SPECIFIC V. GENERAL INTENT
R. v. Leary (1977) SCC
This case exposed a difference between BC and Ontario regarding rape. In BC rape was a general intent (manslaughter, rape, sexual assault) offence. In Ontario, it was a specific intent (other specific intent crimes include murder, theft, robbery, aiding and abetting a crime and attempted crimes) offence. Therefore, intoxication was a grounds for defense in Ontario but not BC. The SCC found that rape was a crime involving only general intent to which the defense of drunkenness had no application. Dickson J, in dissent, said that evidence regarding drunkenness should simply be left to the jury regardless of the offence (be it general or specific intent). This rule in effect treats the deliberate act of becoming intoxicated as culpable in itself.
R. v. Bernard (1988) SCC
The accused was charged with sexual assault causing bodily harm contrary to CC272.c. The issue was whether evidence of self-induced drunkenness is relevant to the issue of guilt or innocence in an offence of general intent. The SCC accepted that crimes of sexual assault were properly characterized as general intent. Therefore, the intoxication defense did not apply.
R. v. George (1960)
There is logic to this distinction. Even if there were logical weaknesses, they were overcome by policy considerations. In this case, the accused was acquitted of the specific intent offence of robbery because of intoxication but convicted of the general intent offence of assault because his intoxication was not so extreme as to prevent the Crown from proving the minimal intent required for that general intent offence.
Wilson Compromise
This approach was outlined by Wilson J in Bernard. It followed that drunkenness could be a defense to any mens rea offence (specific or general) if the intoxication amounted to automatism or extreme intoxication.
R. v. Daviault (1994) SCC
The Charter required Wilson’s approach. This was a case of extreme intoxication involving a 69 year-old chronic alcoholic who sexually assaulted a partially paralyzed woman. The accused consumed a lot of booze (a 40 ouncer of brandy and 8 beers). The accused’s conviction was quashed and a new trial was ordered; however, it was never retried on account of the victim’s death (not available for cross-examination). The SCC dispensed with the Leary approach because it offended s.7 (failed minimum intrusion and proportionality arms of the test) and 11d. Cory accepted the Wilson approach on the basis that the defense will only be put forward in rare circumstances (extreme intoxication) and succeed in even more rare circumstances. If one only had a few drinks, Wilson’s approach would have no application – could still form the mental intent. Sopinka took the hard line that those who voluntarily become extremely intoxicated deserve to be punished for the acts that flow from this self-induced state.
This case didn’t abolish the distinction between general and specific intent offences and it introduced to distinct intoxication defenses with different burdens of proof.
Specific Intent Offence – When the accused is charged with a specific intent offence, intoxication is always relevant. One need only raise a reasonable doubt. The accused could be acquitted of murder but convicted of manslaughter.
General Intent Offence – Intoxication evidence is only relevant in rare cases supported by expert evidence. The accused must show on a balance of probabilities that he was incapable of forming the intent required for a general intent offence.
Public Reaction to Daviault
Daviault was condemned for sending the wrong message. Parliament responded by amending the CC so that those with a Daviault defense would be convicted of the same offence of violent general intent as they would have pre-Daviault. Bill C-72 abolished the Daviault defense and CC33.1 was added, which states that it is not a defense to say one lacked basic intent where there is a marked departure from the standard of reasonable care. CC33.1 deals primarily with violations of bodily integrity. This doesn’t effect Leary regarding specific intent offences. It remains whether CC33.1 will succumb to Charter scrutiny.
DEFENSE OF NECESSITY
In Canada, there is no codified defense of necessity. This defense comes from the common law pursuant to CC8.3, which states that every common law rule and principle continues in force so long as it is not inconsistent with the CC. Generally speaking, the defense of necessity covers all cases where non-compliance with law is excused by an emergency or justified by the pursuit of some greater good. The defense of necessity is an excuse to an involuntary action (no legal way out, compliance with the law is demonstrably impossible) but some say it can also be a justification. If a choice between legal and illegal activity is available, the wrongful act is not considered involuntary. An itemized summary is found at the top of p.925 in S&D. This defense is an excuse, not a justification.
Justifications and Excuses
Justification challenges the wrongfulness of an action, which technically constitutes a crime. For example, the Good Samaritan is justified in taking the wheel and breaks the speed limit to get an injured person to the hospital. These actions are considered rightful, not wrongful. Punishment would be inconsistent with the social approval bestowed on the doer. Blackstone called the a “choice of evils.”
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