r. v. bernard,  2 S.C.R. 833
Nelson Pierre Bernard Appellant
Her Majesty The Queen Respondent
indexed as: r. v. bernard
File No.: 19558.
1987: December 8; 1988: December 15.
Present: Dickson C.J. and Beetz, Estey*, McIntyre, Lamer, Wilson, Le Dain*, La Forest and L'Heureux‑Dubé JJ.
on appeal from the court of appeal for ontario
Criminal law‑‑Mens rea‑‑Specific and general intent ‑‑ Drunkenness ‑‑ Sexual assault causing bodily harm ‑‑ Whether or not evidence of self‑induced intoxication should be considered in determining whether mens rea proved beyond a reasonable doubt ‑‑ Criminal Code, R.S.C. 1970, c. C‑34, s. 246.2(c) ‑‑ Canadian Charter of Rights and Freedoms, ss. 1, 7, 11(d).
Evidence ‑‑ Criminal offences ‑‑ Drunkenness ‑‑ Mens rea ‑‑ Whether or not evidence of drunkenness should not be considered in proof of mens rea.
Appellant was charged with sexual assault causing bodily harm contrary to s. 246.2(c) of the Criminal Code, tried by judge and jury, and found guilty. He admitted forcing the complainant to have sexual intercourse with him and stated that his drunkenness caused the attack on her. The Ontario Court of Appeal dismissed an appeal from conviction. At issue here is whether evidence of self‑induced intoxication should be considered by the trier of fact, along with all other relevant evidence, in determining whether the prosecution has proved beyond a reasonable doubt the mens rea required to constitute the offence.
Held (Dickson C.J. and Lamer J. dissenting): The appeal should be dismissed.
Per Beetz and McIntyre JJ.: The general intent offence is one in which the only intent involved relates solely to the performance of the act in question with no further ulterior intent or purpose. A specific intent offence is one which involves the performance of the actus reus coupled with an intent or purpose going beyond the mere performance of the questioned act. The distinction, which is neither artificial nor based on a legal fiction, is not divorced from logical underpinnings.
Drunkenness in a general sense is not a true defence to a criminal act. The defence, however, may apply in a specific intent offence when the accused is so intoxicated that he lacks the capacity to form the specific intent required to commit the crime. The defence does not apply in offences of general intent.
The elements of a charge under s. 246.2(c) are an assault which, objectively viewed, is of a sexual nature as a consequence of which the complainant has suffered bodily injury. The requisite mental element is only the intention to commit the assault. The surrounding circumstances are to be considered for evidence of its sexual nature and of the resulting bodily harm. The resulting interference with the physical integrity of the complainant aggravates the seriousness of a sexual assault but the mental element remains the same.
The Crown must still prove the mens rea in a general intent offence, notwithstanding the absence of a defence of voluntary intoxication. This can be proved in two ways. Firstly, the mens rea in most cases can be inferred from the actus reus itself: a person is presumed to have intended the natural and probable consequences of his actions. Secondly, where the accused was so intoxicated as to raise doubt as to the voluntary nature of his conduct, the Crown may establish the necessary blameworthy mental state of the accused by proving voluntary self‑induced intoxication. As a result, persons accused of these crimes cannot hold up voluntary drunkenness as a defence.
The rule in Leary does not convert the offence in s. 246.2(c) into an absolute liability offence by removing the Crown's onus of proving the requisite intention and, accordingly, does not violate ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms. The rule upholds the principle that the morally innocent should not be convicted for it recognizes that accused persons who have voluntarily consumed drugs or alcohol, thereby depriving themselves of self‑control leading to the commission of a crime, are not morally innocent and are, indeed, criminally blameworthy.
Per Wilson and L'Heureux‑Dubé JJ.: Sexual assault causing bodily harm is an offence of general intent requiring only the minimal intent to apply force. Here, as in most cases involving general intent offences and intoxication, the Crown can establish the accused's blameworthy mental state by inference from his or her acts. The evidence of intoxication withheld from the trier of fact could not possibly have raised a reasonable doubt as to the existence of the minimal intent to apply force.
The Leary rule is perfectly consistent with an onus resting on the Crown to prove the minimal intent which should accompany the doing of the prohibited act in general intent offences. The rule, as applied in its more flexible form, should be preserved so that evidence of intoxication can go to the trier of fact in general intent offences only if it is evidence of extreme intoxication involving an absence of awareness akin to a state of insanity or automatism. Only in such a case is the evidence capable of raising a reasonable doubt as to the existence of the minimal intent required for the offence. Evidence of intoxication should not go to the trier of fact in every case regardless of its possible relevance to the issue of the existence of the minimal intent required for the offence. The rule in Leary should not be overruled.
Leary does not operate so as to relieve the Crown from proving the existence of the required minimal intent and so turn the offence into one of absolute liability. The Crown must still prove beyond a reasonable doubt the existence of the required mental element of the intentional application of force.
Per La Forest J.: The requirement of mens rea in truly criminal offences is so fundamental that it cannot, since the Charter, be removed on the basis of judicially‑developed policy. If incursions are to be made upon fundamental legal values, Parliament, not the courts, must do so. Although established common law rules should not lightly be assumed to violate the Charter, when a common law rule is found to violate a Charter right, that violation must be justified in the same way as legislative rules. No adequate justification was made here. However, s. 613(1)(b)(iii) of the Criminal Code could properly be applied as no substantial wrong or miscarriage of justice occurred here.
Per Dickson C.J. and Lamer J. (dissenting): Evidence of self‑induced intoxication should be considered by the trier of fact, along with all other relevant evidence, in determining whether the mens rea required to constitute the offence has been proved beyond a reasonable doubt. Intoxication is relevant in principle to the mental element required in crime.
The unrestrained application of basic mens rea doctrine would not open a gaping hole in the criminal law inimical to social protection. Intoxication, to the extent that it merely lowers inhibitions, removes self‑restraint or induces unusual self‑confidence or aggressiveness, does not relate to the mens rea requirement for volitional and intentional or reckless conduct. Similarly, intoxication would be of no avail to an accused who got drunk in order to gain the courage to commit a crime or to aid in his defence. Juries are quite able to weigh all the evidence in a fair and responsible manner and are unlikely to acquit too readily those who have committed offences while intoxicated.
The distinction between "general" and "specific" intent, which is used to exclude otherwise relevant evidence from the jury, is artificial and two fundamental problems stem from it. Firstly, Parliament, not the courts, should alter the law if it is to be done in the name of policy over principle. Secondly, even if it were appropriate for the courts to do so, there is no evidence that the artificiality of the specific intent requirement is actually required for social protection.
Leary, which gave rise to the distinction between general and specific intent, should be overruled. This pre‑Charter decision imposes a form of absolute liability on intoxicated offenders: an essential element is presumed on proof of intoxication. The Charter right to be presumed innocent until proven guilty and the presumption of innocence are accordingly infringed. The rule in Leary cannot be upheld under s. 1 of the Charter, because the objective of protecting the public, while important, is not achieved within the scope of the Oakes proportionality test. Leary has also been undermined independently of the Charter. An honest but unreasonable mistaken belief in consent negates the mens rea required for some crimes. The jury's task in determining whether or not the belief was honestly held is unnecessarily complicated by the Leary qualification concerning mistake of fact. The uncertainty caused by Leary also undermines the clarity and certainty in law which underpin the principle of stare decisis. The classification of offences as to specific intent category is an ad hoc, unpredictable exercise. Finally, the courts should not create new offences or broaden the net of liability. The Leary rule expands the scope of criminal liability beyond normal limits. It is acceptable, however, to overrule a prior decision to establish a rule favourable to the accused.
The absence in the charge to the jury of any reference to the Crown's duty to prove that the accused acted with the requisite intent was fatal to the conviction. The Crown made no request that this Court apply s. 613(1)(b)(iii) of the Criminal Code and it was not for this Court to speculate as to the likely result had the jury been properly instructed.
By McIntyre J.
Applied: Leary v. The Queen,  1 S.C.R. 29; considered: Director of Public Prosecutions v. Majewski,  A.C. 443,  3 All E.R. 296; R. v. George,  S.C.R. 871; Swietlinski v. The Queen,  2 S.C.R. 956; R. v. Chase,  2 S.C.R. 293; referred to: Director of Public Prosecutions v. Beard,  A.C. 479; Attorney‑General for Northern Ireland v. Gallagher,  3 All E.R. 299; Bratty v. Attorney‑General for Northern Ireland,  3 All E.R. 523; R. v. Doherty (1887), 16 Cox. C.C. 306; R. v. Morgan,  A.C. 182; Re B.C. Motor Vehicle Act,  2 S.C.R. 486; R. v. Vaillancourt,  2 S.C.R. 636; not followed: O'Connor (1980), 4 A. Crim. R. 348.
By Wilson J.
Applied: Leary v. The Queen,  1 S.C.R. 29; referred to: Swietlinski v. The Queen,  2 S.C.R. 956, aff'g (1978), 44 C.C.C. (2d) 267; Director of Public Prosecutions v. Majewski,  A.C. 443; R. v. George,  S.C.R. 871; Re B.C. Motor Vehicle Act,  2 S.C.R. 486; R. v. Vaillancourt,  2 S.C.R. 636; R. v. Sault Ste. Marie,  2 S.C.R. 1299; R. v. Whyte,  2 S.C.R. 3; R. v. Smith (Edward Dewey),  1 S.C.R. 1045.
By La Forest J.
Referred to: R. v. Landry,  1 S.C.R. 145.
