McGILL LAW JOURNAL
REVUE DE DROIT DE McGILL
Montreal
Volume 33
1987
No 1
Reform of the Intoxication Defence
Tim Quigley*
The rules which embody the defence of in-
toxication to a criminal charge have been the
subject of much analysis and criticism on the
part of academic writers, practitioners, and
law reform bodies. The author, following an
extensive discussion of reforms made or pro-
posed to the intoxication defence in certain
common law jurisdictions, and building on
such reforms, presents his own solutions to
the problems which have been identified in
the existing defence of intoxication. The so-
lutions proposed are intended to ensure, first,
that determinations of mens rea and volun-
tariness remain faithful to the principles of
culpability theory and, second, that the pub-
lic is adequately protected in those instances
where the application of culpability theory
would produce results inimical to the inter-
ests of society. The former is achieved
through the introduction of a wholly subjec-
tive approach to determining mens rea and
voluntariness ofthe intoxicated offender. The
latter is secured through the creation of a dan-
gerous intoxication offence available where
outright acquittal of the accused would pose
a genuine threat to society.
De nombreux juristes et avocats praticiens
de mime que plusieurs commissions de r&
forme du droit ont analys8 et critiquE les
rrgles qui rrgissent la defense d’intoxication
lors d’une inculpation criminelle. Apr~s une
Etude approfondie des rrformes apportres ou
proposdes i la defense d’intoxication dans
certaines juridictions de common law, et
construisant A partir de ces rrformes, l’auteur
propose des solutions afin de rrsoudre les
probl~mes poses par l’Etat actuel de notre d6-
fense d’intoxication. L’auteur veut d’abord
s’assurer que les d~cisions sur la mens rea et
le caractre volontaire demeurent fid~les aux
principes de la th~orie de la culpabilitE. Aussi
propose-t-il
l’introduction d’une approche
tout A fait subjective de la mens rea d’un
contrevenant intoxiquE et du caract~re vo-
lontaire de ses faits et gestes. Lauteur desire
cependant s’assurer que le public soit ad&
quatement proteg6 dans les cas ofi
‘appli-
cation de la thdorie de ]a culpabilit& risquerait
d’engendrer des consEquences nrfastes pour
la socit6. Aussi propose-t-il de crier une in-
fraction d’intoxication dangereuse qui serait
disponible lorsque l’acquittement pur et
simple constituerait une menace A la soci&t.
*Assistant Professor, College of Law, University of Saskatchewan.
McGILL LAW JOURNAL
[Vol. 33
Synopsis
Introduction
I.
The Starting Point
II. Law Reform Commission and Legislative Proposals
A. Model Penal Code
B. English Proposals
1.
2.
3.
The Post-Smith Studies
The Butler Committee Report
The Criminal Law Revision Committee’s Fourteenth
Report
C. The Law Reform Commission of Canada
III. A Modest Proposal
Introduction
A.
B. My Proposals
C. Explanation of the Proposals
Conclusion
Introduction
In Canada, and in most other common law jurisdictions, the defence
of intoxication to a criminal charge has been very controversial. Generally
speaking, an accused is only culpable for a criminal offence when she engaged
in voluntary conduct (the actus reus requirement) at the same time that she
had the aware state of mind (mens rea) particular to the offence charged.
Yet, the notion that an accused could avoid liability if a lack of mens rea
(or voluntariness) was due to her self-induced intoxication has been anath-
ema to most common law jurisdictions. As a result, courts have sought to
meet this concern by limiting intoxication as a defence to crimes of what
are called “specific intent” and refusing it for offences of “general” or “basic”
1987]
INTOXICATION DEFENCE
intent.’ This dichotomy was upheld in both England and Canada in D.PP
v. Majewski2 and Leaty v. R.,3 respectively.
This approach has been widely criticised 4 and, indeed, abandoned in
the common law states of Australia in R. v. O’Connor.5 It is now often
accepted that the terms “specific” and “general” intent do not refer to dif-
ferent kinds of intent, but merely indicate when the intoxication defence is
or is not available. 6 In other words, the specific-general dichotomy is de-
fensible only on grounds of policy, rather than of culpability theory.7
As a result of the criticisms of the present rules, it has increasingly been
recognized that reform is in order. While several attempts at reform have
been made in different jurisdictions, none has found enough favour with
lawyers, judges, academics and legislators to be enacted as law. The Law
Reform Commission of Canada, in the context of drafting a new criminal
code, has wrestled with reform of the intoxication rules on several occasions.
Because none of the Commission’s intoxication proposals seem to deal ad-
equately with the problems inherent in the past rules, I consider it timely,
if brash, to present my own proposals.
“‘Basic intent” is the term used in England for what is called “general intent” in Canada.
The terms will be used interchangeably in this article.
2[1976] 2 W.L.R. 623, [1976] 2 All E.R. 142 (H.L.) [hereinafter Majewski cited to W.L.R.].
3(1977), [1978] 1 S.C.R. 29, 74 D.L.R. (3d) 103 [hereinafter Leary cited to S.C.R.].
4See: the dissent of Dickson J. in Leary, ibid. at 31; the majority judgments in R. v. O’Connor
(1979), [1980] 29 A.L.R. 449, [1980] Victorian Reports 635 (H.C.) [hereinafter O’Connor cited
to A.L.R.]; A.D. Gold, “An Untrimmed ‘Beard’: The Law of Intoxication as a Defence to a
Criminal Charge” (1976) 19 Crim. L.Q. 34; G. Parker, “Criminal Law – Mens Rea – General
Principles –
Intoxication as a Defence” (1977) 55 Can. Bar Rev. 691; RB. Schabas, “Intoxi-
cation and Culpability: Towards an Offence of Criminal Intoxication” (1984) 42 U.T. Fac. L.
Rev. 147; G. Orchard, “Drunkenness as a ‘Defence’ to Crime” (1977) 1 Crim. L.J. 59, 132;
J.C. Smith, Case Comment on D.RP v. Majewski (1976) Crim. L.R. 374; G. Williams, “In-
toxication and Specific Intent” (1976) 126 N.L.J. 658; G. Williams, Textbook of Criminal Law,
2d ed. (London: Stevens & Sons, 1983) at 464-83; J.C. Smith & B. Hogan, Criminal Law, 5th
ed. (London: Butterworths, 1983) at 190-201. See also T. Quigley, “Specific and General Non-
sense” (1987) 11 Dalhousie L.J. 75.
50’Connor, ibid.
6See: Gold, supra, note 4; Smith & Hogan, supra, note 4 at 193-94; Williams, Textbook of
Criminal Law, supra, note 4; D. Stuart, Canadian Criminal Law (Toronto: Carswell, 1982) at
361-62; Quigley, supra, note 4.
7Admittedly, not everyone is agreed that the intoxication rules are supportable only on a
policy basis. For instance, with the exception of Lord Salmon, all of the judges in Majewski
attempted to articulate ways of distinguishing one intent from the other. See also J.E. Stannard,
“The Demise of Drunkenness” (1982) 2 Legal Stud. 291. For an attempt to explain offences
on the basis of an implicit, three-pronged theory, see E. Colvin, “A Theory of the Intoxication
Defence” (1981) 59 Can. Bar Rev. 750. All of these, including the policy arguments, are dealt
with in Quigley, supra, note 4.
REVUE DE DROIT DE McGILL
[Vol. 33
Briefly, my own proposals take as their starting point the validity of
the various objections raised against the present intoxication rules. They
then build on the establishment of a wholly subjective approach to mens
rea whereby an accused who lacks the requisite state of mind (or volition)
is entitled to be acquitted of that offence. For those situations where diffi-
culties might arise from the subjective approach, and where the particular
accused represents a manifest danger to the public, I propose a new offence
of dangerous incapacitation. In the development of my own recommen-
dations, I consider and criticise the various proposals for reform of the
intoxication rules that have been made by different law reform bodies. Thus,
my recommendations are evolutionary, not revolutionary, in that they are
based in part on previous proposals. Nevertheless, I believe that new ground
is broken with my proposals, new ground which I hope will prompt more
discussion at a time when the Law Reform Commission of Canada has
clearly recognized the need for change in this area of the criminal law.
I. The Starting Point
The starting point for reform must be the installation of a wholly sub-
jective approach to mens rea irrespective of whether intoxication (or any
other self-induced incapacitation) is the cause of the offence. The attrac-
tiveness of such an approach is that it would bring about consistency, sim-
plicity and, as far as such is possible, certainty in culpability theory. No
longer would it be necessary to straight-jacket “defences” such as intoxi-
cation, mistake or automatism into separate compartments, each with its
own rules. Moreover, the subjective approach is the one that offers the best
hope for justice for the individual accused since all of her characteristics
and personal circumstances can be taken into account in deciding whether
she acted voluntarily and with the state of mind particular to the offence.8
Why not, then, simply institute subjectivism? Courts have often ex-
pressed great fear that juries will accept spurious intoxication defences and/
or that a dangerous person might go free if subjectivism were given free
rein. Majewski and the majority in Leary typify this concern. The question
then becomes the following: would the adoption of a wholly subjective
approach confirm the worst fears expressed in Majewski and Leary?
The experience in Australia suggests otherwise. For over twenty years,
the state of Victoria has managed to survive without any restriction upon
8See Stuart, supra, note 6 at 119-20.
1987]
INTOXICATION DEFENCE
the intoxication defence. 9 O’Connor extended this to the rest of common
law Australia.’ 0 O’Connor has since been followed and applied in a few
reported cases. Included are Herbert, Sampson and Wurrawilya v. R., I R.
v. Martin’2 and R. v. Tucker.13 The paucity of cases itself suggests that no
major difficulties have been encountered. Moreover, though there is little
empirical data available, what little there is suggests that no serious problems
have been encountered by the whole-hearted embrace of subjectivism. Mr.
Justice George Smith of the District Court of New South Wales conducted
a survey of approximately 510 trials held in the immediate aftermath of
O’Connor.’4 As one might expect, the intoxication defence experienced a
surge of popularity among defence counsel following O’Connor.’5 Never-
theless, the number of cases in which the defence was argued but could not
have been relied upon until O’Connor was only 11 out of 510 –
just over
2 percent of the total. Of the three resulting acquittals, only one could safely
be attributed to acceptance of the intoxication defence. Moreover, the Court
9Although the first reported case appears to have been R. v. Keogh [1964] Victorian Reports
400 (S.C. Vict.), it seems probable that a wholly subjective approach to mens rea was used for
the intoxication defence before that case was decided. See also R. v. Haywood [1971] Victorian
Reports 755 (S.C. Vict.) and R. v. Bugg [1978] Victorian Reports 251 (S.C. Vict.).
IONew South Wales, Victoria and South Australia are common law jurisdictions. Queensland,
Western Australia and Tasmania have codified their criminal law. The latter are the least
populous states and, hence, have less impact on the law. Of these, only Tasmania has enacted
legislation that substantially would conflict with the approach to intoxication at common law:
Criminal Code Act 1924 (Tas.), 14 Geo. 5, 1st. Sched., s. 17 still refers to incapacity to form
intent and the presumption that a person intends the natural and probable consequences of
her acts.
11(1982), 42 A.L.R. 631, 62 Fed. L.R. 302 (Fed. Ct. Aust. – Gen. Div.).
12(1984), 51 A.L.R. 540, 58 A.L.J.R. 217 (Aust. H.C.) [hereinafter Martin]. In Martin, the
Australian High Court clarified one lingering point from O’Connor. This was whether there
was any “entrenched anomaly” (see decision of Barwick C.J. in O’Connor, supra, note 4 at
465) whereby intoxication could only reduce murder to manslaughter, even if the degree of
intoxication was such as to make the act involuntary. The High Court held that there was no
such rule of law. One would have thought that it might have held otherwise if there had been
sufficient public outcry from the result in O’Connor or from other acquittals on account of
intoxication. After all, it must be borne in mind that in Australia a reasonable doubt on
voluntariness and/or mens rea can lead to outright acquittal for a death caused while
intoxicated.
13 (1984), 36 S.A.S.R. 135 (S.C.S.A.).
14Mr. Justice George Smith, “Footnote to O’Connor’s Case” (1981) 5 Crim. L.J. 270 at 276-
77. Although the methodology used by Smith J. in conducting the survey was somewhat
unorthodox (“Because of the methods employed in collecting statistics I am unable to give an
accurate figure of the number ofjury trials heard in the period under review but… [using the
figures which were provided] as a basis it is reasonable to assume that between 20th June, 1980
and 30th May, 1981 (allowing for a reduced work-load during vacations) District Court judges
would have presided over approximately 510 trials.”), the conclusions at which he arrives
appear to have been substantiated by his findings.
‘sSmith J. described the popularity of the defence as “passing fashion” in the wake of O’Con-
nor, ibid. at 277.
McGILL LAW JOURNAL
[Vol. 33
of Criminal Appeal of New South Wales advised Smith J. that, in the same
period, it had not received any intoxication case that was dependent upon
the ruling in O’Connor. These findings led Smith J. to state:
[M]y inquiries would indicate that the decision in O’Connor’s case, far from
opening any floodgates has at most permitted an occasional drip to escape from
the tap. 16
Nonetheless, even in the birthplace of O’Connor, the state of Victoria,
some misgivings have been expressed about the effect of the decision. De-
spite their own findings that intoxication is rarely advanced as a defence
and even less often with success, the office of the Law Reform Commissioner
of Victoria has been conducting a campaign against O’Connor.’7 Whether
the outcome of these efforts, if successful, would take the form of a separate
dangerous intoxication offence or the restoration of specific and general
intent is not yet clear. If for no other reason than to attempt to allay the
fears of those who oppose the subjective approach, it is important to discuss
in practical terms what it would mean.
As a starting point, it should be borne in mind that, most often, evidence
of intoxication buttresses the Crown case. It far more frequently indicates
a reason why the accused acted in the prohibited manner, that is, through
a lack of inhibition, than that the requisite mental element was negated.’ 8
For instance, hearing evidence that an intoxicated person lashed out and
struck someone would not very often cause one to doubt that there was at
least an intentional application of force, even if any aggravated intent, such
as to kill or to wound, was lacking. This may have been what Fauteux J.
and Ritchie J. had in mind in R. v. George19 when each expressed doubt
that a person could commit an assaultive act without any intent. Thus,
ordinary subjective principles would be sufficient to convict the accused of
at least some offence in such a situation.
