Leary v. The Queen

Leary v. The Queen
Collection
Supreme Court Judgments
Date
1977-03-08
Report
[1978] 1 SCR 29
Judges
Laskin, Bora; Martland, Ronald; Judson, Wilfred; Ritchie, Roland Almon; Spence, Wishart Flett; Pigeon, Louis-Philippe; Dickson, Robert George Brian; Beetz, Jean; de Grandpré, Louis-Philippe
On appeal from
British Columbia
Subjects
Criminal law
Decision Content
SUPREME COURT OF CANADA
Leary v. The Queen, [1978] 1 S.C.R. 29
Date: 1977-03-08
Allan H. P. Leary Appellant;
and
Her Majesty The Queen Respondent.
1976: May 6; 1977: March 8.
Present: Laskin C.J. and Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA
Criminal law — Rape — Drunkenness as a defence — Distinction between crimes of specific intent and crimes of general intent — Whether rape crime of general intent — Miscarriage of justice — Criminal Code, s. 613(1)(b)(iii).
The accused, who did not give evidence or call wit­nesses at his trial, made a voluntary statement to the police in which he confirmed that intercourse had taken place but said that it had occurred with the complai­nant's consent and without the use of force or threats on his part. This statement was put in evidence at the trial. The accused now appeals on the grounds that the trial judge erred in law in directing the jury that drunkenness was not a defence to a charge of rape.
Held (Laskin C.J., Spence and Dickson JJ. dissent­ing): The appeal should be dismissed.
Per Martland, Judson, Ritchie, Pigeon, Beetz and de Grandpré JJ.: Four points arise: 1. The distinction between crimes of specific intent and crimes of general intent; 2. Rape as an offence of general intent; 3. Whether there was evidence that the accused was so intoxicated that he could not form a criminal intent; 4. Whether there was a miscarriage of justice. With regard to the first question, the distinction as stated in this Court in The Queen v. George, [1960] S.C.R. 871, was unanimously upheld in Director of Public Prosecutions v. Majewski, [1976] 2 All E.R. 142. With regard to the second question, rape is to be considered a crime of general intent and therefore the defence of drunkenness can have no application. With regard to the third ques­tion, there was no evidence that the appellant was drunk to such an extent as to be incapable of forming an intention to commit rape. With regard to the fourth question, the accused having submitted a defence of consent, could not at the same time claim that he was too drunk to know what he was doing. Having chosen not to raise a weak alternative defence at his trial so as not to prejudice his main defence, the accused cannot now claim that he ought to be given a new trial for the purpose of making it possible for him to raise the alternative defence.
Per Laskin C.J. and Spence and Dickson JJ., dissent­ing: Drunkenness as such is not a defence to a charge of rape, but evidence of drunkenness may be taken into consideration by the jury in determining whether the Crown has proved beyond reasonable doubt the mens rea required to constitute the crime. In order to prove rape, the Crown must prove the intention to force intercourse and a realization by the accused that his conduct may lead to non-consensual intercourse. It is not enough to say that because the accused committed a physical act without the woman's consent, he must be taken to have intended intercourse without consent. Evidence of intoxication would be relevant in determin­ing the presence of the requisite mental element; the state of mind of the accused being in issue, the Court should ask what was his actual state of mind at the time of the alleged offence. The attempt to distinguish be­tween specific intent and general intent is neither mean­ingful nor intelligible and is, in practice, impossible to apply when mens rea is a requisite element of a crime. If the accused was drunk, but it is proved that he acted intentionally or recklessly, it is irrelevant that but for the drinking he would not have done the act. But the fact that a man ingests a substance that causes him to cast off the restraints of reason does not mean that his conduct must be branded as reckless enough to support the crime charged. Whether the act of drinking consti­tutes recklessness is a question of fact to be determined in the circumstances of each case and not by application of an irrebutable presumption against the accused. Recklessness, in the legal sense, imports foresight and must have reference to the consequences of a particular act. Finally, in the case at bar there was a possibility of a miscarriage of justice since a properly charged jury might have cause for reasonable doubt that the accused had the necessary mens rea.