By Dickson C.J. (dissenting)
Leary v. The Queen,  1 S.C.R. 29; Swietlinski v. The Queen,  2 S.C.R. 956; R. v. Chase,  2 S.C.R. 293; Director of Public Prosecutions v. Majewski,  A.C. 443,  2 All E.R. 142; O'Connor (1980), 4 A. Crim. R. 348; R. v. Kamipeli,  2 N.Z.L.R. 610; Director of Public Prosecutions v. Beard,  A.C. 479; R. v. Roulston,  2 N.Z.L.R. 644; R. v. Keogh,  V.R. 400; R. v. Hill,  1 S.C.R. 313; R. v. Bulmer,  1 S.C.R. 782; Minister of Indian Affairs and Northern Development v. Ranville,  2 S.C.R. 518; Reference Re The Farm Products Marketing Act,  S.C.R. 198; Binus v. The Queen,  S.C.R. 594; Peda v. The Queen,  S.C.R. 905; Barnett v. Harrison,  2 S.C.R. 531; Capital Cities Communications Inc. v. Canadian Radio‑Television Commission,  2 S.C.R. 141; A.V.G. Management Science Ltd. v. Barwell Developments Ltd.,  2 S.C.R. 43; Bell v. The Queen,  2 S.C.R. 212; Paquette v. The Queen,  2 S.C.R. 189; Dunbar v. The King (1936), 67 C.C.C. 20 (S.C.C.); McNamara Construction (Western) Ltd. v. The Queen,  2 S.C.R. 654; Farwell v. The Queen (1894), 22 S.C.R. 553; Vetrovec v. The Queen,  1 S.C.R. 811; Re B.C. Motor Vehicle Act,  2 S.C.R. 486; R. v. Vaillancourt,  2 S.C.R. 636; RWDSU v. Dolphin Delivery Ltd.,  2 S.C.R. 573; R. v. Big M Drug Mart Ltd.,  1 S.C.R. 295; Robertson and Rosetanni v. The Queen,  S.C.R. 651; R. v. Therens,  1 S.C.R. 613; Chromiak v. The Queen,  1 S.C.R. 471; Duke v. The Queen,  S.C.R. 917; R. v. Smith (Edward Dewey),  1 S.C.R. 1045; Miller and Cockriell v. The Queen,  2 S.C.R. 680; R. v. Oakes,  1 S.C.R. 103; R. v. Holmes,  1 S.C.R. 914; Reference re the Agricultural Products Marketing Act,  2 S.C.R. 1198; Pappajohn v. The Queen,  2 S.C.R. 120; Sansregret v. The Queen,  1 S.C.R. 570; R. v. Robertson,  1 S.C.R. 918; R. v. Moreau (1986), 26 C.C.C. (3d) 359; Commonwealth of Puerto Rico v. Hernandez,  1 S.C.R. 228; R. v. Quin,  2 S.C.R. 825; R. v. Campbell (1974), 17 C.C.C. (2d) 320; R. v. Santeramo (1976), 32 C.C.C. (2d) 35.
Statutes and Regulations Cited
Ashworth, A. J. "Reason, Logic and Criminal Liability" (1975), 91 L.Q.R. 102.
Boyle, Christine. Sexual Assault. Toronto: Carswells, 1984.
Colvin, Eric. "A Theory of the Intoxication Defence" (1981), 59 Can. Bar Rev. 750.
Connelly, Peter J. "Drunkenness and Mistake of Fact: Pappajohn v. The Queen; Swietlinski v. The Queen" (1981), 24 Crim. L.Q. 49.
Cross, Sir Rupert. "Blackstone v. Bentham" (1976), 92 L.Q.R. 516.
Doherty, David H. "Regina v. O'Connor: Mens Rea Survives in Australia" (1981), 19 U.W.O. L. Rev. 281.
Mewett, Alan W. and Morris Manning. Criminal Law, 2nd ed. Toronto: Butterworths, 1985.
Quigley, Tim. "Reform of the Intoxication Defence" (1987), 33 McGill L.J. 1.
Smith, George. "Footnote to O'Connor's Case" (1981), 5 Crim. L.J. 270.
Stuart, Don. Canadian Criminal Law, 2nd ed. Toronto: Carswells, 1987.
Thornton, Mark T. "Making Sense of Majewski" (1981), 23 Crim. L.Q. 465.
Watt, J. D. The New Offences Against the Person. Toronto: Butterworths, 1984.
Williams, Glanville Llewelyn. Textbook of Criminal Law, 2nd ed. London: Stevens & Sons, 1983.
APPEAL from a judgment of the Ontario Court of Appeal (1985), 7 O.A.C. 305, 18 C.C.C. (3d) 574, 44 C.R. (3d) 398, dismissing an appeal from conviction found by Vannini J. sitting with jury. Appeal dismissed, Dickson C.J. and Lamer J. dissenting.
Clayton Ruby and Michael Code, for the appellant.
David A. Fairgrieve, for the respondent.
The reasons of Dickson C.J. and Lamer J. were delivered by
1. The Chief Justice (dissenting)‑‑Counsel for the appellant submits that there are two issues raised in this appeal: (i) whether sexual assault causing bodily harm contrary to s. 246.2(c) of the Criminal Code, R.S.C. 1970, c. C‑34, is an offence of "specific" intent; (ii) whether drunkenness can ever be a "defence" to a charge of sexual assault causing bodily harm.
2. The appellant, Nelson Pierre Bernard, was charged with sexual assault causing bodily harm to the complainant contrary to s. 246.2(c) of the Criminal Code. That subsection provides that everyone who, in committing a sexual assault, causes bodily harm to the complainant is guilty of an indictable offence and liable to imprisonment for fourteen years.
3. The facts may be briefly stated.
4. The complainant, eighteen years of age at the relevant time, visited the appellant, twenty‑four years old. The appellant went out to dinner and to a bar with some friends while the complainant stayed behind in his apartment. Later that night the group returned to the flat. The friends departed, leaving the appellant and the complainant alone together.
5. The complainant testified that she had complied with the appellant's request to remain in the apartment after the friends' departure, both because she was not feeling well and because it was the first Christmas since the death of her father. She and the appellant, who had been a good friend of her late father, were going to talk about him.
6. The two lay down on the couch together and began talking. The complainant testified that she was then forced to have sexual intercourse without her consent and was subjected to serious bodily injury at the hands of the appellant. There was evidence that the appellant had punched the complainant twice with a closed fist, once above the eye, causing the eyelid to bleed profusely, and that he had threatened to kill her. There was evidence of a blood‑stained towel and pillow case concealed in the toilet tank of the appellant's apartment. Counsel for the appellant admitted that intercourse had taken place.
7. The complainant testified that the appellant had been drinking but was able to walk, to see everything, to talk clearly, and to put albums on the record player. One of the friends of the appellant testified that the appellant had been drinking on the night in question and, though he became rowdy, he was walking straight and talking.
8. When the police arrived at the appellant's apartment, he was awakened from a deep sleep and seemed to be suffering somewhat from his drinking. The appellant stated that his drunkenness caused the attack on the complainant.
9. The appellant was tried before a judge and jury. He did not testify at the trial, but the Crown led evidence of a statement he had made to the police. In the statement he admitted that he had forced the complainant to have sexual intercourse with him. He stated that he did not know why he had done it because he was drunk and that, "when I realized what I was doing, I got off." In charging the jury, the trial judge made no reference to the intent requirement, beyond reading the jury the definition of assault. The jury was told that the sole issue was whether the Crown had proved beyond a reasonable doubt that the complainant had not consented to the intercourse because of the assault and threats made by the accused. With respect to drunkenness, the trial judge said as follows: "Only the accused in his statement says, `I was all drunked up too.' There was no evidence of drunkenness except that statement and it is open to you to accept it and find that he was drunk but even if he was drunk, drunkenness is no defence to the charge alleged against this accused."
10. The appellant was convicted and sentenced to four years imprisonment. An appeal to the Court of Appeal of Ontario was dismissed (now reported at (1985), 18 C.C.C. (3d) 574). Dubin J.A., delivering the oral judgment of the Court, said at p. 574:
On the merits, the Crown's case was overwhelming. The complainant's testimony that she was forced to have sexual intercourse without her consent and the serious bodily injury which she suffered during the course of the assault was confirmed in every respect by other evidence.
With respect, I agree.
11. Dubin J.A. concluded at p. 576:
Mr. Ruby also took objection to passages in the judge's charge. We are all satisfied that the charge, when read as a whole, is more favourable to the appellant than the evidence warranted. In any event, we are satisfied that even if objection could be taken to some of the expressions used by the trial judge, there was no substantial wrong or miscarriage of justice in this case.
Drunkenness and Mens Rea
12. In my view, the only issue the Court needs to address may be put as follows: should evidence of self‑induced intoxication be considered by the trier of fact, along with all other relevant evidence, in determining whether the prosecution has proved beyond a reasonable doubt the mens rea required to constitute the offence? I am of the opinion that the Court should answer that question in the affirmative.
13. I wish to make clear at the outset, however, that nothing in these reasons is intended to apply with respect to the quite distinct issues raised by offences, such as driving while impaired, where intoxication or the consumption of alcohol is itself an ingredient of the offence. The mens rea of such offences can be left for consideration another day.
