles of fundamental justice can exceptionally be satisfied provided the definition of the offence requires that a blameworthy mental element be proved and that the level of blameworthiness not be disproportionate to the seriousness of the offence. These requirements are satisfied in this case. Individuals who render themselves incapable of knowing what they are doing through the voluntary consumption of alcohol or drugs possess a sufficiently blameworthy state of mind that their imprisonment does not offend the principle of fundamental justice which prohibits imprisonment of the innocent. Those found guilty of committing sexual assault are rightfully submitted to a significant degree of moral opprobrium, and that opprobrium is not misplaced in the case of the intoxicated offender. While as a general rule an act must be the voluntary act of an accused in order for the actus reus to exist, the rules of fundamental justice are satisfied by a showing that the drunken state was attained through the accused's own blameworthy conduct. Finally, although distinguishing between offences of specific and general intent may lead to some illogical results, the underlying policy of the Leary rule is sound. Rather than jettisoning the rule, the Court should clarify the distinction by clearly identifying and defining the mental element of offences. It can then be determined whether applying the criteria for the identification of offences of specific and general intent in a particular case serves the public interest in punishing the offender notwithstanding the absence of the mens rea associated with the offence.
Cases Cited
By Cory J.
Considered: Leary v. The Queen, [1978] 1 S.C.R. 29; R. v. Bernard, [1988] 2 S.C.R. 833; not followed: R. v. O'Connor (1980), 4 A. Crim. R. 348; R. v. Kamipeli, [1975] 2 N.Z.L.R. 610; S. v. Chretien, [1981] S.A. 1097; referred to: R. v. Théroux, [1993] 2 S.C.R. 5; R. v. Parks, [1992] 2 S.C.R. 871; Rabey v. The Queen, [1980] 2 S.C.R. 513; R. v. George, [1960] S.C.R. 871; Swietlinski v. The Queen, [1980] 2 S.C.R. 956; R. v. Chase, [1987] 2 S.C.R. 293; R. v. Quin, [1988] 2 S.C.R. 825; Director of Public Prosecutions v. Majewski, [1977] A.C. 443; R. v. Penno, [1990] 2 S.C.R. 865; R. v. Whyte, [1988] 2 S.C.R. 3; R. v. Vaillancourt, [1987] 2 S.C.R. 636; Revelle v. The Queen, [1981] 1 S.C.R. 576; R. v. DeSousa, [1992] 2 S.C.R. 944; R. v. Creighton, [1993] 3 S.C.R. 3; R. v. Swain, [1991] 1 S.C.R. 933; Director of Public Prosecutions v. Beard, [1920] A.C. 479; R. v. Chaulk, [1990] 3 S.C.R. 1303.
By Lamer C.J.
Referred to: R. v. Bernard, [1988] 2 S.C.R. 833; Leary v. The Queen, [1978] 1 S.C.R. 29.
By La Forest J.
Referred to: R. v. Bernard, [1988] 2 S.C.R. 833; R. v. Quin, [1988] 2 S.C.R. 825; Leary v. The Queen, [1978] 1 S.C.R. 29.