[R. v. George, [1960] S.C.R. 871, applied; R. v. Vandervoort, 34 C.R. 380; R. v. Schmidt & Gole (1972), 9 C.C.C. (2d) 101; R, v. Boucher (1962), 40 W.W.R. 663; Director of Public Prosecutions v. Beard, [1920] A.C. 479; Director of Public Prosecutions v. Majewski, [1976] 2 All. E.R. 142; Attorney-General for Northern Ireland v. Gallagher, [1963] A.C. 349; R. v. Hornbuckle, [1945] V.L.R. 281; Woolmington v. D.P.P., [1935] A.C. 462; R. v. Resener, [1968] 4 C.C.C. 129; Bolton v. Crawley, [1972] Crim. L. R. 222; R. v. King, [1962] S.C.R. 746; Director of Public Prosecu­tions v. Morgan, [1975] 2 All. E.R. 347; Sherras v. De Rutzen, [1895] 1 Q.B. 918; R. v. Rees, [1956] S.C.R. 640; Beaver v. The Queen, [1957] S.C.R. 531; McAskill v. The King, [1931] S.C.R. 330; Perrault v. The Queen, [1971] S.C.R. 196; Reniger v. Fogossa, 1 Plow. 1; Beverley's Case, (1603), 4 Co. Rep. 123b; R. v. Carroll (1835), 7 Car. & P. 145; R. v. Monkhouse (1849), 4 Cox C.C. 55; R. v. Cruse (1838), 8 Car. & P. 541; R. v. Moore (1852), 3 Car. & K. 319; R. v. Doherty (1887), 16 Cox C.C. 306; R. v. Meade, [1909] 1 K.B. 895; Hosegood v. Hosegood (1950), 60 T.L.R. (Pt. 1) 735 and R. v. Sheehan (1975), 60 Cr. App. R. 308, referred to.]
APPEAL from a judgment of the Court of Appeal for British Columbia[1], dismissing appel­lant’s appeal from his conviction for rape. Appeal dismissed, Laskin C.J. and Spence and Dickson J.J. dissenting.
K. S. Fawcus, for the appellant.
G. S. Cumming, Q.C., for the respondent.
The judgment of Laskin C.J. and Spence and Dickson JJ. was delivered by
DICKSON J. (dissenting)—The appellant, Allan Henry Patrick Leary, was convicted of rape before Meredith J. and a jury at the City of Nelson in British Columbia. An appeal to the Court of Appeal for British Columbia was dismissed and he has now appealed, by leave, to this Court on the following question of law: "That the learned trial judge erred in law in directing the jury that drunk­enness was not a defence to a charge of rape."
I
The complainant testified that Leary, in a drun­ken condition, forced her at knife point to submit to coition and other acts of sexual humiliation. The defence was consent. After instructing the jury that the only issue was whether or not the complai­nant had consented to sexual intercourse, Mr. Justice Meredith said: "I should add too at this point, drunkenness is not a defence to a charge of this sort." The issue in this appeal is whether that is a correct statement of law.
The issue presented is an important one, requir­ing consideration of basic criminal law principles of mens rea, and elaboration of the defence of drunkenness in relation to criminal responsibility. One might have thought that the effect of drunk­enness upon legal responsibility would have been well settled by now but despite the legal scholar-ship and copious amount of literature devoted to the subject, many underlying problems remain unresolved and the subject of controversy. The confusion and uncertainty which prevails is attributable, no doubt, in part to (a) the use throughout the cases, and in the legal literature generally, of two chameleon-like phrases, mens rea and "specific intent," each with several distinct meanings (see Smith & Hogan Criminal Law, 3rd. ed. p. 47); (b) the impact of the proposition that drunkenness is no excuse for crime upon the fun­damental principle that, generally speaking, guilt depends upon proof by the Crown that the accused intended to do the acts with which he is charged, an intention which may be entirely lacking in a state of advanced drunkenness; (c) failure to dis­tinguish between (i) the effect of drunkenness on capacity to form the requisite intent and (ii) intent in fact.