14. In Leary v. The Queen,  1 S.C.R. 29, Pigeon J. for the majority of the Court, held that rape was an offence requiring proof of only "basic" or "general" intent rather than "specific" intent. Under that categorization, the Court held, the jury should be instructed that evidence that drunkenness may have deprived the accused of the capacity to form the requisite intent should not be taken into account when considering whether the Crown had satisfied the burden of proving beyond a reasonable doubt that the accused had acted with the requisite intent. (See also Swietlinski v. The Queen,  2 S.C.R. 956, dealing with the offence of indecent assault). The offence of rape has now been removed from the Criminal Code and in its place are the sexual assault provisions. More recently, in R. v. Chase,  2 S.C.R. 293, the Court held that sexual assault was a crime of "basic" or "general" intent. In Chase, however, drunkenness was not in issue and the propriety of maintaining the distinction between general and specific intent for purposes of evidence regarding intoxication was not considered. The present case raises that much more basic issue which, in my view, the Court should reconsider.
15. In my dissent in Leary, I sought to advance the view that respect for basic criminal law principles required that the legal fiction, the artificial "specific" intent threshold requirement, be abandoned. I do not intend in these reasons to repeat what I said in Leary. With due regard for stare decisis, as to which I will have more to say in a moment, and with the greatest of respect for those of a contrary view, I would only add that nothing I have heard or read since the judgment in Leary has caused me to abandon or modify in the slightest degree the views of dissent which I there expressed. Analysis of the Leary dissent may be summarized as follows.
16. First of all, one must recognize the fundamental nature of the mens rea requirement. To warrant the condemnation of a conviction and the infliction of punishment, one who has caused harm must have done so with a blameworthy state of mind. It is always for the Crown to prove the existence of a guilty mind beyond a reasonable doubt. Intoxication affects one's mental state, one's ability to perceive the circumstances in which one acts, and to appreciate possible consequences. In principle, therefore, intoxication is relevant to the mental element in crime, and should be considered, together with all other evidence, in determining whether the Crown has proved the requisite mental state beyond a reasonable doubt.
17. It is quite wrong, I think, to characterize the issue as whether the "defence of drunkenness" should apply to this or that offence. While this expression is commonly used, it is misleading and perhaps even unduly emotive. It suggests that those who would otherwise be liable for their criminal conduct will escape because they were drunk at the time the offence was committed. But, of course, no one suggests that special concessions should be made to drunken offenders. The issue is really whether the Crown should be relieved of the usual burden of proving the requisite mental element for the offence because the accused was intoxicated. Should the jury be entitled to assess all of the evidence relevant to intent and be entitled to decide on the basis of all of the evidence whether the Crown has satisfied that burden?
18. The categories of "specific" intent on the one hand and "basic" or "general" intent on the other have evolved as an artificial device whereby evidence, otherwise relevant, is excluded from the jury's consideration. This Court, in Swietlinski, has recognized that intoxication may as a matter of fact deprive an accused of "basic" or "general" intent. It is said, however, by those who support the classification that as a matter of policy, consideration of evidence of intoxication must be excluded. Indeed, a notable feature to be found in the analysis of many of those who support restricting the jury's use of evidence relating to drunkenness is the concession that while principle and logic lead in an opposite direction, the policy of protection of the public requires that principle and logic should yield: see, e.g., Director of Public Prosecutions v. Majewski,  2 All E.R. 142, at pp. 167‑68, per Lord Edmund‑Davies, quoted by Pigeon J. in Leary, supra, at pp. 52‑53.
19. In my view, there are two fundamental problems with this approach. First, if the law is to be altered in the name of policy over principle, that is surely a task for Parliament rather than the courts. As Barwick C.J. of the High Court of Australia concluded in O'Connor (1980), 4 A. Crim. R. 348, at pp. 363‑64:
It seems to me to be completely inconsistent with the principles of the common law that a man should be conclusively presumed to have an intent which, in fact, he does not have, or to have done an act which, in truth, he did not do.
I can readily understand that a person who has taken alcohol or another drug to such an extent that he is intoxicated thereby to the point where he has no will to act or no capacity to form an intent to do an act is blameworthy and that his act of having ingested or administered the alcohol or other drug ought to be visited with severe consequences. The offence of being drunk and disorderly is not maintained these days in all systems of the common law. In any case it has not carried a sufficient penalty properly to express the public opprobrium which should attach to one who, by the taking of alcohol or the use of drugs, has become intoxicated to the point where he is the vehicle for unsocial or violent behaviour. But, though blameworthy for becoming intoxicated, I can see no ground for presuming his acts to be voluntary and relevantly intentional. For what is blameworthy there should be an appropriate criminal offence. But it is not for the judges to create an offence appropriate in the circumstances: cf. Knuller (Publishing, Printing & Promotions) Ltd. v. D.P.P.,  A.C. 435, at pp. 457‑458, 464‑465 and 490). It must be for the Parliament.
20. Secondly, even if it were appropriate for the courts to bend principle in the name of policy, so far as I am aware, there is no evidence that the artificiality of the specific intent requirement is actually required for social protection.
21. An unrestrained application of basic mens rea doctrine would not, in my opinion, open a gaping hole in the criminal law inimical to social protection. There are several reasons for this. To the extent that intoxication merely lowers inhibitions, removes self‑restraint or induces unusual self‑confidence or aggressiveness, it would be of no avail to an accused, as such effects do not relate to the mens rea requirement for volitional and intentional or reckless conduct. Similarly, intoxication would be of no avail to an accused who got drunk in order to gain the courage to commit a crime or to aid in his defence. Thirdly, one can trust in the good sense of the jury and that of our trial judges to weigh all the evidence in a fair and responsible manner, and they are unlikely to acquit too readily those who have committed offences while intoxicated.
22. The High Court of Australia held in O'Connor, supra, that the distinction between specific and general intent should not be followed and that in all cases, evidence of drunkenness should be left with the jury along with all other evidence relative to the issue of intent. The New Zealand Court of Appeal also rejected the artificial specific intent distinction: R. v. Kamipeli,  2 N.Z.L.R. 610. In that case, McCarthy P. gave the judgment of the Court and stated at p. 614 in relation to the correct interpretation of Director of Public Prosecutions v. Beard,  A.C. 479:
(1) The quotations from Lord Birkenhead set out above refer to "specific" intents. The use of this adjective has of recent years been often criticised as suggesting the existence of a distinction between the Crown's burden in those cases when the general intent involved in proof of mens rea is necessary, on the one hand, and in those when the statute prescribes a particular intent on the other. But we cannot accept that Lord Birkenhead intended any such distinction. He also said:
"I do not think that the proposition of law deduced from these earlier cases is an exceptional rule applicable only to cases in which it is necessary to prove a specific intent in order to constitute the graver crime‑‑eg wounding with intent to do grievous bodily harm or with intent to kill. It is true that in such cases the specific intent must be proved to constitute the particular crime, but this is, on ultimate analysis, only in accordance with the ordinary law applicable to crime, for, speaking generally (and apart from certain special offences), a person cannot be convicted of a crime unless the mens was rea. Drunkenness, rendering a person incapable of the intent, would be an answer, as it is for example in a charge of attempted suicide" (ibid., 504).
So whether it be a general or a particular intent the burden is the same; the Crown must prove the intent required by the crime alleged.
23. (Compare R. v. Roulston,  2 N.Z.L.R. 644 (N.Z.C.A.), at pp. 653‑54, holding the issue to be open in the light of Majewski, supra.)
24. As counsel for the appellant submits:
There has been no empirical evidence to indicate that during the brief period of ten to fifteen years, that the Canadian and English Courts have experimented with the rule in Majewski and Leary, that there has been a reduction in the incidence of intoxicated offenders. Nor is there empirical evidence that the incidence of intoxicated offenders is greater in Australia, and particularly in the State of Victoria, where the rule has long been eschewed (see the comments of Mr. Justice Stephen in Regina v. O'Connor, supra, at pp. 99‑100 and of Mr. Justice Wilson at p. 139). More importantly, there was no evidence before the House of Lords in 1976 in Majewski or before this Honourable Court in 1970 in Perrault and in 1977 in Leary to the effect that the pre‑existing common law was not functioning properly in this area.
25. The experience in New Zealand and Australia, where the specific intent has been abandoned, suggests that the public will be adequately protected if the issue is left to the good sense of the jury. O'Connor was preceded in the State of Victoria by R. v. Keogh,  V.R. 400. In O'Connor, Stephen J. explained as follows, at p. 358:
A distrust of jurors and an anxiety that they may too readily be persuaded to an acquittal if evidence of the result of self‑induced intoxication, particularly by drugs other than alcohol, were allowed, may have formed some part of the public policy on which the decision rests. I may say at once that I have, of course, no experience of English juries: but I have of juries in New South Wales. Starke J., a most experienced judge in the hearing of criminal charges in Victoria, having had as well a long and distinguished career as an advocate, expressed himself in the present case in relation to the impact of evidence of intoxication upon Victorian jurors. He said:
"I, of course, have no knowledge of how English juries react. But over nearly forty years' experience in this State I have found juries to be very slow to accept a defence based on intoxication. I do not share the fear held by many in England that if intoxication is accepted as a defence as far as general intent is concerned the floodgates will open and hordes of guilty men will descend on the community."
I share his views, as if they had been expressed about jurors in New South Wales. In my opinion, properly instructed jurors would be scrupulous and not indulgent in deciding an issue of voluntariness or of intention. Indeed, I am inclined to think that they may tend to think that an accused who had taken alcohol and particularly other drugs to the point of extreme intoxication had brought on himself what flowed from that state of intoxication.
