Class 6: Intoxication 100%

Question 1

What section of the CC is for all common law defences?

Answer 1

Section 8.

Question 2

What standard is the defence of intoxication based upon?

Answer 2

Where the defence can show on a balance of probabilities.

Question 3

What is intoxication very simply?

Answer 3

A defence (an excuse for behaviour)

Question 4

Is intoxication a defence?

Answer 4

Yes it is a common law defence

Question 5

What is the new 33.1 section in the criminal code for extreme intoxication?

What did it change?

Answer 5

The “new” 33.1 allows for a conviction for violent crimes of general intent committed by a person while in a state of negligently self-induced extreme intoxication

This provision appears to amend the law such that extreme intoxication to the point of automatism or involuntariness is only available for offences that do not include as an element “an assault or any other interference or threat of interference by a person with the bodily integrity of another person”

Basically even if you are extremely intoxicated, if you did a violent offence it is not a defence

Question 6

Self induced intoxication that has not hit the level of automatism.

Can it be used as a defence to a general intent crime?

What extreme level must it basically reach?

Answer 6

Self-induced intoxication (short of automatism) is no defence to a crime of “general intent,” although it may be admissible as a defence to a crime of “specific intent.”

*Note to Future Phil, the extreme level of intoxication required is as if you are having an involuntary act** If it is short of automatism, you are not drunk enough

Crimes of general intent are those where the mens rea – or the criminal intent that renders an act criminally culpable – involves “such minimal thought and reasoning process” that even a high degree of intoxication is unlikely to absolve the accused of any criminal liability

Question 7

Can extreme self induced intoxication negate the actus reus?

If so, specific or general intent crimes?

What is the exception?

Answer 7

Yes, extreme intoxication can.

Both. It can negate the actus reus of a general intent offence and a specific intent offence

Not for a violent crime.

Question 8

R v. Daviault 1994

Facts: He was a chronic alcoholic. He got alcohol it for a friend who was in a wheelchair. He brought it to her the house. She fell asleep in the wheelchair, they both got drunk. The accused then raped her and was charged. He testified he was fucked up, piss drunk, and he had no idea what happened. Expert evidence that said there was little chance he could have functioned normally based on what he drank

Issue:

This case was before the new Section 33.1.

Can extreme intoxication negate a general intent crime including a violent assault?

What if it took place after the new 33.1?

What if the person committed a murder after 33.1?

Answer 8

Holding:

The court held that extreme intoxication could in rare cases be a defence to general intent offences such as assault or sexual assault. This would grant an acquittal.

Once 33.1 came into effect, no defence for any violent crime.

After 33.1, if you claimed extreme you can bring it down to manslaughter.

Question 9

Can being moderately drunk be enough for intoxication defence?

Answer 9

Moderately is never enough. 3 levels are mild, advanced or extreme

Question 10

Can being significantly drunk be enough for intoxication defence?

What are the three levels?

What about general intent crimes?

What about specific intent crimes?

What about violent crimes?

Answer 10

No. Even those who are significantly drunk will usually be able to form the requisite mens rea and will be found to have acted voluntarily.

MUST BE EXTREMELY DRUNK. 3 LEVELS ARE mild, advanced extreme.

Advanced and Extreme can be a defence for specific intent

Extreme ONLY is a defence for general intent.

Not for violent crimes

Question 11

In crimes requiring general intent, if the defence can show the person was extremely intoxicated trying to use this as a defence, what standard do they need to prove for this?

Answer 11

Balance of probabilities

Question 12

Are all offences in the criminal code?

Answer 12

No there is common law offences. Contempt of court.

Question 13

Is intoxication that is mild or advanced a defence for general intent? What if it is extreme?

Answer 13

No. general intent requires very little mens rea. Even at being mild or advanced intoxication, you have the mens rea required.

If extreme it negates the actus reus

Question 14

What does it mean when they say the evidence of intoxication has to rise to a level that has a “air of reality”

Answer 14

The evidence of intoxication has to rise to a level that has a air of reality.

That it is realistic based on the factors, that the level of intoxication had the ability to maybe be a defence. If it was mild or advanced, it typically is not meeting the air of reality

Question 15

Freebie to understand air of reality.

Example: if someone points a loaded gun at the other head, the foreseeable consequences are easy to see. You would need to be EXTREMELY DRUNK as evidence to show an air of reality that you can argue this as a defence

Answer 15

Freebie—- to understand AIR OF REALITY

Question 16

Would mild intoxication EVER meet a “air of reality”

Answer 16

NEVER. Advanced might, extreme does.