For most attacks upon the person, there is a gradation of offences and
the accused, despite intoxication, will almost invariably be found to have
had the requisite state of mind to satisfy one of them. Indeed, in such
situations, it would require evidence of a state akin to automatism before
161bid.
17E.g.: Australia, Victoria Law Reform Commissioner, Intoxication and Criminal Respon-
sibility Issues Paper (Victoria, 1983); Australia, Victoria Law Reform Commissioner, Intoxi-
cation and Criminal Responsibility Discussion Paper by L. Skene (Victoria, 1984); L. Waller,
Intoxication and CriminalResponsibility (Alcohol & Drug Foundation, 1982); L. Skene, “Drun-
kenness and Acquittals” (1983) 57 Law Inst. J. 318.
18This is a point made by Murphy J. in O’Connor, supra, note 4 at 485.
19[1960] S.C.R. 871 at 879 (Fauteux J.) and 891 (Ritchie J.), 128 C.C.C. 289 [hereinafter
George cited to S.C.R.]. This was perhaps the leading Canadian case on intoxication prior to
Leary and was heavily relied upon by the Law Lords in Majewski.
19871
INTOXICATION DEFENCE
there would be much real doubt of the accused having at least some aware-
ness sufficient to constitute mens rea. As a consequence, if there is legitimate
concern that a dangerous person will go free, it should be directed primarily
at the automatous offender.
It should be borne in mind, moreover, that there is a rather heavy
evidentiary burden upon an accused who invokes the intoxication defence.
First of all, a trial judge has the power and duty to refuse to put intoxication
(or automatism) to a jury unless there is a sufficient basis in the evidence.20
This usually will require that the accused testify. Second, a trier of fact will
generally require not only evidence from other witnesses corroborating the
condition of the accused, but also expert medical or psychiatric evidence
supporting the accused’s testimony concerning a lack of intent. Such evi-
dentiary demands impose a heavy tactical burden upon the propounder of
such a defence, and operate to weed out the spurious defence.
To this point, I have discussed the situation where, owing to intoxi-
cation, the accused was rendered an automaton or did not form any inten-
tion at all. There is, however, a situation which will generally involve a
lesser degree of intoxication. Such is the case when, due to intoxication, an
accused makes a mistake which negatives the mens rea for the offence. It
has been well-accepted for some years in Canada that an honest mistake
provides a defence to an offence requiring mens rea.2 1 However, there is,
or at least was until recently, some uncertainty in the law when the mistake
was made by an intoxicated accused and the offence was one of general
intent. Consistency with the intoxication rules would suggest that a mistake
made by an intoxicated accused could not provide a defence to a general
intent offence. Yet there were indications that such a mistake might still be
a defence. 22
This apparent anomaly may have been swept away by the decision in
R. v. Moreau.23 Martin J., speaking for a unanimous Ontario Court of Ap-
20This point was reiterated in O’Connor, supra, note 4 at 466 (Barwick C.J.). The same test
is applied in Canada: Malanik v. R. [1952] 2 S.C.R. 335, 103 C.C.C. 1 [hereinafter Malanik].
21See Pappajohn v. R. [1980] 2 S.C.R. 120, 52 C.C.C. (2d) 481 [hereinafter Pappajohn cited to
S.C.R.], and Beaver v. R. [1957] S.C.R. 531, 118 C.C.C. 129.
–The argument is based on dicta in George, supra, note 19 at 890 and in Reilly v. R. [1984]
2 S.C.R. 396 at 404, 42 C.R. (3d) 154, on the fact that intoxication as a cause of mistake was
not ruled out in Pappajohn, ibid., and on R. v. Cogan (1975), [1976] Q.B. 217, [1975] 2 All
E.R. 1059 (C.A.). A.J. Ashworth, “Reason, Logic and Criminal Liability” (1975) 91 L.Q. Rev.
102 at 118, though relying on different authorities, has come to the same conclusion. Any such
anomaly, if it indeed exists, is due to the compartmentalization of defences in Canadian and
English criminal law. The problem for defence counsel then, if the anomaly persists beyond
R. v. Moreau, infra, note 23, is to attempt to categorize the defence as mistake even where
intoxication contributed to the making of the mistake.
23(1986), 51 C.R. (3d) 209 at 225-41, 26 C.C.C. (3d) 359 (Ont. C.A.) [hereinafter Moreau
cited to C.R.].
REVUE DE DROIT DE McGILL
[Vol. 33
peal, held that, where the offence is one of general intent, evidence of in-
toxication must be ignored in deciding whether the accused made an honest
mistake. If the accused, absent the intoxication, would have made the same
mistake, then she has a good defence; if not, the defence is disallowed on
the policy grounds expressed by the intoxication rules. On the other hand,
where the offence is one of specific intent, an honest mistake, whether or
not induced by intoxication, will be a defence.
Though this position does not have the sanction of the Supreme Court,
given the eminence of Martin J. in the criminal law domain, it probably
represents good law. Nevertheless, the issues involved demonstrate the dif-
ficulties with the present law. There are competing logics at play when both
mistake and intoxication are involved: subjective principles that usually
apply to mistake would dictate that a mistake by an intoxicated accused,
whether or not caused by the intoxication, should be a defence to any mens
rea offence. On the other hand, the intoxication rules restrict that defence
to specific intent offences. These competing logics are due, of course, to the
fact that the law has compartmentalized mistake and intoxication (and au-
tomatism as well) into affirmative defences rather than seeing them merely
.as special ways of denying mens rea (or, in the case of automatism, the
voluntariness of the actus reus). While the ruling of Martin J. restores some
oYder within the existing intoxication rules, though at the expense of re-
quiring an artificial test of the accused’s state of mind, it illustrates, at the
same time, certain incongruities within those same rules. At the least, adop-
tion of wholly subjective principles would eliminate the inconsistency be-
tween the demands of the mistake and intoxication defences.
Under the O’Connor approach, these problems with mistake disappear.
But would a defence of intoxicated mistake incorporating a wholly subjec-
tive approach to mens rea have the practical effect of letting dangerous
accused go free? I submit that the effect would be negligible. First, a trial
judge would not put the defence to a jury unless there is an adequate evi-
dentiary foundation for it.24 Indeed, under the present law in Canada and,
ignoring the potential anomaly for intoxicated mistakes, the defence of mis-
take has been greatly restricted in this very way.25 Second, even though the
24See supra, note 20.
25This is a point made by J.M. Williams in “Mistake of Fact: The Legacy of Pappajohn v.
The Queen” (1985) 63 Can. Bar Rev. 597. The cases to which he refers that restrict the defence
have done so on the basis that the grounds for the mistake must arise from a source other
than solely in the mind of the accused. This approach comes from a dictum to this effect by
McIntyre J. in Pappajohn, supra, note 21 at 133. Whether this was meant as a rule of law is
very doubtful. It certainly could not be justified under a consistently subjective approach to
inens rea. Nevertheless, it is quite likely that the presence or absence ofgrounds from a source
other than the accused goes to the reasonableness of the belief in judging the honesty of that
belief.
1987]
INTOXICATION DEFENCE
test for mistake is whether the belief was honestly held, there is likely to be
great skepticism where an accused advances a patently unreasonable view
of the facts even where evidence of intoxication might explain why such an
unreasonable belief was held.
The one area that might prove problematic is precisely the situation
faced in Moreau: invoking the defence of mistake on a charge of sexual
assault, where the mistake was possibly due to the accused’s intoxicated
state, might lead to an outright acquittal. Mistaken belief in consent to sexual
activity has proven to be a very controversial topic in Canada.26 Exploration
of that debate is beyond the purview of this article since the implications
of adopting an objective or partially objective test for mistaken belief in
consent are much broader than the relationship between intoxication and
mistake. 27 Nonetheless, there is sufficient concern about the question of
intoxicated mistakes to suggest that this is an area that ought to be covered
by a new offence. In other words, while the experience in Australia suggests
that the subjective approach will suffice for most cases of sexual assault,
where an accused is acquitted of such an offence on account of an intoxicated
mistaken belief in consent, that accused should be liable for the new offence.
There are some other areas where a thoroughly subjective approach
might create some difficulty. Two of these are in relation to the murder-
manslaughter dichotomy and the criminal driving offences. To take the latter
first, the difficulty does not arise for most criminal driving offences. Even
an advanced state of intoxication will create little doubt as to mens rea in
the mind of the trier of fact inasmuch as the driving of a motor vehicle
involves fairly sophisticated movements which ordinarily entail some cog-
nition: placing a key in the ignition, operating the gearshift and footpedals,
etc. A problem might arise, however, where there was convincing evidence,
probably of a medical nature, indicating that the accused was in a state of
automatism. 28 It would no doubt cause a public outcry should such a person
be given a defence to a charge of driving while impaired or criminal neg-
26See T. Pickard, “Culpable Mistakes and Rape: Relating Mens Rea to the Crime” (1980)
30 U.T.L.J. 75, and “Culpable Mistakes and Rape: Harsh Words on Pappajohn” (1980) 30
U.T.L.J. 415.
27Since sexual assault is currently a species of assault (Criminal Code, R.S.C. 1970, c. C-36,
ss 244-246.3 [hereinafter Criminal Code]), instituting an objective test for sexual assault would
have the same effect on other assaults, the implications of which we might wish to consider
very carefully. The alternative might be, as we once did with the offence of rape, to consider
sexual assault a sexual offence, rather than a violent offence with sexual overtones. Again, the
implications of this would need careful study.
28This is what happened in R. v. McVeight (1985), 14 W.C.B. 57 (Ont. D.C.). Under the
present intoxication rules, the accused was convicted of the general intent offence of criminal
negligence in the operation of a motor vehicle (no longer an offence) despite being in a state
of automatism brought on by the consumption of alcohol.
McGILL LAW JOURNAL
[Vol. 33
ligence causing death or bodily harm! Those offences, then, are ones for
which some alternative to outright acquittal must be considered. 29
The murder-manslaughter dichotomy presents more complicated is-
sues. At present where, on a murder charge, there is a doubt as to the
requisite mens rea or voluntariness on account of intoxication, the result
is a conviction for manslaughter even if those elements are lacking for the
lesser charge. 30 The basis for this is not entirely clear. I have elsewhere 3′
pointed to the historical definition for this principle. Insofar as the mens
rea question is concerned, if manslaughter includes negligent homicides,
the principle may be soundly based even though the result is the possibility
of an extremely high penalty (life imprisonment). If, on the other hand,
manslaughter contains a subjective mens rea requirement, then the principle
is an arbitrary one, justifiable only on the policy ground that a person in
such a state of intoxication who causes a death should not go free.
Whether manslaughter in Canada has a mens rea requirement is not
certain. In its two major forms, it is defined as death caused either by an
unlawful act or by criminal negligence. 32 Criminal negligence has been in-
terpreted both as always requiring subjective recklessness 33 or, in another
line of cases, where based on an act (commission) as opposed to a failure
to act (omission), as requiring a marked departure from the standard of care
that a reasonable person would have taken.34 The latter is a negligence
standard though of a higher degree than ordinary or civil negligence; if this
approach prevails, then convicting of manslaughter where the accused be-
cause of her intoxication lacked the mens rea for murder is consistent with
culpability theory –
an intoxicated person is almost certainly a negligent
person. However, if criminal negligence requires subjective mens rea, as
appears to be the case for homicides caused by an unlawful act where there
Hartridge].
29This is unless, of course, we were prepared to countenance a negligence standard for such
offences. I, for one, would not support such a standard for an offence such as Crimnal Code,
s. 203 which has a maximum penalty of life imprisonment. It would be unjust to impose
liability for negligence unless there was a markedly lower penalty.
30R. v. Hartridge (1966), 57 D.L.R. 332, [1967] 1 C.C.C. 346 (Sask. C.A.) [hereinafter
31T. Quigley, “A Shorn Beard” (1987) 10 Dalhousie L.J. 167.
32Criminal Code, supra, note 27, ss 205(5)(a) and (b), and 217. I am ignoring, for present
purposes, s. 215, whereby provocation may reduce murder to manslaughter, and ss 205(5)(c)
and (d).
33E.g., O’Grady v. Sparling [1960] S.C.R. 804,25 D.L.R. (2d) 145. This has not been followed
very consistently. See E. Colvin, “Recklessness and Criminal Negligence” (1982) 32 U.T.L.J.
345 at 350-56.
34E.g., R. v. Waite (1986), 52 C.R. (3d) 355, 15 O.A.C. 215 (C.A.); R. v. Sharp (1984), 39
C.R. (3d) 367, 3 O.A.C. 26 (C.A.); R. v. Tutton and Tutton (1985), 44 C.R. (3d) 193, 6 O.A.C.
367 (C.A.) (leave to appeal to the Supreme Court of Canada granted May 23, 1985, heard Nov.
10, 1987).
1987]
INTOXICATION DEFENCE
is a mens rea requirement for the conduct involved (though not in respect
of the death), 35 then manslaughter, for purposes of an intoxication defence,
is an arbitrary exception to culpability theory that prevents someone who
has caused death while intoxicated from going free.
Thus, even if manslaughter does not require subjective mens rea, the
introduction of a wholly subjective approach could still result in a man-
slaughter conviction on the basis of negligence. If manslaughter has a sub-
jective mental element, however, doing away with the specific-general intent
dichotomy could permit an outright acquittal. Likewise, the person whose
intoxication was so extreme as to render her act involuntary could gain a
complete acquittal. Such cases must be few,36 as the experience in Australia
suggests, 37 but there probably should be some alternate disposition available.
This could take several forms. If a new dangerous intoxication offence
were created to cover the situation where the accused lacked mens rea or
volition, murder and manslaughter could be collapsed into one offence cov-
ering a wide range of culpability.38 This would, however, entail removing
the fixed penalty for murder to allow for flexibility in sentencing. On the
other hand, manslaughter could simply be redefined (or more clearly de-
fined) so as to expressly include culpability for negligence, hopefully with
a reduced penalty, along with its other forms. There would then be no need
to have a dangerous intoxication offence to cover homicides at all. For
present purposes, however, I do not propose to enter into the myriad issues
that a redefinition of murder and manslaughter would encompass. My dis-
cussion will proceed on the footing that any new intoxication offence must
take account of homicides. This is so despite the fact that the Australian
High Court, in Martin,39 obviously did not recognize the same need.
35At a minimum, the accused must have known that she was doing the act which was
unlawful. For example, see Smithers v. R. (1977), [1978] 1 S.C.R. 506 at 519-20, 34 C.C.C.
(2d) 427. Stuart, however, supra, note 6 at 202-03, disagrees.
