R. v. Bernard

R. v. Bernard
Collection
Supreme Court Judgments
Date
1988-12-15
Report
[1988] 2 SCR 833
Case number
19558
Judges
Dickson, Robert George Brian; Beetz, Jean; McIntyre, William Rogers; Lamer, Antonio; Wilson, Bertha; Le Dain, Gerald Eric; La Forest, Gérard V.; L'Heureux-Dubé, Claire
On appeal from
Ontario
Subjects
Criminal law
Evidence
Notes
SCC Case Information: 19558
Decision Content
r. v. bernard, [1988] 2 S.C.R. 833
Nelson Pierre Bernard Appellant
v.
Her Majesty The Queen Respondent
indexed as: r. v. bernard
File No.: 19558.
1987: December 8; 1988: December 15.
Present: Dickson C.J. and Beetz, Estey*, McIntyre, Lamer, Wilson, Le Dain*, La Forest and L'Heureux‑Dubé JJ.
on appeal from the court of appeal for ontario
Criminal law‑‑Mens rea‑‑Specific and general intent ‑‑ Drunkenness ‑‑ Sexual assault causing bodily harm ‑‑ Whether or not evidence of self‑induced intoxication should be considered in determining whether mens rea proved beyond a reasonable doubt ‑‑ Criminal Code, R.S.C. 1970, c. C‑34, s. 246.2(c) ‑‑ Canadian Charter of Rights and Freedoms, ss. 1 , 7 , 11 (d).
Evidence ‑‑ Criminal offences ‑‑ Drunkenness ‑‑ Mens rea ‑‑ Whether or not evidence of drunkenness should not be considered in proof of mens rea.
Appellant was charged with sexual assault causing bodily harm contrary to s. 246.2 (c) of the Criminal Code , tried by judge and jury, and found guilty. He admitted forcing the complainant to have sexual intercourse with him and stated that his drunkenness caused the attack on her. The Ontario Court of Appeal dismissed an appeal from conviction. At issue here is whether evidence of self‑induced intoxication should be considered by the trier of fact, along with all other relevant evidence, in determining whether the prosecution has proved beyond a reasonable doubt the mens rea required to constitute the offence.
Held (Dickson C.J. and Lamer J. dissenting): The appeal should be dismissed.
Per Beetz and McIntyre JJ.: The general intent offence is one in which the only intent involved relates solely to the performance of the act in question with no further ulterior intent or purpose. A specific intent offence is one which involves the performance of the actus reus coupled with an intent or purpose going beyond the mere performance of the questioned act. The distinction, which is neither artificial nor based on a legal fiction, is not divorced from logical underpinnings.
Drunkenness in a general sense is not a true defence to a criminal act. The defence, however, may apply in a specific intent offence when the accused is so intoxicated that he lacks the capacity to form the specific intent required to commit the crime. The defence does not apply in offences of general intent.
The elements of a charge under s. 246.2 (c) are an assault which, objectively viewed, is of a sexual nature as a consequence of which the complainant has suffered bodily injury. The requisite mental element is only the intention to commit the assault. The surrounding circumstances are to be considered for evidence of its sexual nature and of the resulting bodily harm. The resulting interference with the physical integrity of the complainant aggravates the seriousness of a sexual assault but the mental element remains the same.
The Crown must still prove the mens rea in a general intent offence, notwithstanding the absence of a defence of voluntary intoxication. This can be proved in two ways. Firstly, the mens rea in most cases can be inferred from the actus reus itself: a person is presumed to have intended the natural and probable consequences of his actions. Secondly, where the accused was so intoxicated as to raise doubt as to the voluntary nature of his conduct, the Crown may establish the necessary blameworthy mental state of the accused by proving voluntary self‑induced intoxication. As a result, persons accused of these crimes cannot hold up voluntary drunkenness as a defence.
The rule in Leary does not convert the offence in s. 246.2 (c) into an absolute liability offence by removing the Crown's onus of proving the requisite intention and, accordingly, does not violate ss. 7 and 11 (d) of the Canadian Charter of Rights and Freedoms . The rule upholds the principle that the morally innocent should not be convicted for it recognizes that accused persons who have voluntarily consumed drugs or alcohol, thereby depriving themselves of self‑control leading to the commission of a crime, are not morally innocent and are, indeed, criminally blameworthy.
If the trial judge wrongly excluded the evidence of drunkenness, s. 613(1) (b)(iii) of the Criminal Code should be applied because no substantial wrong or miscarriage of justice occurred here.