By Sopinka J. (dissenting)
Leary v. The Queen, [1978] 1 S.C.R. 29; R. v. Bernard, [1988] 2 S.C.R. 833; R. v. Charest (1990), 57 C.C.C. (3d) 312; R. v. Ciciola, J.E. 90‑629; R. v. Penno, [1990] 2 S.C.R. 865; R. v. George, [1960] S.C.R. 871; Director of Public Prosecutions v. Beard, [1920] A.C. 479; Attorney‑General for Northern Ireland v. Gallagher, [1963] A.C. 349; Bratty v. Attorney‑General for Northern Ireland, [1963] A.C. 386; Director of Public Prosecutions v. Majewski, [1977] A.C. 443; R. v. Chase, [1987] 2 S.C.R. 293; Swietlinski v. The Queen, [1980] 2 S.C.R. 956; R. v. Creighton, [1993] 3 S.C.R. 3; R. v. Martineau, [1990] 2 S.C.R. 633; R. v. Parks, [1992] 2 S.C.R. 871; R. v. Théroux, [1993] 2 S.C.R. 5; R. v. Doherty (1887), 16 Cox C.C. 306; R. v. Tolson (1889), 23 Q.B.D. 168; People v. Hood, 462 P.2d 370 (1969); Pappajohn v. The Queen, [1980] 2 S.C.R. 120; Sansregret v. The Queen, [1985] 1 S.C.R. 570; R. v. Bulmer, [1987] 1 S.C.R. 782; R. v. Robertson, [1987] 1 S.C.R. 918; R. v. Osolin, [1993] 4 S.C.R. 595; R. v. Moreau (1986), 26 C.C.C. (3d) 359; R. v. Murray (1986), 31 C.C.C. (3d) 323; R. v. Revelle (1979), 48 C.C.C. (2d) 267, aff'd [1981] 1 S.C.R. 576; R. v. Hartridge, [1967] 1 C.C.C. 346; Rabey v. The Queen, [1980] 2 S.C.R. 513, aff'g (1977), 37 C.C.C. (2d) 461; R. v. Malcolm (1989), 50 C.C.C. (3d) 172; R. v. Mailloux (1985), 25 C.C.C. (3d) 171, aff'd [1988] 2 S.C.R. 1029; R. v. Hilton (1977), 34 C.C.C. (2d) 206; Cooper v. The Queen, [1980] 1 S.C.R. 1149.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 1 , 7 , 11 (d).
Criminal Code, R.S.C., 1985, c. C‑46, ss. 16 , 686(1) (b)(iii), 691(2) (a).
Authors Cited
American Jurisprudence, vol. 21, 2nd ed., "Criminal Law". Rochester: Lawyers Co-operative, 1981.
Beaumont, S. J. "Drunkenness and Criminal Responsibility ‑‑ Recent English Experience" (1976), 54 Can. Bar Rev. 777.
Berner, S. H. Intoxication and Criminal Responsibility. Ottawa: Law Reform Commission of Canada, 1975.
Canada. Commission of Inquiry into the Non‑Medical Use of Drugs. Interim Report. Ottawa: Queen's Printer, 1970.
Canada. Law Reform Commission. Recodifying Criminal Law, vol. 1. Report 30. Ottawa: The Commission, 1986.
Cavender, S. J. "The Lords Against Majewski and the Law" (1989), 21 Bracton L.J. 9.
Colvin, Eric. "A Theory of the Intoxication Defence" (1981), 59 Can. Bar Rev. 750.
Covington, Stephanie S. "Alcohol and Family Violence". In Alcohol, Drugs and Tobacco: An International Perspective ‑‑ Past, Present and Future. Proceedings of the 34th International Congress on Alcoholism and Drug Dependence, vol. 1, 15. Calgary: Alberta Alcohol and Drug Abuse Commission, 1985.
Dashwood, Alan. "Logic and the Lords in Majewski", [1977] Crim. L.R. 532, 591.
Farrier, David. "Intoxication: Legal Logic or Common Sense?" (1976), 39 Modern L. Rev. 578.
Gardner, Simon. "The Importance of Majewski" (1994), 14 Oxford J. Legal Stud. 279.
Goode, Matthew. "Some Thoughts on the present state of the "Defence" of Intoxication" (1984), 8 Crim. L.J. 104.
Great Britain. Law Commission. Intoxication and Criminal Liability. Consultation Paper No. 127. London: HMSO, 1993.
Healy, Patrick. Case Comment on R. v. Penno (1992), 71 Can. Bar Rev. 143.
Healy, Patrick. "R. v. Bernard: Difficulties with Voluntary Intoxication" (1990), 35 McGill L.J. 610.
McCord, David. "The English and American History of Voluntary Intoxication to Negate Mens Rea" (1990), 11 J. Legal Hist. 372.