II
The Ontario Court of Appeal in R. v. Vandervoort[2] held that drunkenness constitutes a valid defence to crimes in which specific intent is an essential ingredient and that rape is a crime of specific intent. The British Columbia Court of Appeal in R. v. Boucher[3] refused to follow the Vandervoort decision and held that rape was a crime of general intent only and, therefore, drunkenness could not validly be pleaded in defence. In the present proceedings the Court of Appeal for British Columbia relied upon its earlier decision in Boucher in dismissing the appeal. There would seem to be good reason not to perpetuate the jural conflict between two appellate Courts, as a result of which a person accused of rape in Ontario has the "defence" of drunkenness open to him, but not if the charge is laid in British Columbia.
Although the expression "defence of drunken­ness" is often used, more precisely the defence is that the accused, by reason of drunkenness, lacked the capacity to form the requisite intent or lacked the intent in fact or that he had a positive though mistaken belief in consent.
III
I would answer the question of law posed in this appeal in this manner—drunkenness, as such, is not a defence to a charge of rape but evidence of drunkenness may be considered by the jury, to­gether with all other relevant evidence, in deter-mining whether the prosecution has proved beyond a reasonable doubt the mens rea required to con­stitute the crime.
IV
There are certain quasi-criminal strict liability offences—as affecting public health or safety—where an absolute offence is created and a person may be subjected to punishment even though he had no intention of contravening the law. Duress, provocation, and mental abnormality also bear upon criminal responsibility. In what follows, I should like to leave all of these matters aside and consider basic principles as to which there can surely be little question or cavil. The first of these is the presumption that mens rea is an essential ingredient in every offence. This principle was enunciated by Wright J. in Sherras v. De Rutzen[4] and has since been repeated in countless cases. The concept of mens rea, that the prohibited act must be accompanied by a certain mental element, has been authoritatively established by this Court in such cases as The Queen v. Rees[5]; Beaver v. The Queen[6]; and The Queen v. King[7]. In the most recent of these decisions, Taschereau J., as he then was, said at 749:
It is my view that there can be no actus reus unless it is the result of a willing mind at liberty to make a definite choice or decision . .
The notion that a court should not find a person guilty of an offence against the criminal law unless he has a blameworthy state of mind is common to all civilized penal systems. It is founded upon respect for the person and for the freedom of human will. A person is accountable for what he wills. When, in the exercise of the power of free choice, a member of society chooses to engage in harmful or otherwise undesirable conduct pros­cribed by the criminal law, he must accept the sanctions which that law has provided for the purpose of discouraging such conduct. Justice demands no less. But, to be criminal, the wrong-doing must have been consciously committed. To subject the offender to punishment, a mental ele­ment as well as a physical element is an essential concomitant of the crime. The mental state basic to criminal liability consists in most crimes in either (a) an intention to cause the actus reus of the crime, i.e. an intention to do the act which constitutes the crime in question, or (b) foresight or realization on the part of the person that his conduct will probably cause or may cause the actus reus, together with assumption of or indiffer­ence to a risk, which in all of the circumstances is substantial or unjustifiable. This latter mental ele­ment is sometimes characterized as recklessness.
The burden of proving all of the elements in the definition of the crime charged, including the mental element, is always upon the Crown. The presence or absence of evidence of intoxication in no way affects that burden.
The nature of the mental element varies with the definition of the crime and it may be expressly spelled out in the definition, or it may be implied. By definition, a male person commits rape when he has sexual intercourse with a female person without her consent. That is the actus reus of the crime. Parliament, as is often the case, has left unexpressed the mental element but it would seem clear that in order to constitute the crime the Crown must prove, beyond reasonable doubt, intercourse without consent, together with (a) an intention to force intercourse notwithstanding absence of consent, or (b) a realization that the conduct may lead to non-consensual intercourse and a recklessness or indifference to that conse­quence ensuing. It will not do simply to say that because the accused committed the physical act and the woman did not consent, he must be taken to have intended to have intercourse without consent.
Parenthetically, when the risk is substantial and unjustifiable, proof of recklessness necessary to constitute the mental element essential to criminal responsibility may be readily satisfied. This is exemplified in the crime of rape. The harm to be anticipated from acting upon the mistaken belief that the woman is consenting is very great whereas that which may be lost in failing to act is slight. The risk then is both substantial and unjustifiable. The conscious creation of risk in these circum­stances in acting with indifference to the possibili­ty of non-consent is compatible with recklessness constituting mens rea.