Per Wilson and L'Heureux‑Dubé JJ.: Sexual assault causing bodily harm is an offence of general intent requiring only the minimal intent to apply force. Here, as in most cases involving general intent offences and intoxication, the Crown can establish the accused's blameworthy mental state by inference from his or her acts. The evidence of intoxication withheld from the trier of fact could not possibly have raised a reasonable doubt as to the existence of the minimal intent to apply force.
The Leary rule is perfectly consistent with an onus resting on the Crown to prove the minimal intent which should accompany the doing of the prohibited act in general intent offences. The rule, as applied in its more flexible form, should be preserved so that evidence of intoxication can go to the trier of fact in general intent offences only if it is evidence of extreme intoxication involving an absence of awareness akin to a state of insanity or automatism. Only in such a case is the evidence capable of raising a reasonable doubt as to the existence of the minimal intent required for the offence. Evidence of intoxication should not go to the trier of fact in every case regardless of its possible relevance to the issue of the existence of the minimal intent required for the offence. The rule in Leary should not be overruled.
Leary does not operate so as to relieve the Crown from proving the existence of the required minimal intent and so turn the offence into one of absolute liability. The Crown must still prove beyond a reasonable doubt the existence of the required mental element of the intentional application of force.
Per La Forest J.: The requirement of mens rea in truly criminal offences is so fundamental that it cannot, since the Charter , be removed on the basis of judicially‑developed policy. If incursions are to be made upon fundamental legal values, Parliament, not the courts, must do so. Although established common law rules should not lightly be assumed to violate the Charter , when a common law rule is found to violate a Charter right, that violation must be justified in the same way as legislative rules. No adequate justification was made here. However, s. 613(1)(b)(iii) of the Criminal Code could properly be applied as no substantial wrong or miscarriage of justice occurred here.
Per Dickson C.J. and Lamer J. (dissenting): Evidence of self‑induced intoxication should be considered by the trier of fact, along with all other relevant evidence, in determining whether the mens rea required to constitute the offence has been proved beyond a reasonable doubt. Intoxication is relevant in principle to the mental element required in crime.
The unrestrained application of basic mens rea doctrine would not open a gaping hole in the criminal law inimical to social protection. Intoxication, to the extent that it merely lowers inhibitions, removes self‑restraint or induces unusual self‑confidence or aggressiveness, does not relate to the mens rea requirement for volitional and intentional or reckless conduct. Similarly, intoxication would be of no avail to an accused who got drunk in order to gain the courage to commit a crime or to aid in his defence. Juries are quite able to weigh all the evidence in a fair and responsible manner and are unlikely to acquit too readily those who have committed offences while intoxicated.
The distinction between "general" and "specific" intent, which is used to exclude otherwise relevant evidence from the jury, is artificial and two fundamental problems stem from it. Firstly, Parliament, not the courts, should alter the law if it is to be done in the name of policy over principle. Secondly, even if it were appropriate for the courts to do so, there is no evidence that the artificiality of the specific intent requirement is actually required for social protection.
Leary, which gave rise to the distinction between general and specific intent, should be overruled. This pre‑Charter decision imposes a form of absolute liability on intoxicated offenders: an essential element is presumed on proof of intoxication. The Charter right to be presumed innocent until proven guilty and the presumption of innocence are accordingly infringed. The rule in Leary cannot be upheld under s. 1 of the Charter , because the objective of protecting the public, while important, is not achieved within the scope of the Oakes proportionality test. Leary has also been undermined independently of the Charter . An honest but unreasonable mistaken belief in consent negates the mens rea required for some crimes. The jury's task in determining whether or not the belief was honestly held is unnecessarily complicated by the Leary qualification concerning mistake of fact. The uncertainty caused by Leary also undermines the clarity and certainty in law which underpin the principle of stare decisis. The classification of offences as to specific intent category is an ad hoc, unpredictable exercise. Finally, the courts should not create new offences or broaden the net of liability. The Leary rule expands the scope of criminal liability beyond normal limits. It is acceptable, however, to overrule a prior decision to establish a rule favourable to the accused.
The absence in the charge to the jury of any reference to the Crown's duty to prove that the accused acted with the requisite intent was fatal to the conviction. The Crown made no request that this Court apply s. 613(1) (b)(iii) of the Criminal Code and it was not for this Court to speculate as to the likely result had the jury been properly instructed.
Cases Cited
By McIntyre J.