36Still, I once acted as defence counsel for a man who, according to psychiatric opinion, was
so drunk as to be an automaton. He was, of course, convicted of manslaughter under the
existing law.
371f the incidence of such cases were significant, no doubt the Australia High Court in Martin,
supra, note 12 would have preserved the murder-manslaughter “anomaly” noted in O’Connor,
supra, note 4.
38This is similar to the proposal of the Law Reform Commission of Canada in Homicide
(Working Paper 33) (Hull, Que.: Supply & Services Canada, 1984). Under that proposal, murder
and manslaughter would be abolished although there would be distinctions drawn between
intentional, reckless, and negligent homicides insofar as the penalty was concerned. However,
the Commission backed away from this in its latest proposal, Recodifying CriminalLaw (Report
30), vol. I (Ottawa: Law Reform Commission of Canada, 1986) [hereinafter New Code] by
retaining the manslaughter nomenclature and by not dealing with the penalty.
39Martin, supra, note 12.
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Several judges and commentators have recommended a dangerous in-
toxication offence to take care of those few situations where the subjective
approach could lead to public outcry and fears for public safety.40 The fore-
going discussion hopefully will have demonstrated that the catchment area
of such a dangerous intoxication offence is exceedingly small. Nevertheless,
there is some scope for such an offence. It needs to be available where the
application of subjectivism would otherwise result in the outright acquittal
of someone who represents a genuine danger. Most often such a person will
have been in a state of automatism. Thus, a major issue is to define such
an offence in terms that cover the catchment area but go no further.
As for the role of intoxication in a completely subjective regime, it
cannot be better stated than it was by the New Zealand Court of Appeal in
R. v. Kamipeli:
Drunkenness is not a defence of itself Its true relevance by way of defence,
so it seems to us, is that when a jury is deciding whether an accused has the
intention or recklessness required by the charge, they must regard all the evi-
dence, including evidence as to the accused’s drunken state, drawing such
inferences from the evidence as appears proper in the circumstances. It is the
fact of intent rather than the capacity for intent which must be the subject
matter of the inquiry. The alternative is to say that when drunkenness is raised
in defence there is some special exception from the Crown’s general duty to
prove the elements of the charge. We know of no sufficient authority for that,
nor any principle which justifies it. 4
1
II. Law Reform Commission and Legislative Proposals
This section discusses the various proposals that have been made in
some common law jurisdictions for codification and/or reform of the ex-
isting intoxication rules. Because the various proposals made elsewhere have
been considered by our own Law Reform Commission in arriving at its
array of proposals, it is useful to look at the recommendations in other
jurisdictions. I have confined myself to those proposals that have been
reflected in the Law Reform Commission of Canada recommendations. All
of this is intended to provide background for the approach which I even-
tually suggest in the last part of the article. First, however, it is useful to
examine the strengths and weaknesses of previous law reform proposals.
40See Dickson J. in dissent in Leary, supra, note 3 at 47; Barwick C.J. and Aickin J. in
O’Connor, supra, note 4 at 466 and 494 respectively; Gold, supra, note 4; Schabas, supra, note
4. 41R. v. Kainipeli [1975J 2 N.Z.L.R. 610 at 616 (C.A.).
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INTOXICATION DEFENCE
A. Model Penal Code
The Model Penal Code,42 a draft code completed by the American Law
Institute in 1962, has often been used as a basis for discussion by law reform
bodies in England and Canada. The Model Penal Code was designed for
adoption by the several criminal law jurisdictions in the United States.
Hence, it tried to codify all aspects of the criminal law, beginning with
statements of purpose and principles of construction, on through general
principles of liability, justification and responsibility, to definitions of of-
fences, sentencing and corrections. This was a precursor of similar ventures
by the Law Reform Commission of Canada.43
Included among the principles of liability are definitions of mental
states and voluntariness. Voluntariness is defined in section 2.0144 and is
essentially along the lines followed by the common law in Canada and
England, not precluding culpability for acts done in an involuntary state
resulting from drug or alcohol intoxication. Mental states founding liability
are purpose, knowledge, recklessness and, where so stated, negligence. 45
Purpose and knowledge are defined so as to roughly encompass intent in
the common law;46 recklessness is defined in the following way:
A person acts recklessly with respect to a material element of an offense
when he consciously disregards a substantial and unjustifiable risk that the
material element exists or will result from his conduct. The risk must be of
such a nature and degree that, considering the nature and purpose of the actor’s
conduct and the circumstances known to him, its disregard involves a gross
deviation from the standard of conduct that a law-abiding person would ob-
serve in the actor’s situation. [emphasis added]47
It is to be noted that this definition broadly accords with subjective reck-
lessness as we usually know it in Canada. 48 As in Canada,49 it also includes
an objective component insofar as the measure of the risk is concerned.
Although negligence is defined in terms not unlike tort law, the Model Penal
Code requires that the risk be both substantial and unjustifiable (as opposed
42American Law Institute, Model Penal Code: Proposed Official Draft (Philadelphia: Amer-
ican Law Institute, 1962) [hereinafter Model Penal Code].
43See New Code, supra, note 38.
44Model Penal Code, supra, note 42, s. 2.01 at 24.
451bid., s. 2.02(1) at 25. See also s. 2.02(3) at 26-27. Of course, negligence is not really a
461bid., s. 2.02(2)(a), (b) at 25-26.
47Ibid., s. 2.02(2)(c) at 26.
480n the requirement of advertence to the particular risk, see O’Grady v. Sparling, supra,
mental state at all, but rather a failure to meet a standard of care.
note 33.
49See Colvin, supra, note 33 at 346.
McGILL LAW JOURNAL
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to merely foreseeable), and that there be a gross deviation from the standard
of care that a reasonable person would observe.50
The Model Penal Code codifies the common law position that a defence
need only be disproved by the prosecution when there is evidence supporting
it.51 Mistake 52 and intoxication 53 are then listed and defined as affirmative
defences. Mistakes can negative purpose, knowledge, belief, recklessness,
and even negligence.5 4 Intoxication, on the other hand, can negative pur-
pose, knowledge and belief. It can also negative recklessness, but only where
the actor would not have been aware of the risk if sober (in which case
evidence of the intoxication would be irrelevant).55 In other words, it is a
codification of the approach later taken in England in R. v. Caldwell.5 6 The
whole of the intoxication section is reproduced below:
Intoxication.
(1) Except as provided in Subsection (4) of this Section, intoxication of the
actor is not a defense unless it negatives an element of the offense.
(2) When recklessness establishes an element of the offense, if the actor, due
to self-induced intoxication, is unaware of a risk of which he would have been
aware had he been sober, such unawareness is immaterial.
(3) Intoxication does not, in itself, constitute mental disease within the meaning
of Section 4.01.
(4) Intoxication which (a) is not self-induced or (b) is pathological is an af-
firmative defense if by reason of such intoxication the actor at the time of his
conduct lacks substantial capacity either to appreciate its criminality [wrong-
fulness] or to conform his conduct to the requirements of law.
(5) Definitions. In this Section unless a different meaning plainly is required:
(a) “intoxication” means a disturbance of mental or physical capacities
resulting from the introduction of substances into the body;
(b) “self-induced intoxication” means intoxication caused by substances
which the actor knowingly introduces into his body, the tendency of which
to cause intoxication he knows or ought to know, unless he introduces them
pursuant to medical advice or under such circumstances as would afford a
defense to a charge of crime;
(c) “pathological intoxication” means intoxication grossly excessive in
degree, given the amount of the intoxicant, to which the actor does not know
he is susceptible.5 7
Subsection (4) allows an involuntarily or pathologically intoxicated of-
fender to escape liability on account of a lack of responsibility pursuant to
50Model Penal Code, supra, note 42, s. 2.02(2)(d) at 26.
51Ibid., s. 1.12(2) at 20. This is similar to the views expressed in O’Connor, supra, note 4 at
466 and Malanik, supra, note 20.
S2Ibid., s. 2.04 at 30-31.
53Ibid., s. 2.08 at 38-39.
54Ibid., s. 2.04(1)(a) at 30.
55Ibid., s. 2.08 at 38-39.
56(1981), [1982] A.C. 341, [1981] 1 All E.R. 961 (H.L.) [hereinafter Caldivell cited to A.C.].
57Model Penal Code, supra, note 42, s. 2.08 at 38-39.
1987]
INTOXICATION DEFENCE
section 4.01.58 The result, however, is a committal to an institution for
custody, care and treatment. 59
A major criticism of the Model Penal Code is that it was intended merely
to codify the common law distinction between specific and general intent.60
It accomplishes this by excluding the defence of intoxication for any offence
having recklessness as a mental element even though recklessness elsewhere
in the Model Penal Code has a requirement of subjective awareness of the
risk.6′ These provisions are subject to several criticisms which are briefly
summarized here.
First, there is no sound reason why recklessness should be afforded
different treatment from intention. There is no marked difference in cul-
pability between intention and recklessness and, indeed, there is often debate
about the distinction between those two mental elements.62 It is inconsistent
to single out recklessness as not permitting the intoxication defence, yet to
allow intoxication to negate intention.
Second, the result is an artificial test of the state of mind of the accused.
Subsection (2) asks a judge or jury to attempt to assess the state of mind
of the accused absent the factor of intoxication. This was the very thing to
which Dickson J. was so strongly opposed in Leary.63 It is an almost im-
possible task, and the resulting danger is that the accused is apt to be fixed
with recklessness merely because she possesses normal capacity when sober.
Yet, even with normal capacity and in a sober condition, she might not
have adverted to the particular risk. Thus, the fears expressed in O’Connor64
and Leary65 that an intoxicated accused would be placed in a worse position
than a sober accused could very well come to fruition: a state of mind must
be proved by the prosecution for the sober accused but not for the intoxi-
cated one.
309 at 345.
58Ibid., s. 4.01 at 66.
59Ibid., s. 4.08 at 75-77.
6oS.H. Berner, “The Defence of Drunkenness – A Reconsideration” (1971) 6 U.B.C. L. Rev.
6tSupra, note 47.
621n human affairs, we are always concerned with probabilities rather than certainties. The
difference between intention and recklessness is the difference between a virtual (or moral)
certainty and a high probability. “‘[I]ntention’ and ‘recklessness’ are more than birds of a
feather; they are blood-brothers….”: Lord Edmund-Davies in Caldwell, supra, note 56 at
359.
63Supra, note 3 at 41-42.
64Supra, note 4 at 485.
65Supra, note 3 at 41.
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There is an additional problem with the definition of self-induced in-
toxication. As with the present position in Canada,66 there is an objective
component to the test. This is the introduction of negligence into the crim-
inal law in a way that is unwarranted: a negligence standard does not permit
the accused’s characteristics and circumstances to be taken into account.
Negligence is not voluntary wrong-doing and hence is usually not sufficient
to constitute criminal culpability. Consequently, if negligence is to be the
standard of criminal culpability, intoxicated offenders should not be the
only persons to whom it is applied.
The Model Penal Code has its admirable features, notably that it ex-
plicitly sets out the requisite mental element for each offence. It therefore
has the advantage of making the law certain and known. This benefit applies
equally to the intoxication defence in that it is easy to determine whether
the defence is available for any given offence. However, the disadvantages
set out above are sufficient to lead to rejection of the Model Penal Code
approach to the intoxication problem. It is nevertheless important because
it has been the genesis of other proposals.
B. English Proposals
In England, various recommendations have from time to time been
made for statutory change to the criminal law as it pertains to the mental
element and, more specifically, to the intoxication defence. I will present
these in chronological order, if for no other reason than to show how these
proposals have parallelled developments in the case law. I shall begin with
the hue and cry that arose out of the decision in D.PP v. Smith.67 Smith,
it will be remembered, established for English law that the presumption that
a person intends the natural and probable consequences of her acts is only
rebuttable by evidence of incapacity.68 It was a very controversial decision.
1.
The Post-Smith Studies
As a result of the Smith controversy, the Law Commission undertook
a study and prepared a report on “Imputed Criminal Intent”. 69 The report
recommended that a subjective test be legislated, not just for murder, but
for all offences requiring intent or foresight. 70 The culmination of the report
66The current Canadian definition of self-induced intoxication is represented by Hartridge,
supra, note 30 and R. v. King [1962] S.C.R. 746, 35 D.L.R. (2d) 386 [hereinafter King],
67[1961] A.C. 290, [1960] 3 All E.R. 161 (H.L.) [hereinafter Smith].
68The presumption is also rebuttable by evidence of insanity and diminished responsibility,
but these are of no concern to the present discussion.
69U1.K, Law Commission, Imputed Criminal Intent (Report No. 10) (London: H.M.S.O.,
701bid. at I1 and 16.
1967).
1987]
INTOXICATION DEFENCE
was passage of section 8 of the Criminal Justice Act 1967 which provides
as follows:
A court orjury, in determining whether a person has committed an offence,
(a) shall not be bound in law to infer that he intended or foresaw a result
of his actions by reason only of its being a natural and probable consequence
of those actions; but
(b) shall decide whether he did intend or foresee that result by reference
to all the evidence, drawing such inferences from the evidence as appear proper
in the circumstances. 7′
One might have thought that this provision would clearly have estab-
lished a subjective test for intent and recklessness in all cases, hence ob-
viating any distinction between specific and basic intent in cases of
intoxication. Such a view seriously underestimates the ingenuity of the Law
Lords in Majewski72 and CaldweiP3 in re-imposing objective tests in some,
if not most, situations involving intoxication. However, had the section
been interpreted in a literal way, it would have established a completely
subjective approach to the mental element. It is important for that reason.
It should be noted as well, that it was not thought necessary at that time
to propose a dangerous intoxication offence even though the recommen-
dation and subsequent legislation seemingly proposed a completely subjec-
tive approach to the mental element.
Shortly after the Criminal Justice Act 1967 was passed, an attempt was
made to draft a codification of the mental element in crime. 74 Working
Paper No. 31 recommended that intention, knowledge or recklessness be
an element of any new offence unless expressly excluded. 75 In the case of
such an exclusion, negligence would be the required element for culpability,
but would be considered established in the absence of evidence to the con-
trary.76 Intention, knowledge and recklessness were defined in subjective
terms. The only objective test sought to be retained was that of the justi-
fiability of the risk in cases of recklessness. 77 This was simply a recognition
that ordinary activity involves risks and that only the taking of unjustifiable
risks should be punishable; taking reasonable risks should not give rise to
culpability. Mistake was recommended to be considered in relation to the
intoxication rules are a part.
H.M.S.O., 1970).
lessness as a mental element.
71Criminal Justice Act 1967 (U.K.), 1967, c. 80, s. 8.
72Majewski, supra, note 2, interpreted s. 8 as not affecting the substantive law of which the
73Caldwell, supra, note 56, ruled out the intoxication defence for any offence having reck-
74U.K., Law Commission, The Mental Element in Crime (Working Paper No. 31) (London:
751bid. at 6.
76Ibid.
7Ibid. at 30-31.
McGILL LAW JOURNAL
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mental element with honest (though not necessarily reasonable) mistake
negating intention, knowledge and recklessness. 78
Other than through a judicial interpretation of honest mistake in D.PP
v. Morgan,79 this report has gone unenacted and has, indeed, been scuttled
by the decisions in Majewski and Caldwell. As with the previous recom-
mendation, it would only have established a subjective approach without
considering the advisability of a separate dangerous intoxication offence.
2.
The Butler Committee Report
In 1975, the Butler Committee Report80, studying the problem of men-
tally abnormal offenders, thought it appropriate to recommend a dangerous
intoxication offence. 8′ Although evidence of intoxication could be intro-
duced by the defence to show that the accused lacked the requisite mental
element for the offence charged, leading to a verdict of not guilty for that
offence, the same evidence of intoxication could then be used by the jury
in determining the accused’s guilt for the offence of dangerous intoxication. 82
While alluding to the concept of specific intent, the Committee referred only
to assault as not being of specific intent, pointed out that specific intent had
never been defined,83 and, furthermore, thought that section 8 of the Crim-
inal Justice Act 1967 would probably overrule any restriction on the intox-
ication defence.84 In other words, the Committee saw itself as drafting a
proposal to cover only those situations not handled by the subjective
approach.
With these thoughts in mind, the Committee, though stressing the logic
of their view of the law, nonetheless saw danger to society in permitting
habitually violent intoxicated offenders to go free. 85 To take account of those
situations, it proposed a new statutory offence, primarily to enforce treat-
ment but, at a minimum, to provide punishment to and control over those
who would not accept such treatment.8 6
78Ibid. at 63.
79[1975] 2 All E.R. 347, [1975] Crim.L.R. 717 (H.L.).
8U.K., H.C., “Report of the Committee on Mentally Abnormal Offienders” Cmnd 6244 in
Sessional Papers (1974-75) vol. 16, 221 (Chairman: Butler) [hereinafter Butler Committee
Report].
8 Ibid., paras 18.51-53 at 235-36.
82Ibid., para. 18.54 at 236.
83Ibid., para. 18.52 at 235. The Committee was right insofar as English law was concerned,
but in Canada definitions of specific intent were proposed by Fauteux J. and Ritchie J. in
George, supra, note 19 at 877 and 890, respectively.
84Butler Committee Report, ibid. This was, of course, prior to the interpretations accorded
to s. 8 in Majewski, supra, note 2 and Caldwell, supra, note 56.
85Ibid.
86Ibid., para. 18.53 at 236.
1987]
INTOXICATION DEFENCE
The offence was proposed as an included offence where a person was
acquitted due to a reasonable doubt on the mental element.87 A conviction
would follow for the dangerous intoxication offence so long as the intoxi-
cation was voluntary.88 Voluntary intoxication would mean
intoxication resulting from the intentional taking of drink or a drug knowing
that it is capable in sufficient quantity of having an intoxicating effect; provided
that intoxication is not voluntary if it results in part from a fact unknown to
the defendant that increases his sensitivity to the drink or drug. The concluding
words would provide a defence to a person who suffers from hypoglycaemia,
for example, who does not know that in that condition the ingestion of a small
amount of alcohol can produce a state of altered consciousness, as well as to
a person who has been prescribed a drug on medical grounds without warning
of the effect it may produce. 89
A dangerous offence would be one involving bodily harm or death or
sexual attack on another or destruction or damage to property that endan-
gered life. 90 The offence would be of strict liability involving fault only in
relation to the voluntariness of being intoxicated.9′ The penalties proposed
were up to one year imprisonment for a first offence and up to three years
for second and subsequent offences. 92 The maximum would be six months
imprisonment on summary trials.93
Finally, as in the case of other mental disorders, 94 the Committee rec-
ommended that an accused intending to rely upon evidence of intoxication
be required to give notice of such intention to the prosecution. 95 The pros-
ecution would then be entitled to counter with rebuttal evidence or evidence
of mental disorder.96
This was basically a sound approach that attempted to meet the legit-
imate concern that the subjective approach might not adequately protect
society in all circumstances. It had the merit of limiting the scope of the
offence to serious offences involving personal violence. In addition to cov-
ering actual harm, it might also have included criminal driving offences.
Nevertheless, it amounted to tacit recognition that such an offence should
have a narrow scope.
87Ibid., para. 18.54 at 236.
88Ibid.
891bid., para. 18.56 at 236.
9OIbid., para. 18.55 at 236.
9’Ibid., para. 18.57 at 236.
92Ibid., para. 18.58 at 237.
931bid.
941bid., para. 18.49 at 234.
Ibid., para. 18.58 at 237.
?6lbid., paras 18.58, 18.48 at 237, 233-34 respectively.
REVUE DE DROIT DE McGILL
[Vol. 33
This approach presents difficulties, however, in two respects: the in-
cluded nature of the offence and the onus of proof. Let me first deal with
the argument against the offence being included within the original offence
charged. The only additional factor to be considered by the judge or jury
would be whether the intoxication was voluntary. In making the offence
included within the original offence, there is a danger that the trier of fact
will found liability on the harm committed rather than for the state of
incapacitation which preceded the harm; the connection between the two
is simply too close. Since we are speaking of an accused who, by definition,
lacked mens rea (or volition) for the offence charged, we should take care
to impose liability for the actual wrong committed by that accused –
the
act of becoming intoxicated to such a debilitating degree. 97 I am not sug-
gesting a completely separate forum for the inquiry, merely that different
considerations ought properly to come into play for the dangerous intoxi-
cation offence than for the substantive offence. For example, additional
evidence, not relevant or inadmissible on the original charge, might be
heard.
There are additional problems surrounding the onus of proof. Despite
the apparently subjective definition of voluntary intoxication, once vol-
untary intoxication was shown, it seems that liability would automatically
follow. It is not clear, however, upon whom the burden of proof would lie.
Would the Crown have to prove voluntary intoxication or would the accused
have to prove that the intoxication was caused against her will? If the onus
was on the accused, it could, in Canada, be found unconstitutional. As has
been pointed out in relation to a Canadian legislative proposal, 98 such a
provision, if enacted in Canada, might offend against the presumption of
innocence contained in the Charter of Rights and Freedoms.99 Later in this
article, I will consider whether such an offence ought to have a mens rea
requirement, but, even on the tentative assumption that it need not have,
it still might be necessary to place the onus upon the Crown in order to
ward off claims of unconstitutionality. In any event, the present law requires
the prosecution to prove that intoxication was voluntary though it is usually
not an issue and generally is assumed to have been self-induced. There has
97The same point has been made by A. Ashworth in “Intoxication and General Defences”
(1980) Crim. L.R. 556 at 559-60. The harm committed by the accused is, of course, convincing
evidence that such a person represents a danger to the public.
98E. Colvin, “Codification and Reform of the Intoxication Defence” (1983) 26 Crim. L.Q.
43 at 69.
99Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being
Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11, s. 1 (d) [hereinafter the Charter of
Rights]. For a recent Supreme Court pronouncement on reverse onus clauses, see R. v. Oakes
[1986] 1 S.C.R. 103, 26 D.L.R. (4th) 200, 24 C.C.C. (3d) 1.
1987]
INTOXICATION DEFENCE
not been any evident difficulty for the Crown in establishing such proof.
Therefore, there is no need to reverse the onus.
The penalty provisions are also troublesome. It seems implicit that the
Committee thought that punishment of such offenders was the most pre-
dominant consideration. While the proposal does indicate that treatment
of the offender was contemplated, the approach taken seems very much like
the usual sentencing approach, that is, founded largely upon the imposition
of imprisonment. Indeed, the rationale behind the proposal was explicitly
to provide punishment for those who would not seek treatment. Thus, it
did not have a clear rehabilitative aim. Rehabilitation of the individual and
protection of the public from dangerously intoxicated offenders surely are
more important than the vengeful punishment of one who lacked mens rea
or volition. Moreover, the treatment of such an offender affords better pro-
tection for the public, in my view, than the incarceration and subsequent
release of an offender for whom no such treatment is provided. The sent-
encing approach for such an offence should reflect this position. The pos-
sibility of a jail sentence should not be ruled out altogether, but should not
be the primary thrust as the Butler Committee Report seems to suggest. It
is necessary to stress the point that the culpability of the accused is for the
condition of dangerous intoxication, of which the dangerous act is admit-
tedly convincing evidence, not for the commission of the substantive
offence.
With regard to the Committee’s recommendation that an accused be
required to give prior notice to the prosecution of her intention to rely on
evidence of intoxication,100 it is not apparent that there is a real need for
such notice. At present, the prosecution does not seem unduly handicapped
in meeting defence evidence of intoxication for specific intent offences.
Surely the same position would hold if the defence were also available for
general intent offences. In any event, even if there is some prejudice to the
Crown, this could be met by permitting an adjournment where the prose-
cution was not prepared to meet the defence case. Usually, however, it will
be obvious from the police investigation, the preliminary inquiry and the
conduct of trial, particularly in defence cross-examination of Crown wit-
nesses, that intoxication will be advanced in the defence case.
In summary, though there are some difficulties with the Butler Com-
mittee Report, it was, by and large, a useful starting point for discussion.
Unfortunately, the impetus for change along the lines it suggested was lost
as a result of the subsequent decisions by the House of Lords in Majewski
and Caldwell. Majewski held that the defence of intoxication was not per-
mitted for any general intent offence. Caldwell went further by imposing an
‘0Butler Committee Report, supra, note 80, para. 18.58 at 237.
McGILL LAW JOURNAL
[Vol. 33
objective test for recklessness and by refusing the intoxication defence for
any offence having recklessness as a mental element. As a result, the defence
has been severely restricted. With such severe restrictions, there has been
no opportunity to see where problems might arise through the application
of a subjective approach. As a result, there has not been any felt need to
legislate a dangerous intoxication offence.
3.
The Criminal Law Revision Committee’s Fourteenth Report
Partly as a response to Majewski and also to the Butler Committee
Report, the Criminal Law Revision Committee, in its Fourteenth Report:
Offences against the Person,’0’ again considered reform of the intoxication
rules.
Members of the Committee raised two objections to Majewski. One
objection was that Majewski implied the attribution to an intoxicated of-
fender of a mental state which she may not have possessed at the time of
the act. The other complaint was the difficulty in determining whether a
particular offence is one of specific or of basic intent.1 02 But the Committee
agreed that intoxicated conduct is “socially unacceptable and deserving of
punishment.”” 0 3 Furthermore, in disagreement with the Butler Committee
Report, a majority of the Criminal Law Revision Committee felt that the
punishment imposed ought to be in relation to the harm caused. 04 In other
words, a separate offence of dangerous intoxication would not, in their view,
suffice since such an offence would not distinguish between a minor drunken
act and a drunken killing. 105
The majority of the Committee felt that creation of a separate offence
would generate administrative difficulties, including greater complexity in
jury trials, the likelihood of increased use of the intoxication defence and
confusion in the public mind. 106 As a consequence, while agreeing that the
dichotomy between specific and basic intent was unfortunate, and that in-
toxication should be permitted to negative the mental element of intention,
the majority felt that recklessness should be accorded different treatment.
In other words, even while disagreeing with the dichotomy, they retained
it in another form: basic intent offences are ones for which recklessness will
suffice. This foreshadowed, and may even have promoted, the decision in
101U.K., H.C., Criminal Law Revision Committee, “Fourteenth Report: Offences against the
Person” Cmnd 7844 in Sessional Papers (1979-80) (Chairman: R.H.L.J. Lawton) [hereinafter
Offences Against the Person Report].
10 2 Ibid., para. 258 at 111-12.
03Ibid., para. 259 at 112.
0I41bid.
05Ibid., para. 261 at 113.
06I1bid., para. 264 at 114.
1987]
INTOXICATION DEFENCE
Caldwell. Basing their proposal on the Model Penal Code proposals, they
recommended the following changes to the law:
1. The common law rules should be replaced by a statutory provision on the
following lines:
(a) that evidence of voluntary intoxication should be capable of negativing the
mental element in murder and the intention required for the commission of
any other offence; and
(b) in offences in which recklessness does constitute an element of the offence,
if the defendant owing to voluntary intoxication had no appreciation of a risk
which he would have appreciated had he been sober, such a lack of appreciation
is immaterial….
2. Voluntary intoxication should be defined on the lines recommended by the
Butler Committee …. 107
3. In murder or any other offence in which intention is required for the com-
mission of the offence, a mistaken belief arising from voluntary intoxication
should be a defence to the charge if such a mistaken belief held by a sober
man would be a defence. However, in offences in which recklessness constitutes
an element of the offence, if the defendant, because of a mistake, due to vol-
untary intoxication, holds a belief which, if he had been sober, would be a
defence to the charge, but which he would not have held had he been sober,
the mistaken belief is immaterial ….
4. Our recommendations on voluntary intoxication should be applicable to
criminal offences generally … .108
Thus, recklessness, other than in the case of murder, would be deemed
where the accused would have been aware of the risk had she been sober.
In the same way, a mistake due only to intoxication would not avail an
accused. It can be seen, therefore, that the majority did not meet their own
criticisms and retained an artificial finding of fact in cases of recklessness
and mistake. Furthermore, their proposal, like that of the Model Penal Code,
is like the position later taken by the House of Lords in Caldwell. The
proposal must be severely criticized for introducing an objective test for
recklessness. 09
It can also be criticized for insisting that there must be a connection
between the wrongdoing of becoming intoxicated and the eventual conduct.
To reiterate, what should be criminalized is the incapacitation, not the re-
sulting conduct. 0 To be sure, the resulting harm is ironclad evidence of
the danger represented by the particular accused. It is therefore justifiable
to impose culpabiity for the condition of incapacity. However, because the
resulting conduct was without the required mens rea or volition, it is not
07Butler Committee Report, supra, note 80, para. 18.56 at 236.
108Offences Against the Person Report, supra, note 101, para. 279 at 117-18.
