What are the rules governing intoxication as a defence, and are any of those rules unconstitutional? in this paper, I argue that the current rules are in many respects illogical and unprincipled, and in some respects are probably unconstitutional. I the n recommend specific but controversial changes to those rules. Canadian jurisprudence on involuntary intoxication as a defence is underdeveloped. The definition of “involuntary intoxication” contains an objective component that arguably offends section 7 of the Charter, at least for subjective fault offences. I also recommend an expansion of the defence of involuntary intoxication to include, as three Australian jurisdictions have, a lessened inhibitions defence; an involuntarily intoxicated person should be acquitted if that person would not have committed the offence but for the fact that the person was involuntarily intoxicated. Canadian law governing voluntary intoxication as a defence is well known and frequently litigated, but it remains illogical, unprincipled and arbitrary in various respects. Apart from its unprincipled and arbitrary nature, there are at least three serious Charter concerns with the current law: (1) section 33.1 appears to violate section 7 of the Charter and may not be saved under section 1 since there are other reasonable options that do not violate the Charter; (2) the Supreme Court’s one-paragraph ruling in R. v. Daviault, reversing the burden of proof, needs to be re-examined; it is an unnecessary and the refore unreasonable violation of the presumption of innocence; and (3) the current Daviault rules do not recognize a defence of mistake of fact negating the mens rea for a general intent offence not involving assault if the mistake arose from intoxication that was less than the Daviault extreme. This gap violates section 7 of the Charter. The paper concludes with a specific proposal for a new approach to the rules governing voluntary intoxication as a defence. Where a person lacks the specific or general intent for an offence due to voluntary intoxication, that person would be acquitted of that offence and automatically convicted of a new included offence called “unintentional (e.g., sexual assault) due to criminal intoxication”.
"The Intoxication Defence: Constitutionally Impaired and in Need of Rehabilitation."
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
Creative Commons License
This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License.