R. v. Daviault [1994] 3 S.C.R.

63: Whether rule that mental element of general intent offence cannot be negated by drunkenness violates principles of fundamental justice and presumption of innocence

Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.


Criminal law -- Sexual assault -- Mens rea -- Intoxication -- Accused acquitted of sexual assault on account of his extreme intoxication at time of incident -- Acquittal overturned on appeal -- Whether evidence of extreme intoxication tantamount to state of automatism can negative intent required for general intent offence.

Constitutional law -- Charter of Rights -- Fundamental justice -- Accused acquitted of sexual assault on account of his extreme intoxication at time of incident -- Acquittal overturned on appeal -- Whether rule that mental element of general intent offence cannot be negated by drunkenness violates principles of fundamental justice -- If so, whether infringement justifiable -- Canadian Charter of Rights and Freedoms, ss. 1, 7.

Constitutional law -- Charter of Rights -- Presumption of innocence -- Accused acquitted of sexual assault on account of his extreme intoxication at time of incident -- Acquittal overturned on appeal -- Whether rule that mental element of general intent offence cannot be negated by drunkenness violates presumption of innocence -- If so, whether infringement justifiable -- Canadian Charter of Rights and Freedoms, ss. 1, 11(d).

The complainant, a 65-year-old woman who is partially paralysed and thus confined to a wheelchair, knew the accused through his wife. At about 6:00 p.m. one evening, at her request, the accused arrived at her home carrying a 40-ounce bottle of brandy. The complainant drank part of a glass of brandy and then fell asleep in her wheelchair. When she awoke during the night to go to the bathroom, the accused appeared, grabbed her chair, wheeled her into the bedroom, threw her on the bed and sexually assaulted her. He left the apartment at about 4:00 a.m. The complainant subsequently discovered that the bottle of brandy was empty. The trial judge found as a fact that the accused had drunk the rest of the bottle between 6:00 p.m. and 3:00 a.m. The accused was a chronic alcoholic. He testified that he had spent the day at a bar where he had consumed seven or eight bottles of beer. He recalled having a glass of brandy upon his arrival at the complainant's residence but had no recollection of what occurred between then and when he awoke nude in the complainant's bed. He denied sexually assaulting her. The pharmacologist called by the defence as an expert witness testified that an individual with the blood-alcohol ratio he hypothesized the accused would have had after consuming that amount of alcohol might suffer a blackout. In such a state the individual loses contact with reality and the brain is temporarily dissociated from normal functioning. The individual has no awareness of his actions when he is in such a state and will likely have no memory of them the next day. The trial judge found as a fact that the accused had committed the offence as described by the complainant, but acquitted him because he had a reasonable doubt about whether the accused, by virtue of his extreme intoxication, had possessed the minimal intent necessary to commit the offence of sexual assault. The Court of Appeal allowed the Crown's appeal and ordered that a verdict of guilty be entered. It held that the defence of self-induced intoxication resulting in a state equal to or akin to automatism or insanity is not available as a defence to a general intent offence.

Held (Sopinka, Gonthier and Major JJ. dissenting): The appeal should be allowed and a new trial ordered.

Per L'Heureux-Dubé, Cory, McLachlin and Iacobucci JJ.: The strict application of the rule established in this Court's decision in Leary that the mens rea of a general intent offence cannot be negated by drunkenness offends both ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms. The mental aspect of an offence has long been recognized as an integral part of crime, and to eliminate it would be to deprive an accused of fundamental justice. The mental element in general intent offences may be minimal; in this case it is simply an intention to commit the sexual assault or recklessness as to whether the actions will constitute an assault. The necessary mental element can ordinarily be inferred from the proof that the assault was committed by the accused, but the substituted mens rea of an intention to become drunk cannot establish the mens rea to commit the assault. Moreover, the presumption of innocence requires that the Crown bear the burden of establishing all elements of a crime, including the mental element of voluntariness. Assuming that voluntary intoxication is reprehensible, it does not follow that its consequences in any given situation are either voluntary or predictable. Further, self-induced intoxication cannot supply the necessary link between the minimal mens rea required for the offence and the actus reus. To deny that even a very minimal mental element is required for sexual assault offends the Charter in a manner that is so drastic and so contrary to the principles of fundamental justice that it cannot be justified under s. 1 of the Charter. The experience of other jurisdictions which have completely abandoned the Leary rule, coupled with the fact that under the proposed approach, the defence would be available only in the rarest of cases, demonstrate that there is no urgent policy or pressing objective which need to be addressed. Studies on the relationship between intoxication and crime do not establish any rational link. Finally, as the Leary rule applies to all crimes of general intent, it cannot be said to be well tailored to address a particular objective and it would not meet either the proportionality or the minimum impairment requirements.