On principle, it would seem that evidence of intoxication should be relevant in determining the presence of the requisite mental element, inasmuch as intoxication undoubtedly affects a person's abil­ity to appreciate the possible consequences or cir­cumstances. Consumption of alcohol affects mental state. The state of mind of the accused being in issue it would seem reasonable to ask—what was his actual state of mind at the time? If the evidence in the case discloses some degree of intoxication, one might think, consistent with fun­damental principles of criminal responsibility, that such evidence would be relevant to any consider­ation of the mental state of the alleged offender. But such, it is said, is not the case. The argument, of course, is that Director of Public Prosecutions v. Beard[8] drew a distinction between crimes of specific intent and those of general intent; that rape is a crime of general intent only and therefore drunkenness is no defence. This Court decided in McAskill v. The King[9] and repeated in Perrault v. The Queen[10] that the rules of law for determining the validity of a defence of drunkenness to a charge of murder were as stated in Lord Birken­head's second and third propositions in Beard's case.
V
In earliest times, the settled rule in England was that voluntary drunkenness would not excuse the commission of any crime. This law is found in Reniger v. Fogossa[11], argued in 1551 (see also Beverley's Case[12]. The principle that no one should be privileged to escape culpability for crime com­mitted while in a state of self-induced intoxication is found in the writings of Coke (1 Inst. 247a), Blackstone (4 Commentaries 26) Hawkins (1 P.C. c. 1, s. 6) and Hale (1 Hale 31).
In the nineteenth century, the old rule was gradually relaxed by judicial decisions (see R. U. Singh, "History of Drunkenness in English Crimi­nal Law" (1933), 49 L.Q. R. 528 at p. 536). In R. v. Grindley[13], Holyroyd J. held that the fact of a person being intoxicated could be taken into account where on a charge such as a murder the material question was whether the act was pre-meditated. This view was later rejected by Park J. in R. v. Carroll[14].
In Regina v. Monkhouse[15], counsel for the defence cited Regina v. Cruse[16], in which the accused was charged with attempt to murder a child and Patteson J. had instructed the jury to this effect:
... you must be satisfied that when he inflicted the violence he had in mind a positive intention of murder­ing that child. Even if he did it under circumstances which would have amounted to murder if death had ensued, that will not be sufficient, unless he actually intended to commit murder ... It appears that both these persons were drunk, and although drunkenness is no excuse for any crime whatever, yet it is often of very great importance in cases where it is a question of intention. A person may be so drunk as to be utterly unable to form any intention at all, and yet he may be guilty of a very great violence.
Coleridge J. in Monkhouse said that he agreed with the substance of what Patteson J. was reported to have said in Cruse's case, but he expressed himself as not so clear as to the propriety of adopting the very words. Coleridge J. went on to say, at 56:
Drunkenness is ordinarily neither a defence nor excuse for crime, and where it is available as a partial answer to a charge, it rests on the prisoner to prove it, and it is not enough that he was excited or rendered more irritable, unless the intoxication was such as to prevent his restraining himself from committing the act in question, or to take away from him the power of forming any specific intention.
The direction is of interest in that it recognizes drunkenness as a "partial answer to a charge and the phrase "specific intention," source of such confusion since Beard, was used for the first time in a jury charge. There is nothing to suggest that the phrase was there used in any technical sense, or as a term of art in contrast to basic or general intent,
In R. v. Moore[17], the prisoner was indicted for a misdemeanor in attempting to commit suicide when after a violent quarrel with her husband she threw herself into a garden well, thirty-eight feet deep. Fortunately, assistance was at hand and she was rescued, we are told, without much injury. The witness who proved these facts also stated that at the time the prisoner was so drunk as not to know what she was about. Jervis C.J. charged the jury in these words:
If the prisoner was so drunk as not to know what she was about, how can you say that she intended to destroy herself?
