Gallons of ink have been spilled over the centuries trying to decide and justify what to do with individuals who, through their own voluntary conduct, render themselves inebriated and commit the actus reus of crimes.1 Given the numerous academic commentaries and judicial decisions on the issue, the scope of this comment is limited to providing a brief overview of: (a) the law at present in Canada; (b) the competing views relating to the proper direction the law should take; and (c) the approach the Supreme Court of Canada (“SCC”) has taken in its most recent decision on the issue, R. v. Tatton.2
The ruling in Tatton confirms what was already apparent following R. v. Daviault.3 The existence of a dichotomy between specific and general intent offences in Canadian law, at least presently, is not open to debate. However, the SCC in Tatton attempted to address one of the major criticisms of the specific and general intent approach.4 Justice Moldaver did so by outlining a detailed method to determine whether an offence is one of general or specific intent.5 This attempt was largely insufficient, as it failed to address the underlying concerns of critics. Therefore, criticism of the state of the law regarding intoxicated defendants will likely continue until Tatton is overruled by Parliament or by subsequent SCC decisions.
II. THE LAW REGARDING INTOXICATED DEFENDANTS
Three main classifications have emerged to characterize an accused’s level of intoxication.6 “Extreme” levels of intoxication can be considered by the trier of fact regardless of whether the offence in question requires general or specific intent, as such a situation raises questions of voluntariness if the accused was effectively an automaton at the relevant time,7 subject to the restrictions imposed by s. 33.1 of the Criminal Code.8 If the accused was in an “advanced” state of intoxication at the relevant time, evidence of his or her condition is excluded from consideration by the trier of fact unless the offence is one of specific intent.9 The third category is “mild” intoxication, which is unanimously understood to never be a relevant factor in assessing mens rea.10 The focus of this comment is “advanced” intoxication.
III. THE COMPETING VIEWS WHEN DEALING WITH INTOXICATED DEFENDANTS
Broadly categorized, there are two intellectual camps on the proper approach to dealing with intoxicated defendants. Camp A, championed by Justices McIntyre11 and Wilson12 in Bernard, says intoxication should not be considered for general intent offences. Camp B, championed by Chief Justice Dickson in his dissent in Bernard, says intoxication should be considered for all offences.13 The primary concerns of Camp A can be boiled down to accountability of offenders and protection of the community.14 The primary concern of Camp B can be condensed into the right to a fair trial.15
Both camps have valid, laudable concerns, yet struggle to understand the others’ position. Dickson C.J.C. accused the approach put forth by McIntyre and Wilson JJ. of creating “a form of absolute liability on intoxicated offenders.”16 However, both McIntyre17 and Wilson JJ.18 wrote in Bernard that the Crown is not relieved of its obligation to prove the mens rea of a general intent offence. Wilson and McIntyre JJ.’s position can be explained using a simple example. Imagine two identical men become heavily intoxicated and walk down opposite sides of the street. One accidently stumbles and knocks over a pedestrian, breaking his arm. The other attacks a pedestrian in a drunken rage, breaking his arm. Both have committed the actus reus of s. 267(b) of the Criminal Code by applying force, absent consent, causing bodily harm.19 The first does not have the requisite mens rea, however the second does. Evidence of the first’s intoxication will be excluded from consideration, but that status is irrelevant, as he did not have the required intent regardless. Since the second person clearly intended to apply force and cause bodily harm, it is no defence for him to say, “I did not mean it, I was drunk.”
Those in Camp A incorrectly accuse Camp B of allowing intoxicated criminals to escape justice.20 Dickson C.J.C. simply suggested that evidence speaking to the accused’s level of intoxication should be put to the trier of fact for consideration. Using the above example, the offender who maliciously attacked the pedestrian would still be guilty under Dickson C.J.C.’s approach, even though the assault was not typical behaviour and occurred in the context of a drunken rage. However, if it were unclear whether the first man intentionally or accidently bumped the pedestrian, the fact that he was intoxicated at the time and likely off-balance would be considered. The aim of Dickson C.J.C.’s approach is not to put an intoxicated defendant in a better position than a sober one, it is about looking at the circumstances honestly.21 Overall, a lack of understanding between the two camps has led to conflict, instead of the development of a solution that addresses all valid interests.
