R.+c.+Daviault,


 * Note: this case is super freaking long and I got kind of exhausted by the end, hence the shorthand [i.e. "this idea is dumb"]. apologies for this. it should still be comprehensible, though. Also, Green is majority and Blue is dissenting.- safia**

Facts: **65 year old woman is partially paralyzed and confined to wheelchair; knows defendant through his wife. One night, he arrives at her house at her request with a bottle of brandy [6pm]. She drinks a glass of brandy and falls asleep. When she awakes in the middle of the night, he sexually assaults her. He leaves at 4am. She discovers the bottle of brandy is empty. The accused is a chronic alcoholic, denies assaulting her. Pharmacologist claims that anyone consuming this amount of alcohol could ordinarily suffer a blackout. [Brain is temporarily dissociated from normal functioning]. Court of Appeal stated that defense of automatism was not available as a defense to a general intent offence. History:** Issues**: Can a severe drunkenness [that induces automatism] be used as a defense in crimes of general [rather than specific] intent?** Ratio**: Cory: In crimes of general intent, defense of intoxication [automatism, insanity] should be available. Sopkina [dissenting]: This defense should not be available.** Reasoning**: __Lamer:__ Agrees with Cory. __LaForest:__ Agrees with Cory __Cory__: Disagrees with Sopinka on idea that courts should eliminate mental defense for crimes of general intent. Also, disagreement that intoxication is sufficiently blameworthy to warrant culpability. __Physical & Mental Aspects of Crimes__: Crime= mental + active elements. //Mens rea//: does not include all mental elements of a crime. Act must be //voluntary// for actus reus to exist. Mens rea refers to guilty mind, or intention. __Automatism__ implies the absence of volition. [person receives blow on head and commits illegal act; person experiencing seizure commits act.] __Categorization of Specific vs. General Intent__: Distinction here established in See //R. v. George//, [1960] S.C.R. 871, at p. 877 (Fauteux J.); and subsequent cases such as //Leary v. The Queen//, [1978] 1 S.C.R. 29; //Swietlinski v. The Queen//, [1980] 2 S.C.R. 956; //R. v. Chase//, [1987] 2 S.C.R. 293; //R. v. Bernard//, [1988] 2 S.C.R. 833; and //R. v. Quin//, [1988] 2 S.C.R. 825. ** Leary ** : Court held that crimes of general intent [rape] could not be excused by extreme drunkenness. Supporters of this case argue that self-induced intoxication cannot be a means of avoiding liability. ** O’Connor ** : Court held that where there was evidence that the accused was unconscious at the time of the offence, this should be left to the jury in resolving the question as to whether there had been a voluntary act on the part of the accused. ** Leary, Relevant Charter Sections ** : Consider sections 7 and 11d. ** Bernard: ** Guy commits rape, uses intoxication in his defense. McIntyre : this is a general intent offense and drunkenness is not a true defense; it can only be applied to specific intent crimes. It may be of relevance where accused is too intoxicated to formulate //specific// intent, but not in crimes of //general// intent. Moreover, blameworthy mental state can be blamed on voluntary act of over-consuming alcohol. Wilson : Sexual assault is a crime of general intent that requires only minimal intent to apply force. Intoxication should only go to the trier of fact where it is so extreme as to induce a state of automatism. Real concerns about the use of self-induced intoxication as a substitute for //mens rea//. Dickson : Leary rule violates s. 7 of the Charter because it does not recognize principles of voluntariness and fault. Also, s. 11d is violated because there is a presumption about an essential element required under s. 7 re: proof of fact of intoxication. LaForest : concurring, but states that //mens rea// cannot simply be removed because of the Charter. __ Alternative Options: __ What to do with intoxication as it pertains to the mental element in general offenses? ** **__ How the Leary Rule Violates Sections 7 and 11(d) of the Charter __** Studies= violence is not necessarily caused by intoxication. Alcohol abuse accompanies violent behavior, but cannot be said to be a cause of it. - Respondent argues that voluntary nature of intoxication means that Charter is not violated in Leary. This is problematic because it assumes that voluntary intoxication is a crime. “A person intending to drink cannot be said to be intending to commit sexual assault.” - Self-induced intoxication cannot supply the link between the mental component and the act in crimes. __ Approach That Should Be Taken When a Common Law Principle Is Found To Infringe the Provisions of the Charter __ Fr. Director of Public Prosecutions v. Beard, 3 principles: ** **Further statements in this case:** **drukenness is no defense, here, unless it can be shown that Beard at time of committing rape was incapable of forming intent to commit it. [This is impossible].** Present Law is objectionable, thus because it is: ** ***Most important: Leary substitutes drunkenness for proof of the //mens rea//.** **We can frame this in terms of a Charter violation too.**
 * Historically, intoxication has not served as a defense but this has changed as alcohol is believed to affect formulation of intention [in the case of specific intent].
 * 1) **Follow Leary**
 * 2) **Follow O’Connor**
 * 3) **Wilson in Bernard.**
 * In Leary, self-induced intoxication substitutes for //mens rea// in a crime. Result: intention to become intoxicated=intention to commit assault. Problems: 1. how can series of actions following from intoxication be seen as a single act? 2. Mental element cannot be inferred from physical act when voluntariness of act can be thrown into question by intoxication of accused.
 * Strict application in Leary offends Charter. Mens rea is essential to understanding of crimes. Consumption of alcohol cannot inexorably lead to conclusion that the accused possessed the requisite mental elements to commit the fault.
 * 11d is violated if accused is convicted despite reasonable doubt.
 * Mental element of voluntariness cannot be taken away by judicially developed policy.
 * Here, CML rule limits accused’s rights under s. 7 of the Charter. The approach that should be taken here is to apply the //Leary// rule flexibly.
 * 1) **insanity, produced by alcohol or something else, is a defense to a crime**
 * 2) **evidence of drunkenness which renders accused incapable of forming specific intent should be considered to see whether he had intent**
 * 3) **__ evidence of drunkenness falling short of a proved incapacity in the accused to form the intent necessary to constitute the crime, and merely establishing that his mind was affected by drink so that he more readily gave way to some violent passion, does not rebut the presumption that a man intends the natural consequences of his acts. __ [Emphasis added.] **
 * 1) **complicated and difficult to explain**
 * 2) **purports to apply clear social policy**
 * 3) **creates problems of practical application**
 * __Caveats:__ Some argue that this approach favors the extremely drunk, ignoring the mildly inebriated. This is dumb because half-drunk people can still formulate intent. People experiencing insanity/automatism cannot formulate minimal intent.