Mewett, Alan W., and Morris Manning. Criminal Law, 2nd ed. Toronto: Butterworths, 1985.
Mitchell, Chester N. "The Intoxicated Offender ‑‑ Refuting the Legal and Medical Myths" (1988), 11 Int. J. L. & Psychiatry 77.
Orchard, Gerald F. "Criminal Responsibility and Intoxication ‑‑ The Australian Rejection of Majewski", [1980] N.Z.L.J. 532.
Orchard, Gerald F. "Surviving without Majewski ‑‑ A View from Down Under", [1993] Crim. L.R. 426.
Quigley, Tim. "A Shorn Beard" (1987), 10:3 Dalhousie L.J. 167.
Quigley, Tim. "Reform of the Intoxication Defence" (1987), 33 McGill L.J. 1.
Quigley, Tim. "Specific and General Nonsense?" (1987), 11 Dalhousie L.J. 75.
Quigley, Tim, and Allan Manson. "Bernard on Intoxication: Principle, Policy and Points In Between ‑‑ Two Comments" (1989), 67 C.R. (3d) 168, 173.
Saskatchewan. Alcohol and Drug Abuse Commission. Legal Offences in Saskatchewan: The Alcohol and Drug Connection. Research Report, February 1989.
Schabas, Paul B. "Intoxication and Culpability: Towards an Offence of Criminal Intoxication" (1984), 42 U.T. Fac. L. Rev. 147.
"Self‑induced Intoxication and Criminal Responsibility" (1985), 58 Aust. L.J. 70.
Singh, R. U. "History of the Defence of Drunkenness in English Criminal Law" (1933), 49 L.Q. Rev. 528.
Smith, George. "Footnote to O'Connor's Case" (1981), 5 Crim. L.J. 270.
Smith, J. C., and Brian Hogan. Criminal Law, 7th ed. London: Butterworths, 1992.
Stuart, Don. Canadian Criminal Law: A Treatise, 2nd ed. Carswell: Toronto, 1987.
Thornton, Mark T. "Making Sense of Majewski" (1981), 23 Crim. L.Q. 464.
United Kingdom. Home Office. Department of Health and Social Security. Report of the Committee on Mentally Abnormal Offenders. Cmnd. 6244. London: HMSO 1975.
Virgo, Graham. "The Law Commission Consultation Paper on Intoxication and Criminal Liability ‑‑ (1) Reconciling Principle and Policy", [1993] Crim. L.R. 415.
Wolff, Lee, and Bryan Reingold. "Drug Use and Crime" (1994), 14:6 Juristat 1.
APPEAL from a judgment of the Quebec Court of Appeal, [1993] R.J.Q. 692, 80 C.C.C. (3d) 175, 19 C.R. (4th) 291, 54 Q.A.C. 27, setting aside the accused's acquittal by Grenier Q.C.J., [1991] R.J.Q. 1794, on a charge of sexual assault. Appeal allowed, Sopinka, Gonthier and Major JJ. dissenting.
Giuseppe Battista, for the appellant.
Claude Provost, for the respondent.
The following are the reasons delivered by
Lamer C.J. -- I have read the reasons of my colleagues, Justice Sopinka and Justice Cory. My views of the matter were enunciated through my concurrence in the reasons of Dickson C.J. in R. v. Bernard, [1988] 2 S.C.R. 833. While I now prefer characterizing the mental element involved as relating more to the actus reus than the mens rea, so that the defence clearly be available in strict liability offences, my views have not changed. I agree with my colleague Cory J.'s position on the law and, given my position in Bernard, which goes much further, I would of course support carving out, as he does, an exception to the rule laid down in Leary v. The Queen, [1978] 1 S.C.R. 29. I would accordingly allow the appeal and direct a new trial.