Applied: Leary v. The Queen, [1978] 1 S.C.R. 29; considered: Director of Public Prosecutions v. Majewski, [1977] A.C. 443, [1975] 3 All E.R. 296; 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; referred to: Director of Public Prosecutions v. Beard, [1920] A.C. 479; Attorney‑General for Northern Ireland v. Gallagher, [1961] 3 All E.R. 299; Bratty v. Attorney‑General for Northern Ireland, [1961] 3 All E.R. 523; R. v. Doherty (1887), 16 Cox. C.C. 306; R. v. Morgan, [1976] A.C. 182; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; R. v. Vaillancourt, [1987] 2 S.C.R. 636; not followed: O'Connor (1980), 4 A. Crim. R. 348.
By Wilson J.
Applied: Leary v. The Queen, [1978] 1 S.C.R. 29; referred to: Swietlinski v. The Queen, [1980] 2 S.C.R. 956, aff'g (1978), 44 C.C.C. (2d) 267; Director of Public Prosecutions v. Majewski, [1977] A.C. 443; R. v. George, [1960] S.C.R. 871; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; R. v. Vaillancourt, [1987] 2 S.C.R. 636; R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299; R. v. Whyte, [1988] 2 S.C.R. 3; R. v. Smith (Edward Dewey), [1987] 1 S.C.R. 1045.
By La Forest J.
Referred to: R. v. Landry, [1986] 1 S.C.R. 145.
By Dickson C.J. (dissenting)
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; Director of Public Prosecutions v. Majewski, [1977] A.C. 443, [1976] 2 All E.R. 142; O'Connor (1980), 4 A. Crim. R. 348; R. v. Kamipeli, [1975] 2 N.Z.L.R. 610; Director of Public Prosecutions v. Beard, [1920] A.C. 479; R. v. Roulston, [1976] 2 N.Z.L.R. 644; R. v. Keogh, [1964] V.R. 400; R. v. Hill, [1986] 1 S.C.R. 313; R. v. Bulmer, [1987] 1 S.C.R. 782; Minister of Indian Affairs and Northern Development v. Ranville, [1982] 2 S.C.R. 518; Reference Re The Farm Products Marketing Act, [1957] S.C.R. 198; Binus v. The Queen, [1967] S.C.R. 594; Peda v. The Queen, [1969] S.C.R. 905; Barnett v. Harrison, [1976] 2 S.C.R. 531; Capital Cities Communications Inc. v. Canadian Radio‑Television Commission, [1978] 2 S.C.R. 141; A.V.G. Management Science Ltd. v. Barwell Developments Ltd., [1979] 2 S.C.R. 43; Bell v. The Queen, [1979] 2 S.C.R. 212; Paquette v. The Queen, [1977] 2 S.C.R. 189; Dunbar v. The King (1936), 67 C.C.C. 20 (S.C.C.); McNamara Construction (Western) Ltd. v. The Queen, [1977] 2 S.C.R. 654; Farwell v. The Queen (1894), 22 S.C.R. 553; Vetrovec v. The Queen, [1982] 1 S.C.R. 811; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; R. v. Vaillancourt, [1987] 2 S.C.R. 636; RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; Robertson and Rosetanni v. The Queen, [1963] S.C.R. 651; R. v. Therens, [1985] 1 S.C.R. 613; Chromiak v. The Queen, [1980] 1 S.C.R. 471; Duke v. The Queen, [1972] S.C.R. 917; R. v. Smith (Edward Dewey), [1987] 1 S.C.R. 1045; Miller and Cockriell v. The Queen, [1977] 2 S.C.R. 680; R. v. Oakes, [1986] 1 S.C.R. 103; R. v. Holmes, [1988] 1 S.C.R. 914; Reference re the Agricultural Products Marketing Act, [1978] 2 S.C.R. 1198; Pappajohn v. The Queen, [1980] 2 S.C.R. 120; Sansregret v. The Queen, [1985] 1 S.C.R. 570; R. v. Robertson, [1987] 1 S.C.R. 918; R. v. Moreau (1986), 26 C.C.C. (3d) 359; Commonwealth of Puerto Rico v. Hernandez, [1975] 1 S.C.R. 228; R. v. Quin, [1988] 2 S.C.R. 825; R. v. Campbell (1974), 17 C.C.C. (2d) 320; R. v. Santeramo (1976), 32 C.C.C. (2d) 35.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 1 , 7 , 11 (d).