’09See criticisms of Ashworth, supra, note 97.
1Supra, note 97 and accompanying text.
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justifiable to punish for that harm. ” Furthermore, the Committee’s point
that a dangerous intoxication offence would not distinguish between a minor
act and a killing is a red herring. The bare statement of a conviction for an
offence rarely describes its gravity. For example, a sexual assault conviction
can mean anything from a minor grabbing to a completed rape.
Professors J.C. Smith and Glanville Williams were a minority on the
Committee. They proposed that intoxication should be able to negative
intention of any type. For offences having recklessness as a mental element
or where a mistake was made, they would also permit the consideration of
evidence of intoxication in determining whether the mental element was
proved. However, if the accused would have known of a risk if sober or
would not have made the mistake if sober, she would be convicted of a
separate offence of doing the act while in a state of voluntary intoxication.
For a homicide, the punishment would be equivalent to that for man-
slaughter. For all other offences, the punishment would be the same as for
the substantive offence charged. The full text of their proposal is as follows:
(1) Intoxication shall be taken into account for the purpose of determining
whether the person charged had formed an intention, specific or otherwise, in
the absence of which he would not be guilty of the offence.
(2) Where a person is charged with an offence and he relies on evidence of
voluntary intoxication, whether introduced by himself or by any other party
to the case, for the purpose of showing that he was not aware of a risk where
awareness of that risk is, or is part of, the mental element required for con-
viction of the offence, then, if:
(a) the jury are not satisfied that he was aware of the risk, but
(b) the jury are satisfied
(i) that all the elements of the offence other than any mental element have
been proved, and
(ii) that the defendant would, in all the circumstances of the case, have
been aware of the risk if he had not been voluntarily intoxicated,
the jury shall find him not guilty of the offence charged but guilty of doing
the act while in a state of voluntary intoxication.
(3) Where a person charged with an offence relies on evidence of voluntary
intoxication, whether introduced by himself or by any other party to the case,
for the purpose of showing that he held a belief which, in the case of a sober
person, would be a defence to the offence charged, then, if-
(a) the jury are of opinion that he held that belief or may have held it, and
“‘This refers only to elements of an offence which carry a mens rea requirement. Sometimes,
as for murder, there is a mens rea requirement attached to a consequence of the accused’s
conduct. But this is not always the case. For example, an accused need not have foreseen bodily
harm as a consequence of her assaultive conduct in order to be found guilty of assault causing
bodily harm (Criminal Code, supra, note 27, s. 245.1(1)(b)). Likewise, an accused need not
have foreseen death as a consequence of an unlawful act in order to be convicted of man-
slaughter. My comments in the present context are not meant to deal with those situations.
1987]
INTOXICATION DEFENCE
(b) are satisfied that the belief was mistaken and that the defendant would
not have made the mistake had he been sober,
the jury shall find him not guilty of the offence charged but guilty of doing
the act while in a state of voluntary intoxication.
(4) Where the offence charged consists of an omission, the verdict under (2)
and (3) above shall be of making the omission while intoxicated.
(5) A person convicted under (2) or (3) above shall, where the charge was of
murder, be liable to the same punishment as for manslaughter; and in any
other case shall be liable to the same punishment as that provided by the law
for the offence charged.’ 2
The minority made this proposal largely because of disagreement with
the majority view that recklessness could be deemed. Unfortunately, their
proposal does not avoid entirely the problem of determining a fictional
mental state. The trier of fact could very well have difficulty discerning
whether an accused would have been aware of a risk or would not have
made a mistake if sober.” 3 1 will later propose that this inquiry, if made at
all, ought to be done quite separately from the determination of whether
the actual mental state for the substantive offence was present.
Although Smith and Williams argued for a type of separate offence, it
is not clear that that is what was actually proposed. Imposing liability for
doing the act while intoxicated imports some connection with the substan-
tive offence. Furthermore, to suggest a penalty that is the same as for the
substantive offence is to reinforce this connection.
C. The Law Reform Commission of Canada
The Law Reform Commission of Canada has allocated much of its
resources to studies in criminal law. The eventual goal is a major overhaul
of the Criminal Code. This has come in several stages. In 1982, the Com-
mission published Criminal Law, The General Part: Liability and
Defences 14 as a revision of Part I (ss 3-45) of the present Criminal Code.
Then, in 1986, it presented its Proposal for a New Criminal Code’ 5 and,
later in the same year, a more refined model, Recodifying Criminal Law,’ 16
which I will here refer to as the New Code.
I Offences Against the Person Report, supra, note 101, para. 263 at 113-14.
“13The same criticism can be made of the test set down in Moreau, supra, note 23.
“14Law Reform Commission of Canada, Criminal Law, The General Part: Liability and
Defences (Working Paper 29) (Hull, Que.: Supply & Services Canada, 1982).
15Law Reform Commission of Canada, Proposal for a New Criminal Code, Volume I (1986)
(Working Draft).
” 6New Code, supra, note 38.
26
McGILL LAW JOURNAL
[Vol. 33
On each occasion, the Commission has recognized the problems with
the present intoxication rules and proposed their reform. As the previous
proposals are now dated, it is not worthwhile to devote extensive discussion
to them. It is worth noting, however, that the various recommendations
have drawn on the reform proposals previously discussed.
For instance, the 1982 report presented two alternatives, the first” D
modelled on the so-called “purposive” test laid down by Fauteux J. in
George” 8 and approved by Lord Simon in Majewski 19 and the second
purporting to establish a dangerous intoxication offence for which an ac-
cused would be liable if acquitted on account of intoxication. 20 The latter
appeared to be a hybrid of the Butler Committee Report and the Offences
Against the Person Report, and is therefore subject to the same criticisms.
Indeed, both recommendations received heavy criticism.’ 2′
The first 1986 proposal 122 presaged the minority recommendation in
the New Code. Under it, the specific-general intent dichotomy would be
abolished, but at the very heavy price of instituting negligence as the cul-
pability standard for a wide variety of offences: homicide, 123 harming, 124
endangering, 25 nuisance, 26 vandalism,127 and arson1 28 among them. At the
same time, no alternative dangerous intoxication offence was suggested. In
the result, this proposal was much like the Model Penal Code, but in addition
adopted, in effect, the Caldwell objective test for recklessness (though calling
it criminal negligence) for many offences.
The 1986 New Code largely repeated the provisions of the earlier 1986
proposal. However, the Commission once again changed its views on in-
toxication. Of interest here, the Commission also proposed essentially the
same test for automatism as it had earlier. These proposals are reproduced
below:
117 Supra, note 114 at 59.
1 sGeorge, supra, note 19 at 877, Fauteux J.
“9Majewski, supra, note 2 at 637.
120Supra, note 114 at 59.
121Colvin, supra, note 98 at 52-73.
122Supra, note 115 at 9.
231bid. clause 33.
24Ibid. clause 41. This is particularly amazing given that this offence applies to any serious
harm caused by whatever means to another person. The criminal net would be widened to an
incredible extent.
’25Ibid clause 52.
’26Ibid. clause 53.
’27Ibid. clause 67.
’28Ibid. clause 68.
1987)
INTOXICATION DEFENCE
3(3) Intoxication
(a) General Rule. No one is liable for a crime for which, by reason of intox-
ication, he fails to satisfy the culpability requirements specified by its definition.
(b) Proviso: Criminal Intoxication. Notwithstanding clauses 2(2)129 and 3(3)(a):
(i) unless the intoxication is due to fraud, duress, compulsion or reasonable
mistake, everyone falling under clause 3(3)(a) who satisfies all the other
elements in the definition of a crime is liable, except in the case of killing,
for committing that crime while intoxicated;
(ii) everyone who kills another person while intoxicated and who falls under
clause 3(3)(a), is liable for manslaughter while intoxicated and subject to the
same penalty as for manslaughter. 130
A minority on the Commission recommended the following:
3(3) Intoxication.
(a) General Rule. No one is liable for a crime for which, by reason of intox-
ication, he fails to satisfy the culpability requirements specified by its definition.
(b) Exception. This clause 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. 131
3(1) Lack of Control.
(a) Compulsion, Impossibility, Automatism. No one is liable for conduct which
is beyond his control by reason of:
(i) physical compulsion by another person;
(ii) in the case of an omission, physical impossibility to perform the act
required; or
(iii) factors, other than loss of temper or mental disorder, which would shn-
ilarly affect an ordinary person in the circumstances.
(b) Exception: Negligence. This clause shall not apply as a defence to a crime
that can be committed by negligence where the lack of control is due to the
defendant’s negligence.[emphasis added] 32
It can readily be seen that clause (a) of both the Majority and Minority
Proposals would institute a subjective test for culpability. That is, the effect
would be to do away with the specific and general intent dichotomy. Those
recommendations, in themselves, should be supported. Criticism can, how-
ever, still be mounted against the fallback provisions in each case.
Taking the Majority Proposal’s provision first, it is very much like the
minority proposal by Glanville Williams and J.C. Smith 133 in the Offences
Against the Person Report. As such, it is subject to some of the same
criticisms.
having the level of culpability specified by its definition.”
’29Clause 2(2) states: “No one is liable for a crime without engaging in the conduct and
130New Code, supra, note 38 at 27-28 [hereinafter the Majority Proposal].
1311bid. at 28 [hereinafter the Minority Proposal].
132Ibid. at 25-26.
133Supra, note 101, para. 263 at 113-14.
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First, convicting of doing the act while intoxicated obviously connects
culpability with the substantive offence. The connection is even more ob-
vious, of course, for their proposal that manslaughter remain as the alter-
native to murder, but then that particular provision is merely a restatement
of the present law in respect of murder and manslaughter. As has been
previously stated, the purpose of a separate offence should be to impose
liability for the incapacitated condition, not for the conduct which resulted
from that condition.
Moreover, a major weakness of the Commission’s New Code is that it
does not deal at all with punishment. This is particularly a weakness for
this provision. If convicting of the included offence of committing the crime
while intoxicated results in the same penalty, what is the point of having
the included offence? If the Commission intended, as it should have, that
the included offence meant a lesser degree of culpability, then it ought to
have said so and given some indication of how much less the culpability
should be.
The “defences” to the assumption that intoxication was voluntary –
fraud, duress, compulsion and reasonable mistake –
are not likely to have
much application. Cases of intoxication of an accused operating under du-
ress or compulsion must be extremely rare. Fraudulently induced intoxi-
cation must likewise be very infrequent. 134 Thus, these three defences are
more illusory than real. As for reasonable mistake, by requiring the mistaken
belief of the accused (presumably that she would not become intoxicated)
to be reasonable, the Commission is proposing the retention of an objective,
that is, negligent, standard. That is merely a restatement of the approach
taken in King.135 This can be criticized both for imposing a negligence
standard arbitrarily for intoxicated accused, and for violating the principle
of contemporaneity.
Finally, the proviso would greatly widen the ambit of criminal law from
what it is at present. This it would do in two different ways. As with the
Proposalfor a New Criminal Code, the New Code would lower the culpability
threshold to negligence for many offences.136 Since negligence is defined as
4
13
J. Hall, General Principles of Criminal Law, 2d ed. (Indianapolis: Bobbs-Merrill, 1960) at
539 has described cases of involuntary intoxication as being “virtually non-existent”.
13 5King, supra, note 66.
136New Code, supra, note 38 at 52-88 essentially repeats the negligence provisions in the
Proposal for a New Criminal Code. See notes 123-128, supra. The differences are that it has
added two new offences to this category (endangering by motor vehicle, and impaired or over
80 mg of alcohol in blood while operating or in care and control of a means of transportation:
supra, note 38 at 65), and it deleted negligence as a ground for liability for vandalism and
arson.
INTOXICATION DEFENCE
1987]
a “marked departure from the ordinary standard of reasonable care”,137 it
is apparent that an intoxication defence would be of no avail for these
offences. At the other end, it would impose liability where presently there
is none. For instance, theft is a specific intent offence for which intoxication
is presently a complete defence.’ 38 Under the new proviso, a person ac-
quitted of theft would be liable for having committed theft while intoxicated.
The Minority Proposal avoids some, but not all, of these problems. It
does avoid the “horse of another colour is still a horse” argument since it
does not provide for a conviction for committing the crime while intoxi-
cated. In addition, it does not impose culpability where traditionally there
has been none, that is to say, for theft and other offences which are currently
of specific intent and do not have lesser included offences of general intent.
However, the same general criticism that the New Code too readily imposes
liability for negligence applies here as well. The defences allowed for neg-
ligence offences committed while intoxicated do not save the New Code
from this failing, since they would almost certainly have very little appli-
cation.1 39 Finally, since punishment has not been addressed, we have no
way of truly assessing the worth of the proposal when we have no idea of
what penalty will be provided for a negligence offence. Surely penalty is the
most important consideration.
The automatism proposal seemingly does little to change the existing
law. First, by excepting loss of temper or mental disorder, it retains the
“external factor” test approved by the Supreme Court in Rabey v. R. 140
Second, it, like Rabey, leaves the door open to a defence of automatism
caused by an extreme psychological blow but only where an “ordinary per-
son” would be similarly affected. However, sloppy drafting seems to have
effected two changes. First, all external factors, such as concussive blows,
would be controlled by the additional requirement that such factors also
affect an ordinary person. This is unnecessary and unwarranted. The second
change is more germane to the present discussion. Because the intoxication
provisions deal only with an absence of the required state of mind, it would
seem that a person could rely upon automatism as a defence even where
the act was rendered involuntary by her intoxication. In other words, the
Commission may have adopted the Australian position. If it did not intend
this, the Commission ought to have been more careful in its drafting. In
’37Neiv Code, ibid. at 21.
’38George, supra, note 19.
’39The only defence which might have some application is that relating to prescription drugs.
See also King, supra, note 66 where a defence of reasonable mistake might apply. Otherwise,
as Hall has indicated, supra, note 134 at 539, there have been virtually no cases of involuntary
intoxication, which is what the Minority Proposal has countenanced as a defence.
140[1980] 2 S.C.R. 513, 15 C.R. (3d) 225 [hereinafter Rabey cited to S.C.R.].
McGILL LAW JOURNAL
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any case, whatever it intended, the Commission has not done enough to
overcome the compartmentalization of the so-called “defences” of intoxi-
cation and automatism. It also has not dealt with the problems presented
by multiple causes of an automatous condition.