The following are the reasons delivered by
La Forest J. -- In R. v. Bernard, [1988] 2 S.C.R. 833, as well as in R. v. Quin, [1988] 2 S.C.R. 825, I, along with the Chief Justice, shared the view of then Chief Justice Dickson which strongly challenged the rule in Leary v. The Queen, [1978] 1 S.C.R. 29. While the majority of the Court differed as to the specific interpretation of Leary, what is clear is that they rejected the view espoused by Dickson C.J. I am, therefore, left to choose between the approach set forth in McIntyre J.'s reasons in that case, developed here by Justice Sopinka, and those of Justice Wilson, developed here by Justice Cory. Of the two, I prefer the latter and accordingly (though I would be inclined to attribute the mental element he describes as going to the actus reus) I concur in the reasons of Cory J. and would dispose of this appeal in the manner proposed by him.
The judgment of L'Heureux-Dubé, Cory, McLachlin and Iacobucci JJ. was delivered by
Cory J. --
Issue
Can a state of drunkenness which is so extreme that an accused is in a condition that closely resembles automatism or a disease of the mind as defined in s. 16 of the Criminal Code, R.S.C., 1985, c. C‑46 , constitute a basis for defending a crime which requires not a specific but only a general intent? That is the troubling question that is raised on this appeal.
The facts of this case and the judgments below are set out in the reasons of Justice Sopinka. Although I agree with my colleague on a number of issues, I cannot agree with his conclusion that it is consistent with the principles of fundamental justice and the presumption of innocence for the courts to eliminate the mental element in crimes of general intent. Nor do I agree that self‑induced intoxication is a sufficiently blameworthy state of mind to justify culpability, and to substitute it for the mental element that is an essential requirement of those crimes. In my opinion, the principles embodied in our Canadian Charter of Rights and Freedoms , and more specifically in ss. 7 and 11 (d), mandate a limited exception to, or some flexibility in, the application of the Leary rule. This would permit evidence of extreme intoxication akin to automatism or insanity to be considered in determining whether the accused possessed the minimal mental element required for crimes of general intent.
Analysis
As this case involves the reconsideration of a common law principle in light of more recent developments in the principles of criminal law and particularly the enactment of the Charter , it may be useful to begin with a brief review of the historical development of the relevant criminal law concepts. As well, it will be helpful to outline the various options adopted and suggested with respect to intoxication as a factor in determining whether an accused possessed the mental element required by the crime.
The Physical and Mental Aspects of Criminal Acts
Originally a crime was considered to be the commission of a physical act which was specifically prohibited by law. It was the act itself which was the sole element of the crime. If it was established that the act was committed by the accused then a finding of guilt would ensue. However, as early as the twelfth century, in large part through the influence of the canon law, it was established that there must also be a mental element combined with the prohibited act to constitute a crime. That is to say that the accused must have meant or intended to commit the prohibited act. The physical act and the mental element which together constitute a crime came to be known as the actus reus denoting the act, and the mens rea for the mental element. Like so many maxims they are imprecise and in many instances misleading.
For my purposes it is sufficient to say that for a great many years it has been understood that, unless the legislator provides otherwise, a crime must consist of the following elements. First, a physical element which consists of committing a prohibited act, creating a prohibited state of affairs, or omitting to do that which is required by the law. Second, the conduct in question must be willed; this is usually referred to as voluntariness. Some writers classify this element as part of the actus reus, others prefer to associate it with mens rea; however, all seem to agree that it is required. (See, generally, J. C. Smith and B. Hogan, Criminal Law (7th ed. 1992), at pp. 37 ff.) If persons other than lawyers were asked what constituted willed or voluntary conduct they would respond that such an act or conduct must involve a mental element. It is the mental element, that is the act of will, which makes the act or conduct willed or voluntary. In R. v. Théroux, [1993] 2 S.C.R. 5, at p. 17, McLachlin J. had this to say concerning the actus reus:
The term mens rea, properly understood, does not encompass all of the mental elements of a crime. The actus reus has its own mental element; the act must be the voluntary act of the accused for the actus reus to exist. Mens rea, on the other hand, refers to the guilty mind, the wrongful intention, of the accused. Its function in criminal law is to prevent the conviction of the morally innocent ‑‑ those who do not understand or intend the consequences of their acts. Typically, mens rea is concerned with the consequences of the prohibited actus reus.