Criminal Code, R.S.C. 1970, c. C‑34, ss. 213(d), 244, 244(4), 245.1(2), 246(1)(a), 246.2 (c), 306(1)(a), (b), 613(1) (b)(iii), 623(1).
Authors Cited
Ashworth, A. J. "Reason, Logic and Criminal Liability" (1975), 91 L.Q.R. 102.
Boyle, Christine. Sexual Assault. Toronto: Carswells, 1984.
Colvin, Eric. "A Theory of the Intoxication Defence" (1981), 59 Can. Bar Rev. 750.
Connelly, Peter J. "Drunkenness and Mistake of Fact: Pappajohn v. The Queen; Swietlinski v. The Queen" (1981), 24 Crim. L.Q. 49.
Cross, Sir Rupert. "Blackstone v. Bentham" (1976), 92 L.Q.R. 516.
Doherty, David H. "Regina v. O'Connor: Mens Rea Survives in Australia" (1981), 19 U.W.O. L. Rev. 281.
Mewett, Alan W. and Morris Manning. Criminal Law, 2nd ed. Toronto: Butterworths, 1985.
Quigley, Tim. "Reform of the Intoxication Defence" (1987), 33 McGill L.J. 1.
Smith, George. "Footnote to O'Connor's Case" (1981), 5 Crim. L.J. 270.
Stuart, Don. Canadian Criminal Law, 2nd ed. Toronto: Carswells, 1987.
Thornton, Mark T. "Making Sense of Majewski" (1981), 23 Crim. L.Q. 465.
Watt, J. D. The New Offences Against the Person. Toronto: Butterworths, 1984.
Williams, Glanville Llewelyn. Textbook of Criminal Law, 2nd ed. London: Stevens & Sons, 1983.
APPEAL from a judgment of the Ontario Court of Appeal (1985), 7 O.A.C. 305, 18 C.C.C. (3d) 574, 44 C.R. (3d) 398, dismissing an appeal from conviction found by Vannini J. sitting with jury. Appeal dismissed, Dickson C.J. and Lamer J. dissenting.
Clayton Ruby and Michael Code, for the appellant.
David A. Fairgrieve, for the respondent.
The reasons of Dickson C.J. and Lamer J. were delivered by
1. The Chief Justice (dissenting)‑‑Counsel for the appellant submits that there are two issues raised in this appeal: (i) whether sexual assault causing bodily harm contrary to s. 246.2(c) of the Criminal Code, R.S.C. 1970, c. C‑34, is an offence of "specific" intent; (ii) whether drunkenness can ever be a "defence" to a charge of sexual assault causing bodily harm.
I
Facts
2. The appellant, Nelson Pierre Bernard, was charged with sexual assault causing bodily harm to the complainant contrary to s. 246.2 (c) of the Criminal Code . That subsection provides that everyone who, in committing a sexual assault, causes bodily harm to the complainant is guilty of an indictable offence and liable to imprisonment for fourteen years.
3. The facts may be briefly stated.
4. The complainant, eighteen years of age at the relevant time, visited the appellant, twenty‑four years old. The appellant went out to dinner and to a bar with some friends while the complainant stayed behind in his apartment. Later that night the group returned to the flat. The friends departed, leaving the appellant and the complainant alone together.
5. The complainant testified that she had complied with the appellant's request to remain in the apartment after the friends' departure, both because she was not feeling well and because it was the first Christmas since the death of her father. She and the appellant, who had been a good friend of her late father, were going to talk about him.
6. The two lay down on the couch together and began talking. The complainant testified that she was then forced to have sexual intercourse without her consent and was subjected to serious bodily injury at the hands of the appellant. There was evidence that the appellant had punched the complainant twice with a closed fist, once above the eye, causing the eyelid to bleed profusely, and that he had threatened to kill her. There was evidence of a blood‑stained towel and pillow case concealed in the toilet tank of the appellant's apartment. Counsel for the appellant admitted that intercourse had taken place.
7. The complainant testified that the appellant had been drinking but was able to walk, to see everything, to talk clearly, and to put albums on the record player. One of the friends of the appellant testified that the appellant had been drinking on the night in question and, though he became rowdy, he was walking straight and talking.
8. When the police arrived at the appellant's apartment, he was awakened from a deep sleep and seemed to be suffering somewhat from his drinking. The appellant stated that his drunkenness caused the attack on the complainant.
