R. v. Robinson

R. v. Robinson
Collection
Supreme Court Judgments
Date
1996-03-21
Report
[1996] 1 SCR 683
Case number
24302
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
British Columbia
Subjects
Criminal law
Notes
SCC Case Information: 24302
Decision Content
R. v. Robinson, [1996] 1 S.C.R. 683
Her Majesty The Queen Appellant
v.
Donald Robinson Respondent
Indexed as: R. v. Robinson
File No.: 24302.
1995: December 7; 1996: March 21.
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 british columbia
Criminal law ‑‑ Mens rea ‑‑ Murder -- Drunkenness ‑‑ Specific intent ‑‑ How juries should be instructed regarding evidence of intoxication ‑‑ Whether drunkenness must be at a level to render accused incapable of forming requisite intent or whether drunkenness can be considered in overall deliberation as to whether accused had necessary intent ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, ss. 229 (a)(i), (ii), 686(1) (b)(iii).
The accused killed a man but claimed to have acted without intent because he was intoxicated. The evidence revealed that he had been drinking with the victim and some friends and that the killing occurred when the victim said something to offend him. After being instructed on provocation, self‑defence and intoxication, the jury found the accused guilty of second‑degree murder. The Court of Appeal, however, allowed his appeal. At issue here are: (1) how juries should be instructed regarding evidence of intoxication; (2) whether the charge to the jury, read as a whole, constituted misdirection and reversible error on the issues of intoxication, the common-sense inference that a person intends the natural and probable consequences of his or her acts, and the burden on the Crown to prove the intent required for murder beyond a reasonable doubt; and (3) whether the curative provisions of s. 686(1) (b)(iii) of the Criminal Code should be applied.
Held (L'Heureux‑Dubé J. dissenting): The appeal should be dismissed.
Should MacAskill be Overruled?
Per Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.: The Beard rules (Director of Public Prosecutions v. Beard) on intoxication (adopted in MacAskill v. The King) should be overruled. These rules provide that intoxication is not a relevant factor for triers of fact to consider except where the intoxicant removed the accused's capacity to form the requisite intent. According to the Beard rules, the presumption that a person intends the natural consequences of his or her acts cannot be rebutted by evidence falling short of incapacity. This presumption to which Beard refers should only be interpreted as a common-sense inference that the jury can but is not compelled to make.
Five separate considerations favoured overruling the Beard rules: (1) the opinions of Laskin and Dickson C.JJ. which, albeit in dissent, suggested that the real focus should be on whether the Crown, in light of the intoxication evidence, has established the requisite intent beyond a reasonable doubt; (2) developments in provincial appellate courts which no longer follow the Beard rules and have developed two different approaches in its place ‑‑ R. v. Canute and R. v. MacKinlay; (3) developments in England, New Zealand and Australia where "capacity" language has fallen out of favour and intoxication is now simply a factor jurors can consider in assessing whether the prosecution has proved beyond a reasonable doubt that the accused had the required intent; (4) academic commentary which favours abandoning the Beard rules; and (5) the Canadian Charter of Rights and Freedoms which is violated by the Beard rules.
The Beard rules violate ss. 7 and 11 (d) of the Charter because they put an accused in jeopardy of being convicted even though a reasonable doubt could exist in the minds of the jurors on the issue of actual intent. This restriction on an accused's legal rights does not constitute a reasonable limit under s. 1 of the Charter .
A strict application of the Oakes test is appropriate. While decisions of the legislatures may be entitled to judicial deference under s. 1 as a matter of policy, such deference is not required when reviewing judge‑made law. The protection of the public from intoxicated offenders is of sufficient importance to warrant overriding a constitutionally protected right. A rational connection exists between the "capacity" restriction of the defence contained in the impugned common law rule and its objective. The restriction fails the proportionality prong, however, because it does not impair an accused's ss. 7 and 11 (d) rights as little as is reasonably possible. The Beard rules cast the criminal net too far in that all accused with the capacity to formulate the requisite intent cannot rely on their state of intoxication even though it might create a reasonable doubt as to whether the accused actually had the intent necessary to the crime.