In R. v. Doherty[18]', a case of murder, tried in 1887, Stephen J. instructed the jury that the gen­eral rule as to intention was that a man intends the natural consequences of his acts but that this was not a necessary inference and in drawing it one had to consider whether the prisoner was drunk or sober. He continued, at p. 308:
It is almost trivial for me to observe that a man is not excused from crime by reason of his drunkenness. If it were so, you might as well at once shut up the criminal courts, because drink is the occasion of a large propor­tion of the crime which is committed; but, although you cannot take drunkenness as any excuse for crime, yet when the crime is such that the intention of the party committing it is one of its constituent elements, you may look at the fact that a man was in drink in considering whether he formed the intention necessary to constitute the crime.
The only other major case pre-Beard is R. v. Meade[19]. This was an appeal by a prisoner against conviction on a charge of murder. Darling J., on behalf of the Court of Criminal Appeal, set forth the following rule for determining whether the jury would be justified in returning a verdict of man-slaughter on the ground of the voluntary drunken­ness of the accused:
A man is taken to intend the natural consequences of his acts. This presumption may be rebutted—(1.) in the case of a sober man, in many ways: (2.) it may also be rebutted in the case of a man who is drunk, by shewing his mind to have been so affected by the drink he had taken that he was incapable of knowing that what he was doing was dangerous, i.e., likely to inflict serious injury. If this be proved, the presumption that he intended to do grievous bodily harm is rebutted. Coming then to Beard’s case: After reviewing at some length the earlier cases, Lord Birkenhead L.C. listed under three heads the conclusions which he considered could be drawn therefrom:
1. That insanity, whether produced by drunkenness or otherwise, is a defence to the crime charged. The dis­tinction between the defence of insanity in the true sense caused by excessive drinking, and the defence of drunk­enness which produces a condition such that the drunk-en man's mind becomes incapable of forming a specific intention, has been preserved throughout the cases. The insane person cannot be convicted of a crime: Felstead v. The King [1914] A.C. 534; but, upon a verdict of insanity, is ordered to be detained during His Majesty's pleasure. The law takes no note of the cause of the insanity. If actual insanity in fact supervenes, as the result of alcoholic excess, it furnishes as complete an answer to a criminal charge as insanity induced by any other cause.
2. That evidence of drunkenness which renders the accused incapable of forming the specific intent essential to constitute the crime should be taken into consider­ation with the other facts proved in order to determine whether or not he had this intent.
3. That evidence of drunkenness falling short of a proved incapacity in the accused to form the intent necessary to constitute the crime, and merely establish­ing that his mind was affected by drink so that he more readily gave way to some violent passion, does not rebut the presumption that a man intends the natural conse­quences of his acts.
The third head has undergone change. Since Woolmington v. D.P.P.[20]. proof of incapacity has not rested upon the accused, and since Hosegood v. Hosegood[21] the presumption that a man intends the natural consequences of his acts is now regarded as a proposition of good sense rather than a proposition of law.
VI
It is the second head of Beard which particular­ly concerns us. The notion that drunkenness might negative an intent integral to a more serious charge, such as murder, and permit conviction of a lesser charge, such as manslaughter, of which the intent was not a constituent element, was con­ceived in response to humanitarian urgings which sought to distinguish between the homicide com­mitted in cold blood by a sober person and one committed by a drunken person. Capital punishment or deportation was considered on occasion to be unduly severe treatment for the inebriated offender. Although the motivation was under­standable and the legal mechanism by which the graver offence could be read down to the lesser offence seemed soundly conceived, the irrational "specific intent—basic intent" dichotomy has pre­sented difficulty ever since, for there are not, and have never been, any legally adequate criteria for distinguishing the one group of crimes from the other. Indeed, the question is often asked as to whether Lord Birkenhead intended any such dichotomy. Certain well-known dicta found later in the judgment would suggest the contrary, and leave the answer to the question far from clear. The dicta have been thought by some to accept the principle that drunkenness may negative mens rea in any and every crime.
The words used by Lord Birkenhead were these, at p. 504: "I do not think that the proposition of law deduced from these earlier cases is an excep­tional rule applicable only to cases in which it is necessary to prove a specific intent in order to constitute the graver crime .. It is true that in such cases the specific intent must be proved to constitute the particular crime, but this is, on ultimate analysis, only in accordance with the ordinary law applicable to crime, for, speaking generally (and apart from certain special offences) a person cannot be convicted of a crime unless the mens was rea."