9. The appellant was tried before a judge and jury. He did not testify at the trial, but the Crown led evidence of a statement he had made to the police. In the statement he admitted that he had forced the complainant to have sexual intercourse with him. He stated that he did not know why he had done it because he was drunk and that, "when I realized what I was doing, I got off." In charging the jury, the trial judge made no reference to the intent requirement, beyond reading the jury the definition of assault. The jury was told that the sole issue was whether the Crown had proved beyond a reasonable doubt that the complainant had not consented to the intercourse because of the assault and threats made by the accused. With respect to drunkenness, the trial judge said as follows: "Only the accused in his statement says, `I was all drunked up too.' There was no evidence of drunkenness except that statement and it is open to you to accept it and find that he was drunk but even if he was drunk, drunkenness is no defence to the charge alleged against this accused."
10. The appellant was convicted and sentenced to four years imprisonment. An appeal to the Court of Appeal of Ontario was dismissed (now reported at (1985), 18 C.C.C. (3d) 574). Dubin J.A., delivering the oral judgment of the Court, said at p. 574:
On the merits, the Crown's case was overwhelming. The complainant's testimony that she was forced to have sexual intercourse without her consent and the serious bodily injury which she suffered during the course of the assault was confirmed in every respect by other evidence.
With respect, I agree.
11. Dubin J.A. concluded at p. 576:
Mr. Ruby also took objection to passages in the judge's charge. We are all satisfied that the charge, when read as a whole, is more favourable to the appellant than the evidence warranted. In any event, we are satisfied that even if objection could be taken to some of the expressions used by the trial judge, there was no substantial wrong or miscarriage of justice in this case.
II
Drunkenness and Mens Rea
12. In my view, the only issue the Court needs to address may be put as follows: should evidence of self‑induced intoxication be considered by the trier of fact, along with all other relevant evidence, in determining whether the prosecution has proved beyond a reasonable doubt the mens rea required to constitute the offence? I am of the opinion that the Court should answer that question in the affirmative.
13. I wish to make clear at the outset, however, that nothing in these reasons is intended to apply with respect to the quite distinct issues raised by offences, such as driving while impaired, where intoxication or the consumption of alcohol is itself an ingredient of the offence. The mens rea of such offences can be left for consideration another day.
14. In Leary v. The Queen, [1978] 1 S.C.R. 29, Pigeon J. for the majority of the Court, held that rape was an offence requiring proof of only "basic" or "general" intent rather than "specific" intent. Under that categorization, the Court held, the jury should be instructed that evidence that drunkenness may have deprived the accused of the capacity to form the requisite intent should not be taken into account when considering whether the Crown had satisfied the burden of proving beyond a reasonable doubt that the accused had acted with the requisite intent. (See also Swietlinski v. The Queen, [1980] 2 S.C.R. 956, dealing with the offence of indecent assault). The offence of rape has now been removed from the Criminal Code and in its place are the sexual assault provisions. More recently, in R. v. Chase, [1987] 2 S.C.R. 293, the Court held that sexual assault was a crime of "basic" or "general" intent. In Chase, however, drunkenness was not in issue and the propriety of maintaining the distinction between general and specific intent for purposes of evidence regarding intoxication was not considered. The present case raises that much more basic issue which, in my view, the Court should reconsider.
15. In my dissent in Leary, I sought to advance the view that respect for basic criminal law principles required that the legal fiction, the artificial "specific" intent threshold requirement, be abandoned. I do not intend in these reasons to repeat what I said in Leary. With due regard for stare decisis, as to which I will have more to say in a moment, and with the greatest of respect for those of a contrary view, I would only add that nothing I have heard or read since the judgment in Leary has caused me to abandon or modify in the slightest degree the views of dissent which I there expressed. Analysis of the Leary dissent may be summarized as follows.
16. First of all, one must recognize the fundamental nature of the mens rea requirement. To warrant the condemnation of a conviction and the infliction of punishment, one who has caused harm must have done so with a blameworthy state of mind. It is always for the Crown to prove the existence of a guilty mind beyond a reasonable doubt. Intoxication affects one's mental state, one's ability to perceive the circumstances in which one acts, and to appreciate possible consequences. In principle, therefore, intoxication is relevant to the mental element in crime, and should be considered, together with all other evidence, in determining whether the Crown has proved the requisite mental state beyond a reasonable doubt.
