COMMENTS
CHRONIQUE DE JURISPRUDENCE
R. v. Bernard: Difficulties with Voluntary Intoxication
Patrick Healy*
Synopsis
Introduction
I.
H.
The Proposed Compromise
The Scope of Intoxication
A.
B.
C. Evidence of Intoxication to Support Exculpatory Claims
Intoxication and Capacity
Intoxication as a Defence to Alternative Mental States
Substance or Proof?
II.
Conclusion
* *
*
* Of the Quebec Bar and the Faculty of Law, McGill University. Thanks to the following, who
read this text in draft and made helpful comments: Bruce Archibald, Stan Cohen, Stephen
Hamilton, Nicholas Kasirer, Yves-Marie Morissette, James O’Reilly and David Paciocco. I would
also like to acknowledge, with sincere gratitude, the support of the Boulton Fellowship Trust.
McGill Law Journal 1990
Revue de droit de McGill
1990]
COMMENTS
Introduction
Over a forceful dissent a majority of the Supreme Court of Canada in
Leary’ adopted two central elements of the rule in Majewski:2 that voluntary
intoxication can negate specific intent and that it can suffice for proof of general
or basic intent. Leary was decided some five years before the Canadian Charter
of Rights and Freedoms came into force and, for better or worse, began the tec-
tonic transformation of Canadian jurisprudence. In Bernard’ the rule in Leary
was challenged in the Supreme Court. It survived but the result leaves the law
in an untidy state.
The full court of nine judges heard Bernard but two resigned and took no
part in the decision. The two that decided to sustain Leary and Majewski have
since retired.4 Four opinions were delivered: one plainly for the rule (McIntyre
and Beetz JJ., both now retired), one plainly against it (Dickson C.J.C. and
Lamer J.), one proposing a compromise (Wilson and L’Heureux-Dub6 JJ.) and
the last “in general agreement with the law as stated by the Chief Justice”5 but
joining with all of the others in the application of the proviso (La Forest J.).6 The
cacophony of opinion and reliance on the proviso are two reasons to suggest
that in an appropriate case the Court should soon reconsider the issue.
Reconsideration will be necessary, if only to clarify the state of authority after
Bernard.7
On appeal from conviction of sexual assault causing bodily harm the
defence conceded that the appellant had forced the complainant to have inter-
course. He had also punched and threatened her. The accused gave no evidence
but the prosecution adduced a statement to police in which Bernard admitted
forcing the complainant. That statement contained the only evidence of intox-
ication, as noted by the judge in his instructions:
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.8
1[1978] 1 S.C.R. 29, 33 C.C.C. (2d) 473, 74 D.L.R. (3d) 103 [hereinafter cited to S.C.R.].
2[1977] A.C. 443, [1976] 2 All E.R. 142 (H.L.).
3[1988] 2 S.C.R. 833, 45 C.C.C. (3d) 1, 67 C.R. (3d) 113 [hereinafter cited to S.C.R.]. Quin v.
R., [1988] 2 S.C.R. 825, 67 C.R. (3d) 162, 45 C.C.C. (3d) 570, was heard and decided with
Bernard; the division of the Court was the same.
4Thus four of the nine judges now sitting have expressed no view and Dickson C.J.C. will retire
in June 1990.
5Supra, note 3 at 892.
6Criminal Code, R.S.C. 1985, c. C-46, s. 686(1)(b)(iii).
7An opportunity for reconsideration, at least in part, has arisen in R. v. Penno (1986), 18 O.A.C.
31, which was heard in the Supreme Court on 31 January 1990: File No. 20234 (under reserve as
of 9 May 1990).
8Supra, note 3 at 862.
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Leave was granted9 on whether sexual assault is an offence of general or
specific intent and, if the former, whether self-induced intoxication is a defence
to crimes of general intent.
On matters of principle and policy, the division between the opinions of
McIntyre J. and Dickson C.J.C. adds little to the long-standing controversy that
began with Beard”0 and has continued in cases, reports, articles and books, espe-
cially over the past fifteen years.” McIntyre J. found no reason under the
Charter or otherwise to disturb Leary. He reaffirmed the distinction between
general and specific intent, distinguished them in the traditional way, and for
good measure declared that the distinction is real, cogent and not fictitious. 2 In
language reminiscent of Beard, McIntyre J. refers to the effect of intoxication
on the accused’s capacity to form the requisite specific intent. He also endorses
the second proposition in Majewski 3 with the assertion that proof of voluntary
intoxication can be proof of mens rea.4 He departs from Majewski by saying
that this proposition should be understood as an alternative to inference from the
actus reus as a means of proof. In substituting voluntary intoxication for basic
intent as an alternative element of fault, McIntyre J. allows that what might be
lost in strict logic is gained by “policy so compelling that it possesses its own
logic.”‘ 5 The policy is that sodden people who do bad things deserve conviction
9[1986] 1 S.C.R. vi (coram Lamer, Le Dain and La Forest JJ.).
‘D.P.P v. Beard, [1920] A.C. 479 (H.L.). Lord Birkenhead reviewed the authorities and sought
to distil their import in these three celebrated propositions:
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 drunken man’s mind becomes incapable of forming a specific intention,
has been preserved throughout the cases. ….
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.
“SeeR. v. O’Connor (1980), 146 C.L.R. 64,29 A.L.R. 449, [1980] Vict.R. 635 (H.C.), in which
a slight majority of the High Court of Australia elected not to follow Majewski and to follow the
dissenting reasons of Dickson J. in Leary. O’Connor was affirmed and clarified in R. v. Martin
(1984), 51 A.L.R. 540, 58 A.L.J.R. 217 (Aust. H.C.) and followed by a unanimous Court in
Chretien [1981] 1 S.A. 1097. For discussion see C.R. Williams, [1980] Ann. Survey Aust. L.
91-104; C.R. Williams, [1984] Ann. Survey Aust. L. 54-55; P. Fairall, “Majewski Banished” (1980)
4 Crim. L.J. 264; M. Goode, “Some Thoughts on the Present State of the ‘Defence’ of
Intoxication” (1984) 8 Crim. L.J. 104.
‘2Supra, note 3 at 863.
13Supra, note 2 at 475-476, Elwyn-Jones L.C.
14Supra, note 3 at 879.
151bid. at 880.
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CHRONIQUE DE JURISPRUDENCE
and punishment, at the very least for doing those things if not for being bad peo-
ple. It is an old and popular view 6 from which few dissent. But it is blunt policy
that raises difficulties in theory and practice when enforced by a blunt rule.
The premise of the dissent is that intoxication can negate mens rea without
negating capacity. In Dickson C.J.C.’s view the distinction between specific and
general intent is specious because specificity of itself has no normative value in
the interpretation of intent. Mental states might usefully be described or identi-
fied as having greater or lesser particularity, but that is no more than common
usage and plain words. 7 Accordingly, the distinction between specific and gen-
eral intent should be abandoned: intoxication should be defined as an exculpa-
tory claim of general application in the denial of mens rea and evidence of it
should be generally admissible for that purpose. His objection to the rule, as in
Leary,” is that its sole purpose is to erect a substantive estoppel to bar otherwise
available exculpatory claims or to bar otherwise relevant evidence to support
some other exculpatory claim. Dickson C.J.C. does not expressly dissent from
the reasons of policy that support this objective and his opinion shows consid-
erable support for them. 9 The nub of his dissent is that the rule in Leay and
Majewski rests upon analytical nonsense and implements its aim with such
bluntness that it conflicts with fundamental principles of criminal justice.
On any account voluntary intoxication can have legal significance in two
ways. First, it can be part of the substantive law in so far as it might be defined
as an element of guilt or an exculpatory claim. Second, intoxication can be
given as evidence of inculpatory elements or exculpatory claims, either where
intoxication is in issue as a matter of substantive law or where it is not.20 The
cardinal distinction between substantive law and evidence, combined with the
distinction between inculpation and exculpation, thus allows four permutations.
Controversy has always concerned which ones should be permissible. In this
regard the proposal for compromise suggested by Wilson J. in Bernard warrants
scrutiny. All three major opinions raise questions about the ambit of intoxication
as a matter of substantive law and evidence. Finally, Bernard marks the first
occasion on which the Supreme Court of Canada has examined the constitu-
tional validity of the rule in Leaty and Majewski under the Charter.
16Reniger v. Fogossa (1551), 1 Plow. 1 at 19, 75 E.R. 1 at 30.
17See J. Hall, General Principles of Criminal Law, 2d ed. (Indianapolis: Bobbs-Merrill, 1960)
at 546-548; G.P. Fletcher, Rethinking Criminal Law (Boston: Little, Brown, 1978) at 850-852.
‘8See also R. v. Mulligan, [1977] 1 S.C.R. 612, 28 C.C.C. (2d) 266, 66 D.L.R. (3d) 627.
19Supra, note 3 at 847-849.
2For example, where evidence of intoxication might be adduced to support an independent
defence, justification or excuse.
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I. The Proposed Compromise
The general premise of Wilson J.’s opinion is that as a matter of substantive
law, intoxication is incapable of raising a reasonable doubt against the prosecu-
tion’s case. She would recognise two exceptions. The first is for specific intent
and so she adheres to the orthodoxy of Leary and Majewski. Second, Wilson J.
would allow evidence of intoxication to support an acquittal for lack of general
intent where “it is evidence of extreme intoxication involving an absence of
awareness akin to a state of insanity or automatism” or, as she says elsewhere,
where extreme intoxication is verging on insanity or automatism.2 She postu-
lates that only cases of extreme intoxication could raise a reasonable doubt
against intent, and thus she would relax the rigour of Leary and Majewski if evi-
dence supporting intoxication were strong. 22 In any other case, she says, evi-
dence of intoxication should not go to the jury as an independent basis for
acquittal. This sweeping obiter would exclude intoxication as a defence to any
other mental state in the defining elements of an offence and exclude evidence
of intoxication as a support for any other exculpatory claim. Wilson J. does not
explore these implications. Nor does she explore whether general intent and vol-
untariness are synonymous, which is another of the substantial questions impli-
cated in her analysis.
On practical grounds her proposal would be difficult to administer. In a
complex case the judge might have to leave incapacity’ as a general defence,
with the supporting evidence of intoxication, and then intoxication itself as a
defence where it does not quite reach incapacity but negates intent, and then
intoxication as a partial defence that mitigates specific intent and allows for
conviction of an included or alternative offence of general intent. For an offence
of basic intent, he would leave out the last option. And all this in combination
with any other available exculpatory claims! Assuming the judge gets it right,
his hard work might go for naught. A jury would be hard pressed but to boot
the accused before the bench for sentence because he seemed deserving or out
the door because he did not.
211bid. at 884, 887. This phrase comes from the opinion of Martin J.A. in R. v. Swietlinski (1978),
22 O.R. (2d) 604, 44 C.C.C. (2d) 267, 94 D.L.R. (3d) 218 (C.A.), aff’d [1980] 2 S.C.R. 956, 55
C.C.C. (2d) 481, 117 D.L.R. (3d) 285. It is an odd phrase in so far as Canadian law, like that of
England and Wales, does not recognise intoxicated automatism as a defence to offences of basic
intent. See R. v. George, [1960] S.C.R. 871, 128 C.C.C. 289; Majewski, supra, note 2; R. v.
Lipman, [1970] 1 Q.B. 152 (C.A.); R. v. Schmidtke (1985), 19 C.C.C. (3d) 390 (Ont. C.A.).
22Such a position would perhaps be most applicable to cases of intoxication by drugs other than
alcohol.
‘2 .e., insanity.
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Others also have emphasised the degree of intoxication, notably Lord
Denning in Gallagher,24 but this is an unnecessary and intractable criterion for
inclusion in the rule. It is a difficult issue to formulate as a question of law for
the judge and, moreover, it will govern the deliberations of the jury as a matter
of course. Consider on Wilson J.’s terms how a judge must ascertain whether
an evidential burden has been met. He would ask himself whether a reasonable
jury, properly instructed, could find on the evidence a reasonable doubt as to
whether the accused had the requisite intent. He would have to consider the
measure of consumption and the measure of its effect in order, finally, to deter-
mine whether it is akin to incapacity. If Wilson J. would have a judge leave
extreme intoxication as a possible denial of general intent and intoxication as a
denial of specific intent, the difference as a matter of substantive law would lie
in the degree of intoxication, which is inherently a matter of fact. These are
operations best left to the jury, and the judge need only ask whether evidence
of intoxication is sufficient to induce reasonable doubt on intent. Although
much of the substantive law is intelligible only by the interpretation of adjec-
tives and adverbs, there is little to be gained by introducing such concepts when
they can be avoided. This lesson should be clear from the history of “general”
and “specific” intent.
II. The Scope of Intoxication
A.
Intoxication and Capacity
Even today, long after it became an anachronistic curio, Lord Birkenhead’s
speech in Beard continues to have an influence on the analysis of intoxication.
The central difficulty with Beard was that Lord Birkenhead ran capacity and
intent together in a manner that failed to disclose the meaning of either or the
relations and distinctions between them. There is no indication that he intended
that the terms should bear an elaborate or sophisticated meaning that was pre-
viously unknown to the common law. Moreover, as regards “intent”, it seems
clear enough that in contemporary usage intent was used as a term to denote any
mental state 5 In later interpretations, however, Lord Birkenhead’s dicta in
Beard seemed to force a choice in formulation between involuntariness and the
absence of mens rea, a choice that to this day remains largely unarticulated and
certainly unresolved in the courts.26 According to the assessment in Beard,
24A.G. Northern Ireland v. Gallagher, [1963] A.C. 349 (P.C.). See also A.C.E. Lynch, “The
Scope of Intoxication” [1982] Crim. L.R. 139 and 392.
25E. Colvin, Principles of Criminal Law (Toronto: Carswell, 1986) at 254 ff.; D. Stuart,
Canadian Criminal Law, 2d ed. (Toronto: Carswell, 1987) at 364 ff.
26″Incapacity” raises a question whether it is the synonym of involuntariness and, if it is, the fur-
ther question whether voluntariness is concerned solely with mens rea or with the mental element
in the actus reus.
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either intoxication was the touchstone for alternative modes of incapacity;27 or
for an alternative between incapacity (insanity caused by intoxication) and a
substantive defence of intoxication that negates intent.” The former presup-
poses a unique concept of incapacity or involuntariness, due to intoxication, that
is distinguishable from insanity.
In Bernard these alternative formulations and permutations of them are
reconsidered by the Court. Wilson J. concludes that intoxication will support the
negation of specific intent, or in extreme cases, the negation of voluntariness:
she would deny that in the absence of extreme intoxication there can be a nega-
tion of “minimal” intent. This view leaves a notion of partial capacity, which in
effect must be equivalent to basic intent. The Chief Justice denies the distinction
between specific and general intent and says that the trier of fact should ascer-
tain whether, on the evidence, intoxication was sufficient to negate mens rea; he
says nothing of substance on the extent to which intoxication can negate volun-
tariness. McIntyre J., like Lord Birkenhead, seems to run questions of incapac-
ity, voluntariness and intent together without discrimination.
Where capacity is not in question, intent is an open issue on the evidence,
and thus intoxication would always be relevant to this issue were it not for
English and Canadian authority that intoxication can only be left as a defence
to specific intent. In most jurisdictions of the Commonwealth capacity and
intent have been prised apart and it is agreed that intoxication can negate intent
without negating capacity.29 A majority of the Supreme Court of Canada has yet
to assert this position. The Court repeatedly reaffirmed the second and third
propositions in Beard3″ (varying the third to account for Woolmington”) and
endorsed instructions to the effect that intoxication could only justify acquittal
if it denied the accused’s capacity to form the requisite intent.32 In Young33 the
Supreme Court elected not to reconsider the aptness of such instructions and in
Vasil’ Lamer J. deferred the question for some future case (Bernard, as it hap-
271.e., insanity (under Lord Birkenhead’s first proposition) or intoxication.
2Hence there are now only two defences of incapacity at common law, insanity and automatism,
which are supplemented by the partial defence of diminished responsibility under s. 2 of the
Homicide Act 1957 (U.K.), 1957, c. 11. There is a similar defence in several jurisdictions of the
Commonwealth but not in Canada.
29In England and Wales it was given impetus by the advice of the Privy Council in Broadliurst
v. R., [1964] A.C. 441 (P.C.). See Sheehan & Moore (1975), 60 Cr. App. R. 308; R. v. Pordage,
[1975] Crim. L.R. 575 (C.A.); Garlick (1980), (1981) 72 Cr. App. R. 291. See also R. v. Kamipeli,
[1975] 2 N.Z.L.R. 610 (C.A.); O’Connor, supra, note 8; Martin, supra, note 8.
30Reproduced at note 10, supra.
31[1935] A.C. 462 (H.L.).
32MacAskill v. R., [1931] S.C.R. 330,55 C.C.C. 81, 3 D.L.R. 166; Malanik v. R., [1952] 2 S.C.R.
335, 14 C.R. 367, 103 C.C.C. 1; George, supra, note 21; Perrault v. R., [1971] S.C.R. 196, [1970]
5 C.C.C. 217, 12 D.L.R. (3d) 480; and Sivietlinksi, supra, note 21.
33[1981] 2 S.C.R. 39, 59 C.C.C. (2d) 305.
34[19811 1 S.C.R. 469, 58 C.C.C. (2d) 97, 121 D.L.R. (3d) 41.
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pens). At the same time lower appellate courts had already held that it would
be a misdirection of the jury to say that intoxication could avail only if it
negated the capacity to form specific intent.” In Bernard, as in Leary, Dickson
C.J.C. asserts a general proposition that evidence of self-induced intoxication
should be considered by the trier of fact, with all other relevant evidence, to
determine whether the prosecution has proved the mens rea required to consti-
tute the offence. The generality of this proposition raises difficulties, discussed
below, but one of them is not the conflation of capacity and intent. McIntyre J.,
by contrast, summarises the authorities as follows: voluntary intoxication may
be advanced to negate specific intent if the accused was so affected by intoxi-
cation that he lacked the capacity to form the intent required to commit the
crime but it cannot negate general intent. Elsewhere he emphasises the effect of
intoxication on “minimal intent”, voluntary conduct, self-control and the like. If
he means capacity, his opinion can only be construed as a rare, late attempt in
the Commonwealth to vindicate Beard, quite apart from Leary, on its own
terms. If he does not mean capacity, but some affirmative mental state such as
intent, knowledge or recklessness, his opinion is simply a farrago of undiscrim-
inated terms.
The opinion of Wilson J. is opaque on this point. While accepting the cat-
egories of general and specific intent, she says that Leaty should be relaxed to
allow evidence of extreme intoxication to negative the minimal intent required
for offences in the former category.36 She speaks throughout of the “minimal
intent”37 required for the offence, which would seem in context to be synony-
mous with general or basic intent. Where extreme intoxication negatives min-
imal intent there is a state akin to insanity or automatism, and this is literally
the equivalent of saying that it is akin to incapacity. “Minimal intent” therefore
appears to be something of a euphemism that can mean alternatively basic
intent, capacity or voluntariness. She says that she means something akin to
incapacity.3″ Having concluded that the evidence in Bernard was insufficient,
she said that there was no reason to consider whether voluntary intoxication
could be a valid substitute for the “minimal intent which characterizes con-
scious and volitional conduct.”39 The meaning she ascribes to minimal intent is
thus inscrutable. If it is akin to incapacity, she must concede that extreme intox-
ication can negate intent, recklessness or even knowledge in many instances.
There is nothing to be gained here by re-examining the debate on specific and
general intent except to note that the distinction, retained by Wilson J., is unnec-
35R. v. Otis (1978), 40 C.C.C. (2d) 304 (Ont. C.A.); R. v. Dees (1978), 40 C.C.C. (2d) 58 (Ont.
C.A.); R. v. Seguin (1979), 45 C.C.C. (2d) 58 (Ont. C.A.); R. v. McKinlay (1986), 53 C.R. (3d)
105 (Ont. C.A.).
36Supra, note 3 at 887.
37Ibid. at 882, 883, 884, 887, 889, 890.
38Ibid. at 884, 887.
39Supra, note 3 at 889.
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essary to the substance of her proposal. If she is prepared to allow intoxication
as a complete answer to minimal intent, the crux of her suggestion lies in the
extremity of intoxication rather than the specificity of intent. As it has no other
function in the law,’ and on her own account of intoxication it has no substance,
she can abandon the distinction between general and specific intent without
altering her position.
B.
Intoxication as a Defence to Alternative Mental States
None of the opinions in Bernard examines implications for offences com-
prising alternative’ or compound” mental states (or both). This is less problem-
atic in the opinions of McIntyre and Wilson JJ. than in the dissent. By restricting
intoxication to specific intent, McIntyre J. would exclude its application to any
other mental state, whether an alternative or a compound, although to this he
had earlier declared an exception to allow intoxication as a defence to murder
committed recklessly. 3 Wilson J. would maintain the same restriction, apart
from her proposed extension to general intent in cases of extreme intoxication.
In both of these opinions, however, there is no clear statement of what either
judge means to convey by “intent”. This same difficulty arises with the dissent.
Even supposing the abolition of the distinction between specific and general
intent, it remains to clarify the meaning of intent. Although Dickson C.J.C. says
that the rule in Leaty allows conviction without proof of intent, he also says
more broadly that voluntary intoxication should be available to rebut mens rea.
Here too it might be asked whether the Chief Justice uses mens rea as a generic
term for all mental states and, in particular, whether intent signifies the narrower
notion of purpose and foresight of consequences or, again, the looser meaning
of all mental states. If he is suggesting that intoxication should be a defence to
40J.C. Smith & B. Hogan, Criminal Law, 6th ed. (London: Butterworths, 1988) at 212.
41E.g., where recklessness or intent will suffice.
421.e., where different mental elements are required in respect of different issues, as where reck-
less or intent is required as regards the circumstances of the aclus reus and only recklessness with
regard to the consequences.