Similarly, in R. v. Parks, [1992] 2 S.C.R. 871, at p. 896, La Forest J. quoted the following passage from the dissenting reasons of Dickson J. (as he then was) in Rabey v. The Queen, [1980] 2 S.C.R. 513, at p. 522:
Although the word "automatism" made its way but lately to the legal stage, it is basic principle that absence of volition in respect of the act involved is always a defence to a crime. A defence that the act is involuntary entitles the accused to a complete and unqualified acquittal. That the defence of automatism exists as a middle ground between criminal responsibility and legal insanity is beyond question. Although spoken as a defence, in the sense that it is raised by the accused, the Crown always bears the burden of proving a voluntary act.
The definition of actus reus is thus established. Yet I should add that, as will be seen later, the mental aspect involved in willed or voluntary conduct may overlap to some extent in both the concept of mens rea and actus reus. Finally, then there must be a contemporaneous mental element comprising an intention to carry out the prohibited physical act or omission to act; that is to say a particular state of mind such as the intent to cause, or some foresight of, the results of the act or the state of affairs.
With this concept of a crime established it soon came to be accepted that in certain situations a person who committed a prohibited physical act still could not be found guilty. A number of examples come to mind. For instance, if a person in a state of automatism as a result of a blow on the head committed a prohibited act that he was not consciously aware of committing, he could not be found guilty since the mental element involved in committing a willed voluntary act and the mental element of intending to commit the act were absent. Thus neither the requisite actus reus or mens rea for the offence was present. The result would be the same in the case of a person who had an unexpected reaction to medication which rendered him totally unaware of his actions. Similarly, if an accused, during an epileptic seizure, with no knowledge of what he was doing, shot and killed a victim, he could not be found guilty of murder since both the ability to act voluntarily and the mental element of the intention to kill were absent. In all these instances the accused simply could not have formed the requisite intention to commit the prohibited act. Further, it was long ago recognized that a person suffering from a mental illness coming within the scope of what is now s. 16 of the Criminal Code could not be found guilty. That result may have arisen either from the recognition of the inability of a mentally ill accused to form the requisite intention, or from the realization that the nature and quality of the prohibited act was not appreciated by the accused.
A review of the history of the defence of intoxication shows that, originally, intoxication was never a defence to any crime. However, with the evolution of criminal law, this rule came to be progressively relaxed and the defence of intoxication was admitted for crimes of specific intent. Although one of the justifications for this was the courts' preoccupation with the harshness of criminal liability and criminal sanctions, clearly this development was also influenced by the development of the requirements for mental elements in crimes. The defence of intoxication was based on the recognition and belief that alcohol affected mental processes and the formulation of intention (see, for example, D. McCord, "The English and American History of Voluntary Intoxication to Negate Mens Rea" (1990), 11 J. Legal Hist. 372, at p. 378). I would agree with the authors who feel that the progressive expansion of the intoxication defence has paralleled the progressive expansion of theories of the mental elements of crimes. (See, for example, T. Quigley, "A Shorn Beard" (1987), 10:3 Dalhousie L.J. 167.) In my view, the need for this historical expansion is justified and emphasized by the increased concern for the protection of fundamental rights enshrined in the Charter .
It can thus be seen that with the development of principles recognizing constituent elements of crimes, particularly the need for a mental element, there came the realization that persons who lack the requisite mental element for a crime should not be found guilty of committing that crime. For centuries it has been recognized that both the physical and the mental elements are an integral part of a criminal act. It has long been a fundamental concept of our criminal law.