17. It is quite wrong, I think, to characterize the issue as whether the "defence of drunkenness" should apply to this or that offence. While this expression is commonly used, it is misleading and perhaps even unduly emotive. It suggests that those who would otherwise be liable for their criminal conduct will escape because they were drunk at the time the offence was committed. But, of course, no one suggests that special concessions should be made to drunken offenders. The issue is really whether the Crown should be relieved of the usual burden of proving the requisite mental element for the offence because the accused was intoxicated. Should the jury be entitled to assess all of the evidence relevant to intent and be entitled to decide on the basis of all of the evidence whether the Crown has satisfied that burden?
18. The categories of "specific" intent on the one hand and "basic" or "general" intent on the other have evolved as an artificial device whereby evidence, otherwise relevant, is excluded from the jury's consideration. This Court, in Swietlinski, has recognized that intoxication may as a matter of fact deprive an accused of "basic" or "general" intent. It is said, however, by those who support the classification that as a matter of policy, consideration of evidence of intoxication must be excluded. Indeed, a notable feature to be found in the analysis of many of those who support restricting the jury's use of evidence relating to drunkenness is the concession that while principle and logic lead in an opposite direction, the policy of protection of the public requires that principle and logic should yield: see, e.g., Director of Public Prosecutions v. Majewski, [1976] 2 All E.R. 142, at pp. 167‑68, per Lord Edmund‑Davies, quoted by Pigeon J. in Leary, supra, at pp. 52‑53.
19. In my view, there are two fundamental problems with this approach. First, if the law is to be altered in the name of policy over principle, that is surely a task for Parliament rather than the courts. As Barwick C.J. of the High Court of Australia concluded in O'Connor (1980), 4 A. Crim. R. 348, at pp. 363‑64:
It seems to me to be completely inconsistent with the principles of the common law that a man should be conclusively presumed to have an intent which, in fact, he does not have, or to have done an act which, in truth, he did not do.
I can readily understand that a person who has taken alcohol or another drug to such an extent that he is intoxicated thereby to the point where he has no will to act or no capacity to form an intent to do an act is blameworthy and that his act of having ingested or administered the alcohol or other drug ought to be visited with severe consequences. The offence of being drunk and disorderly is not maintained these days in all systems of the common law. In any case it has not carried a sufficient penalty properly to express the public opprobrium which should attach to one who, by the taking of alcohol or the use of drugs, has become intoxicated to the point where he is the vehicle for unsocial or violent behaviour. But, though blameworthy for becoming intoxicated, I can see no ground for presuming his acts to be voluntary and relevantly intentional. For what is blameworthy there should be an appropriate criminal offence. But it is not for the judges to create an offence appropriate in the circumstances: cf. Knuller (Publishing, Printing & Promotions) Ltd. v. D.P.P., [1973] A.C. 435, at pp. 457‑458, 464‑465 and 490). It must be for the Parliament.
20. Secondly, even if it were appropriate for the courts to bend principle in the name of policy, so far as I am aware, there is no evidence that the artificiality of the specific intent requirement is actually required for social protection.
21. An unrestrained application of basic mens rea doctrine would not, in my opinion, open a gaping hole in the criminal law inimical to social protection. There are several reasons for this. To the extent that intoxication merely lowers inhibitions, removes self‑restraint or induces unusual self‑confidence or aggressiveness, it would be of no avail to an accused, as such effects do not relate to the mens rea requirement for volitional and intentional or reckless conduct. Similarly, intoxication would be of no avail to an accused who got drunk in order to gain the courage to commit a crime or to aid in his defence. Thirdly, one can trust in the good sense of the jury and that of our trial judges to weigh all the evidence in a fair and responsible manner, and they are unlikely to acquit too readily those who have committed offences while intoxicated.
22. The High Court of Australia held in O'Connor, supra, that the distinction between specific and general intent should not be followed and that in all cases, evidence of drunkenness should be left with the jury along with all other evidence relative to the issue of intent. The New Zealand Court of Appeal also rejected the artificial specific intent distinction: R. v. Kamipeli, [1975] 2 N.Z.L.R. 610. In that case, McCarthy P. gave the judgment of the Court and stated at p. 614 in relation to the correct interpretation of Director of Public Prosecutions v. Beard, [1920] A.C. 479:
(1) The quotations from Lord Birkenhead set out above refer to "specific" intents. The use of this adjective has of recent years been often criticised as suggesting the existence of a distinction between the Crown's burden in those cases when the general intent involved in proof of mens rea is necessary, on the one hand, and in those when the statute prescribes a particular intent on the other. But we cannot accept that Lord Birkenhead intended any such distinction. He also said:
"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‑‑eg wounding with intent to do grievous bodily harm or with intent to kill. 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. Drunkenness, rendering a person incapable of the intent, would be an answer, as it is for example in a charge of attempted suicide" (ibid., 504).