The flexible approach suggested by Wilson J. in Bernard, whereby evidence of intoxication could properly go before a jury in general intent offences if it demonstrated such extreme intoxication that there was an absence of awareness which was akin to a state of insanity or automatism, should be adopted. Given the minimal nature of the mental element required for crimes of general intent, even those who are significantly drunk will usually be able to form the requisite mens rea and will be found to have acted voluntarily. Extreme intoxication akin to automatism or insanity should, like insanity, be established by the accused on a balance of probabilities. It will only be on rare occasions that evidence of such an extreme state of intoxication can be advanced. While such a burden constitutes a violation of the accused's rights under s. 11(d) of the Charter, it can be justified under s. 1. It is only the accused who can give evidence as to the amount of alcohol consumed and its effect upon him. Expert evidence would be required to confirm that the accused was probably in a state akin to automatism or insanity as a result of his drinking.

Should it be thought that the mental element involved relates to the actus reus rather than the mens rea, the result must be the same. The actus reus requires that the prohibited criminal act be performed voluntarily as a willed act. A person in a state of automatism cannot perform a voluntary willed act, and someone in an extreme state of intoxication akin to automatism must also be deprived of that ability. It would equally infringe s. 7 of the Charter if an accused who was not acting voluntarily could be convicted of a criminal offence. Here again the voluntary act of becoming intoxicated cannot be substituted for the voluntary action involved in sexual assault. To convict in the face of such a fundamental denial of natural justice could not be justified under s. 1 of the Charter.

Per Lamer C.J.: Cory J.'s position on the law was agreed with, and the carving out of an exception to the rule laid down in Leary was supported.

Per La Forest J.: Dickson C.J.'s view in Bernard and Quin which strongly challenged the rule in Leary having been rejected by a majority of the Court, Wilson J.'s approach in that case as developed in Cory J.'s reasons was preferred.

Per Sopinka, Gonthier and Major JJ. (dissenting): This Court's decision in Leary still stands for the proposition that evidence of intoxication can provide a defence for offences of specific intent but not for offences of general intent. Since sexual assault is a crime of general intent, intoxication is no defence. This rule is supported by sound policy considerations. One of the main purposes of the criminal law is to protect the public. Society is entitled to punish those who of their own free will render themselves so intoxicated as to pose a threat to other members of the community. The fact that an accused has voluntarily consumed intoxicating amounts of drugs or alcohol cannot excuse the commission of a criminal offence unless it gives rise to a mental disorder within the terms of s. 16 of the Criminal Code.

Since the Leary rule does not relieve the Crown of the responsibility of proving the existence of a mens rea or any of the other elements of the offence of sexual assault which are required by the principles of fundamental justice, it does not violate s. 7 or s. 11(d) of the Charter. While this is one of the rare cases in which the accused was sufficiently intoxicated to raise a reasonable doubt as to whether he intended to commit the offence of sexual assault, none of the relevant principles of fundamental justice require that the intent to perform the actus reus of an offence of general intent be an element of the offence. The requirements of the principles of fundamental justice are satisfied by proof that the accused became voluntarily intoxicated. The general rule that the mental fault element of a crime must extend to the actus reus, including consequences forming part thereof, is subject to exceptions. The principles of fundamental justice can exceptionally be satisfied provided the definition of the offence requires that a blameworthy mental element be proved and that the level of blameworthiness not be disproportionate to the seriousness of the offence. These requirements are satisfied in this case. Individuals who render themselves incapable of knowing what they are doing through the voluntary consumption of alcohol or drugs possess a sufficiently blameworthy state of mind that their imprisonment does not offend the principle of fundamental justice which prohibits imprisonment of the innocent. Those found guilty of committing sexual assault are rightfully submitted to a significant degree of moral opprobrium, and that opprobrium is not misplaced in the case of the intoxicated offender. While as a general rule an act must be the voluntary act of an accused in order for the actus reus to exist, the rules of fundamental justice are satisfied by a showing that the drunken state was attained through the accused's own blameworthy conduct. Finally, although distinguishing between offences of specific and general intent may lead to some illogical results, the underlying policy of the Leary rule is sound. Rather than jettisoning the rule, the Court should clarify the distinction by clearly identifying and defining the mental element of offences. It can then be determined whether applying the criteria for the identification of offences of specific and general intent in a particular case serves the public interest in punishing the offender notwithstanding the absence of the mens rea associated with the offence.

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