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What to Know About the Intoxication Defence in Canadian Criminal Law

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As you’ve probably noticed, the criminal defence lawyers at Mass Tsang have been using this space to educate the Greater Toronto Area population about various criminal defence strategies in Canadian criminal law. Most recently, we detailed the insanity defence and the entrapment defence . In this blog posting, we will shine a spotlight on the intoxication defence. However, there is a slight twist to the story.

On May 13, the Supreme Court of Canada, in a unanimous decision , ruled that extreme intoxication can be used as a valid defence against criminal charges such as murder, assault, and rape. The high court ruling essentially found that Section 33.1 of the Criminal Code — which had barred the use of the intoxication defence for some crimes — was unconstitutional because it violated the Charter of Rights and Freedoms .

The court held that the provision inherently violated the Charter by allowing convictions without the Crown having to prove that the defendant intended to commit a criminal act. It also violated the Charter because it could infer that a person’s decision to become intoxicated meant they intended to commit the offence they’ve been charged with. In their ruling, the justices suggested that Parliament enact a new law to hold extremely intoxicated people responsible for their violent crimes and to protect vulnerable victims.

Perhaps needless to say, but that had been the intent of Section 33.1 of the Code. The high court’s ruling will likely have a limited effect on the intoxication defence, as it only applies to extreme intoxication, characterized as automatism. So, let’s take a broader look at how the intoxication defence is used in the Canadian legal system.

Intoxication Defence Basics

While the Supreme Court ruling complicates the public’s understanding of the intoxication defence in Canada, this form of defence has always been complicated and is rarely used. Having evolved from common law, the intoxication defence is inherently complicated by the legal concept of “intent” and the question of moral responsibility. These two factors have driven legislative and judiciary interpretations of what might make intoxication a valid defence.

A core component of Canadian criminal law is that for most crimes guilt can only be established if the crown can prove that the offender was responsible for the criminal conduct — “actus reus” — and intentionally and/or knowingly committed the crime — “mens rea,” Latin for “willing mind.” Based solely on this, an intoxication defence could easily argue that the state of intoxication was so great that the offender did not know what they were doing. This posed a dilemma for Canada’s early legislators and judiciary, who needed to find a balance between making sure it wouldn’t absolve otherwise morally blameworthy offenders, but at the same time ensure that the morally innocent weren’t punished.

By 1920, judicial precedents and legislators had established some sense of balance by allowing the intoxication defence to be used for specific intent crimes but not for general intent crimes. The best way to contrast the two is that specific intent offences require purposeful intent to achieve an ulterior goal. In contrast, general intent does not require an ulterior purpose, but initiating the offence can create an immediate goal.

Confused yet? We told you this was complicated.

While murder is considered a specific intent offence, manslaughter is a general intent crime. Theft and robbery are specific intent crimes, but assault is a general intent offence. While the courts and legislators have never been satisfied with this attempt to create balance, the two distinctions are still used to determine the intoxication defence’s applicability. They have also led to numerous challenges and appeals, as evidenced by the recent Supreme Court decision.

What of Involuntary Intoxication?

To further confuse intoxication as a defence, the distinction between specific intent and general intent offences technically does not apply to cases of involuntary intoxication. Case law on involuntary intoxication as a defence is far more limited than voluntary intoxication. However, a recognized form of involuntary intoxication involves someone who unknowingly ingested an intoxicating substance by accident or was surreptitiously administered an intoxicating substance. A person who commits an offence — whether specific or general intent — while so intoxicated theoretically should be able to mount an intoxication defence.

The Use of the Intoxication Defence at Trial

Canadian law recognizes three degrees of intoxication for the purposes of the intoxication defence. Mild intoxication, if raised, might be useful for attempting to mitigate the severity of the offence but has no bearing on the mens rea intent needed for a conviction. Advanced intoxication can be used for specific intent offences to raise reasonable doubt about the mens rea. Even when successfully used as a defence, offenders are often found guilty on lesser charges. For example, if successfully used to secure an acquittal on murder charges, offenders are typically found guilty of manslaughter, a general intent offence that cannot consider the intoxication defence.

Extreme intoxication refers to intoxication that puts an offender in a state of automatism in which they are lacking self-control and self-knowledge. When successfully used as an affirmative defence, it effectively negates the mens rea intent and renders a conviction impossible. While Section 33.1 of the Criminal Code had dictated that this intoxication defence could only be applied to non-violent offences, that requirement was nullified by the recent Supreme Court decision. The extreme intoxication defence was rarely used, and legal scholars do not believe that the Supreme Court’s ruling will lead to a significant uptick in its use.

Consult with Mass Tsang for Your Toronto-Area Criminal Defence

The experienced lawyers of Mass Tsang consider all defence tactics — including the intoxication defence — when developing defence strategies to secure the most favourable outcome possible. Mass Tsang lawyers thoroughly assess every detail of each criminal case to devise the most effective defence possible for their Greater Toronto Area clients. If you or a loved one is facing criminal charges, contact the expert lawyers at Mass Tsang



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