Per L'Heureux-Dubé J.: The rule in MacAskill v. The King infringes ss. 7 and 11 (d) of the Charter because it prevents the trier of fact from considering evidence capable of raising a reasonable doubt as to whether the accused had the specific intent required to commit the offence. The effect of the rule is that an accused may be convicted of murder even if the evidence raises a reasonable doubt as to the existence of the intent element of the offence.
The common law may impose reasonable limits on Charter rights. While the analysis of a common law rule under s. 1 need not adhere strictly to the structure set out in Oakes, the substance of the analysis will be similar because its purpose is to ascertain whether the particular rule is a justifiable limit on rights.
The rule in MacAskill is not a reasonable limit on the rights guaranteed in ss. 7 and 11 (d) of the Charter . Case law from the many jurisdictions that have abandoned the rule has had no apparent adverse consequence that might give rise to pressing and substantial concerns. The absence of a convincing causative link between intoxication and violent crime, too, shows that the rule is not rationally connected to the objective of preventing crime. Finally, the MacAskill rule is not well tailored to address a particular objective in that it applies to all crimes of specific intent and therefore does not meet the proportionality or minimal impairment requirements.
For offences of specific intent, evidence of intoxication should no longer be subject to a rule requiring that it be considered only if intoxication attains such a degree that it deprives the accused of the capacity to form the specific intent. Evidence of intoxication can be considered with all other evidence in determining whether the accused actually had the specific intent required to constitute the offence.
The Replacement for the Beard Rules
Per Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.: A new rule consistent with the Constitution was devised. Before a trial judge is required by law to charge the jury on intoxication, he or she must be satisfied that the effect of the intoxication was such that the effect might have impaired the accused's foresight of consequences sufficiently to raise a reasonable doubt. Once a judge is satisfied that this threshold is met, he or she must then make it clear to the jury that the issue before them is whether the Crown has satisfied them beyond a reasonable doubt that the accused had the requisite intent.
A single step charge (Canute) is a useful model as it omits any reference to "capacity" or "capability" and focuses the jury on the question of "intent in fact". Arguments in favour of a two‑stage charge (MacKinlay) are based on the need to put the evidence of experts who often testify in "capacity" terms in context for the jury. In certain cases, in light of the particular facts of the case and/or in light of the expert evidence called, it may be appropriate to use the two-step charge.
If a two‑step charge is used with "capacity" and "capability" type language and the charge is the subject of an appeal, then a determination will have to be made by appellate courts on a case by case basis of whether there is a reasonable possibility that the jury may have been misled into believing that a determination of capacity was the only relevant inquiry. The following factors, not intended to be exhaustive, should be considered: (a) the number of times that reference to capacity is used; (b) the number of times that reference to the real inquiry of actual intent is used; (c) whether there is an additional "incapacity" defence; (d) the nature of the expert evidence (i.e., whether the expert's evidence relates to the issue of capacity rather than to the effect of alcohol on the brain); (e) the extent of the intoxication evidence; (f) whether the defence requested that references to "capacity" be used in the charge to the jury; (g) whether during a two‑step charge it was made clear that the primary function of the jury was to determine whether they were satisfied beyond a reasonable doubt that the accused possessed the requisite intent to commit the crime.
Per L'Heureux-Dubé J.: As a preliminary matter, the threshold for putting any defence to the jury is whether it has an evidentiary basis on which a reasonable jury might acquit. Where the accused’s defence rests on evidence of intoxication, the question is whether there is sufficient evidence of intoxication that a jury could have a reasonable doubt as to whether the accused had the specific intention, knowledge or foresight required for the offence.
Assuming that the evidence meets this threshold, two approaches have been developed as to how the judge must present the evidence of intoxication to the jury: a one-step charge, referring only to intent; and a two-step charge that also mentions that intoxication may be relevant to the accused’s capacity to form the required intent. Where a trial judge has referred to capacity or used a two-step charge, the question is not whether there is a “reasonable possibility that the jury may have been misled” since that question arises only after an ambiguity or error has been identified. If the evidence in a particular case puts the accused’s capacity in issue, it cannot be an error to tell the jury that they must acquit the accused if they have a reasonable doubt as to whether the accused had the capacity to form the required intent. Nor is a charge necessarily ambiguous simply because it discusses capacity. Rather, each charge must be reviewed individually to ascertain whether it meets the basic requirements of correctness, completeness and clarity. If it does, it cannot be impeached, regardless of whether it contains one step or two.