Nevertheless, the Law Reform Commission of Canada has progressed
in respect of its recommendations for codification and reform of the intox-
ication defence. At least it now seems to be unanimous in removing the
specific and general intent dichotomy. However, it is my submission that
much more thought needs to be given by the Commission to the implications
of its latest proposals. It is desirable to have the culpability requirements
clearly set out in a new criminal code. However, two major problems flaw
the entire work –
the over-enthusiastic resort to negligence as a standard
for culpability and the failure to address sentencing. These are obviously
related to each other. Indeed, nowhere does their relationship become more
apparent than in the recommendations on intoxication and automatism.
Combined with the Majority Proposal’s attempt to take away the defence
for offences where it is presently permitted, these flaws are too fundamental
not to be given serious consideration. It is to be hoped that the required
additional thought will be forthcoming from ihe Commission.
III. A Modest Proposal
A.
Introduction
A dangerous incapacitation offence is required, if for no other reason
than to ensure that proper determination of actus reus and mens rea are
made, unfettered by concerns about public protection. A good starting point
for proposing a new offence is to review what is required of it. The initial
point to be made is that such an offence need not be restricted to cases of
intoxication. I have previously 141 outlined how the doctrine of prior fault
in becoming incapacitated has been applied as an exception to the contem-
poraneity rule. Its application extends beyond self-induced intoxication
cases to incapacitation caused by other factors such as prescribed drugs and
potentially even by extreme psychological blows. 142 Use of the prior fault
14 Quigley, supra, note 4 contains an extensive discussion of the concept.
142The position for psychological blows is as yet unclear. The majority in Rabey, supra, note
140 at 520, adopting the reasons for judgment of Martin J.A. in the Ontario Court of Appeal,
left open whether an extreme shock, such as seeing a loved one murdered, leading to a dis-
sociative state during which a criminal act was committed could permit the defence of sane
automatism. Dickson J. (as he then was), writing for the minority, would have extended the
ambit of sane automatism but, at 552, seemed to impose a requirement that the automatous
condition have been achieved without fault on the part of the accused. Whether the majority
would agree with this is not clear.
1987]
INTOXICATION DEFENCE
doctrine is unwarranted for either the intoxication defence or the auto-
matism defence because it violates the contemporaneity rule, because the
fault is too remote from the eventual harm and because negligence has been
used as the measure of fault.’ 43
That is all stated by way of background for the position that a new
offence should be expanded to include all forms of self-induced incapaci-
tation. Most often, forms of incapacitation caused by alcohol or drug in-
toxication would result in the new offence being considered. Exceptionally,
however, it might be used where the accused, through her own subjective
fault, such as a failure to combat a hypoglycaemic state with sugar or a
failure to take prescribed medication, fell into a state of incapacity or in-
cognizance and then, while in that state, committed the actus reus of an
offence.
The definition of voluntary intoxication given in the Butler Committee
Report was as follows:
[I]ntoxication resulting from the intentional taking of drink or a drug knowing
that it is capable in sufficient quantity of having an intoxicating effect; provided
that intoxication is not voluntary if it results in part from a fact unknown to
the defendant that increases his sensitivity to the drink or drug.’ 44
The last portion was meant to take account of the situation, for example,
where a person suffering from hypoglycaemia drank a small amount of
alcohol without knowing that the effect of the combination could be a state
of altered consciousness. However, it is not wide enough to cover the sit-
uation where such a person has failed to counteract the hypoglycaemia with
sugar 45 or where a diabetic has failed to take insulin. This is because insulin,
sugar or a failure to take either are not usually thought of as intoxicants.
Yet, the resulting incapacity is as much due to that person’s fault as self-
induced intoxication. Thus, there is a need to redraft the definition of vol-
untary incapacity to take into consideration these and similar circumstances.
The next point to be considered is what the mens rea requirement for
the act of becoming intoxicated should be. Modifications made by the Butler
Committee to the definition of voluntary intoxication to take account of
the slightly wider scope for the offence would be sufficient. In other words,
the ingestion of drugs or alcohol or the omission to take prescribed sub-
stances, in either case knowing that incapacitation could result, would be
’43See supra, note 66 and accompanying text. King established negligence as the standard.
The negligence standard was upheld in the case of intoxication in Hartridge, supra, note 30,
and at least not rejected for automatism caused by an extreme psychological blow in Rabey,
supra, note 140.
’44Butler Committee Report, supra, note 80, para. 18.56 at 236.
’45See, e.g., R. v. Bailey [1983] 1 W.L.R. 760, [1983] 2 All E.R. 503 (C.A.).
REVUE DE DROIT DE McGILL
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sufficient to constitute the mens rea for the offence. The accused must simply
have awareness of the risk of becoming incapacitated.
Should the offence be connected to the act committed or should it be
a separate offence? The point to be borne in mind is the justification for
culpability in these circumstances. Punishment for the substantive offence
is not justified because, inter alia, the accused lacked mens rea or volition.
In addition, the fault in becoming incapacitated is too remote from and
unconnected with the subsequent act. As a result, in considering a separate
offence, a consistent approach should be taken. It is not justifiable to found
culpability on the act committed. Therefore, it is not proper to have a new
offence that is, in some way, tied to the substantive offence. For this reason,
the new offence should be neither an included offence 146 nor simply an
alternative mode of commission of the substantive offence.’ 47 Instead, it
should be a completely separate offence, culpability for which should be
determined independently.
There are other important criteria for a new offence. First, the offence
should not apply to every situation where the accused has been acquitted
of the original offence because of a lack of mens rea or volition. The claims
of public protection are not great enough to insist upon culpability for all
such acts. For instance, there has been no great public opposition to the
very few recorded acquittals, on account of intoxication, for theft’ 48 or
breaking and entering with intent to commit an indictable offence therein. 49
The Butler Committee Report was correct in restricting its proposed
offence. 150
One of the grounds for the offence is that the commission of some
dangerous act is convincing evidence of the need for the public to be pro-
tected from that particular person. The commission of a nondangerous, but
146This was the recommendation of the Butler Committee Report, supra, note 80, para. 18.54
at 236.
147This was the recommendation of the minority in the Offences Against the Person Report,
supra, note 101 at 113-14. The accused would be found guilty of performing the act while
intoxicated, and given the same punishment in all cases except murder, where the punishment
would be equivalent to that of manslaughter.
’48E.g., Ruse v. Read [1949] 1 KtB. 377, [1949] 1 All E.R. 398; R. v. Regehr (1952), 13 C.R.
53 (Sask. Mag. Ct.); McLaughlan v. R. (1974), 20 C.C.C. (2d) 59 (Ont. C.A.); and, of course,
George, supra, note 19, where the accused was acquitted by the trial judge of the more serious
offence of robbery on the ground that he was so intoxicated as to be incapable of forming the
specific intent to commit theft, a component of robbery.
149E.g., R. v. Campbell (1974), 17 C.C.C. (2d) 320 (Ont. C.A.); R. v. Curtis (1972), 8 C.C.C.
150Butler Committee Report, supra, note 80, para. 18.55 at 236. It recommended restriction
to acts causing death or bodily harm, involving sexual attack or destruction or damage to
property that endangered life.
(2d) 240 (Ont. C.A.); R. v. Johnnie and Namox (1975), 23 C.C.C. (2d) 68 (B.C.C.A.).
19871
INTOXICATION DEFENCE
nevertheless criminal, act does not have the same persuasive ability. It is
not a fair predictor of dangerousness. It is notorious that predictions of
dangerousness are fraught with error.’51 Hence, the prediction should only
be made where there is very credible evidence to support it. That evidence
is available when the accused has committed the actus reus of a homicide,
of causing bodily harm, or of a sexual assault or some similar act, but usually
not otherwise. 52
I would, in addition, include criminal driving offences, simply because
of the danger caused while driving in an incapacitated condition. However,
this is primarily to protect against the automatous driver since an impaired
condition of a lesser degree would not likely leave the trier of fact in doubt
as to the driver’s mens rea. The nature of the activity is such that evidence
of driving ordinarily would lead to the conclusion that the driver had mens
rea even if her cognitive ability was impaired.
Another important consideration is the disposition. I have left aside
this aspect until now because it warrants comment in connection with my
own proposals. I submit that the emphasis should be on treatment of of-
fenders convicted of the new offence, chiefly because a person subject to
dangerous incapacitation is, in most cases, an obvious candidate for such
treatment. However, I would be remiss in not acknowledging that this is
apt to be very controversial.
Therefore, let me begin with a brief discussion of the rationale behind
punishment and of the different schools of thought about its aims. I will
then attempt to apply these considerations to a dangerous incapacitation
offence.
H.L.A. Hart has given a standard definition of punishment:
[T]he standard or central case of ‘punishment’ is defined in terms of five
elements:
(i) It must involve pain or other consequences normally considered unpleasant.
(ii) It must be for an offence against legal rules.
(iii) It must be of an actual or supposed offender for his offence.
15tSee, e.g., A.E. Bottoms, “Reflections on the Renaissance of Dangerousness” (1977) 16
Howard J. of Penology and Crime Prevention 70. Bottoms has cited several studies into the
prediction of dangerousness and concluded, at 80, that the best that can be achieved is a false
positive rate of 55 to 70 per cent. That is, for every truly dangerous person, between one and
two persons who will not be violent are locked up. This is a compelling reason for restricting
culpability to those who have actually caused harm.
152Ashworth, supra, note 97 at 559, has also suggested that the law, rather than punishing
all intoxicated persons, regardless of whether harm is caused, on the basis that they have
voluntarily created a risk, should reserve its punishment for those intoxicated persons who
actually cause harm, that is, who cause the risk to materialise.
McGILL LAW JOURNAL
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(iv) It must be intentionally administered by human beings other than the
offender.
(v) It must be imposed and administered by an authority constituted by a legal
system against which the offence is committed.[emphasis added] 53
It is immediately apparent that the proposal for a dangerous incapacitation
offence is justified as falling within the second element. Indeed, it must be
emphasized that the present intoxication rules punish what is presently not
an offence against legal rules –
although, of course, only
where the intoxicated person has committed a general intent offence while
in that condition and while lacking mens rea and/or volition. A new offence
would be at least as justifiable and probably more so since it punishes more
explicitly for the incapacitation, rather than diffusing it through the specific-
general intent dichotomy.
intoxication –
Numerous factors are thought to enter into punishment. The ones that
are usually mentioned include deterrence, both specific and general, pro-
tection of the public, denunciation, both of the offender and of the conduct,
rehabilitation, and retribution. Although the approach advocated here is
treatment oriented, implying a rehabilitative approach, I wish to argue that
these other concerns are not ignored by such an approach.
First, let me examine protection of the public. For most of the cases
that would be dealt with under a dangerous incapacitation offence, the ac-
cused’s condition will have resulted from drug or alcohol consumption. The
degree of intoxication and possibly the resulting conduct will no doubt
suggest a serious drug or alcohol problem. In those circumstances, the best
possible protection for the public is to deal with that problem through treat-
ment. My proposals will include imprisonment as the ultimate sanction.
Hence, the person subject to court-ordered treatment will still be liable to
imprisonment in case of failure or refusal to co-operate in a treatment pro-
gram. In any case, protection of the public is generally overrated as a con-
sideration in sentencing since, unless one is able to countenance permanent
imprisonment or the death sentence, the protection extends only for so long
as the person is under controls, whether they be imprisonment, a probation
order or parole. Thus, treatment can as validly provide protection for the
public despite the acknowledged problems in achieving success through such
treatment. 154
153H.L.A. Hart, Punishment and Responsibility (London: Clarendon Press, 1968) at 4-5.
1541 recognize that some will protest that treatment is not effective where it is coercive. My
response is twofold. First, even where an alcoholic, for example, has apparently sought out
treatment on her own initiative, it is quite likely that some external pressure was exerted,
perhaps by family members, an employer, or friends. In other words, the only difference between
that situation and my proposal is the degree of coercion. The second point is that, unless we
are willing to completely abandon any pretense of rehabilitation through our corrections system,
we must accept that coercive treatment will be necessary even if its efficacy is jeopardized by
virtue of the fact that the offender has not willingly chosen the course of treatment.
1987]
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Deterrence has two components, that of deterring the individual of-
fender (specific deterrence) and that of deterring others in the community
who would commit similar acts (general deterrence). In relation to specific
deterrence, I have elsewhere pointed out that such cannot be achieved under
the present intoxication rules, 155 first, because a person intoxicated to the
point of lacking mens rea or volition is, by definition, incapable of making
the choice of whether to act in a particular way or not and, second, because
deterrence depends upon certainty in the law and of punishment which the
present rules lack. The first of these problems would be lessened, though
not completely eliminated, by a new offence because the offence is one of
becoming incapacitated, not of some conduct after incapacitation has been
achieved. Thus, the choice by the accused is simply whether or not to embark
upon a course of conduct apt to result in incapacitation. That is what is
sought to be deterred, not the commission of a general intent offence while
intoxicated.
The second problem would also be minimized because the law then
would be taking a less ambiguous stand against incapacitation –
the in-
dividual in question would understand that she risked liability for such an
offence if she, in future, allowed herself to become incapacitated. Moreover,
mandating treatment would make the punishment both certain and known,
and is therefore more likely to enhance the deterrent effect of the offence.
The improbability of achieving general deterrence through the existing
rules is also based, to some extent, upon the ambiguities in the law and the
uncertainty of punishment for the culpability of becoming intoxicated. With
a new offence of dangerous incapacitation and the requirement of treatment
where necessary, it can be argued that general deterrence will be more easily
achievable since the law and the punishment will stipulate a clearer con-
nection between incapacitation and culpability. At the least, it can be no
worse at accomplishing general deterrence than the present position.
Denunciation is sometimes thought to carry remnants from an earlier
emotive influence on punishment: vengeance. 156 However, vengeance is no
longer considered to have much validity in the sentencing process. 157 Den-
unciation, however, may still be a factor. 58 If it is, it can still be achieved
155Quigley, supra, note 4.
15 6See H.L.A. Harts discussion of the ideas of J.E Stephen, a prominent Victorian judge
and historian of the criminal law, in Law, Liberty and Morality (Stanford: Stanford University
Press, 1963) at 61.
157See, e.g., R. v. Morrisette (1970), 75 W.W.R. 644 at 645-46, 1 C.C.C. (2d) 307 (Sask.C.A.),
Culliton C.J.S.
158Hart, supra, note 156 at 62. The denunciatory element “figures largely in the conception
of the function and justification of punishment which is even today characteristic of the English
judiciary and is shared by many conservative English and American lawyers.”
36
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[Vol. 33
through the legislation of an offence such as I am proposing and by dis-
position oriented towards treatment where that is feasible. If the aim of
denunciation is to express moral condemnation of the offender and to up-
hold societal morality, 59 this can as easily be achieved through a public
trial, conviction and sentence for a new offence as through the same process
for any other offence. Moreover, since probation orders, fines and other
noncustodial sentences do not appear to scuttle the denunciatory effect for
other offences, why should this be the case for a treatment-oriented dis-
position for a new offence?
Retribution is another factor thought to be part of the sentencing process
and one that is said to be in conflict with the aim of rehabilitation. 160
Without entering into a lengthy discussion of the latter proposition, let me
say that retribution and rehabilitation are not inevitably in conflict. They
can, at times, converge –
for example, where the rehabilitative process is
thought by the public and the accused to compensate for the crime com-
mitted. According to Weiler,’ 6 1 there are several components to retribution,
among them expiation by the accused of her feelings of guilt, reassurance
to the law-abiding that they are not disadvantaged by following the law and
that the accused did not gain unfairly from her crime, and the instilling of
a sense of justice in the way the case was handled. Vengeance is no longer
considered of paramount concern under this new concept of “just desserts”
retribution. But these concerns can also be met through a regimen of treat-
ment. An accused, although coerced by a court into taking treatment, may
very well feel that she has paid her debt to society by submitting to such
treatment. The public can see that she did not escape sanction by the crim-
inal process, and so is vindicated in its resolve to comply with the law.
Retribution can be satisfied as much by this approach as by any other form
of sentence. In addition, if the treatment is successful, the accused will also
have been rehabilitated. 62
To sum up the discussion on disposition, while other sanctions should
be available, the thrust should be in favour of treating those offenders who
require it. Such an approach best ensures that the accused will not repeat
the behavior; therefore, it provides the most effective protection for the
1591bid. at 63.
160PC. Weiler, “The Reform of Punishment” in Law Reform Commission ofCanada, Studies
on Sentencing (Hull, Que.: Supply & Services Canada, 1974) 91 at 160.
‘ 61Ibid. at 158-60.
62Weiler probably would not agree: see ibid. at 160. However, at 170, he specifically refers
1
to the unjustifiability under retributive principles of punishing an intoxicated offender on the
basis that the offender did not “exercise a meaningful choice”. Under his criteria, however, to
convict of and punish for a new offence of dangerous incapacitation would be justified if the
accused exercised the choice of becoming incapacitated. Later, at 191, Weiler states his op-
position to involuntary treatment. However, see my comment on this point supra, note 154.
19871
INTOXICATION DEFENCE
public. The threat of other punitive measures will, of course, have to be
retained in order to maintain some sanction against a person who refuses
to undergo treatment or fails to comply with the terms of treatment. But
the primary emphasis should be upon treatment of the underlying causes
of the incapacitated condition. This approach should be made clear in the
legislative framework in order to avoid a “renamed prison system”.’ 63
Accompanying the legislation must be a commitment by Parliament to
adequate funding of treatment programs to maximize the chances of suc-
cessful treatment. It must be conceded that treatment will not always be
successful.’ 64 But neither are imprisonment or the other forms of punish-
ment always successful in deterring crime, much less rehabilitating offenders.
At least, by stressing treatment, the aim is unambiguous. In that way, there
is some possibility that greater emphasis would be placed on the effectiveness
of the treatment, rather than the perpetuation of the confusing and some-
times contradictory goals of the present sentencing process.
Furthermore, conviction for such an offence should not result in an
indeterminate sentence. Once again, this is due to the unreliability of our
predictions of dangerousness. Since the provision of a new offence would
act as a substitute for conviction of a general intent offence under the present
law and since present law provides for determinate sentences, there is no
good reason for an indeterminate sentence for a new offence. There ought,
therefore, to be a maximum penalty and one which reflects the reduced
culpability of a person who has committed the actus reus of an offence while
cognitively or volitively disabled. Naturally, any maximum penalty is nec-
essarily arbitrary and likely to be contentious.
Bearing these thoughts in mind, I now intend to outline my own pro-
posals in some detail. Following that, I will, where necessary, provide some
explanation for my suggestions.
B. My Proposals
Although presented in the form of legislation, this is not to suggest that
the following proposal for codification and reform is necessarily model leg-
islation. Indeed, there are some areas for which further study is required
and which are beyond the purview of this article. At the end of the proposal,
I will attempt to explain and clarify some of the points made. To ease the
presentation of that discussion, my proposals are set out in point form:
16 3M. Goode, “Some Thoughts on the Present State of the ‘Defence’ of Intoxication” (1984)
8 Crim. L.J. 104 at 120, has raised this concern.
164Supra, note 154.
McGILL LAW JOURNAL
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1. On a trial for any criminal offence requiring mens rea except an offence
of dangerous incapacitation, the judge or jury shall determine whether the
Crown has proved that the accused acted voluntarily and with the mens
rea required for the offence. That determination shall be made on all of the
evidence presented in the trial, including any evidence of the impairment
or incapacitation of the mind of the accused from any cause whatever, with
the drawing of such inferences from the evidence as appear proper in the
circumstances.
2. In a case where an accused might be liable for the offence of dangerous
incapacitation and where there is evidence of impairment or incapacitation
of the mind of the accused, if the trial is by judge and jury, the trial judge,
in charging the jury, shall inform the jury that acquittal on the offence
charged and any included offence(s), if on the basis of a lack of voluntariness
or a lack of mens rea, shall not necessarily amount to a final determination
of the culpability of the accused.
3. Where the accused is charged with an offence of a dangerous nature, the
judge or jury, when arriving at a verdict of acquittal for the offence charged
and any included offences, shall state whether the acquittal is due to a
unanimous reasonable doubt as to the act having been committed volun-
tarily or with mens rea due to the incapacitation of the accused. An offence
of a dangerous nature is an offence which has resulted in bodily harm or
death or involved [serious] sexual attack on another person or destruction
or damage to property that endangered life or bodily health or that consisted
of the operation of a motor vehicle in an incapacitated condition.
4. Where a verdict has been rendered pursuant to section 3, if the Crown
wishes to proceed, the accused shall immediately be placed on trial before
the same judge or jury for the offence of dangerous incapacitation. Any
evidence heard on the trial of the offence originally charged shall become
evidence on the trial of the offence of dangerous incapacitation.
5. The Crown and the accused shall each be entitled to call any additional
evidence necessary to a determination of the issues involved in the offence
of dangerous incapacitation. The trial judge may, in her discretion, permit
either party an adjournment of the proceedings in order to obtain such
further evidence but only to avoid unfairness to such party. Otherwise, the
trial shall proceed for the new offence. The accused shall be deemed to have
made the same election as for the offence charged. Likewise, where the
offence charged was one on which the Crown could proceed by indictment
or by summary conviction, the Crown shall be deemed to have made the
same election as for the original offence charged. No new indictment or
information shall be required. However, if a jury trial, the jury should be
informed that the accused is to be tried for having been in an incapacitated
1987]
INTOXICATION DEFENCE
condition that resulted in dangerous conduct and not for the particular
conduct that resulted.
6. In determining the culpability of the accused for the offence of dangerous
incapacitation, the judge or jury, as the case may be, shall only convict if
satisfied beyond a reasonable doubt by the Crown that:
(a) in part or in whole, the condition of the accused resulted from her
subjective fault, that is, that the accused intentionally or recklessly got into
an incapacitated condition by ingesting a substance she knew was capable
in sufficient quantity of incapacitating her or got into such a condition by
omitting to ingest a substance where she knew that a failure to ingest such
substance might result in her incapacitation; provided that such incapaci-
tation is not culpable if it results in part from a fact unknown to the accused
that increases her sensitivity to the substance or omission to take the sub-
stance; or,
[(b) where, in part or in whole, the incapacitated condition was caused by
a mental disorder of a serious and prolonged nature, representing manifest
danger to the public.]
7. Upon conviction for an offence of dangerous incapacitation, the accused
shall be liable:
(a) where death resulted from the condition of dangerous incapacitation, to
imprisonment for five years;
(b) where the original offence charged was a summary conviction offence,
to punishment for a summary conviction offence;
(c) for any other situation, to imprisonment for two years.
8. The trial judge shall not, however, impose imprisonment for such an
offence unless it has been demonstrated that:
(a) the accused refuses to take remedial treatment for the causes of the
incapacitated condition in order to prevent its recurrence; or,
(b) there is evidence that treatment of the accused is highly unlikely to be
successful; or,
(c) an accused has failed to comply with the terms and conditions of a
previous sentence for a conviction for dangerous incapacitation; or,
[(d) no other appropriate disposition is available].
9. The provisions of Part XX of the Criminal Code165 apply mutatis mu-
tandis to an offence of dangerous incapacitation, except that, in addition to
’65Part XX of the Criminal Code deals with sentencing.
REVUE DE DROIT DE McGILL
[Vol. 33
any other powers of disposition, a trial judge may commit an accused di-
rectly to an appropriate institution or other treatment facility. Committal
to such an institution or treatment facility shall be by warrant of committal
in Form 18 but shall specify the name of the institution or treatment facility
and the reason for the committal. A warrant of committal may be varied
upon application to the trial judge if it is made to appear that there are
valid reasons for doing so.
10. Either party may appeal from the verdict or sentence. Where the offence
charged was an indictable offence, the provisions of Part XVIII of the Crim-
inal Code shall apply and where the offence charged was a summary con-
viction offence, the provisions of Part XXIV shall apply.
11. A conviction for an offence of dangerous incapacitation shall be treated
as any other conviction for the purposes of the Criminal Records Act, 166
the Canadian Evidence Act, 16 7 and the Criminal Code.
12. The provisions dealing with an offence of dangerous incapacitation shall
apply mutatis mutandis to proceedings under the Young Offenders Act’ 68
except that where death resulted from the incapacitation of the accused, the
maximum penalty would be three years confinement in “close custody” as
defined in section 24(1) of the Act.
C. Explanation of the Proposals
What follows is an explanation of the proposals which I have made.
Where the proposal is apt to be controversial, I will indicate and advance
reasons for making it. Unless otherwise indicated, I shall refer to my pro-
posal by the section numbers given above.
Section 1 is basically a rewording of Section 8 of the English Criminal
Justice Act 1967169 and is intended to ensure that the trier of fact makes a
determination of volition and mens rea by consideration of all of the evi-
dence presented. It leaves room, however, for some offences to require neg-
ligence as the standard. Not only is it meant to do away with the specific
and general intent distinction under the present intoxication rules, 170 but it
also attempts to do away with the requirement of an external factor where
the accused relies on the defence of sane automatism.1 71 As a result, there
166Crimninal Records Act, R.S.C. 1970 (1st Supp.), c. 12.
167Canada Evidence Act, R.S.C. 1970, c. E-10.
68 Young Offenders Act, S.C. 1980-81-82-83, c. 110.
1
169Criminal Justice Act 1967, supra, note 71.
170This was confirmed in Leary, supra, note 3.
17tThis was first laid down as a requirement in R. v. Quick [1973] Q.B. 910, [1973] 3 W.L.R.
26, [1973] 3 All E.R. 347 (C.A.) and adopted in Canada in Rabey, supra, note 140.
1987]
INTOXICATION DEFENCE
are implications for the present insanity defence 172 to which I shall later
allude. The intent is to restore basic criminal principles to the determination
of voluntariness and mens rea and to make clear that the onus to prove
voluntariness and mens rea rests with the Crown.
Section 2 tries to ensure that a jury makes the actual determination of
volition or mens rea, unfettered by concerns that an acquittal might lead
to the outright release of the accused without at least coercive treatment
where there is a real concern about public safety. It is necessary to make
this an express stipulation because of the normal rule that a jury should not
be told the potential disposition. 73
The rationale for this rule is that a jury should not be influenced by
considerations of the severity of the penalty. The rule could be attacked as
being unrealistic in any event, since, for murder, for example, it is very
likely that most jurors are aware of the mandatory sentence of life impris-
onment. While perhaps not certain of the precise range of seniences for
other offences, jurors will have some idea of the severity of the offence.
Furthermore, it is not clear why a judge as trier of fact should be possessed
of this knowledge while a jury should be denied it. There is no evidence to
suggest that a judge is less influenced by foreknowledge of the penalty than
a jury when making a decision on culpability.
At any rate, I think this recommendation is essential to an unhindered
determination of the proper issues. Moreover, the suggestion is not a sig-
nificant departure from the usual rule. Merely informing the jury that an
acquittal is not a final determination should not deflect them from con-
victing for the offence charged or an included offence if they should find
the requisite volition and mens rea. On the other hand, it may serve to
inhibit convictions motivated by concerns for public safety rather than find-
ings relevant to a determination of mens rea or volition.
It is apparent that section 3 calls for a special verdict from a judge or
jury. This is to ensure that the accused gains the benefit of any doubt that
she was the person who committed the act or of any other available defence.
Obviously, one could not justify punishing an accused for dangerous in-
capacitation where there was doubt that she was the person who committed
the act. In the same vein, since a jury can arrive at a verdict by different
’72Criminal Code, supra, note 27, s. 16.
’73The rule is a well-established one. See R. v. Larkin [1943] 1 K.B. 174, [1943] 1 All E.R.
217 (C.A.); R. v. Black [1963] 1 W.L.R. 1311, [1963] 3 All E.R. 682, 128 J.P 79 (C.A.); L.J.
Blom-Cooper, “Pleading for Mercy” (1964) 27 Mod. L. Rev. 233; A. Maloney, “Addressing the
Jury in Criminal Cases” (1957) 35 Can. Bar Rev. 373 at 383-85; R. v. Cashin (1981), 65 C.C.C.
(2d) 56 (N.S.S.C.).
McGILL LAW JOURNAL
[Vol. 33
paths, 174 the provision that the verdict must be unanimous on the question
of incapacitation negating mens rea or voluntariness ensures that an accused
gains the benefit of any other defence open to her.
The argument could be made that this provision will unnecessarily
complicate jury trials. However, it is difficult to see how this could be any
more complicated than the instructions which must presently be given to
a jury where, for example, there are multiple charges with some falling into
both the specific and general intent categories. Likewise, where there are
multiple defences raised, such as insanity, intoxication and automatism, the
jury charge is very complex. It can be fairly stated that the present provision
is simpler or, at the least, no more difficult. Since the trier of fact is already
required to render a special verdict where insanity is proven, 75 this pro-
vision should not result in any great problem. It is simply a verbalization
by the judge or jury of what they must do in any event.