Great difficulty has been experienced by the Courts in seeking to clarify what is meant by the phrase crimes of specific intent." This is under­standable for a person may have an intent which is specific but how does one identify a "specific intent" as distinguished from a "basic intent" or "general intent" or "ulterior intent." The phrase "specific intent" is not a concept known to psy­chology. The expression is not contained in the Criminal Code. How a juryman can be expected to recognize such an elusive cerebration in the mind of an accused is obscure. The attempts made to distinguish, in the cases, between so-called "specif­ic intent" crimes and "general intent" crimes serve only to confirm the difficulty of the task. It has been said that such words as "with intent to," "for a fraudulent purpose," "corruptly," "wilfully" [sic], "knowingly," and the like, contained in the defini­tion of the charge, identify crimes of specific intent. Why this should be so is not self-evident as there is no specificity to such words as "intentionally" or "knowingly." And it is conceded that the definition of the crime is not exhaustive, as a specific intention may sometimes be embodied by implication. None of this is very helpful to judge or jury, as many distinguished scholars have taken pains to point out. It is understandable that aca­demic discussion should have focused primarily upon the illogicality of distinguishing between crimes of so-called specific intent from those of general intent, with heavy emphasis upon the vio­lence said to be done to fundamental principles of criminal law in attributing to an accused person a mental state and an intent, which by reason of drunkenness, ex hypothesi he does not have. The argument is made that if a person is so drunk as to be incapable of forming the intent required, or in fact lacked that intent, he should not be convicted of a crime which is committed only if that intent be present and proven. The argument is com­pelling.
Consider the position of the jury. The members of the jury will have heard all of the evidence as to drunkenness and are then, in effect, told to excise it from their minds. The result is that either (a) the Crown, because the accused was intoxicated, is relieved of the burden of proving a requisite mental state which would have had to be proven if the accused had been sober, (placing the intoxicat­ed offender in a worse position than the sober offender—the antithesis of the policy sought to be implemented by the nineteenth century jurists), or (b) in the alternative, the jury is required to examine the mental state of the accused, notionally absent the alcohol, an impossible task and, in the case of a general intent crime and a very drunk man, to find a fictional non-existing mental state as an ingredient of guilt. The jury is expected to consider only that part of the behaviour which had its genesis in considerations other than drunken­ness. All of this suggests that the distinction sought to be made between specific intent and general intent is neither meaningful nor intel­ligible.
VII
There seems little reason for retaining in the criminal law—which should be characterized by clarity, simplicity, and certainty—a concept as difficult of comprehension and application as "spe­cific intention". If "with intent" crimes are regarded as crimes of specific intent, it is apparent that many of these are as grave or graver crimes than those of so-called basic intent, such as common assault; drunkenness can absolve in respect of the graver crimes, yet not in respect of the lesser. Intent in respect of robbery can be negatived by drink but not the intent for rape or assault. Another incongruity lies in the fact that crimes of specific intent are also crimes of basic or general intent.
In R. v. George[22], this Court added a gloss to Beard. The Court of Appeal for Ontario in R. v. Vandervoort, supra, had regard to these two authorities in reaching the conclusion that rape was a crime of specific intent. Upon the same authorities the Court of Appeal for British Columbia in R. v. Boucher, supra, concluded that rape was not a crime of specific intent and thus, drunkenness was no defence. This diversity reflects the difficulty in the practical application of Beard. The judgments in George appear to recognize the possibility of drunkenness negating general intent if a person were so drunk that he had no knowl­edge of what he was doing and, on principle, there is no reason why intoxication should not negative mens rea in crimes of basic or general intent.