This Court need not and should not express a general preference for either form of charge, or construct a special test, based on minutiae, for determining whether references to capacity were acceptable. The role of an appellate court in reviewing a jury charge is to determine whether the effect of the charge as a whole is to leave the jurors with an adequate understanding of the issues involved, the law relating to the issues, and the evidence that they should consider in resolving the issues. It is not to express vague disapproval of a form of charge that, in frequent cases, will be perfectly appropriate.
Application to this Case
Per Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.: The charge in this case left the jury with the impression that there was a threshold test that had to be met before the intoxication evidence became relevant. No instruction was given informing the jury that they were entitled to consider whether, in light of the intoxication evidence, the accused had the requisite intent in fact. In this case, a charge linking the evidence of intoxication with the issue of intent in fact was particularly important since there was also some, albeit weak, evidence of provocation and self‑defence. The jury, even if it may have rejected each individual defence, could have had a reasonable doubt about intent had they been instructed that they could still consider the evidence of intoxication, provocation and self‑defence cumulatively on that issue.
The trial judge's incorrect use of the term presumption in discussing the common-sense inference that a sane and sober person intends the natural consequences of his or her actions did not result in reversible error when read in the context of the charge as a whole. He made it sufficiently clear to the jury that they were not obligated to follow it.
Where some evidence of intoxication exists, a trial judge must link his or her instructions on intoxication with the instruction on the common-sense inference so that the jury is specifically instructed that evidence of intoxication can rebut the inference. In both the model charges set out in MacKinlay and Canute, this approach is taken. This instruction is critical since in most cases jurors are likely to rely on the inference to find intent. Moreover, if no instruction is given, a confused jury may see a conflict between the inference and the defence and resolve that conflict in favour of their own evaluation of common sense. Therefore, an instruction which does not link the common-sense inference with the evidence of intoxication constitutes reversible error. In this case, the trial judge's failure to make this linkage constitutes reversible error.
The trial judge correctly stated the distinction between the two intents for murder under s. 229 at some points in the charge but he also misstated or blurred the distinction at others. The lapses and errors in the charge as it related to specific intent for murder in s. 229(a)(ii) of the Code aggravated the other errors in the charge but did not warrant ordering a new trial on this ground alone.
The jury would not have adequately understood the issues concerning intoxication and intent or the law and evidence relating to those issues. The curative provisions of s. 686(1)(b)(iii) of the Code should not be applied as the accused was denied a defence to which he was entitled to at law. The appeal was therefore dismissed.
Per L'Heureux‑Dubé J. (dissenting): Most of the errors alleged by the accused are non-existent, and the few imperfections that do exist are immaterial. In describing the common-sense inference that people intend the natural consequences of their acts, the use of the term “presumption” was not an error because the jury understood that the “presumption” or “inference” was optional. Moreover, the trial judge put the common-sense inference in its proper perspective and made it clear that the overriding issue was whether the Crown had proved specific intent. There is no absolute requirement that the evidence of intoxication be linked to the common-sense inference. It was clear to the jury, exercising its common sense, that the evidence of intoxication could be considered together with the other evidence in ascertaining the accused’s intent.
Cases Cited
By Lamer C.J.