43Swietlinski, supra, note 21; Cooper v. R., [1983] 1 S.C.R. 240, 74 D.L.R. (3d) 731. See Vasil,
supra, note 34. This is an example of secondary decisions being forced as a consequence of the
distinction between specific and general intent. The exception for reckless murder is plainly a deci-
sion in policy that reflects the severity of the charge and the consequences of conviction. The Law
Commission makes the same exception in its Draft Code, U.K. Law Comm. No. 177 (London:
H.M.S.O., 1989) at cl. 22(4). However, rigorous enforcement of the distinction between specific
and general intent also produces silly anomalies for attempts to commit offences of basic intent.
As such attempts are themselves typically offences of specific intent, it would entail that intoxi-
cation should avail for the attempt but not the completed offence.
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COMMENTS
all mental states, 44 it would signal a striking expansion of intoxication as a
defence.
An acceptable defence of intoxication is one that is neither overinclusive
nor underinclusive. It seems plain that this notional balance can never be
achieved without some rough line-drawing that occasionally subordinates logic
to policy. As noted by Dickson C.J.C., the opponents of Leary, Majewski (and
now Bernard) seek not to reverse the priority of logic and policy but to ensure
that neither prevails over principle. In England the Law Commission accepts
that the categorisation of intent is false and that voluntary intoxication should
be admitted to negate intent and knowledge, as defined in clause 18, but gen-
erally not other mental states. Clause 22 of the Law Commission’s Draft Code45
would achieve this by specifying that voluntary intoxication is not available
against elements of recklessness (distinguished from heedlessness or Cald-
well46), objective mens rea or simple negligence. Only by implication would it
lie against knowledge and intent. For offences comprising alternative mental
states the judge would leave voluntary intoxication on intent or knowledge but
not recklessness; for compound mental states, of course, intoxication would be
left only on intent or knowledge. The Draft Code would create an exception for
reckless murder but the exception only highlights another clash between logic
and policy. If alternative mental states must be taken as equally sufficient ele-
ments of guilt under the substantive law, is it not invidious to allow intoxication
against one alternative but not the other? A possible answer would be to extend
voluntary intoxication in any offence to any mental state that is prescribed as an
alternative to knowledge or intent. The Law Commission rejects this because it
would embrace most elements of mens rea. This decision is pragmatic and not
inconsistent with principle. It also avoids two difficult issues. The first is that
44A further problem raised obliquely by the Chief Justice is what is included in the set of mental
states. Nor did the Chief Justice (or any other judge) explore the ramifications of his or her opinion
with respect to the rule in R. v. Mitchell, [1964] S.C.R. 471, which on a charge of first degree mur-
der requires a judge to tell the jury that planning and deliberation can be negatived by a lesser
degree of intoxication than is required to negative intent to commit murder. This is a rule that
depends upon discrimination between different mental states and different degrees of intoxication.
The need for such a distinction was affirmed by a majority of the Supreme Court in Wallen v. R.
(12 April 1990) File No. 20762. Lamer and Cory JJ. affirmed Mitchell while La Forest J. concluded
that there need be no “hard and fast” rule requiring such a direction.The problem considered in
Wallen would further complicate the challenge facing the trial judge who follows the opinion stated
in Bernard by Wilson J.: see text, supra, following note 24.
45Supra, note 43.
46[1982] A.C. 341 (H.L.), Lord Diplock. The exclusion of recklessness is consistent with the
position in cl. 2.08 of the Model Penal Code, American Law Institute, Model Penal Code and
Commentaries: Official Draft and Revised Comments (Philadelphia: American Law Institute,
1985). See also Majewski, supra, note 2 at 475; Caldwell, supra at 355. The difference, of course,
lies in the interpretation of recklessness. For a survey of issues and cases in the aftermath of
Caldwell, see A. Ward, “Making Sense of Self-Induced Intoxication” [1986] Camb. L.J. 247; S.
White, “Offences of Basic and Specific Intent” [19891 Crim. L.R. 271.
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despite the formal equivalence of alternative mental states (either is sufficient
for conviction) they are not substantively or normatively equivalent concepts of
culpability. Intent is not always equivalent to knowledge and recklessness is cer-
tainly not intent. Second, there is radical uncertainty about whether some ele-
ments of fault, notably negligence, can properly be described as mental states.47
The Law Reform Commission of Canada recommends a general rule that
“No person is liable for a crime if, by reason of intoxication, he or she fails to
satisfy the culpability requirements specified by its definition.”‘ To this a
majority would add two provisos. First, if all other elements in the definition are
satisfied, that person is liable for committing the crime charged while intoxi-
cated, except in cases of causing death, where the second proviso would expose
the accused to conviction and punishment for manslaughter. A minority
accepted the general rule but, instead of the provisos, would substitute a single
exception, that the general rule “shall not apply as a defence to a crime that can
be committed through negligence unless the intoxication arose through fraud,
duress, compulsion or reasonable mistake.”49
These are wider, looser proposals than those in the Model Penal Code”0 or
the Draft Code of the Law Commission, and nothing in the commentary pro-
vided by the Canadian Commission explains the decisions taken in reaching
their conclusions.5 The general rule, supported unanimously, presupposes that
intoxication can and should be admitted to negate all mental states. The minor-
ity would exclude intoxication as a defence to negligence but it is not clear
whether this decision rests on a notion that negligence is not a mental state or
other grounds of policy. Canadian law has not yet merged the analysis of reck-
lessness with objective mens rea and negligence,52 although recent decisions of
the Supreme Court suggest that the erosion of principle and the clarity of lan-
guage has begun. 3 As a result, even assuming that subjective orthodoxy holds
sway, the Commission’s proposed general rule is far broader than Wilson J.’s
test and quite possibly wider than that proposed by the Chief Justice in dissent.
A judge would have to leave or consider intoxication as a complete answer to
47This has been an acute problem since Caldwell and is squarely addressed in the Draft Code
and Commentary.
Commission of Canada, 1987), cI. 3(3)(a) at 30-32.
4Recodifying Criminal Law (Revised and Enlarged Edition) Report 31 (Ottawa: Law Reform
491bid.
5Supra, note 46.
51For further discussion, see T. Quigley, “Reform of the Intoxication Defence” (1987) 33 McGill
52Sansregret v. R., [1985] 1 S.C.R. 570, 18 C.C.C. (3d) 223, 17 D.L.R. (4th) 577.
53R. v. Tutton & Tutton, [1989] 1 S.C.R. 1392, 69 C.R. (3d) 289; R. v. Waite, [1989] 1 S.C.R.
1436. In this case the Court was again badly split, making the state of the law difficult to discern.
The decision in R. v. Anderson (1 March 1990) File No. 19464 (S.C.C.) does nothing to change
the law.
L.J. 1.
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CHRONIQUE DE JURISPRUDENCE
any discrete element of purpose, recklessness or knowledge, whether that ele-
ment bears on circumstances or consequences, and whether or not it is defined
in the statement of the offence as an alternative mental element. Given these
various permutations, they obviously do not denote normative equivalents. The
Commission apparently sees no reason to discriminate among them for the pur-
pose of restricting the ambit of intoxication as a defence. Two observations fol-
low. First, the Commission’s rule has a wider ambit than the defence of intox-
ication at common law and will produce a higher incidence of intoxication
defences simply because there is a high incidence of intoxication in the commis-
sion of criminal offences. With that there must be some increased probability of
success because, for example, intoxication will more readily raise a reasonable
doubt against recklessness as to circumstances. The second observation is that
the first does not appear to cause concern in the Law Reform Commission of
Canada. Others disagree.