26. The empirical evidence is to the same effect: see George Smith J., "Footnote to O'Connor's Case" (1981), 5 Crim. L.J. 270, reviewing the effects of the O'Connor decision in Australia, and concluding, after review of over 500 trials held in the District Court of New South Wales, that the actual impact on the acquittal rate was minimal (at p. 277):
Certainly my inquiries would indicate that the decision in O'Connor's case, far from opening any floodgates has at most permitted an occasional drip to escape from the tap.
27. My comment in R. v. Hill,  1 S.C.R. 313, at p. 334, although made in a different context, bears repeating here: "I have the greatest of confidence in the level of intelligence and plain common sense of the average Canadian jury sitting on a criminal case. Juries are perfectly capable of sizing the matter up." In R. v. Bulmer,  1 S.C.R. 782, at p. 792, which dealt with the requirement in s. 244(4) of the Criminal Code that the jury be instructed on the issue of the honesty of the accused's mistaken belief in consent to consider the presence or absence of a reasonable grounds of that belief, McIntyre J. stated as follows:
This section, in my view, does not change the law as applied in Pappajohn. It does not require that the mistaken belief be reasonable or reasonably held. It simply makes it clear that in determining the issue of the honesty of the asserted belief, the presence or absence of reasonable grounds for the belief are relevant factors for the jury's consideration. This approach was, I suggest, foreshadowed in Pappajohn by Dickson J., at pp. 155‑56, where he said:
Perpetuation of fictions does little for the jury system or the integrity of criminal justice. The ongoing debate in the courts and learned journals as to whether mistake must be reasonable is conceptually important in the orderly development of the criminal law, but in my view, practically unimportant because the accused's statement that he was mistaken is not likely to be believed unless the mistake is, to the jury, reasonable. The jury will be concerned to consider the reasonableness of any grounds found, or asserted to be available, to support the defence of mistake. Although "reasonable grounds" is not a precondition to the availability of a plea of honest belief in consent, those grounds determine the weight to be given the defence. The reasonableness, or otherwise, of the accused's belief is only evidence for, or against, the view that the belief was actually held and the intent was, therefore, lacking.
28. The real issue in this appeal, it seems to me, is whether the Court should now overrule Leary. Let me say immediately that, even if a case were wrongly decided, certainty in the law remains an important consideration. There must be compel‑ ling circumstances to justify departure from a prior decision. On the other hand, it is clear that this Court may overrule its own decisions and indeed, it has exercised that discretion on a number of occasions. See Minister of Indian Affairs and Northern Development v. Ranville,  2 S.C.R. 518, at p. 527, citing the following cases for the proposition that the Court may overturn a prior decision: Reference Re The Farm Products Marketing Act,  S.C.R. 198, at p. 212; Binus v. The Queen,  S.C.R. 594, at p. 601; Peda v. The Queen,  S.C.R. 905, at p. 911; Barnett v. Harrison,  2 S.C.R. 531, at p. 559; Capital Cities Communications Inc. v. Canadian Radio‑Television Commission,  2 S.C.R. 141, at p. 161; A.V.G. Management Science Ltd. v. Barwell Developments Ltd.,  2 S.C.R. 43, at p. 57; Bell v. The Queen,  2 S.C.R. 212, at pp. 219‑20.
29. Cases in which the Court has actually exercised its discretion and acted to overrule, in addition to Ranville, supra, include the following: Paquette v. The Queen,  2 S.C.R. 189, at p. 197, overruling Dunbar v. The King (1936), 67 C.C.C. 20 (S.C.C.); McNamara Construction (Western) Ltd. v. The Queen,  2 S.C.R. 654, at p. 661, overruling Farwell v. The Queen (1894), 22 S.C.R. 553; Vetrovec v. The Queen,  1 S.C.R. 811, at p. 830.
30. There are at least four separate factors which find support in the jurisprudence of the Court which in my submission lead to the conclusion that Leary should be overruled.
31. Since Leary was decided, the Canadian Charter of Rights and Freedoms has come into force. This Court has held that legislation which imposes the sanction of imprisonment without proof of a blameworthy state of mind violates the guarantee of fundamental justice contained in s. 7 of the Charter and must be struck down unless it can meet the exacting test of s. 1 (see Re B.C. Motor Vehicle Act,  2 S.C.R. 486; R. v. Vaillancourt,  2 S.C.R. 636).
32. The appellant submits that Leary runs counter to s. 7 by providing that intoxication is no defence to a crime of general intent. In circumstances where the requisite mental intent is lacking due to an intoxicated condition, a general intent offence is converted into one of absolute liability in which proof of the commission of the actus reus by itself mandates conviction. It is also submitted that Leary runs counter to the presumption of innocence and the right to a fair hearing as guaranteed by s. 11(d) of the Charter, in so far as wrongful intent is irrebuttably presumed upon the showing of intoxication.
33. In RWDSU v. Dolphin Delivery Ltd.,  2 S.C.R. 573, McIntyre J. held, at p. 603, that "the judiciary ought to apply and develop the principles of the common law in a manner consistent with the fundamental values enshrined in the Constitution." This principle supports the proposition that Leary ought to be reconsidered in light of the Charter.
34. The special mandate of the Charter has been found by the Court to require reconsideration of its own past decisions, and, where necessary, to overrule those authorities which fail to reflect the Charter's values: see, e.g., R. v. Big M Drug Mart Ltd.,  1 S.C.R. 295, at pp. 333‑34, overruling Robertson and Rosetanni v. The Queen,  S.C.R. 651, on the meaning of "freedom of religion"; R. v. Therens,  1 S.C.R. 613, at pp. 639‑40 overruling Chromiak v. The Queen,  1 S.C.R. 471, on the meaning of "detention"; Re B.C. Motor Vehicle Act, supra, departing from Duke v. The Queen,  S.C.R. 917, on the meaning of "fundamental justice"; R. v. Smith (Edward Dewey),  1 S.C.R. 1045, adopting the minority opinion in Miller and Cockriell v. The Queen,  2 S.C.R. 680, in preference to that of the majority.
35. In Leary, I expressed the opinion that the fundamental rationale for the mens rea presumption could be framed in the following terms, at p. 34:
The notion that a court should not find a person guilty of an offence against the criminal law unless he has a blameworthy state of mind is common to all civilized penal systems. It is founded upon respect for the person and for the freedom of human will. A person is accountable for what he wills. When, in the exercise of the power of free choice, a member of society chooses to engage in harmful or otherwise undesirable conduct proscribed by the criminal law, he must accept the sanctions which that law has provided for the purpose of discouraging such conduct. Justice demands no less. But, to be criminal, the wrongdoing must have been consciously committed. To subject the offender to punishment, a mental element as well as a physical element is an essential concomitant of the crime. The mental state basic to criminal liability consists in most crimes in either (a) an intention to cause the actus reus of the crime, i.e. an intention to do the act which constitutes the crime in question, or (b) foresight or realization on the part of the person that his conduct will probably cause or may cause the actus reus, together with assumption of or indifference to a risk, which in all of the circumstances is substantial or unjustifiable. This latter mental element is sometimes characterized as recklessness.
36. In my view, that same principle is now given constitutional force in Re B.C. Motor Vehicle Act, supra and Vaillancourt, supra. In Re B.C. Motor Vehicle Act, the Court held, at p. 514, that "absolute liability in penal law offends the principles of fundamental justice." In Vaillancourt, Lamer J. stated that Re B.C. Motor Vehicle Act "elevated mens rea from a presumed element in Sault Ste. Marie, supra, to a constitutionally required element" (p. 652). While the Court has not yet dealt directly with the extent to which objective foreseeability may suffice for the imposition of criminal liability (Vaillancourt, at pp. 653‑54), that issue is not raised in the present context.
37. The effect of the majority holding in Leary is to impose a form of absolute liability on intoxicated offenders, which is entirely inconsistent with the basic requirement for a blameworthy state of mind as a prerequisite to the imposition of the penalty of imprisonment mandated by the above‑cited authorities. I agree with the observation of Professor Stuart in Canadian Criminal Law (2nd ed. 1987) that s. 7 of the Charter mandates the reversal of Leary and the assertion of "the fundamental principles of voluntariness and fault" in relation to intoxication and the criminal law (at p. 378). If the constitutional guarantee empowers the court to strike down legislation as in the two cases cited above, surely it provides a sufficient basis for overruling a prior decision of the Court which fails to respect constitutionally entrenched values.
38. The majority holding in Leary also runs counter to the s. 11(d) right to be presumed innocent until proven guilty. With respect to crimes of general intent, guilty intent is in effect presumed upon proof of the fact of intoxication. Moreover, the presumption of guilt created by the Leary rule is irrebuttable. In R. v. Oakes,  1 S.C.R. 103, the Court stated, at p. 132:
...a provision which requires an accused to disprove on a balance of probabilities the existence of a presumed fact, which is an important element of the offence in question, violates the presumption of innocence in s. 11(d).
39. In Vaillancourt, Lamer J. stated the following, at pp. 654‑55:
...before an accused can be convicted of an offence, the trier of fact must be satisfied beyond reasonable doubt of the existence of all of the essential elements of the offence. These essential elements include not only those set out by the legislature in the provision creating the offence but also those required by s. 7 of the Charter. Any provision creating an offence which allows for the conviction of an accused notwithstanding the existence of a reasonable doubt on any essential element infringes ss. 7 and 11(d). [Emphasis added.]
40. The same argument made in the context of s. 7 can be made in relation to s. 11(d). By providing that intoxication is no defence to a crime of general intent, Leary renders the offence one of absolute liability and runs counter to the presumption of innocence by presuming an essential element required by s. 7 upon the proof of the fact of intoxication.
41. In my view, the Leary rule cannot be upheld by reference to s. 1, as it cannot survive the "proportionality" inquiry. While the protection of the public, said to underlie the Leary rule, could serve as an important objective, in my view the Leary rule does not achieve that objective in a manner consistent with the proportionality test of Oakes, supra. Oakes requires that "the measures adopted must be carefully designed to achieve the objective in question." As I have noted, there is no agreement in the case law as to how to distinguish between crimes of "general intent" and crimes of "specific intent". This distinction was plainly not in the minds of the Code drafters, and the mental elements of many crimes are not readily classified into one category or the other. There is no rational reason for protecting the public against some drunken offenders but not against others, particularly where the distinction is not based upon the gravity of the offence or the availability of included offences. If the public protection does require special measures, that should be accomplished through comprehensive legislation rather than ad hoc judicial re‑casting of some offences. For a recent review of possible legislative schemes, see Quigley, "Reform of the Intoxication Defence" (1987), 33 McGill L.J. 1.
42. The Leary rule in effect treats the deliberate act of becoming intoxicated as culpable in itself, but inflicts punishment measured by the unintended consequences of becoming intoxicated. Punishment acts as a deterrent where the conduct is intended or foreseen. There is no evidence to support the assertion that the Leary rule deters the commission of unintended crimes. Hence, there is no warrant for violating fundamental principles and convicting those who would otherwise escape criminal liability.
43. The Leary rule fails to satisfy the second branch of the proportionality test as well, namely, that the means chosen should impair as little as possible the right or freedom in question. In general intent offences, the jury is to be instructed to excise from their minds any evidence of drunkenness with the result that the Crown, because the accused is intoxicated, is relieved of proving mens rea, thereby placing the intoxicated person in a worse position than a sober person. Alternatively, the jury is required to examine the mental state of the accused, without reference to the alcohol ingested, and consequently find a fictional intent. In my view, imposition of this form of absolute liability goes well beyond what is required to protect the public from drunken offenders. As I have already indicated, striking down the artificial rule which precludes the trier of fact from considering evidence of intoxication in relation to mens rea has not produced an increase in the threat to public safety from drunken offenders in Australia, and there is no evidence to suggest that it would do so in Canada.
44. Finally, it is my view that there is a disproportionality between the effects of Leary on rights protected by the Charter and the objective of public safety. To paraphrase Lamer J. in Re B.C. Motor Vehicle Act, supra, at p. 521, it has not been demonstrated that risk of imprisonment of a few innocent persons is required to attain the goal of protecting the public from drunken offenders.
45. As stated in R. v. Holmes,  1 S.C.R. 914, at p. 940: "This effect, given the range of alternative legislative devices available to Parliament, is too deleterious to be justified as a reasonable limit under s. 1 of the Charter. Simply put, the provision exacts too high a price to be justified in a free and democratic society."
B. Leary Attenuated by Subsequent Cases
46. Since Leary there have been developments in the jurisprudence of the Court which, in my submission, seriously undermine the view taken by the majority in Leary. The Court has held that where the holding of a case has been "attenuated" by subsequent decisions, it may be appropriate to overrule that earlier decision: Reference re the Agricultural Products Marketing Act,  2 S.C.R. 1198.
47. In my view, Leary has also been undermined quite independently of the Charter. The Court has consistently held that an honest but unreasonable mistaken belief in consent will negate the mens rea required for rape, indecent assault or sexual assault: see Pappajohn v. The Queen,  2 S.C.R. 120; Sansregret v. The Queen,  1 S.C.R. 570; R. v. Bulmer, supra, and R. v. Robertson,  1 S.C.R. 918, at pp. 939‑40. While the reasonableness of the accused's belief is a factor for the jury to consider in determining whether or not the belief was honestly held, a mistaken belief in consent need not be reasonable.
48. The Leary rule fits most awkwardly with that enunciated in Pappajohn. Lower courts have held that in the light of Leary, where intoxication is a factor in inducing a mistaken belief in consent, the jury must be instructed that while an honest but unreasonable belief will negate mens rea (Pappajohn) they are to disregard the affect that intoxication might have had in inducing that mistake (Leary). In R. v. Moreau (1986), 26 C.C.C. (3d) 359 (Ont. C.A.), at pp. 386‑87, Martin J.A. described the task of the jury as follows:
It does not follow that the defence of honest belief in consent is unavailable on a charge of sexual assault to an accused who is voluntarily intoxicated. Where an issue arises on the evidence as to the accused's honest belief in consent, the defence of honest belief in consent must be put to the jury, notwithstanding the accused's self‑induced intoxication. There may be a basis in the evidence for the accused's honest belief in consent apart altogether from his intoxication; there may even be reasonable grounds for that belief even though he was intoxicated. The intoxication may not be the cause of the mistaken belief. However, the accused cannot rely on his self‑induced intoxication as the basis for his belief that the complainant consented. As Mayrand J.A. said in R. v. Bresse, Vallières and Theberge (1978), 48 C.C.C. (2d) 78 at p. 87, 7 C.R. (3d) 50 (Que. C.A.):
One must distinguish the case in which, because of one's voluntary inebriation, a man takes no account of the refusal manifested by a woman from the case in which a man, because of the ambiguous conduct of the woman, believes sincerely that she consented to sexual relations. This error of fact committed for reasons other than one's voluntary inebriation is, in my opinion, a valid ground of defence.
In those circumstances the jury is required to engage in the difficult, and perhaps somewhat artificial task, of putting out of their minds the evidence of intoxication on the issue whether the accused honestly believed that the complainant consented. The test is not whether a reasonable and sober person would have made the same mistake but whether the accused would have made the same mistake if he had been sober; see Glanville Williams, Textbook on Criminal Law, 2nd ed. (1983) at pp. 481‑2. However, to hold that evidence of self‑induced intoxication is relevant to the honesty of the accused's belief in consent where his belief is founded on his mistaken appreciation, due to intoxication, of the facts relating to the complainant's consent is, in my view, incompatible with the rule laid down in Leary, and would completely negate the policy rule that self‑induced intoxication is not a defence in crimes of general intent.
49. In my view, the Leary qualification on the criminal law principle of general application with respect to mistake of fact unnecessarily and unduly complicates the jury's task. Indeed, I find it difficult to imagine how it is humanly possible to follow the jury instruction apparently mandated by the combination of Leary and Pappajohn. This confusing and anomalous result is entirely the product of the deviation from basic criminal law principles which occurred in Leary and accordingly there is much to support the view that it should be overruled.
50. The inconsistency between Leary and Pappajohn has not gone unnoticed in the literature. In Canadian Criminal Law, supra, at p. 378, Professor Stuart describes the collision between Leary and Pappajohn as a "glaring inconsistency". In "Regina v. O'Connor: Mens Rea Survives in Australia" (1981), 19 U.W.O. L. Rev. 281, at pp. 300‑301, David H. Doherty observes:
The two judgments are clearly inconsistent. Pappajohn confirms the essential requirement of a subjective mental culpability as a prerequisite to criminal liability. Leary creates a fundamental exception to that requirement. The facts of Pappajohn show that the judgments will inevitably come into conflict. The Supreme Court of Canada chose to avoid dealing with the conflict in Pappajohn by ignoring the evidence of drinking by the accused. It is to be hoped that in a later case the Court will seek a more positive resolution to the problem. In seeking that resolution the majority position in O'Connor deserves emulation. After reading the opinions expressed in O'Connor, one concludes, as did the minority in Leary, that the position taken in Majewski and adopted by the majority in Leary constitutes an illogical, unwarranted, and detrimental departure from the contemporary trend in criminal law which recognizes subjective mental blameworthiness at the time of the doing of the prohibited act as the sine qua non of criminal liability. The creation of exceptions to the principle compelled by considerations of public policy must be left to Parliament.
See also Peter J. Connelly, "Drunkenness and Mistake of Fact: Pappajohn v. The Queen; Swietlinski v. The Queen" (1981), 24 Crim. L.Q. 49; Christine Boyle, Sexual Assault (1984), at pp. 89‑90.
C. Leary Creates Uncertainty
51. The third general consideration justifying the Court in overruling Leary is the principle established in Ranville, supra, where the Court overruled its previous decision in Commonwealth of Puerto Rico v. Hernandez,  1 S.C.R. 228, on the ground that continued recognition of the persona designata category could only have the effect of creating doubt as to which procedure a party should follow. The prior decision itself was a cause of uncertainty, and therefore following the prior decision because of stare decisis would be contrary to the underlying value behind that doctrine, namely, clarity and certainty in the law. Similarly, in Vetrovec, supra, the Court overruled previous decisions relating to corroboration and stated, "The law of corroboration is unduly and unnecessarily complex and technical".
52. I have already indicated the confusion created by the combination of Leary and Pappajohn. I suggest that the distinction between "general" and "specific" intent which Leary mandates and the notorious difficulty in articulating a clear and workable definition of specific intent falls squarely within the principle enunciated in Ranville and Vetrovec. Because that category is based on policy rather than principle, classification of offences as falling within or without the specific intent category is necessarily an ad hoc, unpredictable exercise.
53. The situation with respect to the offence of break and enter, raised by the companion case, R. v. Quin,  2 S.C.R. 825, provides an example. In R. v. Campbell (1974), 17 C.C.C. (2d) 320 (Ont. C.A.), the accused was charged with breaking and entering with intent pursuant to s. 306(1)(a). The Ontario Court of Appeal held that offence to be a crime of specific intent and hence drunkenness was relevant to the issue of intention. In Quin, the accused was charged with breaking and entering and committing an indictable offence pursuant to s. 306(1)(b). The same court held that under that subsection, the break and enter offence was one requiring only proof of general intent and hence evidence of intoxication could not be considered. A legal category which creates distinctions of this kind, in my view, complicates and confuses the law to an unacceptable degree and, absent some compelling need for its retention, should be abandoned.