Overruled: MacAskill v. The King, [1931] S.C.R. 330; considered: Mulligan v. The Queen, [1977] 1 S.C.R. 612; R. v. Bernard, [1988] 2 S.C.R. 833; R. v. Vasil, [1981] 1 S.C.R. 469; Young v. The Queen, [1981] 2 S.C.R. 39; R. v. Cooper, [1993] 1 S.C.R. 146; R. v. MacKinlay (1986), 28 C.C.C. (3d) 306; R. v. Canute (1993), 80 C.C.C. (3d) 403; referred to: Director of Public Prosecutions v. Beard, [1920] A.C. 479; Reniger v. Fogassa (1551), 1 Plowden 1, 75 E.R. 1; R. v. Doherty (1887), 16 Cox C.C. 306; R. v. Meade, [1909] 1 K.B. 895; Malanik v. The Queen, [1952] 2 S.C.R. 335; Bradley v. The Queen, [1956] S.C.R. 723; R. v. Giannotti (1956), 115 C.C.C. 203; Latour v. The King, [1951] S.C.R. 19; Capson v. The Queen, [1953] 1 S.C.R. 44; R. v. George, [1960] S.C.R. 871; Leary v. The Queen, [1978] 1 S.C.R. 29; Alward v. The Queen, [1978] 1 S.C.R. 559; Swietlinski v. The Queen, [1980] 2 S.C.R. 956; Minister of Indian Affairs and Northern Development v. Ranville, [1982] 2 S.C.R. 518; R. v. B. (K.G.), [1993] 1 S.C.R. 740; Perrault v. The Queen, [1971] S.C.R. 196; R. v. Dees (1978), 40 C.C.C. (2d) 58; R. v. Dumais (1993), 87 C.C.C. (3d) 281; R. v. Crane (1993), 81 C.C.C. (3d) 276; R. v. Ivany (1991), 89 Nfld. & P.E.I.R. 13; R. v. Allen (1994), 120 Nfld. & P.E.I.R. 188; R. v. Neaves (1992), 75 C.C.C. (3d) 201; R. v. Korzepa (1991), 64 C.C.C. (3d) 489; R. v. Cormier (1993), 86 C.C.C. (3d) 163; R. v. Larose (1993), 25 B.C.A.C. 264; R. v. Smoke, [1993] A.J. No. 758 (QL); R. v. Laisa, [1993] N.W.T.R. 199, leave to appeal refused, [1994] 1 S.C.R. viii; Sheehan and Moore (1975), 60 Cr. App. R. 308; R. v. Pordage, [1975] Crim. L.R. 575; Garlick (1980), 72 Cr. App. R. 291; R. v. Davies, [1991] Crim. L.R. 469; R. v. Kamipeli, [1975] 2 N.Z.L.R. 610; R. v. Hart, [1986] 2 N.Z.L.R. 408; R. v. Tihi, [1990] 1 N.Z.L.R. 540; Viro v. The Queen (1978), 141 C.L.R. 88; R. v. Vaillancourt, [1987] 2 S.C.R. 636; R. v. Oakes, [1986] 1 S.C.R. 103; RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573; Cloutier v. Langlois, [1990] 1 S.C.R. 158; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; R. v. Clow (1985), 44 C.R. (3d) 228; R. v. Desveaux (1986), 51 C.R. (3d) 173; R. v. Nealy (1986), 54 C.R. (3d) 158.
By L'Heureux‑Dubé J. (dissenting)
Director of Public Prosecutions v. Beard, [1920] A.C. 479; R. v. Daviault, [1994] 3 S.C.R. 63; MacAskill v. The King, [1931] S.C.R. 330; Leary v. The Queen, [1978] 1 S.C.R. 29; R. v. Bernard, [1988] 2 S.C.R. 833; R. v. O'Connor, [1995] 4 S.C.R. 411; RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573; Cloutier v. Langlois, [1990] 1 S.C.R. 158; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; R. v. Vaillancourt, [1987] 2 S.C.R. 636; R. v. Thomsen, [1988] 1 S.C.R. 640; R. v. Swain, [1991] 1 S.C.R. 933; Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130; R. v. Oakes, [1986] 1 S.C.R. 103; Pappajohn v. The Queen, [1980] 2 S.C.R. 120; R. v. Osolin, [1993] 4 S.C.R. 595; R. v. Park, [1995] 2 S.C.R. 836; R. v. Canute (1993), 80 C.C.C. (3d) 403; R. v. MacKinlay (1986), 28 C.C.C. (3d) 306; R. v. Marquard, [1993] 4 S.C.R. 223; R. v. Brydon, [1995] 4 S.C.R. 253; R. v. Cooper, [1993] 1 S.C.R. 146; R. v. Crawford (1970), 1 C.C.C. (2d) 515.
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. 229 (a)(i), (ii), 686(1) (b)(iii).
Authors Cited
Berner, S. H. "The Defense of Drunkenness -‑ A Reconsideration" (1971), 6 U.B.C. L. Rev. 309.
Colvin, Eric. "A Theory of the Intoxication Defence" (1981), 59 Can. Bar Rev. 750.
Colvin, Eric. "Codification and Reform of the Intoxication Defence" (1983), 26 Crim. L.Q. 43.
Colvin, Eric. Principles of Criminal Law. Toronto: Carswell, 1986.
Gold, Alan D. "An Untrimmed `Beard': The Law of Intoxication as a Defence to a Criminal Charge" (1976-77), 19 Crim. L.Q. 34.
Healy, Patrick. "R. v. Bernard: Difficulties with Voluntary Intoxication" (1990), 35 McGill L.J. 610.
Quigley, Tim. "A Shorn Beard" (1987), 10 Dal. L.J. 167.
Smith, J. C., and Brian Hogan. Criminal Law, 7th ed. London: Butterworths, 1992.
Stuart, Don. Canadian Criminal Law: A Treatise, 3rd ed. Scarborough, Ont.: Carswell, 1995.
Williams, Glanville. Textbook of Criminal Law, 2nd ed. London: Stevens & Sons, 1983.
APPEAL from a judgment of the British Columbia Court of Appeal (1994), 48 B.C.A.C. 161, 78 W.A.C. 161, 92 C.C.C. (3d) 193, allowing an appeal from conviction by Hutchison J. sitting with jury. Appeal dismissed, L'Heureux‑Dubé J. dissenting.
William F. Ehrcke, for the appellant.
G. D. McKinnon, Q.C., for the respondent.
The judgment of Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ. was delivered by
Lamer C.J. --
I. Introduction
1 In March of 1920, Britain's House of Lords handed down judgment in the now famous Beard case (Director of Public Prosecutions v. Beard, [1920] A.C. 479). The issue before the court concerned the manner in which a jury should be instructed on the relationship between intoxication and intent. Lord Birkenhead, in speaking for the court, formulated rules that evidence of intoxication is to be considered by a jury only in those cases where its effect was to render the accused incapable of forming the requisite intent. In MacAskill v. The King, [1931] S.C.R. 330, the Beard rules were incorporated into our law and they have been, for the most part, applied by this Court ever since.
2 I am of the view that the time has finally come for this Court to review the adequacy of MacAskill in light of earlier opinions expressed by Laskin and Dickson C.JJ., the Canadian Charter of Rights and Freedoms and other relevant developments in this area in our provincial appellate courts and other common law countries.
II. Summary of the Facts
3 Clark Hall was found stabbed to death, seated in a chair in his own apartment, on January 22, 1991. He was 52 years old. The autopsy revealed that he had suffered at least 12 blunt trauma wounds to the head which together would result in unconsciousness, but not death. Death was caused by three stab wounds to the upper part of the stomach, any one of which would have been fatal. The deceased had a blood alcohol level of 293 milligrams of alcohol per 100 millilitres of blood. The police found an empty litre-bottle of red wine in his apartment.
4 According to the respondent's statement to the police, he stabbed the deceased in self-defence. The deceased apparently said something to the respondent who then struck the deceased on the head with a rock from his pocket. The respondent then went to the kitchen, returned with a bread knife and was standing with the knife in his right hand. The respondent remembered stabbing the deceased two times and pushing him back into his chair.
5 The stabbing was witnessed by two other individuals. One of these witnesses, a self-described panhandler and street person of no fixed address, testified that both the deceased and the respondent had been drinking and that the respondent was very drunk. At some point, the deceased told another individual present to "get rid of your two friends" and the respondent then hit the deceased on the head with a rock. According to this witness, the deceased never stood up and remained in his chair as the respondent stabbed the deceased.
6 In final submissions to the jury, defence counsel submitted that the most important issue in the case was how the jury was going to deal with the defence of intoxication. Crown counsel conceded that the respondent was under some degree of influence of intoxication. In his charge to the jury, the trial judge told them that intoxication in this case was "significant" and there was evidence that the respondent "consumed a considerable amount of alcohol before the alleged killing of Mr. Clark Hall."
7 The respondent was convicted of second degree murder by a jury. He appealed his conviction to the British Columbia Court of Appeal primarily on the basis that the trial judge had misdirected the jury on the manner in which they could use the evidence of intoxication as it related to the requisite intent for murder. The British Columbia Court of Appeal allowed the appeal and the Crown appealed that decision to this Court on the basis of Gibbs J.A.'s dissent and pursuant to leave granted on March 2, 1995 ([1995] 1 S.C.R. x).