So whether it be a general or a particular intent the burden is the same; the Crown must prove the intent required by the crime alleged.
23. (Compare R. v. Roulston, [1976] 2 N.Z.L.R. 644 (N.Z.C.A.), at pp. 653‑54, holding the issue to be open in the light of Majewski, supra.)
24. As counsel for the appellant submits:
There has been no empirical evidence to indicate that during the brief period of ten to fifteen years, that the Canadian and English Courts have experimented with the rule in Majewski and Leary, that there has been a reduction in the incidence of intoxicated offenders. Nor is there empirical evidence that the incidence of intoxicated offenders is greater in Australia, and particularly in the State of Victoria, where the rule has long been eschewed (see the comments of Mr. Justice Stephen in Regina v. O'Connor, supra, at pp. 99‑100 and of Mr. Justice Wilson at p. 139). More importantly, there was no evidence before the House of Lords in 1976 in Majewski or before this Honourable Court in 1970 in Perrault and in 1977 in Leary to the effect that the pre‑existing common law was not functioning properly in this area.
25. The experience in New Zealand and Australia, where the specific intent has been abandoned, suggests that the public will be adequately protected if the issue is left to the good sense of the jury. O'Connor was preceded in the State of Victoria by R. v. Keogh, [1964] V.R. 400. In O'Connor, Stephen J. explained as follows, at p. 358:
A distrust of jurors and an anxiety that they may too readily be persuaded to an acquittal if evidence of the result of self‑induced intoxication, particularly by drugs other than alcohol, were allowed, may have formed some part of the public policy on which the decision rests. I may say at once that I have, of course, no experience of English juries: but I have of juries in New South Wales. Starke J., a most experienced judge in the hearing of criminal charges in Victoria, having had as well a long and distinguished career as an advocate, expressed himself in the present case in relation to the impact of evidence of intoxication upon Victorian jurors. He said:
"I, of course, have no knowledge of how English juries react. But over nearly forty years' experience in this State I have found juries to be very slow to accept a defence based on intoxication. I do not share the fear held by many in England that if intoxication is accepted as a defence as far as general intent is concerned the floodgates will open and hordes of guilty men will descend on the community."
I share his views, as if they had been expressed about jurors in New South Wales. In my opinion, properly instructed jurors would be scrupulous and not indulgent in deciding an issue of voluntariness or of intention. Indeed, I am inclined to think that they may tend to think that an accused who had taken alcohol and particularly other drugs to the point of extreme intoxication had brought on himself what flowed from that state of intoxication.
26. The empirical evidence is to the same effect: see George Smith J., "Footnote to O'Connor's Case" (1981), 5 Crim. L.J. 270, reviewing the effects of the O'Connor decision in Australia, and concluding, after review of over 500 trials held in the District Court of New South Wales, that the actual impact on the acquittal rate was minimal (at p. 277):
Certainly my inquiries would indicate that the decision in O'Connor's case, far from opening any floodgates has at most permitted an occasional drip to escape from the tap.
27. My comment in R. v. Hill, [1986] 1 S.C.R. 313, at p. 334, although made in a different context, bears repeating here: "I have the greatest of confidence in the level of intelligence and plain common sense of the average Canadian jury sitting on a criminal case. Juries are perfectly capable of sizing the matter up." In R. v. Bulmer, [1987] 1 S.C.R. 782, at p. 792, which dealt with the requirement in s. 244(4) of the Criminal Code that the jury be instructed on the issue of the honesty of the accused's mistaken belief in consent to consider the presence or absence of a reasonable grounds of that belief, McIntyre J. stated as follows:
This section, in my view, does not change the law as applied in Pappajohn. It does not require that the mistaken belief be reasonable or reasonably held. It simply makes it clear that in determining the issue of the honesty of the asserted belief, the presence or absence of reasonable grounds for the belief are relevant factors for the jury's consideration. This approach was, I suggest, foreshadowed in Pappajohn by Dickson J., at pp. 155‑56, where he said:
Perpetuation of fictions does little for the jury system or the integrity of criminal justice. The ongoing debate in the courts and learned journals as to whether mistake must be reasonable is conceptually important in the orderly development of the criminal law, but in my view, practically unimportant because the accused's statement that he was mistaken is not likely to be believed unless the mistake is, to the jury, reasonable. The jury will be concerned to consider the reasonableness of any grounds found, or asserted to be available, to support the defence of mistake. Although "reasonable grounds" is not a precondition to the availability of a plea of honest belief in consent, those grounds determine the weight to be given the defence. The reasonableness, or otherwise, of the accused's belief is only evidence for, or against, the view that the belief was actually held and the intent was, therefore, lacking.