IV. R. v. TATTON
The Camp A approach has prevailed, affirmed in the unanimous SCC ruling in Tatton. If the Camp B argument was going to prevail, it would have won on the facts in Tatton. Given that Moldaver J.’s only discussion of the debate was to urge Parliamentary intervention, the Court is committed to persisting with the general and specific intent dichotomy.22
Mr. Tatton was staying at his ex-girlfriend’s home and, after drinking heavily,23 put oil on the stove to cook bacon before leaving to get a coffee.24 When Mr. Tatton returned, the house was aflame.25 The trial judge had a reasonable doubt as to whether Mr. Tatton intended to burn the property or was simply drunk and acting foolishly.26 Much like the hypothetical described above, where it is unclear whether the first man intended to bump into the pedestrian, it was unclear whether Mr. Tatton intended to burn the property. In Tatton, Moldaver J. addressed a criticism explicitly stated by Dickson C.J.C. in Bernard; the lack of a principled way to determine when an offence requires general or specific intent.27 Moldaver J. did so by outlining a test for determining when an offence is to be considered general intent and when it is to be considered specific intent.28
The test involves a three-stage process, the first being the application of existing precedent.29 Where there is no applicable precedent, courts should consider the mental element of the offence, including whether it requires any complexity of thought or reasoning, such as an ulterior purpose, special knowledge, or desire to bring about a certain consequence.30 If the matter remains unresolved after examining the mental element, courts are instructed to consider social policy.31 Courts may take into account a habitual association between the offence and intoxication and, to a lesser extent, the presence of a lesser included offence or judicial sentencing discretion.32
Although it is commendable that the SCC has tried to address the concerns with its approach to intoxicated defendants, the decision in Tatton focuses too heavily on the specific/general intent dichotomy. The importance of trial fairness is comparatively neglected.
There is a persistent problem in which subjective intent offences are turned into, at least, modified objective intent offences due to the intoxication of the defendant. Justice Goudge in dissent in the Ontario Court of Appeal decision in Tatton, states the proper test is not an objective test, but instead whether that particular offender, if sober, would have had the requisite intent or recklessness to be caught under the offence in question.33 Although Moldaver J. did not explicitly endorse this approach, it is clear given the majorities reasoning as a whole that this is the ultimate question the court is to ask when dealing with an intoxicated offender charged with a general intent offence.34 The majority insists this is a subjective inquiry given the apparent minimal level of intent required.35 Yet courts are prevented from considering the accused intoxication, a pertinent circumstance obviously relevant to the accused state of mind.36 Therefore the only logical means of assessing Mr. Tatton’s intent is the other circumstances involved. The court must consider whether the circumstances indicate sufficient intent while blinding itself to the accused’s intoxication and thus consider the circumstances as though the accused was sober. There is an obvious problem: the offender was not sober at the relevant time. Therefore, while courts can consider the personal characteristics of offenders, the overall test remains objective, as it is not concerned with an individual’s actual state of mind at the time of the offence.
Regardless of social stigma or general beliefs about responsible behaviour, becoming heavily intoxicated is not a crime listed in the Criminal Code. Pursuant to s. 9(a) of the Criminal Code, no person can be convicted of an offence at common law.37 If Mr. Tatton could not be convicted of a hypothetical common-law offence of being intoxicated and damaging property by fire, why could he be tried under different elements than a sober arsonist? It is this unfairness that draws the ire of commentators. In Tatton, Moldaver J. classified the mental element of s. 434 as intentionally or recklessly causing damage to property.38 If Mr. Tatton had been sober, the Crown would have had to prove he was subjectively aware of the risk that leaving oil on the stove could pose to the property. Had Mr. Tatton been sober and merely careless, he would have been acquitted. However, because he was intoxicated, the Court had to guess whether, if sober, he would have appreciated the risk he was creating. These are entirely different questions.
For the sake of argument, I will briefly discuss another potential direction in which the SCC could have taken. Moldaver J. could have embraced Dickson C.J.C.’s dissent in Bernard and allowed evidence of Mr. Tatton’s intoxication to be considered when determining mens rea.39 However, had such an approach been pursued, it would have remained at odds with the concerns raised by those advocating a Camp A approach. Mr. Tatton, a probable arsonist, would be free to become intoxicated and burn another property. Still, as indicated by Justice Pardu for the majority in the Ontario Court of Appeal ruling in Tatton, the presence of s. 436 of the Criminal Code, arson by negligence, suggests that s. 434 is “not intended to cover accidental fires.”40
The trial judge was not convinced beyond a reasonable doubt that Mr. Tatton intentionally or recklessly burned the home. However, Mr. Tatton certainly had control of the property and was negligent in causing the fire. Section 436 is an objective fault offence, therefore, Mr. Tatton’s intoxication is irrelevant, because the reasonable person is a sober person.41 Leaving oil cooking on a stove and leaving the residence is a marked departure from the standard of care a reasonably prudent person would follow. It is common knowledge that one should not leave a residence with the stove on. The Crown could have proceeded using both ss. 434 and 436. If the Crown were able to prove s. 434, the judge, utilizing the Kienapple Principle,42 would enter a conditional stay of the s. 436 charge. Such an approach would satisfy the need for a fair trial while also ensuring accountability and protection of the community. A similar line of reasoning is mentioned among the social policy factors in Tatton, where the existence of lesser included offences, though not the primary factor, is a factor to consider.43
The Crown may be reluctant to adopt such a tactic since it could implicitly raise doubts with the judge or jury regarding the strength of the Crown’s case. However, it is ultimately a strategic choice for the Crown to make based on the merits of the evidence and does not alone justify barring the court from considering evidence of intoxication when determining intent.