III. The Issues
8 The issues to be decided in this appeal, as stated by the appellant Crown in its factum, are as follows:
[1.]Did the majority in the British Columbia Court of Appeal err in law in concluding that the trial judge's instructions to the jury, when read as a whole, constitute misdirection and reversible error on the issues of intoxication, the common sense inference that a person intends the natural and probable consequences of his acts, and the burden on the Crown to prove the intent required for murder beyond a reasonable doubt?
[2.] Did the British Columbia Court of Appeal err in law in following Regina v. Canute (1993), 80 C.C.C. (3d) 403 and in deciding that it is reversible error for a trial judge to instruct a jury on the defence of drunkenness in accordance with the "two-step" process enunciated in Regina v. MacKinlay (1986), 28 C.C.C. (3d) 306?
[3.] Did the British Columbia Court of Appeal err in law in failing to apply the provisions of s. 686(1) (b)(iii) [of the Criminal Code, R.S.C., 1985, c. C-46 ]?
IV. Analysis
(i) The Beard Rules: Capacity Is the Only Relevant Inquiry
9 Arthur Beard was convicted of murder and sentenced to death in the rape and killing of a 13-year-old girl. Beard's position at trial was that he was only guilty of manslaughter as his self-induced intoxication rendered him incapable of knowing that what he was doing was likely to inflict serious injury. The case eventually found its way to Britain's House of Lords on a point of law described by Lord Birkenhead at p. 493 as one of "undoubted importance in the administration of the criminal law" -- the manner in which juries should be instructed concerning evidence of intoxication.
10 It is important to recall that until the early nineteenth century, the law of England was such that drunkenness was never a mitigating factor in assessing liability: Reniger v. Fogassa (1551), 1 Plowden 1, 75 E.R. 1 (Ex. Ct.). This rigid rule was slowly relaxed over the next century (see, for example, R. v. Doherty (1887), 16 Cox C.C. 306 C.C.C., and R. v. Meade, [1909] 1 K.B. 895 (C.C.A.)) in cases involving serious offences such as murder to reflect the harshness of the sentence which often included the death penalty. The historical development of the English law, in this area, is discussed by Professor Quigley in "A Shorn Beard" (1987), 10 Dal. L.J. 167.
11 In delivering his speech in Beard, supra, at pp. 501-502, Lord Birkenhead reviewed the developments over the last century and formulated the following famous rules of intoxication which he believed properly reflected the current state of the English law:
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.
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. [Emphasis added.]
Under these rules, intoxication is not a relevant factor for triers of fact to consider except in those cases where the alcohol or drugs has removed the accused's capacity to form the requisite intent.
(ii)The Incorporation of Beard into our Common Law: MacAskill and its Progeny
12 Some eleven years after the decision in Beard, this Court was given an opportunity to consider the manner in which juries should be instructed on the circumstances under which intoxication could reduce a charge of murder to manslaughter in MacAskill, supra. MacAskill had been convicted of murder and sentenced to death. In ruling on the propriety of the trial judge's charge to the jury, this Court held at p. 332 that the Beard "propositions embody the rules governing us on this appeal". Duff J. (as he then was) stated at p. 334:
The right direction ... is that evidence of drunkenness rendering the accused incapable of the state of mind defined by that subsection [s. 259(b)] may be taken into account with the other facts of the case for the purpose of determining whether or not, in fact, the accused had the intent necessary to bring the case within that subsection; but that the existence of drunkenness not involving such incapacity is not a defence.
13 The only modification to the Beard rules came in Malanik v. The Queen, [1952] 2 S.C.R. 335, at p. 341, where this Court held that the word "proved" should be removed from its rules. In other words, intoxication should be treated like any other defence where there is simply an evidentiary burden on the accused to adduce some evidence capable of raising a reasonable doubt.
14 In Bradley v. The Queen, [1956] S.C.R. 723, the following observation concerning the presumption that a person intends the natural consequences of his or her acts contained in the Beard rules was made (at pp. 728-29):
... it may be said that, when dealing generally with the presumption that a man is presumed to intend the natural consequences of his act, certain statements of the charge could be objectionable.