Question 17

R v Tatton 2015

Facts: Not relevant

Issues:

1) How can we tell if it is general or specific intent?

2) What is the difference between general intent or specific intent crimes? (Explain them)

Answer 17

Holding:

1) Case law. if you look at the case law, see what the courts have decided and follow that.

General intent crimes: The mental requirement only points to the illegal act. there does not need to be any special intention to bring about specific consequences. it requires very little mental intent.

Example: Bodily harm. The court does not need to prove the intent to cause the harm, if there is bodily harm it is inferred

Example 2: Assault the accused must intentionally apply force, however there is no requirement that he intended to cause injuries.

Examples of general intent. Manslaughter, assault, uttering threats, sexual assault, arson,

Specific intent crimes: Requires a lot more than general intent. The accused not only has to intend the act, but there must be a heightened mental element. It can be an ulterior purpose, or it may entail actual knowledge of certain circumstances or consequences.

Examples: Murder, Robbery, Break and Enter, Attempted murder

Question 18

The only intoxication that can defend general intent is what?

Answer 18

EXTREME INTOXICATION

Question 19

What types of intoxication can be a defence to specific intent?

Answer 19

Extreme and advanced intoxication.

Question 20

Is intoxication only being drunk?

Answer 20

No. It can be drugs, alcohol or a mix.

Question 21

R. v. Daley 2007

Facts: Guy was drunk and he committed first degree murder. He argued due to his intoxication, he cannot remember the event when he got home. There was alot of evidence on how drunk he was. Expert also testified the effects of alcohol. Jury found him guilty.

Issue: What are the three legally relevant types of intoxication?

Explain all three.

Answer 21

Holding:

1) mild intoxication -this is where there is alcohol induced relaxation of both inhibitions and socially acceptable behaviour… this has never been accepted as a factor or excuse in determining whether the accused possessed the requisite mens rea

2) advanced intoxication- this occurs where there is intoxication to the point where the accused lacks specific intent, to the extent of an impairment of the accused’s foresight of the consequences of his or her act sufficient to raise a reasonable doubt about the requisite mens rea… a defence based on this level of intoxication applies only to specific intent offences (such as murder and robbery). The onus is on the Crown (as it usually is) to show the mens rea is proven.

It is important to recognize that the extent of intoxication required to advance a successful intoxication defence of this type may vary, depending on the type of offense involved.

3) extreme intoxication akin to automatism, which negates voluntariness and thus is a complete defence to criminal responsibility. If the offence is one of general intent, then only self-induced intoxication, which is akin to automatism or mental disorder, will excuse. Such a defence would be extremely rare, and by operation of section 33.1 CC limited to nonviolent types of offenses. Onus is on the accused to establish this claim on the balance of probabilities.

Question 22

R v. Bouchard-Lebrun 2011

Facts: He did a violent crime but was extremely intoxicated. S 33.1 was alive and well at this point.

Issue: since 33. 1 was alive and well, what happened?

Answer 22

33.1 at the time of this case, completely eliminated the accused’s option to rely on extreme intoxication for general intent crimes

Can’t argue 33.1 for a violent offence and thus it is no defence

Question 23

R v. Brown SCC 2022

Facts: Not relevant

Issue: Do we have a new 33.1 section?

Answer 23

Holding:

Court reviewed the constitutionality of section 33(1).

The court concluded that 33.1 was enacted in response to Daveau violated the Charter and was not saved under s.1 of the charter

We now have a new 33.1 section.

Question 24

Do we need to know why section 33(1) is no longer in place?

Answer 24

no.

Question 25

How do we know if it is general or specific intent?

What if there is no case law on this?

Answer 25

Common law

Then the court trying the problem must determine whether it is specific or general intent

Question 26

Once the defence submits evidence that shows the accused was intoxicated, who needs to finally decide?

What is the only burden the defence has to prove in regards to the evidence?

Answer 26

Intoxication, when raised on the evidence, is a factor that the trier must consider in determining whether the accused possessed the necessary intent.

There is no burden on the defence to call evidence or establish the threshold aside from there being an air of reality.

Where there is evidence that the effect of intoxication is such that it might have impaired the accused’s foresight of consequences sufficiently to raise a reasonable doubt, the defence should be left to the trier of fact.

Question 27

Who has the burden of proving intoxication for a general intent crime?

What standard must it be proven on?

Answer 27

Intoxication is only a defence to a general intent offence if its severity is extreme, such that it is akin to automatism (i.e., a denial of actus reus due to a lack of conscious awareness of the criminal conduct).

This is a reverse onus defence that must be established by the defence on a balance of probabilities. This will generally require that the accused testify and adduce supporting expert evidence: