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Can extreme intoxication closely resembling a disease of the mind/automatism constitute a defence to the offence of general intent?


Yes. Daviault’s appeal allowed; new trial ordered.


Complying with the Charter means that an accused can try to establish as a defence that, at the time of the offence of general intent, he was in a state of extreme intoxication akin to automatism or insanity.  


Leary Rule violates s. 7 of the Charter:

An accused under this rule still can’t be acquitted even if there is a reasonable doubt as to his capacity to form the minimal mental element required for a general intent offence.

Now, the burden of proof is on the accused to establish that he was in a state of extreme intoxication akin to insanity.  Being intoxicated to such a degree is rare.

Bill C-72 was enacted in 1995 by then Justice Minister Allan Rock to counter the decision in Daviault.

It removes the defence of self-induced intoxication to most general intent offences, most of which involve at least threats to bodily integrity.

It does not, however, affect the common law defence of drunkenness regarding specific intent crimes like murder and robbery.

R. v. Robinson [1996] 1 S.C.R. 683


Accused charged with second degree murder.  He struck the victim with a rock after the victim said something to him.  He then fatally stabbed him. Robinson was convicted at trial.  B.C. C.A. overturned this on the basis of misdirection as to the defence of intoxication.  Supreme Court of Canada dismissed the Crown’s appeal from the B.C. C.A.


How should a jury be instructed on the relationship between intoxication and defence?


Before a trial judge is required by law to charge the jury on intoxication, he or she must be satisfied that the effect of the intoxication was such that its effect might have impaired the accused’s foresight of consequences sufficiently to raise a reasonable doubt.  Once satisfied of this, the judge must make it clear to the jury that the issue before them is whether the Crown has satisfied them beyond a reasonable doubt that the accused had the requisite intent.  In the case of murder, the issue is whether the accused intended to kill or cause bodily harm with the foresight that the likely consequence was death.

Mistake of fact


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