However, the Court did not find it necessary to make a modification to this aspect of the Beard rules in that case. Therefore, I wish to take the opportunity in this case to hold that the presumption of intent, to which Beard refers, should only be interpreted and referred to as a common sense and logical inference that the jury can but is not compelled to make. See Mulligan v. The Queen, [1977] 1 S.C.R. 612, at p. 616 (per Spence J.), and R. v. Giannotti (1956), 115 C.C.C. 203 (Ont. C.A.).
15 Since MacAskill, the Beard rules and "capacity" language have been approved of and relied on in many decisions of this Court. Some of these decisions include Latour v. The King, [1951] S.C.R. 19, at pp. 29-30; Malanik, supra, at p. 341 ("the accused is entitled to the benefit of any reasonable doubt as to the capacity of the accused to form the necessary intent" (emphasis added)); Capson v. The Queen, [1953] 1 S.C.R. 44, at p. 47; R. v. George, [1960] S.C.R. 871, at p. 879 ("the question is whether, owing to drunkenness, respondent's condition was such that he was incapable of applying force intentionally" (emphasis added)); Mulligan, supra, at p. 625 ("This is not, therefore, a case in which, because of a pre-existing condition, the appellant was more likely to become incapable as a result of consuming alcohol" (emphasis added)); Leary v. The Queen, [1978] 1 S.C.R. 29, at pp. 59-60; Alward v. The Queen, [1978] 1 S.C.R. 559, at pp. 566-69; Swietlinski v. The Queen, [1980] 2 S.C.R. 956, at pp. 970-71; and R. v. Bernard, [1988] 2 S.C.R. 833, at pp. 864-65:
Drunkenness in a general sense is not a true defence to a criminal act. Where, however, in a case which involves a crime of specific intent, the accused is so affected by intoxication that he lacks the capacity to form the specific intent required to commit the crime charged it may apply. [Emphasis added.]
(iii) Should MacAskill Be Overruled?
16 The important issue raised by this appeal is whether the Court should now overrule the Beard rules of intoxication incorporated in MacAskill and its progeny. It is clear that this Court may overrule its own decisions: see Minister of Indian Affairs and Northern Development v. Ranville, [1982] 2 S.C.R. 518, at p. 527. Indeed, I recently overruled the long-standing rule concerning the admissibility of prior inconsistent statements for the truth of their contents in R. v. B. (K.G.), [1993] 1 S.C.R. 740. However, as Dickson C.J. remarked in Bernard, at p. 849, "[t]here must be compelling circumstances to justify departure from a prior decision".
17 I am of the view that there are at least five separate considerations in the jurisprudence and academic commentary which support the conclusion that MacAskill should now be overruled.
(a) The Opinions of Former Chief Justices Laskin and Dickson
18 While the bulk of authority following MacAskill in this Court continued to use "capacity" as the threshold for the intoxication defence, a number of judges, most notably Laskin and Dickson C.JJ., began to question Beard implicitly by suggesting that the real focus should be on whether, in light of the intoxication evidence, the Crown has established the requisite intent beyond a reasonable doubt. In addition, a number of decisions highlighted that the issue of the appropriateness of the Beard rules was a live and open one.
19 In the early seventies, Laskin J., as he then was, writing in dissent along with Hall and Spence JJ. in Perrault v. The Queen, [1971] S.C.R. 196, was the first to recognize that the real question was one of intent in fact and that even where the evidence of intoxication did not rise to the level of incapacity, it could still be relevant to intent in fact and therefore should not be rejected (at p. 207):
It is necessary, of course, in cases where drunkenness is raised as a defence, or where on the evidence it may be a defence, to a charge of murder, to avoid confusing the effect of drunkenness on the capacity to form the requisite intent with the question whether there was such intent in fact. The rejection of the one (that is, as a defence) does not automatically result in the establishment of the other.
20 Laskin J.'s well-reasoned opinion was applauded by Professor S. H. Berner in "The Defense of Drunkenness -- A Reconsideration" (1971), 6 U.B.C. L. Rev. 309, who commented at p. 329 that:
Laskin's point is well taken, and it is unfortunate that the majority in Perrault refused to subscribe to his analysis. In principle at least, it seems quite clear that the distinction which Laskin, J. draws between drunkenness "as referable to capacity" and drunkenness as referable to "intent in fact" is valid.