__Summary of Proposed Remedy:__ Charter can be complied with in crimes of general intent if accused can show that at time of crime, he was in a state of automatism akin to instanity. This means that the defense of intoxication would be extremely rare. This approach has been used in Australia and New Zealand, and it has not opened floodgates, so this is not a serious risk.

SOPINKA [dissenting]: Facts, addition: Pharmocologist said that amount of alcohol consume could induce a coma, and most certainly a black-out.

__Analysis:__ Intoxication defense is based on //Beard//, supra, 3 propositions. In Canada, unavailability of intoxication as a defense for rape was set out in Leary. The decision in Leary still stands in that intoxication can be used as a defense for crimes of specific, but not general intent. __Criticisms of Leary & Rebuttals__: Fundamental justice is based on presumption of symmetry between mens rea and actus reus. This is understood as a basic constitutional requirement. *Majority of court holds that the mental fault element of a crime must extend to the //actus// // reus //, including consequences forming part thereof, is subject to exceptions. In response to Charter s. 7 violation: //“Sexual assault is a heinous crime of violence. Those found guilty of committing the offence are rightfully submitted to a significant degree of moral opprobrium. That opprobrium is not misplaced in the case of the intoxicated offender. Such individuals deserve to be stigmatized.”// - rules of fundamental justice are satisfied by showing that a drunken state was attained because of the accused’s own conduct 2.__The Distinction Between Offences of Specific and General Intent is Irrational__ Appellant argues that where automatism takes hold, distinction should not apply. This is invalid. ** General intent ** offences as a rule are those which require the minimal intent to do the act which constitutes the //actus// // reus //. ** Specific intent ** offences are as a rule those that require a mental element beyond that of general intent offences and include "those generally more serious offences where the //mens rea// must involve not only the intentional performance of the //actus reus// but, as well, the formation of further ulterior motives and purposes" (//per// McIntyre J. in //R. v. Bernard//, //supra//, at p. 880). *However, this does not alter the legitimacy of the ruling in Leary. __ Re: Alternatives to Leary: __ Drunkenness should not be treated as insanity. In this case, there is no evidence to suggest that appellant is insane. This is a bad suggestion. Self-induced states should not be considered diseases of the mind [a la C.J.] à The final alternative to the //Leary// rule is to create a new defence of automatism caused by voluntary intoxication which would have to be proved by the defence on the balance of probabilities. This is a bad idea. People who become voluntarily intoxicated are not blameless. __ Conclusion: __ If Leary is a problem, Parliament should intervene.
 * But it is important to distinguish between criminal theory, which demands absolute symmetry, and constitutional requirements of the Charter.
 * C.J., in another case, stated: “I know of no authority for the proposition that the //mens rea// of an offence must always attach to the precise consequence which is prohibited as a matter of constitutional necessity. The relevant constitutional principles have been cast more broadly.”
 * This means that we must consider whether the fundamental principle of justice is satisfied that the gravity of an offense is commensurate with the fault engaged by that offense. Fundamental justice does not require absolute symmetry between **moral fault **and** prohibited consequences**.
 * The mental element varies per crime and must be implied sometimes so that the distinction between general and specific is discerned on a case by case basis. This means there will be some “illogical” classifications.