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DEFENCES - Intoxication

Wednesday, September 01, 2021 @ 5:27 AM  


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Appeal by the Crown from a pre-trial ruling that s. 33.1 of the Criminal Code, which provided that self-induced intoxication was not a defence to any general intent offence involving interference with the bodily integrity of another person, was contrary to ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms (Charter). The respondent was charged with offences relating to break and enter. After voluntarily consuming alcohol and magic mushroom, the respondent broke into a nearby home and viciously attacked the occupant. He pleaded the defence of non-mental disorder automatism as a result of intoxication. The trial judge found s. 33.1 did not set an objective standard of care and imposed a standard that could never be met by the defence. He also found s. 33.1 violated s. 11(d) of the Charter because it permitted a conviction when there was a reasonable doubt as to the intention to commit the crime.

HELD: Appeal allowed. The respondent was convicted of aggravated assault. A conviction for break and enter with intent was not available, because that was a specific intent offence not covered by s. 33.1. The respondent’s self-intoxication significantly reduced, but not completely eliminated his criminal culpability. Section 33.1 was constitutional. The section did not fall below the level of mens rea called for by the principles of fundamental justice. The effect of s. 33.1 was not to eliminate the need for voluntariness or mens rea, but rather to redefine the mens rea requirement of general intent personal injury offences, and to measure voluntariness at the time of self-intoxication. The mens rea selected by Parliament was the marked departure from acceptable standards of conduct when an accused voluntarily engaged an objectively foreseeable risk of harm. It was not a principle of fundamental justice that there had to be absolute symmetry between the actus reus and the mens rea for an offence to survive constitutional scrutiny. It was open to Parliament to enact, as it did in s. 33.1, that voluntary intoxication was a blameworthy element of the actus reus. There was nothing unconstitutional about Parliament establishing criminal fault based on the risks inherent in self-intoxication, especially where that risk was created by the accused. This was so even if the objectively foreseeable harmful consequences of self-intoxication did not actually manifest themselves until later. Parliament was entitled to enact that those who became severely self-intoxicated and caused harm to others were not morally innocent. Section 33.1 was a constitutionally compliant response to a problem that was known in the criminal law for generations. It was not contrary to the principles of fundamental justice to hold persons accountable for what they did when they voluntarily became extremely intoxicated and caused injury to others. Section 33.1 did not offend s. 11(d). The accused was presumed innocent, and the Crown must still prove all the elements of the offence beyond a reasonable doubt, including the level of voluntariness and mens rea specified in s. 33.1(2). Section 33.1 did not, as the pre-trial judge assumed, permit the conviction of a person when there was a reasonable doubt as to whether they voluntarily became intoxicated before committing a personal injury offence. Parliament was entitled to select among constitutionally compliant solutions. Section 33.1 impaired s. 7 rights as minimally as any of the proposed alternatives and met this branch of the s. 1 test. The advantages prevailed over any deleterious effect from holding the respondent accountable for his voluntary conduct of consuming illegal drugs, even if his moral culpability was seen as being somewhat diminished. Only those who committed violent personal injury offences following self-induced intoxication were affected. No one who was truly morally innocent was impacted. The salutary effects of s. 33.1 far outweighed any deleterious effects.

R. v. Brown, [2021] A.J. No. 1028, Alberta Court of Appeal, F.F. Slatter, R. Khullar and E.A. Hughes JJ.A., July 29, 2021. Digest No. TLD-August302021005