C. Evidence of Intoxication to Support Exculpatory Claims
Another point not addressed by Wilson or McIntyre JJ. in Bernard is the
extent to which evidence of intoxication should be admitted to give colour to
some other exculpatory claim.’ Intoxication is typically invoked to support a
variant of mistake, either where mistake itself is alleged or where a mispercep-
tion of the accused, induced by intoxication, is said to enhance the mental ele-
ment of a claim such as provocation, self-defence or duress. 55
It would seem axiomatic in policy, if not in logic, that if the substantive
defence of intoxication is circumscribed by limitations, the admissibility of evi-
dence of intoxication to support any other exculpatory claim should at least
have no wider application. The operation of this axiom is difficult to discern in
the cases. With regard to mistake of fact, an affirmative argument for admitting
evidence of intoxication is that it would be invidious to exclude it because it can
contribute indirectly to the same effect that the defence of intoxication achieves
directly (denial of mens rea). This argument was never entrenched in the author-
ities. Nevertheless, it is a position that has attracted strong criticism since the
decisions in Morgan56 and Pappajohn,57 which declared that in England and
Canada an honest mistake of fact will deny mens rea, even if unreasonable.
54The Chief Justice discusses in passing the tension between Leary and Pappajohn v. R., [19801
2 S.C.R. 120, as part of an argument that Leary has been implicitly if not expressly attenuated by
subsequent cases (supra, note 3 at 855-58).
55Since this paper was written Mr Kenneth Campbell has published a lengthy assessment of part
of this question in “Intoxicated Mistakes” (1989) 32 Crim. L.Q. 110. See also Quigley, supra, note
51.56D.P.P. v. Morgan, [1976] A.C. 182 (C.A. and H.L.).
57Supra, note 54. With reference to Pappajohn, it was suggested by Ritchie J. in Reilly v. R.,
[1984] 2 S.C.R. 396, 15 C.C.C. (3d) 1, 13 D.L.R. (4th) 161, at 404 S.C.R., very much en passant,
that intoxication could support a defence of mistake.
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Allowance for unreasonable mistake is one aspect of concern, and there have
been powerful proponents for the incorporation of reasonableness within the
standard for mistake. Within this broader context, another aspect is the fear that
if evidence of intoxication were allowed to enhance a claim of mistake it would
acquire wider application and relevance than it is allowed as a substantive
defence.
This point was addressed in Woods, where the accused argued that evi-
dence of intoxication was relevant to a claim of mistaken belief in consent. The
Court was concerned with the construction of section 1(2) of the Sexual
Offences (Amendment) Act 197658 and, of course, with Majewski. Griffiths L.J.
said that the admission of the evidence of intoxication to support mistake would
be “a surprising result … utterly repugnant to the great majority of people”
because it would allow intoxication to support mistake while it is excluded as
a substantive defence.59 Thus the evidence of intoxication was rejected as
“legally irrelevant” in any case of rape and possibly in relation to other
offences.’ It would appear that Griffiths L.J. overstates the matter. Woods can
be compared with Moreau,6 in which Martin J.A. attempts to reconcile mistake
of fact induced by intoxication with the rule in Leary.62 He says that evidence
of intoxication can support mistake of fact but the defence will not lie unless the
mistake bears on an element of specific intent. This is a remarkable attempt to
sustain two distinct lines of logic: the first is that if intoxication is admissible
directly as a defence against intent it should be admissible to support mistake
and thus indirectly deny intent. The second is that if it is relevant to intent
through mistake it can only be relevant within the limits set by Leary. If the dis-
tinction between basic and specific intent were judicially repealed Moreau need
only be modified by removing the restrictive limitation.
In England, however, Woods would continue to bar evidence of intoxica-
tion in support of mistake of fact and, as regards sexual offences, the Law
Commission maintains and extends this position to mistaken belief in a matter
of defence.63 As a rule of general application, the Draft Code is not so sweeping.
It would restrict the admission of evidence of intoxication on mistake to the
class of offences for which the defence of intoxication is available: that is,
offences of intent or knowledge. The Law Reform Commission of Canada
would bar a defence of mistake of fact to offences that can be committed reck-
55(U.K.) 1976, c. 82.
19(1982), 74 Cr. App. R. 312 at 315.
In Fotheringham (1988), 88 Cr. App. R. 206 (C.A.), evidence of voluntary intoxication was
not allowed to support a claim of mistaken belief that the complainant was the accused’s wife.
61(1986), 51 C.R. (3d) 209 (Ont. C.A.). See also Smith & Hogan, supra, note 40 at 216.
62The Court was concerned with s. 272(4) of the Criminal Code, R.S.C. 1985, c. C-46, which
is similar in terms to s. 1(2) of the Sexual Offences (Amendment) Act 1976.
63 CI. 88.
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lessly or negligently “where the lack of knowledge is due to the defendant’s
recklessness or negligence as the case may be”.’ Thus mistake of fact would not
lie against such offences if it were held that error induced by intoxication was
due to recklessness or negligence. That is, presumably, a question for the judge.
This recommendation would seemingly not bar mistakes of fact in offences of
intent, even where intoxication is intentional!
The relevance of voluntary intoxication to claims of justification and
excuse cannot be governed by the same logic or policy. Unlike voluntary intox-
ication or mistake of fact, these claims cannot be limited by the rule in Leary
or Majewski because their effect is not to deny an element of guilt. There are
Canadian cases in which evidence of intoxication has been admitted to support
the mental element in claims of provocation,65 self-defence and duress. For any
of these claims a jury must ask first whether a reasonable person in the circum-
stances would have cause for any one of these claims and, second, whether the
accused actually had reasonable cause. Intoxication is irrelevant to the first and
might arguably be relevant to the second, although its relevance might be more
damning than favourable. The position of the Chief Justice in Bernard, how-
ever, if extended to justifications and excuses, would be that evidence of intox-
ication should be admitted and left for the jury to determine its value. The Law
Reform Commission of Canada is not explicit on this question. Their recom-
mendation as regards mistaken beliefs as to defences is that it should be a good
defence in relation to specified exculpatory claims but unavailable where the
offence charged is a crime of negligence and the mistaken belief arose through
the accused’s negligence. It must follow that for any offence of purpose, knowl-
edge or recklessness evidence of intoxication would be admissible to support a
claim of mistaken belief in a matter of defence. To the extent that the
Commission is silent on this conclusion it must be taken as indifferent to it or
supportive. It is a troublesome notion because in some cases it could condone
such curiosities as drunkenly excused or justified homicide.
In England and Wales the common law remains in flux. In Jaggard v.
Dickinson66 the Divisional Court allowed evidence of intoxication to support a
mistaken belief in consent, seemingly allowing such evidence to enhance any
claim of mistaken belief as to a matter of defence, without limitation by
Majewski. Jaggard was decided by Donaldson L.J. and Mustill J. shortly before
the same Court, composed of Donaldson L.J. and Hodgson J., decided Albert v.
Lavin.67 The later decision appeared to support the proposition that a mistaken
belief in a matter of defence must be reasonable, by contrast to a mistake of fact
64Supra, note 48, cl. 3 (2) (b) at 30.
65For example, Taylor v. R., [1947] S.C.R. 462; Wright v. R., [1969] S.C.R. 335; Olbey v. R.,
[1980] 1 S.C.R. 1008.
66[1981] Q.C. 527.
67[1982] A.C. 546 (D.C. and H.L.).
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bearing upon a definitional element of the offence. 8 On appeal the Law Lords
did not address the question. In Young,69 however, the Courts-Martial Appeal
Court ruled that self-induced intoxication was not a relevant factor in assessing
a statutory defence of mistaken belief in the nature of a controlled drug. The
Court accepted Jaggard as “persuasive authority” but undercut its practical
effect by saying that the reason supporting the alleged mistake must involve
“the wider concept of objective rationality” rather than individual or personal
considerations. The Court added that reference to the standard of a reasonable
sober man is “an unnecessary gloss”. Likewise in O’Grady0 the Court of
Appeal also rejected the argument that evidence of intoxication could enhance
a claim of mistake as to self-defence, irrespective of the nature of the offence.
This conclusion would appear to be a departure from the Court’s earlier decision
in Gladstone Williams,7
later affirmed by the Privy Council in Beckford.72
Those cases apply Morgan to mistake on a matter of defence and must be taken
as having eclipsed the reasons given in the Divisional Court in Albert v. Lavin.
Young and O’Grady can be distinguished from Williams and Beckford on a
broad basis of public policy and on the narrower ground that only these cases
deal specifically with the relevance of intoxication to mistake on a matter of
defence. O’Grady does not declare in terms that mistakes as to matters of
defence must be reasonable but, as declared in Woods, Young and
Fortheringham, that evidence of intoxication is legally irrelevant in any case.
The net effect is the same, of course, because it requires the jury to assess the
accused’s claim on the basis that he was sober.
The Law Commission concluded that Jaggard is overly broad because it
would appear to admit evidence of intoxication in any case and is not limited
by Majewski. It also concluded that O’Grady is overstated in denying evidence
of intoxication relevance in any case as support for a mistaken belief in a matter
of defence. It proposes to limit the admissibility of evidence of intoxication in
support of justifications and excuses to those offences where the defence of
intoxication would itself be available. Thus it would appear that intoxication
could be adduced to support a justification or excuse raised against an offence
in which knowledge or intent is an element. The requirement for reasonableness
in such instances73 will deny value to evidence of intoxication in most cases but
not quite all. The jury must ask itself a counterfactual question, whether a per-
son in the position of the accused could not have been mistaken if sober. If not,
there is an end but if so evidence of intoxication might be relevant in determin-
ing whether he actually was mistaken.
68Morgan, supra, note 56.
69(1984), 78 Cr. App. R. 288.
70[19871 Q.B. 995 (C.A.).
7′(1983), 78 Cr. App. R. 276.
72[19881 A.C. 130 (P.C.) rev’g the Court of Appeal of Jamaica.
73C1. 22.
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CHRONIQUE DE JURISPRUDENCE
1H. Substance or Proof?
Of central importance to any assessment of Leary, Majewski and Bernard
is whether the rule is one of substantive law or proof. 4 McIntyre J. claims that
the rule in Leaty is evidentiary. He emphasises at several points that it does not
change the elements of the offence charged, including basic intent, and thus
does not relieve the prosecution of the burden to provide basic intent beyond
reasonable doubt. Such proof, he says, can be achieved in one of two ways:
Firstly, there is the general proposition that triers of fact may infer mens rea from
the actus reus itself: a person is presumed to have intended the natural and prob-
able consequences of his actions. … Secondly, in cases where the accused was so
intoxicated as to raise doubt as to the voluntary nature of his conduct, the Crown
may meet its evidentiary obligation regarding the necessary blameworthy mental
state of the accused by proving the fact of voluntary self-induced intoxication by
drugs or alcohol.75
The first proposition is indeed common law, although were it not for the essen-
tial word “may” the second clause would conjure the spectre of Jim Smith. If
sound, the second proposition is a dwarf Smith.76
On its face the second assertion appears to be self-contradictory. If the
accused was in fact “so intoxicated as to raise doubt as to the voluntary nature
of his conduct”, proof beyond reasonable doubt of capacity (and a fortiori
intent) would be impossible. No distinction is drawn between voluntariness and
mens rea, which leaves open the inference that McIntyre J. equates voluntari-
ness with basic intent. This is not only an echo of Beard itself but would seem
to say that where there is doubt about capacity there can still be proof of intent
to the required standard if there is proof of intoxication. This would weave the
third proposition in Beard together with Smith, long discredited by the courts in
Canada and by Parliament in England and Wales. McIntyre J. must be taken to
mean that even in cases where evidence of intoxication could raise a doubt
against capacity, proof of voluntary intoxication can supply proof of capacity
and basic intent. Save for the reference to capacity, this was the position in
Majewski but there it was explained as a rule of substantive law rather than
proof: evidence of intoxication produced by the defence eliminates the require-
ment for proof of basic intent by eliminating intent as a necessary element of
guilt and substituting voluntary intoxication for it. According to the gloss in
Majewski, voluntary intoxication is not a means of proving intent but a blame-
worthy mental state that will suffice as an alternative to basic intent if and only
if a contingency is met in the course of trial, that is if voluntary intoxication is
74See Smith, “Intoxication and the Mental Element in Crime” in P. Wallington & R.M. Merkin,
eds, Essays in Memory of Professor FH. Lawson (London: Butterworths, 1986) 119.
75Supra, note 3 at 878-879.
76D.P.P. v. Smith, [1961] A.C. 290 (I.L.).
McGILL LAW JOURNAL
[Vol. 35
put in issue. The Lords could not have called this a rule of evidence without tra-
versing section 8 of the Criminal Justice Act 1967″ and returning to a travesty
of the presumption of innocence not radically dissimilar from Smith.
Thus McIntyre J. misstates either Leary or Majewski by making two asser-
tions that are irreconcilable. The first is that basic intent remains an essential
element of the offence. The second is that the necessary blameworthy mental
state can be proved by voluntary intoxication, which on his own terms presup-
poses that intoxication is not the same as intent. It is one thing to say that intox-
ication is consistent with intent but another to say that it is basic intent for the
actus reus charged. His assumption is that evidence of intoxication simply does
not preclude intent. He goes on to invest intoxication with added and artificial
value by saying that it is not only consistent with intent but proof of it. This can
only make sense if intoxication is intent. But this is alchemy unless proof of
intoxication must always pass for proof of voluntariness and basic intent.
McIntyre J. would succeed in describing the rule in Leaty as a rule of evidence
only if he characterised it as a mandatory presumption that compels proof
beyond reasonable doubt of basic intent upon proof of voluntary intoxication.
This view, of course, is consistent with Smith but patently inconsistent with the
presumption of innocence because, for a cluster of discrete reasons, no such pre-
sumption can as a matter of law extinguish reasonable doubt.78 It does violence
to the autonomy of the trier of fact in considering the evidence. Second, it is an
artifice in which the premise (intoxication) purports to vest the inference
(intent) with artificial weight that could not be sustained in every case. Third,
the proposed inference is open to attack on the basis that the premise cannot by
itself compel the inference in any case because intoxication simply is not intent
but at most a circumstance that might be relevant to intent, depending on the
other evidence. For these reasons, and others, McIntyre J.’s characterisation of
the rule in Leary entails a flat contradiction of Woolmington and the presump-
tion of innocence by allowing conviction in the absence of proof of a necessary
element. McIntyre J. does not address these objections.
Although McIntyre J. insists that mens rea is required, his analysis of the
second mode of proof fails and leaves a rule of substantive law. He can only be
taken to mean that the rule is one of substantive law. In response to the objection
that the rule creates an offence of absolute liability because the prosecution need
not prove basic intent, he does not repeat (as he would be expected to do for
consistency with himself) that basic intent must be proved.
Criminal offences, as a general rule, must have as one of their elements the
requirement of a blameworthy mental state. The morally innocent ought not to be
77(U.K.) 1967, c. 80.
78Mclntyre J. has participated in several decisions to this effect. A recent example is R. v. Whyte,
[1988] 2 S.C.R. 3, 51 D.L.R. (4th) 481.
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convicted. It is said that the Leary rule violates this fundamental premise. In my
opinion, the Leary rule clearly does not offend this essential principle of criminal
law, but rather upholds it. The Leary rule 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
indeed are criminally blameworthy. 79
This makes sense if voluntary intoxication is substituted ex cathedra as an alter-
native to basic intent, and indeed that is precisely what McIntyre J. suggests
when he says with reference to Leary and Majewski that “voluntary intoxication
was a sufficient substitute for the fault element in crimes of general intent”.”
But it contradicts his earlier claims.”‘ The substitution leads to the startling prop
osition that the elements of criminal liability can vary according to a contingent
event, that the accused at his trial puts in evidence of voluntary intoxication.
This is an arresting variation of the principle of legality, in two senses. First,
judges are reluctant to add new content to the definition of crimes, especially
statutory crimes . z Second, it is conventional that the necessary elements of lia-
bility in any offence are not contingent upon the production of evidence by the
accused, 3 except in the limited sense that evidence of a justification or excuse
(if adequate) must be negatived by proof beyond reasonable doubt (thus being
a contingent element of the offence). Even if evidence were allowed to support
a permissive inference of intent, it would be open to challenge on the basis that
it is rationally insufficient. Voluntary intoxication, whether it be construed as
getting drunk or being drunk, simply is not the same as intent. If it were, proof
of intoxication would have to be synonymous with proof of basic intent in all
cases and on evidence of either party.84 McIntyre J. says that the moral culpa-
bility of voluntary intoxication precedes the actus reus. If so, it cannot prove the
mens rea accompanying the actus reus beyond reasonable doubt; and it cannot
satisfy the requirement for contemporaneity. 5 If voluntary intoxication is a
mental state, it is a state that is relevant to some other actus reus. The liability
for being ‘morally guilty’, or at least not morally innocent, lies either in getting
intoxicated before committing the actus reus charged or being intoxicated while
committing it.86 The former is inconsistent with the requirement of contempo-
raneity, as is the latter if intoxication denies capacity. It might be noted that this
79Supra, note 3 at 880.
80Supra, note 3 at 874.
81McIntyre J. himself describes the conclusion in Majewski and Leary as a rule of substantive
law: “that voluntary intoxication was a sufficient substitute for the fault element in crimes of gen-
eral intent”, supra, note 3 at 874. See Smith & Hogan, supra, note 40 at 127.
82Contempt is the only common-law offence in Canadian criminal law.
83See G. Williams, The Mental Element in Crime (Jerusalem: Magnes Press, 1965).
84And drunken intercourse, for example, would be prima facie rape (or sexual assault in
Canada).
85Smith & Hogan, supra, note 40 at 209 ff.; Colvin, supra, note 25 at 266.
86Smith, supra, note 74 at 125.
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[Vol. 35
notion of liability for intoxication is also the very reason given by McIntyre J.
in his conclusion that the rule in Leary does not offend the Charter. Nowhere
in his opinion does McIntyre J. refer to the doctrine of substitution advanced by
Lamer J. in Vaillancourt. This is frankly astonishing because his statement of
the law is entirely dependent on the notion that voluntary intoxication is the
equivalent of basic intent; and thus it must be equally dependent on that
doctrine.
The only plausible alternative to this fiction is a distinct offence of criminal
intoxication, a notion that has had distinguished proponents in private writings
and published reports. s7 The Butler Committee recommended an offence of dan-
gerous intoxication” but that recommendation was rejected by the Criminal
Law Revision Committee89 and sustained by the Law Commission” on the basis
that the proposed offence and punishment were unrelated to the criminal act
charged. In the report of the C.L.R.C. Professors J.C. Smith and Glanville
Williams dissented and recommended a special verdict that the act charged was
committed while intoxicated, for which the accused would be liable to the same
range of punishment as if he were convicted on the indictment as charged. The
Law Reform Commission of Canada took up this minority proposal and, as
noted previously, a majority of the Commission have retained it in their final
report to Parliament. But for cases of homicide, this recommendation would
appear to favour acquittal on the offence charged but liability for committing
that same offence while intoxicated. Drunken theft is thus an alternative to theft
and drunken rape to rape. It would not take a prosecutor long to think this
through; nor would defence counsel linger over a challenge to the constitutional
validity of such a rule. The alternative rests upon pure fiction: that the culpable
commission of the actus reus is the equivalent of drunken but non-culpable
commission of the same act. Even if the fiction were not so thoroughly distaste-
ful, the utility of the proposed alternative must lie not in the construction of lia-
bility but the relevance of intoxication to disposition after conviction. The
Commission does not specify whether intoxication should be taken as a mitiga-
tion of liability or as an aggravation that is equivalent to mens rea. If the former,
87For example, G. wliliams, Criminal Law: The General Part, 2nd ed. (London: Stevens, 1961);
AJ. Ashworth, “Reasn, Logic and Criminal Liability” (1975) 91 L.Q.R. 102; A.J. Ashworth,
“Intoxication and Gerieral Defences” [1980] Crim. L.R. 556; Fletcher, supra, note 17 at 850-852.
U.K., Committeeon Mentally Abnormal Offenders (Butler Report), Cmnd. 6244 (1975) at
paras. 18.51f
89U.K., Criminal Law Revision Committee, “Fourteenth Report, Offences Against the Person”,
Cmnd. 7844 (1980) at paras 257-279.
9Law Commission, supra, note 43 at paras 8.33-8.51. The Draft Code confirms the position
taken in the report of the team of experts that was appointed by the Commission to prepare a ten-
tative draft code: Codification of the Criminal Law, Law Comm. No. 143 (London: H.M.S.O.,
1985), cl. 26 and commentary at paras 9.7-9.22.
1990]
CHRONIQUE DE JURISPRUDENCE
it restates settled law; if the latter, it is not different in substance than Leary or
Majewski.
Characterisation of the rule in Leaiy and Majewski as one of substantive law or
evidence is also at the heart of the dissent by Chief Justice Dickson. He says that
as a rule of substantive law it is inconsistent with section 7 of the Charter. That
provision, which guarantees that any person shall not be deprived of life, liberty
or security of the person except in accordance with the principles of fundamen-
tal justice, has been interpreted as meaning inter alia that any penal offence for
which imprisonment can be imposed must include a blameworthy mental ele-
ment among its ingredients.9′ It has also been interpreted as meaning that the
offence can include alternative or substituted mental elements provided that
they are equivalent or at least commensurate inter se and proportional to the
gravity or stigma of the offence and punishment.92 On this view, Dickson C.J.C.
says that the rule in Leary eliminates intent from the offence where there is suf-
ficient evidence of voluntary intoxication. The equation of voluntary intoxica-
tion with basic intent not only compounds the nonsense of the supposed distinc-
tion with specific intent but it amounts to an elimination of intent from the
offence.93 As this exposes the accused to conviction and punishment in the
absence of a blameworthy mental state, it offends section 7 and cannot be saved
by the notion of substitution.