Whatever utility the concept of "specific intent" may have had in the past, it is very doubtful whether any good purpose is served by its reten­tion, having regard to the difficulties to which I have referred and, since Beard, to the greater knowledge of the nature of intoxication and alcoholism and the increasing emphasis on mental state as an element of criminal responsibility. Society and the law have moved away from the primitive response of punishment for the actus reus alone. The doctrine of mens rea has increas­ingly emerged as an essential element of criminal accountability. The effect of the second proposi­tion in Beard's case is to hold the accused to account, not for his self-induced drunkenness, but for whatever harm he may have done, without intending to do so, while in that state. There is much to be said for the view that drunkenness should not be regarded as standing alone but rather as possibly contributing to some condition inconsistent with criminal responsibility. Thus, insanity caused by excessive drinking affords an answer to a criminal charge but it is the insanity to which attention is directed and the cause of the insanity is irrelevant. The law has always distin­guished intoxication, however gross, from insanity, permanent or temporary, induced by intoxication; psychiatry draws no such distinction.
VIII
When an accused, in answer to a criminal charge, says that he was so sodden as to be virtual­ly an automaton, incapable of knowing what he was about, his defence is not drunkenness but an absence of voluntariness caused by excessive drink­ing. The question then is whether the act was voluntary. Likewise, when the offence with which he is charged includes a mental element which must be established by the Crown, such as inten­tion or recklessness, it should be open to an accused to contend that upon all of the evidence the Crown has failed to establish the requisite mental element. The law should take no note of the inducing cause which led to the incapacity or lack of intent. On the other hand, it is generally recognized that the usual effect of drinking is merely to remove self-restraints and inhibitions and induce a sense of self-confidence and, perhaps, aggressiveness. If the accused was drunk at the time of the alleged offence but it is proved that he did the act intentionally or recklessly, it is irrele­vant that but for the drinking he would never have done the act. The intent or recklessness, constitut­ing the necessary mental element, is present and the fact that, by reason of drink, his judgment and control relaxed so that he more readily gave way to his instinctual drives, avails him nothing.
I return then to the charge facing the present appellant, that of rape. Cases where a man will have had intercourse without intending to do so must be rare; cases where an accused, notwith­standing resistance on the part of the woman, is under a drink-induced mistaken belief that the woman has consented must be rarer. Speaking generally, rape is committed by persons who intend to have intercourse with a woman knowing she has not consented, or who are indifferent to her wishes. Intent is present. What is lacking is control. This extends to the grossly intoxicated. Rape cannot be committed by accident. Inter-course is an act normally consented to and if there is little or no obvious resistance, "half-won argu­ments of couples in parked cars," there would seem to be no principle precluding a defence of belief in consent, though mistaken, and though alcohol be a contributing factor. Drunkenness is simply a piece of evidence relevant to the determi­nation of the presence of the requisite mental element. Drunkenness will not assist in exculpating an accused if he got drunk in order to get courage to commit the crime or to aid in his defence.
The present law is an uneasy and, if I may venture to say so, an indefensible compromise between two other positions which might be taken. The first, that drunkenness can never excuse; the second, that drunkenness can excuse in all crimes except those of strict liability. The compromise was adopted for the reason I have mentioned, to permit a reading down in cases of murder or other violent crime, but it can only be justified at present on historical grounds.
IX
It is sometimes said that public policy demands retention of the "specific intent" concept no matter how illogical or difficult of application that concept may be; see Director of Public Prosecu­tions v. Majewski[23], at pp. 167-8. The point is made that a basic function of the criminal law is protection of the public from unprovoked violence and that to depart from the rule in Beard's case would leave no protection where such violence is consequent upon the taking of drink or drugs; (id. at p. 152). I have grave doubt that the rule in Beard deters or is capable of deterring the intox­icated offender. Such an offender only has an excuse if he acted in circumstances where he was incapable of forming an intent, or without an intent in fact. Certainly when that state is reached, no prohibitive rule could deter. But it is said (Austin, Jurisprudence, 5th ed. vol. I p. 496), that such a state is voluntarily reached by an accused only at his peril, and that he will be presumed to have intended any actus reus he commits as the result of voluntary intoxication. Austin’s point is that voluntarily ingesting an alcoholic substance to the point where one is incapacitated to form an intent is recklessness sufficient to support a finding of mens rea. The same point is made by Lord Elwyn-Jones L.C. and by Lord Russell in Majew­ski’s case at pp. 151 and 171.