This appeal is concerned with situations of intoxication that are so extreme that they are akin to automatism. Such a state would render an accused incapable of either performing a willed act or of forming the minimal intent required for a general intent offence. I will approach the issue primarily on the basis that the extreme intoxication renders an accused incapable of forming the requisite minimum intent. I have taken the reasons of Sopinka J. to have dealt with the issue on the basis of mens rea.
Categorization of Crimes as Requiring Either a Specific Intent or a General Intent
The distinction between crimes of specific and general intent has been acknowledged and approved by this Court on numerous occasions. (See R. v. George, [1960] S.C.R. 871, at p. 877 (Fauteux J.); and subsequent cases such as Leary v. The Queen, [1978] 1 S.C.R. 29; Swietlinski v. The Queen, [1980] 2 S.C.R. 956; R. v. Chase, [1987] 2 S.C.R. 293; R. v. Bernard, [1988] 2 S.C.R. 833; and R. v. Quin, [1988] 2 S.C.R. 825.) On this issue, I am in general agreement with Sopinka J.'s presentation. The categorization of crimes as being either specific or general intent offences and the consequences that flow from that categorization are now well established in this Court. However, as he observes, we are not dealing here with ordinary cases of intoxication but with the limited situation of very extreme intoxication and the need, under the Charter , to create an exception in situations where intoxication is such that the mental element is negated. Sopinka J. sees no need for such an exception. This is where I must disagree with my colleague.
It may now be convenient to review the approach that courts have taken with regard to drunkenness as a factor in considering the mental element in crimes of general intent.
Drunkenness as a Factor in the Consideration of Criminal Liability
This issue has been the subject of many judicial decisions in Commonwealth countries. It is useful here to contrast the two opposite positions which have emerged in the absence of Charter considerations. The first position is illustrated by the decision of this Court in Leary, supra, and also corresponds to the English position. The second position is that which prevails in Australia and New Zealand. It is best illustrated by the O'Connor decision, (1980), 4 A. Crim. R. 348 .
Leary v. The Queen
Leary was charged with rape. In the course of his instructions, the trial judge advised the jury that "drunkenness is no defence to a charge of this sort". This position was taken on the grounds that rape was a crime of general intent and that in such a crime, the mental element could not be negated by drunkenness. The majority in this Court confirmed that rape was indeed a crime of general intent and that the mens rea could not be affected by drunkenness. They relied upon Director of Public Prosecutions v. Majewski, [1977] A.C. 443. There, the House of Lords held that, unless the offence was one which required proof of a specific intent, it was no defence to a criminal charge that, by reason of self‑induced intoxication, the accused did not intend to do the act which constituted the offence. A charge to the jury to that effect was approved.
The minority (Dickson J., with Laskin C.J. and Spence J. concurring) would have required that the jury be satisfied that the accused knew the victim was not consenting or was reckless as to whether she was or not. On that issue it was said that drunkenness was an element that the jury could properly take into account in resolving the question. It was their position that drunkenness should be left to the jury, along with all the other relevant evidence, in deciding whether the accused knew the victim was not consenting.
The supporters of the Leary decision are of the view that self‑induced intoxication should not be used as a means of avoiding criminal liability for offences requiring only a general intent. They contend that society simply cannot afford to take a different position since intoxication would always be the basis for a defence despite the fact that the accused had consumed alcohol with the knowledge of its possible aggravating effects. Supporters of the Leary decision argue that to permit such a defence would "open the floodgates" for the presentation of frivolous and unmeritorious defences.
Those who oppose the decision contend that it punishes an accused for being drunk by illogically imputing to him liability for a crime committed when he was drunk. Further, it is said that the effect of that decision is to deny an accused person the ability to negate his very awareness of committing the prohibited physical acts. That is to say the accused might, as a result of his drinking, be in a state similar to automatism and thus completely unaware of his actions, yet he would be unable to put this forward as a factor for the jury to consider because his condition arose from his drinking. In such cases, the accused's intention to drink is substituted for the intention to commit the prohibited act. This result is said to be fundamentally unfair. Further, it is argued that the floodgates argument should not have been accepted because juries would not acquit unless there was clear evidence that the drunkenness was of such a severity that they had a reasonable doubt as to whether the accused was even aware that he had committed the prohibited act. (See, for example, Mewett and Manning, Criminal Law (2nd ed. 1985), at pp. 214‑15.)