III
Stare Decisis
28. The real issue in this appeal, it seems to me, is whether the Court should now overrule Leary. Let me say immediately that, even if a case were wrongly decided, certainty in the law remains an important consideration. There must be compel‑ ling circumstances to justify departure from a prior decision. On the other hand, it is clear that this Court may overrule its own decisions and indeed, it has exercised that discretion on a number of occasions. See Minister of Indian Affairs and Northern Development v. Ranville, [1982] 2 S.C.R. 518, at p. 527, citing the following cases for the proposition that the Court may overturn a prior decision: Reference Re The Farm Products Marketing Act, [1957] S.C.R. 198, at p. 212; Binus v. The Queen, [1967] S.C.R. 594, at p. 601; Peda v. The Queen, [1969] S.C.R. 905, at p. 911; Barnett v. Harrison, [1976] 2 S.C.R. 531, at p. 559; Capital Cities Communications Inc. v. Canadian Radio‑Television Commission, [1978] 2 S.C.R. 141, at p. 161; A.V.G. Management Science Ltd. v. Barwell Developments Ltd., [1979] 2 S.C.R. 43, at p. 57; Bell v. The Queen, [1979] 2 S.C.R. 212, at pp. 219‑20.
29. Cases in which the Court has actually exercised its discretion and acted to overrule, in addition to Ranville, supra, include the following: Paquette v. The Queen, [1977] 2 S.C.R. 189, at p. 197, overruling Dunbar v. The King (1936), 67 C.C.C. 20 (S.C.C.); McNamara Construction (Western) Ltd. v. The Queen, [1977] 2 S.C.R. 654, at p. 661, overruling Farwell v. The Queen (1894), 22 S.C.R. 553; Vetrovec v. The Queen, [1982] 1 S.C.R. 811, at p. 830.
30. There are at least four separate factors which find support in the jurisprudence of the Court which in my submission lead to the conclusion that Leary should be overruled.
A. Canadian Charter of Rights and Freedoms
31. Since Leary was decided, the Canadian Charter of Rights and Freedoms has come into force. This Court has held that legislation which imposes the sanction of imprisonment without proof of a blameworthy state of mind violates the guarantee of fundamental justice contained in s. 7 of the Charter and must be struck down unless it can meet the exacting test of s. 1 (see Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; R. v. Vaillancourt, [1987] 2 S.C.R. 636).
32. The appellant submits that Leary runs counter to s. 7 by providing that intoxication is no defence to a crime of general intent. In circumstances where the requisite mental intent is lacking due to an intoxicated condition, a general intent offence is converted into one of absolute liability in which proof of the commission of the actus reus by itself mandates conviction. It is also submitted that Leary runs counter to the presumption of innocence and the right to a fair hearing as guaranteed by s. 11 (d) of the Charter , in so far as wrongful intent is irrebuttably presumed upon the showing of intoxication.
33. In RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573, McIntyre J. held, at p. 603, that "the judiciary ought to apply and develop the principles of the common law in a manner consistent with the fundamental values enshrined in the Constitution." This principle supports the proposition that Leary ought to be reconsidered in light of the Charter .
34. The special mandate of the Charter has been found by the Court to require reconsideration of its own past decisions, and, where necessary, to overrule those authorities which fail to reflect the Charter 's values: see, e.g., R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, at pp. 333‑34, overruling Robertson and Rosetanni v. The Queen, [1963] S.C.R. 651, on the meaning of "freedom of religion"; R. v. Therens, [1985] 1 S.C.R. 613, at pp. 639‑40 overruling Chromiak v. The Queen, [1980] 1 S.C.R. 471, on the meaning of "detention"; Re B.C. Motor Vehicle Act, supra, departing from Duke v. The Queen, [1972] S.C.R. 917, on the meaning of "fundamental justice"; R. v. Smith (Edward Dewey), [1987] 1 S.C.R. 1045, adopting the minority opinion in Miller and Cockriell v. The Queen, [1977] 2 S.C.R. 680, in preference to that of the majority.
35. In Leary, I expressed the opinion that the fundamental rationale for the mens rea presumption could be framed in the following terms, at p. 34:
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 civili