21 Similar views began to be expressed by Dickson J. in the late seventies. In Mulligan, Dickson J., alone in dissent, argued that the critical inquiry, notwithstanding the issue of capacity, is whether the accused had the requisite intent in fact, and therefore that all relevant evidence bearing on that issue, including evidence of intoxication, should be considered by the triers of fact (at pp. 627-28):
When deciding whether an accused can rely on the defence of drunkenness to negative capacity to form the intent to kill, one must consider the effect of the alcohol alleged to have been consumed upon the particular accused, at the particular time, and in his then mental state. Mental condition is a relevant, indeed essential, consideration to a determination of mens rea if, in conjunction with alcohol, it affects capacity to form an intention. Mental condition as well as the effect of alcohol are relevant to the critical question, not placed before the jury in this case, of whether the accused had the necessary intent.
The predominant question is intent. A rigid categorization of defences, keeping medical evidence of insanity entirely separate from evidence of drunkenness is not only unrealistic but a departure from all that is embraced in the phrase `mens rea'. The concern is with the particular accused and with his capacity to form the intent to kill when as here, for example, the defence contends the accused was in a dissociative state of mind, drunk and provoked. It was necessary for the jury to weigh and assess each of these elements separately; it was imperative also, in my view, to relate the evidence of drunkenness to the evidence of the mental state of the accused. These are not easy matters to explain to a jury. Obviously, the jury was confused here, as evidenced by the request for a recharge on provocation, insanity and intent. The attempt must, however, be made. If intent and capacity are to be anything more than catchwords, then all factors bearing upon capacity and intent, such as dissociative state, stress and drunkenness, must be considered jointly and severally as part of an overall picture and their respective influences, each upon the other, assessed. [Emphasis in original.]
22 Dickson J.'s approach in Mulligan was further refined a year later in his dissenting reasons in Leary, wherein, joined by Laskin C.J. and Spence J., he stated at pp. 33 and 35:
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 ....
I would answer the question of law posed in this appeal in this manner -- drunkenness ... may be considered by the jury, together with all other relevant evidence, in determining whether the prosecution has proved beyond a reasonable doubt the mens rea required to constitute the crime.
...
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. [Emphasis added.]
23 Ten years later, in 1988, similar views were again expressed at p. 843 by now Dickson C.J., again in dissent, in Bernard, reasons in which I concurred:
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.
24 By the 1980s, it was thus clear to some members of this Court that the validity of Beard and MacAskill was now prone to a challenge. In R. v. Vasil, [1981] 1 S.C.R. 469, in order to ensure that we did not foreclose a future challenge, I held, at p. 496 for the majority which included Dickson J., that:
. . . I should like to mention that my agreement with the reasoning of that Court [the Ontario Court of Appeal] as to the relevancy of drunkenness need not and for that reason does not, for the purpose of disposing of this appeal, include an endorsement of the proposition that it is sufficient that the accused have "the capacity to form the intent ...."
25 Moreover, in Young v. The Queen, [1981] 2 S.C.R. 39, I, in dissent with Laskin C.J. and Dickson J. but not on this point, declined at p. 43 to take up the appellant's request that we reconsider Beard since the issue had become moot in the context of the case:
Whilst acknowledging this, appellant invites us to reconsider this area of the law dealing with drunkenness, and order a new trial because of misdirection as to the proper test as regards the effect of intoxication on mens rea. As I am of the opinion that appellant should succeed on another ground, there is here no compelling reason to do so. Furthermore, I do not think that this is the proper case to reconsider that question as we have been invited to reconsider only the test, and, as a result have had the benefit of argument solely on that aspect of the question. Indeed, if and when we do so, it would then be desirable that we consider not only the test set out in Beard (capacity) but also, as was done by my brother Dickson in Leary v. The Queen, the logic and desirability of categorizing offences as of general or specific intent. A departure from the "capacity test", without reconsideration of the very existence of those categories, could lead to erratic and undesirable results when the defence of intoxication is applied.
26 Finally, this Court's decision in R. v. Cooper, [1993] 1 S.C.R. 146, confirmed that the issue of the validity of Beard and MacAskill was still an open one that would need to be soon addressed by this Court. Cory J., for the majority, stated at p. 164:
There is a difference of opinion among appellate courts as to the effect of evidence as to intoxication. In R. v. MacKinlay (1986), 28 C.C.C. (3d) 306 (Ont. C.A.),