Where disagreement no doubt would arise is with the scope of the new
offence. Following on arguments made earlier, I would advocate a very
narrow ambit for the offence, covering only serious cases of harmful conduct,
namely death, bodily harm and danger to life and safety. But I also believe
that sexual assault ought to be included within the new offence. The result
is problematic because of the wide range of activity proscribed under the
sexual assault offences. 176 Is there any rationale for excluding common as-
sault from the catchment area of the offence but including the less serious
kinds of sexual assault? I am unsure of the answer and, for this reason, have
parenthetically inserted the word “serious” as a possible restriction for sex-
ual assaults. It is obviously an area where debate is desirable.
The new offence proposed in section 4 is meant to proceed with dis-
patch. This is in order to meet the argument made by the majority in the
Offences Against the Person Report that a separate offence would lead to
many more trials. This recommendation seeks to avoid such an occurrence
by applying the evidence presented in the main trial. However, the Crown
may decide not to proceed if, for instance, the accused is not in need of
treatment or deserving of punishment.
174 1t is accepted law that a jury can arrive at a unanimous verdict even though the individual
jurors might have arrived at their decision by different reasoning and on different grounds: R.
v. Tuckey (1985), 46 C.R. (3d) 97 at 109-10, 20 C.C.C. (3d) 502 (Ont. C.A.); G. Williams,
“Alternative Elements and Included Offences” (1984) 43 Camb. L.J. 290 at 291-92; R. v.
Thatcher [1987] 1 S.C.R. 652, 57 C.R. (3d) 97, [1987] 4 W.W.R. 193.
‘7 5Criminal Code, supra, note 27, s. 542.
’76Criminal Code, supra, note 27, ss 246.1, 246.2, and 246.3 cover a range from the most
minimal touching, presumably to be charged as a summary conviction offence under s.
246.1(1)(b), to the most hideous form of aggravated sexual assault, punishable by life impris-
onment under s. 246.3(2).
1987]
INTOXICATION DEFENCE
Section 5 follows this approach by permitting additional evidence to
be called, but allowing the proceedings to be adjourned for the purposes of
obtaining such evidence only to avoid unfairness to either party. Additional
evidence, however, should be permitted because it may well be relevant to
the issues to be determined for the new offence and may not have been
admissible on the original trial. In order to avoid unnecessary delays, both
the Crown and defence are deemed to have made the same elections as for
the original offence charged. For the same reason, a new indictment or
information is dispensed with. Informing the jury that the trial on the new
offence is to decide culpability for incapacitation rather than the resulting
conduct is simply a cautionary measure to ensure that the jury focusses on
the proper issue.
Section 6 is more controversial. Subsection (a) establishes a subjective
test for fault. This would merely bring Canadian law in line with the sub-
jective approach. The proposal is basically a rewording of the Butler Com-
mittee Report177 so as to include the situation where the accused has failed
to take prescribed substances, such as insulin. Like the Butler Committee
Report, some leeway is allowed for the accused who did not know that her
sensitivity to the substance (or lack of it) might be increased in the particular
circumstances.
Subsection (b) is meant as a tentative addition to (a). In large part,
whether it is deleted would depend upon whether the insanity provisions
of the Criminal Code are redrafted. It, along with subsection (a), could
provide a complete substitute for the defence of insanity. It will be noted
that section 1 would allow acquittal even where a disease of the mind caused
the lack of volition or mens rea. Subsection (b) of section 6 would then re-
impose culpability, although for the new offence instead, but only where the
accused was not subjectively at fault for her incapacitated condition and
presented a serious menace to the public.
My intention here is to meet the argument that a person who might be
considered insane under the present insanity provisions to a degree that
negatived voluntariness or mens rea would not be subjectively at fault for
being in such a condition. Nonetheless, that person represents a danger to
the public. It is true that such a person would be rendered culpable for a
criminal offence instead of the present finding of nonculpability by reason
of insanity. I do not, however, consider that there would be any more stigma
attached to a conviction for the new offence than for a finding of insanity.
I also believe that the argument against criminal culpability is countered
177Butler Committee Report, supra, note 80, para. 18.56 at 236. The proviso covers, for
example, the situation where an accused took alcohol with a prescription drug and did not
know that the combination might cause incapacitation.
REVUE DE DROIT DE McGILL
[Vol. 33
by the changes recommended at the disposition stage which would remove
the present indeterminate institutionalization in favour of a fixed sentence
of maximum duration and a treatment-oriented approach.
Adoption of these proposals would subsume a large part of the present
insanity defence. Most of the cases presently dealt with by the first arm of
section 16(2) of the Criminal Code178 would be taken care of, in one way
or another, by my proposals. Some of these persons, the least dangerous
ones, would be entitled to an outright acquittal (as they presently are for
summary conviction offences). This typically would cover the situation
where a person in a dissociative state has committed some minor act such
as a shoplifting. More dangerous individuals could be covered by subsection
(b) which does not have a fault requirement.
Section 6 also attempts to deal with cases where there have been mul-
tiple causes for the incapacitated condition. A complaint levelled against
the present law is the varying treatment accorded different causes of inca-
pacitation. 79 If incapacitation is primarily due to an external factor, the
defence is automatism; if primarily due to a disease of the mind, the defence
is insanity; if primarily due to intoxication the defence is intoxication. 180
The result, then, could be outright acquittal, acquittal on account of insanity
or either acquittal or conviction depending on whether the offence is one
of specific or general intent. Under my proposal, whether or not the con-
dition was totally attributable to the accused’s subjective fault would be of
no moment. For instance, where intoxication was a partial factor but was
bound up with a mental disorder from which the accused suffered, this would
make no difference to her liability for the dangerous incapacitation offence.
What would be left of the insanity defence could be covered under
section 6(b) if consideration were given to abolition of the present defence
of insanity. There would be some cases falling under the second branch of
178Criminal Code, supra, note 27, s. 16(2). The first arm refers to a disease of the mind which
renders the accused “incapable of appreciating the nature and quality of an act or omission.”
This state usually will also be one where the accused acted without volition and/or mens rea
for the offence charged.
179For a discussion of this complaint against the present law, see Quigley, supra, note 4 at
110-12.
180R. v. Revelle (1979), 21 C.R. (3d) 161 at 162-67, 48 C.C.C. (2d) 267 (Ont. C.A.), aff’d
[1981] 1 S.C.R. 576, 21 C.R. (3d) 161.
1987]
INTOXICATION DEFENCE
section 16(2) of the Criminal Code’8’ and the provision dealing with de-
lusions. 82 That latter provision has, at present, little application in prac-
tice.18 3 It is far beyond the ambit of this article to embark upon a critical
examination of the insanity defence. Rather, my primary aim has been to
subsume within my proposal those portions of the present insanity defence
where the accused lacked volition or mens rea. Obviously, a redrafting of
the insanity defence would be necessary.184
With regard to the sentencing provisions in sections 7, 8 and 9, for the
reasons previously stated, I believe that prison should be a last resort for
those who refuse or do not respond to treatment. Normally, a judge would
use the probation, suspended sentence and discharge provisions in the Crim-
inal Code8 5 to require an accused to take treatment and to enforce the
conditions of the order. Nevertheless, in recognition that some sterner meas-
ures might, on occasion, be required, a judge should have the power to
sentence the offender directly to a suitable treatment facility or institution.
The facility should be named in the committal order to ensure that the
accused goes to that place and no other. Where the facility turns out to be
inappropriate or another facility can better provide the necessary treatment,
the sentencing judge should be able to change the committal order.
181Criminal Code, supra, note 27, s. 16(2). This second arm covers the situation where the
accused, by reason of a disease of the mind, has been rendered incapable of “knowing that an
act or omission is wrong.” An accused falling under this branch may have acted voluntarily
or with mens rea, but is excused on account of her mental impairment because she is not
considered a fit person to punish by means of the criminal law. That is to say, she is not
responsible for her action.
’82Ibid., s. 16(3). The subsection allows insanity as a defence where, on account of delusions,
an otherwise sane person believes in a set of facts which, if true, would have justified or excused
her act. In other words, it provides a defence where insanity causes a mistake as to a justification
or an excuse. Such a proposal could be made for self-induced incapacitation. However, I have
not done so because the implications are quite complex and would require considerable study.
Stuart, supra, note 6 at 380-81, has made this point. The question of extending a defence to
those voluntarily incapacitated where a mistake as to a legal excuse or justification must be
postponed for another study. At present, because such justifications as self-defence or defence
of property carry with them a requirement of reasonableness, a mistaken belief in a justifiable
course of conduct is of no avail where the mistake was caused by intoxication: Reilly v. R.,
supra, note 22.
18 3Because of the wording of s. 16(3) of the Criminal Code, requiring that a person suffering
from delusions must be “in other respects sane”, this subsection has been rarely resorted to.
See, e.g., R. v. Budic (No. 3) [1979] 1 W.W.R. 11, 43 C.C.C. (2d) 419 (Alta. C.A.). Indeed, it
has been said to be subsumed within s. 16(2): R. v. Abbey [1982] 2 S.C.R. 24 at 37, [1983] 1
W.W.R. 251, 29 C.R. (3d) 193, 68 C.C.C. (2d) 394, 138 D.L.R. (3d) 202.
184Interestingly, the New Code, supra, note 38 at 30 proposes to maintain an insanity defence,
called mental disorder, except that the provision respecting delusions has been deleted entirely.
185Criminal Code, supra, note 27, ss 662-66.
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Imprisonment should remain as the sanction of last resort. This is
primarily to ensure that an accused abides by a discharge or suspended
sentence. Those dispositions can be revoked upon application if an accused
violates the terms. 86 Exceptionally, there might be an accused who is a
repeat offender, refuses to take treatment, or is not capable of responding
to treatment. For those situations, a jail sentence might be warranted. None-
theless, the penalty should reflect the reduced culpability of a person who
lacked volition or mens rea for the offence originally charged and who,
indeed, may well not have meant harm to anyone at all. Whatever the
penalty provided, there is little doubt that there will be great disagreement.
I suggest five years as a maximum where death resulted.
The most serious act to be covered by the new offence would be an
automatous homicide, now resulting in a manslaughter conviction where
self-induced incapacity was involved. 8 7 In Saskatchewan, the usual pun-
ishment for manslaughter is in the range of three to three and one-half years
imprisonment. 88 Manslaughter offences where intoxication is involved vary
from near-murder to automatous homicides. Since culpability for the pres-
ent offence would only arise where an accused lacked volition or mens rea,
the punishment properly should be at the lower end of the scale. On this
basis, the five year maximum is justifiable. The most dangerous person likely
to be acquitted on account of a lack of voluntariness or the mental element
is the automaton. Such cases must be extremely rare. The recommendation
would adequately handle such situations because it allows a great deal of
time for treatment to succeed, yet does not depart significantly from what
the accused would receive under the present law.
For offenders who do not require treatment, the usual range of sentences
under Part XX of the Criminal Code would be available. Usually, such
offenders would receive a fine or a suspended sentence or conditional dis-
charge, a term of which might be a prohibition from consuming incapaci-
’86Ibid., ss 662.1(4), 664(4).
’87E.g., Hartridge, supra, note 30.
188E.g., R. v. Baldhead [1966] 55 W.W.R. 757, 48 C.R. 228, 4 C.C.C. 183 (Sask. C.A.) (three
years); R. v. Sinith (1973), [1974] 1 W.W.R. 635, 25 C.R.N.S. 350 (Sask. C.A.) (three years);
R. v. Mikkelson (1973), 14 C.C.C. (2d) 255 (Sask. C.A.) (three years); R. v. Beatty (1982), 17
Sask. R. 91, 69 C.C.C. (2d) 223 (C.A.) (three and one-half years). C.C. Ruby, Sentencing, 3d
ed. (Toronto: Butterworths, 1987) at 409-23, essentially says that this is the range throughout
Canada though, of course, both higher and lower sentences have been imposed in particular
cases. This broadly accords with the practice in England for similar cases: D.A. Thomas,
Principles of Sentencing, 2d ed. (London: Heinemann, 1979) at 74 If. especially at 83-85. R.P
Nadin-Davis, Sentencing in Canada (Toronto: Carswell, 1982) at 259 suggests, on a very limited
sample of cases, that ten to twenty years is more the norm. It is submitted that this latter
authority is incorrect and that the above cases and authorities better reflect the range of
sentences.
19871
INTOXICATION DEFENCE
tating substances. This would cover the vast majority of cases where it was
the first occasion on which the offender had become so incapacitated and
caused harm. Exceptionally, a judge might still consider that some period
of incarceration was required. This is the reason for including subsection
(d) to section 8. One would hope that it would be used sparingly since the
rationale for such a sentence would seem obscure.
There are, of course, those who believe that all persons with severe
mental disorders represent an undue risk to the public. However, given our
problems in predicting dangerousness, the indefinite committal of all men-
tally disordered persons who have engaged in a criminal act would be un-
warranted. The better approach is to provide for a maximum determinate
sentence, and to use civil commitment procedures to institutionalize those
persons presenting a genuine danger to the public. As with the substantive
provisions of the insanity defence, this area is a fruitful one for further
study.
Sections 11 and 12 are merely procedural recommendations to ensure
that the new offence is treated like any other offence for appeal purposes
and for subsequent offences. The last provision extends the operation of the
recommendations to the Young Offenders Act. 189 The only change is to re-
duce the maximum punishment to bring it into line with the maximum
under that Act. This is justifiable since a conviction for first degree murder
would attract that maximum. There is certainly no reason why a dangerous
incapacitation offence should have a greater penalty than murder.
Conclusion
These proposals are not meant to be etched in stone. Nevertheless, they
seek to inject greater rationality and consistency into the law while protecting
the legitimate concerns of society. The cornerstone of the proposals is the
complete adoption of a subjective approach to all questions of mens rea
and voluntariness. In that way the criminal law can be made simpler, fairer,
more certain and more consistent and can better achieve its aims. For those
few situations that could prove problematic under a subjective approach,
the recommendations that I have made for a dangerous incapacitation of-
fence should provide sufficient protection to the public from manifestly
189 Young Offenders Act, supra, note 168.
48
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dangerous people. At the same time, however, those recommendations seek
to guard against overreaction and too easy resort to incarceration or insti-
tutionalization. Nonetheless, I recognize that any recommendations in this
controversial area of criminal law will provoke much debate and criticism.
Indeed, the purpose of these proposals is to prompt such discussion.