To be precise, then, the inconsistency with section 7 is that there is no element
of fault. But it is a conclusion that is also wholly incompatible with the Chief
Justice’s second constitutional proposition, that the rule in Leaiy violates the
presumption of innocence. The essence of this objection is that, if proof of vol-
untary intoxication compels proof of basic intent, it operates as a mandatory
presumption to compel conviction where there will often be reasonable doubt.
This conclusion is tenable if and only if basic intent remains an essential ele-
ment of the offence, yet the previous objection to the rule under section 7 is that
this element does not exist when the rule comes into play. The inconsistency of
the rule with the presumption of innocence exists where the substantive law
requires proof of fault and the presumption provides no more than a fiction of
proof.
The two constitutional claims advanced by Dickson C.J.C. are both concerned
with the proposition that proof of intoxication can be proof of intent. As a rule
of substantive law, this can only mean that in cases where there is evidence of
intoxication adduced by the defence proof of it will suffice as an alternative to
proof of intent. To state the rule in Leaiy as a rule of substantive law would
9 1Reference re Section 94(2) Motor Vehicle Act, [1985] 2 S.C.R. 486, 24 D.L.R. (4th) 536.
92R. v. Vaillancourt, [1987] 2 S.C.R. 636, 47 D.L.R. (4th) 399.
93Smith, supra, note 74; Smith & Hogan, supra, note 40 at 211-212; A.D. Gold, “An Untrimmed
Beard: The Law of Intoxication as a Defence to a Criminal Charge” (1977) 19 Crim. L.Q. 34.
McGILL LAW JOURNAL
[Vol. 35
require a rule of law, legislative or judicial, in the following form: “In any
offence requiring proof of actus reus and mens rea, proof of X or Y will suffice
as proof of mens rea.” As a rule of proof, it can only mean that intoxication not
only supports the inference of intent but compels it in cases where proof of
intent is a necessary condition of conviction. To state the rule in Leary as a pre-
sumption would require a rule of law in the following form: “In any offence
requiring proof of actus reus and mens rea, in which X is the element of mens
rea, proof of Y will suffice as a premise to support or compel proof of X.” A
mandatory presumption of this kind is open to objection on several grounds, not
the least of which is that the trier of fact is compelled by a rule of law to find
an essential element proved, despite manifest possibility of reasonable doubt.
These two hypothetical statements are irreconcilable. In the first X or Y are
alternative elements, each sufficient and at least one of them necessary for con-
viction. In the second, X is the only mental element and the rule merely gives
recognition to a particular indirect means of proving X. In the result, the defect
of the rule in Leary can only lie in one or the other of the two objections
advanced by the Chief Justice. One presupposes that an element of fault is
absent while the other presupposes that it is present.
It is a fallacy that rules of substantive law can entail a violation of the presump-
tion of innocence in the sense of the requirement for proof of guilt beyond rea-
sonable doubt. In Vaillancourt94 the Supreme Court of Canada declared the
felony-murder rule in section 213(d) unconstitutional for two reasons. The first
was that the provision violated the principles of fundamental justice by exposing
the accused to conviction and punishment for murder in the absence of any
mental element that bears directly on homicide. The second reason was that as
a consequence of the violation of section 7 there was also a violation of the pre-
sumption of innocence because the prosecution could secure a conviction for
murder without proof of that mental element. The Court did not say that the
offence created a presumption by which proof of the underlying offence allowed
an inference of the ingredients of murder, and indeed that is plainly not the
nature or effect of the provision. The fallacy, therefore, is that if the constitu-
tional deficiency of the felony-murder offence is that it lacks an element, the
prosecution can scarcely be accused of violating the presumption of innocence
by failing to prove an element that does not exist.
There can be no analysis of the presumption of innocence without prior analysis
and ascertainment of the elements of an offence. The requirement for proof of
guilt beyond reasonable doubt, which is the core of the presumption of inno-
cence, cannot be met in any case without first knowing what guilt is. There can
only be a violation of the presumption of innocence if some legislative or judi-
cial rule could allow a conviction without proof beyond reasonable doubt of all
94Supra, note 92.
1990]
COMMENTS
the elements on the basis of particular evidence of facts adduced and admitted
for consideration by the trier of fact. In this sense the definition of guilt under
the substantive law will certainly affect the presumption of innocence but the
converse is not true. As a rule of law, the presumption of innocence cannot
define guilt; nor does it define the adjectival rules of valid procedure and evi-
dence for proof of guilt, apart from the constituent features of the requirement
for proof beyond reasonable doubt. The presumption of innocence can inform
decisions about the content of the substantive and adjectival law but as some
kind of reason that is not a rule. One might say that it offends my sense of crim-
inal justice if a person could be convicted in the absence of proof of X. But the
decision that X is an element is not legally compelled by the requirement for
proof of X or, therefore, by the presumption of innocence. To say that it is com-
pelled by the presumption of innocence is to say that the presumption of inno-
cence means something in substantive law that is distinguishable from the
requirement for proof of guilt beyond reasonable doubt. It would define inno-
cence as the absence of fault and the presumption of innocence as a constitu-
tional guarantee of freedom from conviction and punishment unless a minimal
element of fault is found in the definition of the offence and later proved. That
is possible but it is apt to produce confusion.
The conflation of substantive law and the presumption of innocence is also
apparent in the opinion of Wilson J. in Bernard. She adverts to the proposition
adopted by McIntyre J., and attacked by Dickson C.J.C., that proof of voluntary
intoxication can be proof of basic intent. Wilson J. doubts that this proposition
had been incorporated into Canadian law in previous decisions of the Supreme
Court. She says that the validity of this assertion need not be decided but she
presses on, noting twice that her view on the matter is tentative. She does not
undertake to characterise the proposition as a rule of substantive law or as a pre-
sumption but concludes, in brief, that a rule to the effect that voluntary intox-
ication is a substituted element for basic intent would violate the presumption
of innocence. This cannot work. A substitution of alternative elements is a phe-
nomenon of the substantive law only. It cannot be said that the presence of an
alternative in the definition of the offence violates the requirement for proof of
guilt because the substantive law says that proof of guilt can be made by proof
of either alternative. It is possible to say that the alternatives are unacceptable
but that is not a reference to the requirement for proof of guilt. There could be
a violation of the presumption of innocence if proof of voluntary intoxication
were sufficient for proof of basic intent because it would allow for a claim of
proof on the essential element of intent by a fiction that is not proof. A claim
that there has been a violation of the presumption of innocence is inconsistent
with a claim that there is a substituted element.
632
REVUE DE DROIT DE McGILL
[Vol. 35
Conclusion
Five of the seven judges who participated in Bernard concluded their opin-
ions by saying that, whatever the correct statement of law might be, the appeal
should be dismissed on the proviso. The evidence of intoxication was conspic-
uously slight. Taken at its highest, it is difficult indeed to see how it could sup-
port a reasonable doubt and it is inconceivable that an error committed in rela-
tion to such slender evidence could suffice to avoid dismissal of the appeal,
even allowing that in Canada an appellate court can order a new trial on a suc-
cessful appeal by the accused. The tricky question is whether reliance on the
proviso by these five judges of the Supreme Court is properly regarded as the
ratio of their judgment. If so, Majewski, Leary and Bernard are all up for recon-
sideration by the Supreme Court because all of the opinions supporting dismis-
sal in Bernard are obiter.