Tatton settled the law regarding intoxicated defendants in Canada. However, the concerns raised by those critical of the decision continue despite clarification of the test to determine general and specific intent. Dickson C.J.C.’s dissent in Bernard will continue to shape views on the Canadian common-law approach to intoxicated defendants. Unless Parliament acts to change the current state of the law, as advocated for in Tatton, or there is a substantial change at the SCC regarding treatment of precedent and the balancing of competing interests, the law will continue to baffle both law students and defendants alike.
* JD Candidate (University of Saskatchewan). Thank you to Glen Luther for his insightful comments.
1 See D.P.P. v Beard,  AC 479 at 482-84,  All ER 21 (HL).
2 2015 SCC 33,  2 SCR 574 [Tatton].
3  3 SCR 63, 118 DLR (4th) 469 [Daviault cited to SCR].
4 For discussion on the difficulty of differentiating between specific and general intent offences, see R v Bernard,  2 SCR 833 at 854, 90 NR 321 [Bernard]; Tim Quigley, “Specific and General Nonsense?” (1987) 11 Dal LJ 75 at 99.
5 Tatton, supra note 2 at paras 30-32.
6 See R v Daley, 2007 SCC 53 at paras 41-43,  3 SCR 523 [Daley].
7 Daviault, supra note 3 at 103.
8 RSC 1985, c C–46, s 33.1. The s. 33.1 restrictions are speculated to be unconstitutional, but the SCC applied them in R. v. Bouchard-Lebrun (2011 SCC 58,  3 SCR 575) as tried ser extendaccount a habitual association between the offence and into of the law, in the absence of fuller discussion, without determining whether they were unconstitutional. This has led some commentators to conclude that, at least in practice, the restrictions are constitutional (Dennis Baker & Rainer Knopff, “Daviault Dialogue: The Strange Journey of Canada’s Intoxication Defence” (2014) 19:1 Rev Const Stud 35 at 48-49).
9 Daley, supra note 6 at para 41. Advanced intoxication is characterized by significantly impaired cognitive functioning that calls into question the accused’s ability to foresee the consequences of his or her actions. This impairment does not rise to the level of automatism.
10 Ibid. Mild intoxication is characterized by “alcohol-induced relaxation of both inhibitions and socially acceptable behaviour.”
11 Bernard, supra note 4 at 861.
12 Ibid at 882.
13 Ibid at 842.
14 R v Majewski,  AC 443 at 476,  2 All ER 142 (HL). See also Bernard, supra note 4 at 865; Heather MacMillan-Brown, “No Longer ‘Leary’ About Intoxication: In the Aftermath of R v Daviault” (1995) 59:2 Sask L Rev 311 at 312.
15 Bernard, supra note 4 at 842. See also Quigley, supra note 4 at 113; Gerry Ferguson, “The Intoxication Defence: Constitutionally Impaired and in Need of Rehabilitation” (2012) 57 SCLR (2d) 111 at 142.
16 Bernard, supra note 4 at 852.
17 Ibid at 871. According to McIntyre J., if an accused is so intoxicated that they lack voluntariness, the intent to become intoxicated can be substituted (ibid at 879). However, that view was overruled in Daviault (supra note 3) and is no longer relevant.
18 Bernard, supra note 4 at 888.
19 Supra note 8.
20 Bernard, supra note 4 at 870-71. See also MacMillan-Brown, supra note 14 at 327.
21 Bernard, supra note 4 at 844.
22 Tatton, supra note 2 at para 25.
23 Ibid at para 5. Interestingly, the facts in Tatton state that Mr. Tatton consumed approximately fifty-two ounces of alcohol (ibid at para 5) whereas Mr. Daviault was considered an automaton after consuming only a forty-ounce bottle of brandy and seven to eight beer (Daviault, supra note 3 at 64).
24 Tatton, supra note 2 at para 6.
26 Ibid at para 9.
27 Supra note 4 at 854.
28 Tatton, supra note 2 at paras 30-33.
29 Ibid at para 32.
30 Ibid at para 34.
31 Ibid at para 41.
32 Ibid at paras 44-45.
33 R v Tatton, 2014 ONCA 273 at para 85, 319 OAC 10 [Tatton CA].
34 Tatton, supra note 2 at paras 18, 48-50, 54-59, 62-64.
35 Ibid at paras 49-50.
36 Ibid at paras 62-63.
37 Supra note 8.
38 Supra note 2 at para 48.
39 This approach has been adopted in both Australia (R v O’Connor (1980) 4 A Crim R 348, (1980) 29 ALR 449) and New Zealand (R v Kamipeli,  2 NZLR 610 (CA)), as mentioned in Bernard, supra note 4 at 846.
40 Tatton CA, supra note 33 at para 44.
41 R v Creighton,  3 SCR 3 at 29-30, 105 DLR (4th) 632.
42 See Kienapple v R,  1 SCR 729 at 750-53, 44 DLR (3d) 351. The principle prohibits multiple convictions arising from the same circumstances where the offences have sufficient proximity and are not easily distinguished.
43 Supra note 2 at para 44.