54. Another example of the complexity and uncertainty caused by the specific/general intent dichotomy is provided by Swietlinski, supra. In that case, the accused was charged with murder pursuant to s. 213(d) of the Criminal Code. The enumerated offence the accused was alleged to have committed was indecent assault. Leary had held that rape was an offence of general intent and in Swietlinski, the Court applied Leary to the offence of indecent assault. However, because of the constructive murder provision, this would have led to a situation where the accused would be convicted of murder without any criminal intent. To avoid that result, the Court held that where indecent assault formed the ingredient of constructive murder pursuant to s. 213, evidence of drunkenness could be taken into account in determining whether in fact the accused had the requisite intent for the offence of indecent assault. In other words, the Court held quite explicitly that intoxication did logically bear upon the issue of intent to commit indecent assault, and that the only issue was whether, as a matter of policy, the jury should be told to put that evidence out of mind. In the light of Vaillancourt, Swietlinski is no longer significant for its result. Indeed, Vaillancourt and Swietlinski have this in common: both cases demonstrate the Court's aversion to the imposition of liability without mens rea. In my view, to hold that evidence of intoxication can be taken into account with reference to an offence for certain purposes but not for other purposes is further reflection of the confusion, uncertainty, and lack of principle which motivates the specific/general intent dichotomy.
D. Leary Unfavourable to Accused
55. The fourth factor which bears directly upon whether or not the Court should overrule Leary in my view, is that the Leary rule is one which operates against the accused by expanding the scope of criminal liability beyond normal limits. Respect for the principle of certainty and the institutional limits imposed upon the law‑making function of the courts should constrain the Court from overruling a prior decision where the effect would be to expand criminal liability. It is not for the courts to create new offences, or to broaden the net of liability, particularly as changes in the law through judicial decision operate retrospectively. The same argument does not apply, however, where the result of overruling a prior decision is to establish a rule favourable to the accused. In my submission, this principle underlies the decision of the Court in Paquette v. The Queen, supra, at p. 197, where the Court overruled its previous decision in Dunbar v. The King, supra, which had held that an accused who was a party to murder, but who had not himself committed the act, could not rely upon the defence of duress. (See also R. v. Santeramo (1976), 32 C.C.C. (2d) 35 (Ont. C.A.), at p. 46, per Brooke J.A.: "I do not feel bound by a judgment of this Court where the liberty of the subject is in issue if I am convinced that that judgment is wrong.")
56. The trial judge made no reference in his charge to the jury to the requirement that the Crown prove that the accused acted with the requisite intent. In my view, this is fatal to the conviction. Although the Crown presented a strong case against the accused at trial, no request was made by the respondent that this Court apply the provision of s. 613(1)(b)(iii) of the Criminal Code, and in any event, it is not for this Court to speculate as to the likely result had the jury been properly instructed.
57. It follows that the appeal should be allowed, the conviction set aside, and a new trial ordered.
The judgment of Beetz and McIntyre JJ. was delivered by
58. McIntyre J.‑‑I have had the advantage of reading the reasons for judgment of the Chief Justice. With the greatest deference, I find that I am unable to agree with his reasons and his disposition of the appeal. I would dismiss the appeal for the reasons I will endeavour to set out.
59. The appellant was charged with sexual assault causing bodily harm, contrary to s. 246.2(c) of the Criminal Code. The facts giving rise to the charge have been set out by the Chief Justice and I need not make extensive reference to them. It will suffice to say that the twenty‑four‑year‑old appellant committed the sexual assault upon the eighteen‑year‑old complainant in his apartment. It was conceded that intercourse had taken place without the consent of the complainant. During the course of the assault, the appellant punched her, caused an injury to her eye, and threatened to kill her. He was convicted at trial before judge and jury. He gave no evidence but his statement to the police, admitting that he had forced the complainant to have intercourse, was put in evidence. The trial judge told the jury that the sole issue before them was that of consent. On the question of drunkenness, he said:
Only the accused in his statement says, "I was all drunked up too". There was no evidence of drunkenness except that statement and it is open to you to accept it and find that he was drunk but even if he was drunk drunkenness is no defence to the charge alleged against this accused.
The appellant's appeal was dismissed. It is now reported at (1985), 18 C.C.C. (3d) 574. The Court of Appeal held that the offence of causing bodily harm was an offence of general intent to which the defence of drunkenness did not apply. In this, they followed Director of Public Prosecutions v. Majewski,  A.C. 443 (H.L.), and their disposition of the case is consistent with Leary v. The Queen,  1 S.C.R. 29.
60. There are two issues which arise in this appeal. The first is whether sexual assault causing bodily harm (Criminal Code, s. 246.2(c)) is an offence requiring proof of specific or of general intent, and the second is whether evidence of self‑induced drunkenness is relevant to the issue of guilt or innocence in an offence of general intent. Before dealing in detail with these questions, it will be helpful to make certain observations.
61. A distinction has long been recognized in the criminal law between offences which require the proof of a specific intent and those which require only the proof of a general intent. This distinction forms the basis of the defence of drunkenness and it must be understood and kept in mind in approaching this case. In R. v. George,  S.C.R. 871, Fauteux J. said, at p. 877:
In considering the question of mens rea, a distinction is to be made between (i) intention as applied to acts considered in relation to their purposes and (ii) intention as applied to acts considered apart from their purposes. A general intent attending the commission of an act is, in some cases, the only intent required to constitute the crime while, in others, there must be, in addition to that general intent, a specific intent attending the purpose for the commission of the act.
This statement makes the distinction clear. The general intent offence is one in which the only intent involved relates solely to the performance of the act in question with no further ulterior intent or purpose. The minimal intent to apply force in the offence of common assault affords an example. A specific intent offence is one which involves the performance of the actus reus, coupled with an intent or purpose going beyond the mere performance of the questioned act. Striking a blow or administering poison with the intent to kill, or assault with intent to maim or wound, are examples of such offences.
62. This distinction is not an artificial one nor does it rest upon any legal fiction. There is a world of difference between the man who in frustration or anger strikes out at his neighbour in a public house with no particular purpose or intent in mind, other than to perform the act of striking, and the man who strikes a similar blow with intent to cause death or injury. This difference is best illustrated by a consideration of the relationship between murder and manslaughter. He who kills intending to kill or cause bodily harm is guilty of murder, whereas he who has killed by the same act without such intent is convicted of manslaughter. The proof of the specific intent, that is, to kill or to cause bodily harm, is necessary in murder because the crime of murder is incomplete without it. No such intent is required, however, for the offence of manslaughter because it forms no part of the offence, manslaughter simply being an unlawful killing without the intent required for murder. The relevance of intoxication which could deprive an accused of the capacity to form the necessary specific intent in murder and its irrelevance in the crime of manslaughter can readily be seen.
63. The present law relating to the drunkenness defence has developed in this Court from the application of principles set out in Director of Public Prosecutions v. Beard,  A.C. 479 (H.L.), discussed and adapted in other United Kingdom cases, including Attorney‑General for Northern Ireland v. Gallagher,  3 All E.R. 299 (H.L.); Bratty v. Attorney‑General for Northern Ireland,  3 All E.R. 523 (H.L.), and Director of Public Prosecutions v. Majewski, supra. In this Court, the matter has been dealt with in R. v. George, supra, and other cases, but particularly in Leary v. The Queen, supra, where Pigeon J., speaking for the majority of the Court, said, at p. 57, that rape is a crime of general intention as distinguished from specific intention, a crime therefore "in which the defence of drunkenness can have no application". This may be said to have confirmed the law as it stands in Canada on this question and the appellant's principal attack in this Court is upon that decision. It is not necessary for the purposes of this judgment to review in detail the authorities in this Court on the question. It will be sufficient to summarize their effect in the following terms. Drunkenness in a general sense is not a true defence to a criminal act. Where, however, in a case which involves a crime of specific intent, the accused is so affected by intoxication that he lacks the capacity to form the specific intent required to commit the crime charged it may apply. The defence, however, has no application in offences of general intent.
64. The criticism of the law with respect to the defence of drunkenness is based on two propositions. It is said, firstly, that the distinction between the general intent and specific intent offences is artificial and is little more than a legal fiction. Secondly, it is said that it is illogical, because it envisages a defence of drunkenness in certain situations and not in others; it is merely a policy decision made by judges and not based on principle or logic. It will be evident from what I have said that I reject the first ground of criticism. As to the second criticism that it is based upon grounds of policy, I would say that there can be no doubt that considerations of policy are involved in this distinction. Indeed, in some cases, principally Majewski, supra, the distinction has been defended on the basis that it is sound social policy. The fact, however, that considerations of policy have influenced the development of the law in this field cannot, in my view, be condemned. In the final analysis all law should be based upon and consistent with sound social policy. No good law can be inconsistent with or depart from sound policy.