The O'Connor Case ‑ A Position Taken Contrary to Leary
O'Connor, supra, is a decision of the High Court of Australia. O'Connor was seen removing a map holder and a knife from a car. A police officer saw him, identified himself and asked O'Connor why he had taken the articles. O'Connor ran away with the officer in pursuit. When he was arrested, O'Connor stabbed the officer with the knife. He was charged with theft of the map holder and knife and wounding with intent to inflict grievous bodily harm. O'Connor testified that he had consumed alcohol and car sickness tablets before these events and stated that he had no memory either of taking anything from the car or of his subsequent arrest. Medical evidence was given that the combined effect of the tablets and alcohol could have produced such a state of intoxication that O'Connor would have been incapable of reasoning or forming an intent to steal or wound. The trial judge directed the jury, in accordance with Majewski, supra, that evidence of self‑induced intoxication, although relevant in determining whether the accused had acted with intent to steal or to inflict grievous bodily harm, was not relevant with respect to the included alternative offence of unlawful and malicious wounding. O'Connor was acquitted on the charges of theft and wounding with intent and convicted of the included offence of unlawful wounding.
O'Connor appealed the conviction to a court of criminal appeal which declined to follow Majewski, supra, and quashed the conviction. The Attorney General for Victoria then appealed to the High Court.
There, the majority upheld the decision of the Court of Appeal. They concluded that for all offences requiring proof of a mental element, evidence of intoxication, whether self‑induced or not, was relevant and admissible in determining whether the requisite mental element was present. The majority went on to observe that evidence of intoxication which merely tends to establish loss of inhibition or weakening of the capacity for self‑control would not provide a basis for denying that the mental element of an offence was present. However, where there was evidence that the accused was unconscious or that his mind was a blank through drunkenness at the time of the offence, this should be left to the jury in resolving the question as to whether there had been a voluntary act on the part of the accused.
Earlier, the Court of Appeal of New Zealand in R. v. Kamipeli, [1975] 2 N.Z.L.R. 610, came to a similar conclusion. Thus, the courts of Australia and New Zealand have come to a conclusion that is diametrically opposed to that reached in Majewski and Leary. This also appears to be the case in South Africa. See S. v. Chretien, [1981] S.A. 1097 (A).
Following the decision of this Court in Leary, important changes have occurred in the evolution of criminal law principles. Many of these changes were prompted by the enactment of the Charter . It must now be seen whether, as a result of the passage of the Charter or the reasoning in subsequent cases of this Court, some modification of the rule established by Leary is required.
Passage of the Charter and Subsequent Cases of this Court
The passage of the Charter makes it necessary to consider whether the decision in Leary contravenes s. 7 or s. 11 (d) of the Charter . Those sections provide:
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
11. Any person charged with an offence has the right
. . .
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;
There have been some statements by this Court which indicate that one aspect of the decision in Leary does infringe these provisions of the Charter . The first occurred in R. v. Bernard, supra. Bernard was charged with sexual assault causing bodily harm. He was tried by judge and jury and found guilty. Bernard admitted forcing the complainant to have sexual intercourse with him but stated that his drunkenness caused him to attack her. The issue was whether self‑induced intoxication should be considered by the jury along with all the other relevant evidence in determining whether the prosecution had proved beyond a reasonable doubt the mens rea required by the offence. Bernard's appeal was dismissed by a majority of the Court. They all agreed that, as the defence of intoxication had not been made out on the evidence, s. 613(1) (b)(iii) (now s. 686(1) (b)(iii)) of the Criminal Code could be applied. Four sets of reasons were given.