Can voluntary consumption of alcohol or other drugs absolve an accused person of a criminal conviction for a general intent offence? Canadian courts have ruled on the issue and come to different conclusions. The Supreme Court of Canada has yet to provide a clear ruling on the matter.
The tension in the issue is between Canadians protection from impaired offenders (such as impaired drivers and sex offenders) and an accused’s moral responsibility for an act committed “involuntarily”. The opposing demands of justice are rooted in s. 33.1 of the Canadian Criminal Code and ss. 7 and 11(d) of the Charter. The consensus is that a s. 1 Charter analysis is required to balance the competing demands. Another possibility worth considering is whether the actus reus and mens rea may be flexible enough to uphold s. 33.1.
In the 1994 case of R v Daviault, the accused, an alcoholic, was presumed to have consumed seven or eight beers during the day and the majority of a 40-ounce bottle of brandy later the same day. That night, the accused allegedly sexually assaulted a partially paralyzed elderly woman whom he knew through his wife. The Supreme Court of Canada allowed the appeal from the accused and directed a new trial. The majority noted that when the accused is intoxicated to a state like automatism, the mental element required may not be met as required by sections 7 and 11(d) of the Charter.
The Canadian Parliament responded in February 1995, by introducing Bill C-72. The bill amended the Criminal Code by adding section 33.1. The section states that self-induced intoxication is not a full defence that an accused lacked the general intent or voluntariness required to commit the offence which threatens or interferes with the bodily integrity of another person.
Section 7 of the Charter says “[e]veryone has the right to life, liberty, and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice”. Those contending section 33.1 is unconstitutional argue that the voluntary element or mens rea component would be contrary to their “right to life liberty, and security of the person”.
Similarly, section 33.1 is criticized as incompatible with section 11(d) of the Charter. The sections states “[a]ny person charged with an offence has the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal”. More specifically, section 33.1 has been described to allow an accused to be found guilty without all the essential elements being proven.
In the case of Duncan 2005, the Ontario Court of Justice stated that section 33.1 is not justified as it infringes on section 7 and 11(d) of the Charter as per the aforementioned arguments. In addition, the court notes that section 1 of the Charter is not sufficient to save the Criminal Code provision in question. Section 1 states that rights and freedoms are subject to limits demonstrably justified in a free and democratic society. On the other hand, the British Columbia Supreme Court has found that s. 33.1 of the Criminal Code is saved by s. 1 of the Charter from ss. 7 and 11(d).
Based on inconsistencies between courts, a ruling from the Supreme Court of Canada is overdue. When the Supreme Court is faced with a case appropriately challenging the constitutionality of s. 33.1, the question may simply be whether s. 1 of the Charter overrides s. 7 and 11(d). Alternatively, could it be possible that the actus reus and mens rea are flexible enough to allow s. 33.1 of the Criminal Code to remain constitutional?
One may logically conclude that someone who willingly consumes alcohol or other drugs may be found to willingly put themselves in a position to potentially act in an automatic state. Therefore, holding the person responsible for their actions while in an automatic state seems reasonable. An accused’s responsibility for a general intent offence is not necessarily contrary to s. 7 or 11 as the accused’s liberty to take a risk is being recognized. A focus on an accused’s lack of liberty while in an automatic state does not appear to consider the circumstances fully.
The case of Fagan v Metropolitan Police Commissioner is a classic example of the flexibility of the actus reas and mens rea. In the case, a police officer asked Mr. Fagan to move his car. Mr. Fagan reversed his car and accidentally rolled onto the officer’s foot. The officer yelled, and Mr. Fagan cursed at the officer and refused to move. The court had little trouble finding Mr. Fagan guilty. The court clearly stated that the act was not an omission (failure to move), but rather an ongoing act. The mens rea component was determined to occur when Mr. Fagan had the intent for the car to be where it already was.
In a similar way, a court may reasonably find that the voluntariness component of the actus reus began when the accused willingly consumed alcohol or other drugs and continued when an accused was involved in criminal conduct “automatically”. Similarly, general intent could be reasonably identified when an accused chooses to take the risk of entering an uncontrolled state that may result in illegal conduct.
In summary, the Supreme Court of Canada has yet to clarify the constitutionality of s. 32 of the Criminal Code. The exercise will likely lead to a s. 1 Charter analysis. However, it will be interesting to see whether the court considers the flexibility of the actus reus and mens rea as reconciling the Charter and Criminal Code.