65. If the policy behind the present law is that society condemns those who, by the voluntary consumption of alcohol, render themselves incapable of self‑control so that they will commit acts of violence causing injury to their neighbours, then in my view no apology for such policy is needed, and the resulting law affords no affront to the well established principles of the law or to the freedom of the individual. Furthermore, the existing law is not divorced from logical underpinnings as suggested in some academic writings. Not all the academic literature has been critical. A strong statement in support of the law on utilitarian or policy grounds made shortly after Majewski is by Sir Rupert Cross in "Blackstone v. Bentham" (1976), 92 L.Q.R. 516, where he said, at pp. 525‑26:
In reply to Bentham and the academics I would ask why it is "hard and unthinking" to refuse to allow people to exempt themselves from criminal responsibility for harm done by their bodies by incapacitating their minds from controlling them. Why should the requirement that intention or recklessness must be proved in order to establish liability for an assault not be subject to what appears to be the wholly reasonable retributive principle that it is unjust to those who remain sober to allow those who become drunk to allege that they were unaware of consequences of their bodily movements of which all sober people would have been aware? This is what Blackstone meant when he said that the law would not suffer any man "to privilege one crime by another."
Punishment is an evil and the less of it the better. But the evil of inflicting punishment is justified if the harm which is thus avoided is greater than that caused by the punishment. It may be asceticism to blame people for simply getting drunk, but it is sound utilitarianism to seek to prevent people from doing certain kinds of harm while they are drunk. In so far as this object can be achieved by punishment, it is achieved most economically by singling out for punishment those who commit the kind of harm which the law seeks to prevent while they are drunk.
A. J. Ashworth in "Reason, Logic and Criminal Liability" (1975), 91 L.Q.R. 102 says, at p. 130:
Moreover, it is hardly appropriate to regard a defence of acute intoxication as a simple denial of mens rea; it has been suggested that defences should not be classified solely according to the effect of the accused's condition, without reference to their cause. The criminal law permits reason to override the logical application of the traditional doctrines in cases of deliberately self‑induced incapacities; to do otherwise would be tantamount to allowing a fraud on the law. It is submitted that, if the law provides no other means of imposing criminal liability in the cases of "voluntarily‑induced" incapacities discussed in this article, then there are sufficient reasons for restricting the scope of the defences as the English judges have done.
Further, Mark T. Thornton in "Making Sense of Majewski" (1981), 23 Crim. L.Q. 465, justifies the distinction made between specific and general intent offences in this way, at pp. 482‑83:
I believe that the foregoing discussion shows that there are "legally adequate criteria" for distinguishing crimes of specific intent from other crimes. As regards consequences, the agent must actually intend (and not merely be reckless in regard to) some consequences which amounts to an actus reus. As regards circumstances, the agent must intend his action to take place in those circumstances, or he must intend to disregard those circumstances, or he must have some further intention in respect of those circumstances, depending on the nature of the particular offence. Simple recklessness (excluding the possible complexity of "malice aforethought") does not suffice for specific intent. Where such actual intentions as we have mentioned are required for a crime to have been committed, voluntary intoxication is a defence by the Majewski rule.
and, as well, Eric Colvin ("A Theory of the Intoxication Defence" (1981), 59 Can. Bar Rev. 750) argues against the illogicality of the present rules, as follows (at p. 779):
If the only choice is between liability or immunity where a requisite mental element is absent due to culpable intoxication, there must at least be some sympathy for the approach which the courts have taken. Even the most stringent critics of the intoxication rules have been wary of suggesting that no penal consequences should follow. Their preference has generally been the creation of a special offence of dangerous intoxication which would require legislative initiative. Would it be proper for the courts to encourage the legislatures to action by abandoning the present intoxication rules and insisting upon the contemporaneity of the culpable state of mind and the prohibited conduct? At stake here are theories of the judicial role which lie beyond the scope of this article. It is, however, concluded that one good reason for judicial activism‑‑the irrationality of present law‑‑does not apply to the intoxication defence.
In my view, the common law rules on the defence of drunkenness, though frequently the subject of criticism, have a rationality which not only accords with criminal law theory, but has also served society well. It is not questioned in this case that the defence of drunkenness, as it applies to specific intent offences, is supportable. It is submitted, however, that it should be extended to include all criminal charges. It is my view that this proposition is not sustainable.
66. Turning now to the issues raised, the first one is to consider whether the offence of sexual assault causing bodily harm is an offence requiring a general or specific intent. In Swietlinski v. The Queen,  2 S.C.R. 956, this Court held that indecent assault, then an offence under the Criminal Code, was an offence of general intent. The indecent character of the assault was to be judged upon an objective view of the facts and not upon the mental state of the accused. It was said, at p. 968:
What acts are indecent and what circumstances will have that character are questions of fact that will have to be decided in each case, but the determination of those questions will depend upon an objective view of the facts and circumstances in relation to the actual assault, and not upon the mental state of the accused.
and later at pp. 970‑71:
Because indecent assault is an offence of general or basic intent, the defence of drunkenness cannot apply where a person is charged with that offence.
This Court dealt with the question of sexual assault simpliciter under s. 246.1(1)(a) in R. v. Chase,  2 S.C.R. 293, where the offence was defined in these terms, at p. 302:
Applying these principles and the authorities cited, I would make the following observations. Sexual assault is an assault within any one of the definitions of that concept in s. 244(1) of the Criminal Code which is committed in circumstances of a sexual nature, such that the sexual integrity of the victim is violated. The test to be applied in determining whether the impugned conduct has the requisite sexual nature is an objective one: "Viewed in the light of all the circumstances, is the sexual or carnal context of the assault visible to a reasonable observer"....
and later, on the issue of intent, the following was said:
The intent or purpose of the person committing the act, to the extent that this may appear from the evidence, may also be a factor in considering whether the conduct is sexual. If the motive of the accused is sexual gratification, to the extent that this may appear from the evidence, it may be a factor in determining whether the conduct is sexual. It must be emphasized, however, that the existence of such a motive is simply one of many factors to be considered, the importance of which will vary depending on the circumstances.
It was further said, at pp. 302‑3:
Implicit in this view of sexual assault is the notion that the offence is one requiring a general intent only. This is consistent with the approach adopted by this Court in cases such as Leary v. The Queen,  1 S.C.R. 29, and Swietlinski v. The Queen,  2 S.C.R. 956, where it was held that rape and indecent assault were offences of general intent. I am unable to see any reason why the same approach should not be taken with respect to sexual assault. The factors which could motivate sexual assault are said to be many and varied (see C. Boyle, Sexual Assault (1984), at p. 74). To put upon the Crown the burden of proving a specific intent would go a long way toward defeating the obvious purpose of the enactment. Moreover, there are strong reasons in social policy which would support this view. To import an added element of specific intent in such offences, would be to hamper unreasonably the enforcement process. It would open the question of the defence of drunkenness, one which has always been related to the capacity to form a specific intent and which has generally been excluded by law and policy from offences requiring only the minimal intent to apply force (see R. v. Bernard (1985), 18 C.C.C. (3d) 574 (Ont. C.A., per Dubin J.A.)) For these reasons, I would say that the offence will be one of general rather than specific intent.
The elements of the new offence under s. 246.2(c) with which the accused was charged are assault, as defined in s. 244 of the Criminal Code, which objectively viewed must be of a sexual nature, as a consequence of which the complainant has suffered bodily injury as defined in s. 245.1(2) of the Code, which provides:
(2) For the purposes of this section and sections 245.3 and 246.2, "bodily harm" means any hurt or injury to the complainant that interferes with his or her health or comfort and that is more than merely transient or trifling in nature.
It would therefore be my view that the mental element of the offence in s. 246.2(c) is only the intention to commit the assault. The surrounding circumstances must be considered for evidence of its sexual nature and of the resulting bodily harm. The Crown need not show any further mental element (see J. D. Watt, The New Offences Against the Person (1984), at p. 113).
67. In my view, the comments in Chase, supra, are equally applicable to an offence under s. 246.2(c) which merely adds to the sexual assault simpliciter the requirement of bodily harm to the complainant. The resulting interference with the physical integrity of the complainant aggravates the seriousness of a sexual assault but the mental element remains the same. I would conclude that s. 246.2(c) creates an offence of general rather than specific intent.
68. The second issue, whether the defence of drunkenness applies to an offence of general intent includes the question of whether the Court should overrule its earlier decision in Leary. The attack on Leary was based on its rejection of the defence for crimes of general intent. As already mentioned, nobody has suggested that it should not apply in cases of specific intent. The Chief Justice has expressed the view that evidence of self‑induced intoxication should be a relevant consideration in determining whether the mens rea of any particular offence has been proved by the Crown. As I have indicated, I am unable to agree with this conclusion. The effect of such a conclusion would be that the more drunk a person becomes by his own voluntary consumption of alcohol or drugs, the more extended will be his opportunity for a successful defence against conviction for the offences caused by such drinking, regardless of the nature of the intent required for those offences.
69. The appellant made two principal arguments in seeking the reversal of the Leary rule. He contended that it relieves the Crown from the burden of proving mens rea in cases of general intent and, in effect, imposes strict liability upon proof of the actus reus. He also contended that the Leary rule violates ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms.
70. In my opinion, both of these submissions must be rejected. I would say at the outset that in crimes of general intent the Crown is not relieved from proving any element of the offence. The effect of excluding the drunkenness defence from such offences is merely to prevent the accused from relying on his self‑imposed drunkenness as a factor showing an absence of any necessary intent. While this Court has consistently recognized the basic proposition that an accused person should not be subject to criminal sanction unless the Crown shows the existence of a blameworthy or criminal mental state associated with the actus reus of the crime, it does not follow that a person who so deprives himself by the voluntary consumption of alcohol or a drug of the normal power of self‑restraint that a crime results, should be entitled to an acquittal. Compelling reasons grounded in logic, common sense, and sound social policy dictate otherwise.