With great respect for those of another view, I think it is wrong to say that merely because a man voluntarily ingests a substance which causes him to cast off the restraints of reason, such conduct must inevitably be branded as reckless enough to support the crime charged, whatever that crime may be. There will be circumstances, no doubt, in which such will be the case. A good example is Attorney General for Northern Ireland v. Gallagher[24], at p. 382, where Lord Denning observed that a man may not form an intention and voluntarily, by drink, obliterate his will in order to give himself the Dutch courage to act in furtherance of that intention. But it is equally true that there are circumstances where the ingestion of drugs or drink is not reckless in the relevant sense. An example would be an inexperienced youth drinking with older companions at their instigation for the first time. Such an offender, who finds himself having committed a criminal actus reus while incapable of forming any intent, highlights the artificiality and possible injustice of presuming intention from the act of ingestion. This becomes clear when one considers that drinking, as such, is not prohibited nor socially stigmatized in contem­porary Canadian society. It may well be that an accused knows, or ought to have known, that drink or drugs makes him prone to certain kinds of conduct. A man who becomes violent when drunk, or a drug-taker who has reason to believe he will obliterate his will and hence become a danger to others may be reckless in the relevant sense. That is a question of fact to be determined in the circumstances of each particular case and not by the application of what is, in effect, an irrebuttable presumption against an accused.
Recklessness in a legal sense imports foresight. Recklessness cannot exist in the air; it must have reference to the consequences of a particular act. In the circumstances of a particular case, the ingestion of alcohol may be sufficiently connected to the consequences as to constitute recklessness in a legal sense with respect to the occurrence of the prohibited act. But to say that everyone who gets drunk is thereby reckless and therefore account-able is to use the word "reckless" in a non-legal sense and, in effect, in the case of an intoxicated offender, to convert any crime into one of absolute or strict liability.
If sanctions against drinking to excess be thought necessary then, in my view, they ought to be introduced by legislation—as in a crime of being drunk and dangerous—and not by the adop­tion of a legal fiction which cuts across fundamen­tal criminal law precepts and has the effect of making the law both uncertain and inconstant. If the point is deterrence from drink then such deter­rence ought to be specific and precise, in the form of a legislative command.
X
For the reasons which I have sought to express, I have concluded that it is no longer necessary nor desirable to maintain the fiction of "specific intent" and "general intent" crimes. From the acts and statements of the accused and all of the other evidence adduced, the jury should be entitled to draw inferences as to the mental state of the accused. The concern is with the mental state of the accused in fact, and not merely his capacity to have the necessary mental state. Intoxication is one factor which, with all of the other attendant circumstances, should be taken into account in determining the presence or absence of the requi­site mental element. If that element is absent, the fact that it was absent due to intoxication is no more relevant than the fact of intoxication giving rise to a state of insanity. The jury should be instructed that it is open to them to convict if they find that the accused intended to force intercourse notwithstanding absence of consent, or that he was reckless, in the sense I have indicated, as to wheth­er she consented or not. If the necessary intent or recklessness is there, the fact that he acted in a way in which he would not have acted had he been sober does not assist him at all (see R. v. Sheehan[25], at p. 312). The jury should also be instructed that if they are not satisfied beyond a reasonable doubt that the accused had the intent or recklessness required by law, he should be acquitted. In deciding this question, they should have regard to all of the evidence including the ages and background of the accused and the woman, the time and place and circumstances of the encounter, the conduct and statements at the time and following the event, the sobriety of each, and should draw such inferences therefrom as appear proper in the circumstances. In the case of an intoxicated or drugged accused, the jury may have little difficulty in drawing an inference of intent or recklessness in the relevant sense, but that remains an issue of fact for the jury to determine in each particular case.
In my opinion, it was wrong for the trial judge in the present case to withdraw from the jury any consideration of drunkenness. Such evidence was open for consideration by the jury, as going not to defence but to the establishment by the Crown of the mental element requisite to a finding of guilt.
The question remains as to whether the curative provision of s. 613 (1)(b)(iii) of the Criminal Code should be applied. The appellant’s degree of intoxi­cation would not appear to have been e