71. As I indicated earlier, it is not necessary to review all of the authorities which have dealt with this issue. It is clear from a review of the cases, however, that until the early years of the nineteenth century drunkenness was considered "rather an aggravation than a defence": see Lord Birkenhead in Director of Public Prosecutions v. Beard, supra, at p. 494. The early principle of the common law was that a voluntary destruction of will power would entitle a person to no more favourable treatment with regard to criminal conduct than a sober person. By the latter part of the nineteenth century this earlier rule was "mercifully relaxed" (see Lawton L.J. in Director of Public Prosecutions v. Majewski,  3 All E.R. 296 (C.A.), at p. 305) in respect of crimes of specific intent where the capacity to form the required specific intent was not present because of intoxication: see the early cases such as R. v. Doherty (1887), 16 Cox. C.C. 306, per Stephen J., at p. 308. This new approach was given approval in Beard's case and the more modern authorities have been based upon it. This relaxation stems no doubt from a recognition of the severity of the penal consequence of most of the specific intent offences, as compared with the generally lesser penalties associated with the general intent offences. Therefore, the exclusion of the defence from general intent offences was not an exception to the general rule. The exception was the allowance of the defence in specific intent cases adopted to recognize the more complicated mental processes required for the crimes of special intent and the greater penalties involved. Some measure of relief for such cases was therefore provided. Otherwise, the common law preserved the general rule that a person may not by voluntary intoxication render himself immune from the consequences of his conduct.
72. In R. v. George, this Court considered the question of the relevance of drunkenness in a case of common assault. The accused had been acquitted of a charge of robbery with violence on the ground that, because of drunkenness, he was incapable of forming the specific intent to commit robbery. The trial judge did not consider the question of common assault. After stating that no specific intent is necessary to constitute the offence of common assault, Fauteux J. (with whom Taschereau J. concurred) said, at p. 878:
There can be no pretence, in this case, that the manner in which force was applied by respondent to his victim was accidental ‑excluding at the moment, from the consideration, the defence of drunkenness‑‑unintentional.
On this finding of fact, the accused was guilty of common assault unless there was evidence indicating a degree of drunkenness affording, under the law, a valid defence.
He went on to say at p. 879:
Hence, the question is whether, owing to drunkenness, respondent's condition was such that he was incapable of applying force intentionally. I do not know that, short of a degree of drunkenness creating a condition tantamount to insanity, such a situation could be metaphysically conceived in an assault of the kind here involved. It is certain that, on the facts found by the trial Judge, this situation did not exist in this case.
Ritchie J., with Martland J. concurring, saw the issue as the degree of drunkenness "necessary to negative" such intent, as is an ingredient of common assault, and he said, at p. 890:
In considering the question of mens rea, a distinction is to be drawn between "intention" as applied to acts done to achieve an immediate end on the one hand and acts done with the specific and ulterior motive and intention of furthering or achieving an illegal object on the other hand. Illegal acts of the former kind are done "intentionally" in the sense that they are not done by accident or through honest mistake, but acts of the latter kind are the product of preconception and are deliberate steps taken towards an illegal goal. The former acts may be the purely physical products of momentary passion, whereas the latter involve the mental process of formulating a specific intent. A man, far advanced in drink, may intentionally strike his fellow in the former sense at a time when his mind is so befogged with liquor as to be unable to formulate a specific intent in the latter sense. The offence of robbery, as defined by the Criminal Code, requires the presence of the kind of intent and purpose specified in ss. 269 and 288, but the use of the word "intentionally" in defining "common assault" in s. 230(a) of the Criminal Code is exclusively referable to the physical act of applying force to the person of another.
and at p. 891:
The decision of the learned trial judge, in my opinion, constitutes a finding that the respondent violently manhandled a man and knew that he was hitting him. Under these circumstances, evidence that the accused was in a state of voluntary drunkenness cannot be treated as a defence to a charge of common assault because there is no suggestion that the drink which had been consumed had produced permanent or temporary insanity and the respondent's own statement indicates that he knew that he was applying force to the person of another.
It is evident that the majority in R. v. George considered that the mental element required for a conviction of common assault involved no more than the intentional‑‑as opposed to the accidental‑‑performance of the actus reus and that they concluded that self‑induced intoxication, "falling short of a degree of drunkenness creating a condition tantamount to insanity," would afford no defence to a charge of common assault, an offence of general intention.
73. In Leary, this Court followed the approach taken in the House of Lords in Majewski, where the House of Lords unanimously approved the distinction between general and specific intent on the basis that the rule had evolved to protect the community and that voluntary intoxication was a sufficient substitute for the fault element in crimes of general intent. Lord Elwyn Jones L.C. (Diplock, Simon, Kilbrandon Ll.J. concurring) cited a speech by Lord Simon in R. v. Morgan,  A.C. 182, at pp. 216‑17, where he defined assault as a crime of basic intent and concluded, at pp. 474‑75, with the following comment:
If a man of his own volition takes a substance which causes him to cast off the restraints of reason and conscience, no wrong is done to him by holding him answerable criminally for any injury he may do while in that condition. His course of conduct in reducing himself by drugs and drink to that condition in my view supplies the evidence of mens rea, of guilty mind certainly sufficient for crimes of basic intent. It is a reckless course of conduct and recklessness is enough to constitute the necessary mens rea in assault cases: see Reg. v. Venna,  Q.B. 421, per James L.J. at p. 429. The drunkenness is itself an intrinsic, an integral part of the crime, the other part being the evidence of the unlawful use of force against the victim. Together they add up to criminal recklessness. On this I adopt the conclusion of Stroud in 1920, 36 L.Q.R. 273 that:
". . . it would be contrary to all principle and authority to suppose that drunkenness" (and what is true of drunkenness is equally true of intoxication by drugs) "can be a defence for crime in general on the ground that `a person cannot be convicted of a crime unless the mens was rea.' By allowing himself to get drunk, and thereby putting himself in such a condition as to be no longer amenable to the law's commands, a man shows such regardlessness as amounts to mens rea for the purpose of all ordinary crimes."
He continued in reference to the American view, at p. 475:
This approach is in line with the American Model Penal Code (S. 2.08 (2)):
"When recklessness establishes an element of the offence, if the actor, due to self‑induced intoxication, is unaware of a risk of which he would have been aware had he been sober, such unawareness is immaterial."
and then added:
Acceptance generally of intoxication as a defence (as distinct from the exceptional cases where some additional mental element above that of ordinary mens rea has to be proved) would in my view undermine the criminal law and I do not think that it is enough to say, as did Mr. Tucker, that we can rely on the good sense of the jury or of magistrates to ensure that the guilty are convicted. It may well be that Parliament will at some future time consider, as I think it should, the recommendation in the Butler Committee Report on Mentally Abnormal Offenders (Cmnd. 6244, 1975) that a new offence of "dangerous intoxication" should be created. But in the meantime it would be irresponsible to abandon the common law rule, as "mercifully relaxed," which the courts have followed for a century and a half.
Lord Simon, after noting that a person is not criminally responsible for unlawful conduct unless that conduct is accompanied by a wrongful state of mind‑‑the mens rea‑‑, said, at p. 478:
Mens rea is therefore on ultimate analysis the state of mind stigmatised as wrongful by the criminal law which, when compounded with the relevant prohibited conduct, constitutes a particular offence. There is no juristic reason why mental incapacity (short of M`Naghten insanity), brought about by self‑induced intoxication, to realise what one is doing or its probable consequences should not be such a state of mind stigmatised as wrongful by the criminal law; and there is every practical reason why it should be.
And, at pp. 479‑80, he said:
As I have ventured to suggest, there is nothing unreasonable or illogical in the law holding that a mind rendered self‑inducedly insensible (short of M`Naghten insanity), through drink or drugs, to the nature of a prohibited act or to its probable consequences is as wrongful a mind as one which consciously contemplates the prohibited act and foresees its probable consequences (or is reckless as to whether they ensue). The latter is all that is required by way of mens rea in a crime of basic intent. But a crime of specific intent requires something more than contemplation of the prohibited act and foresight of its probable consequences. The mens rea in a crime of specific intent requires proof of a purposive element. This purposive element either exists or not; it cannot be supplied by saying that the impairment of mental powers by self‑induced intoxication is its equivalent, for it is not. So that the 19th century development of the law as to the effect of self‑induced intoxication on criminal responsibility is juristically entirely acceptable; and it need be a matter of no surprise that Stephen stated it without demur or question.
Lord Salmon and Lord Edmund‑Davies admitted that the current state of the law could not be entirely justified in logic but rather must be founded in common sense and experience. Lord Salmon said, at pp. 483‑84:
As I have already indicated, I accept that there is a degree of illogicality in the rule that intoxication may excuse or expunge one type of intention and not another. This illogicality is, however, acceptable to me because the benevolent part of the rule removes undue harshness without imperilling safety and the stricter part of the rule works without imperilling justice. It would be just as ridiculous to remove the benevolent part of the rule (which no one suggests) as it would be to adopt the alternative of removing the stricter part of the rule for the sake of preserving absolute logic. Absolute logic in human affairs is an uncertain guide and a very dangerous master. The law is primarily concerned with human affairs. I believe that the main object of our legal system is to preserve individual liberty. One important aspect of individual liberty is protection against physical violence.
If there were to be no penal sanction for any injury unlawfully inflicted under the complete mastery of drink or drugs, voluntarily taken, the social consequence could be appalling.
And Lord Edmund‑Davies said, at p. 494:
Are the claims of logic, then, so compelling that a man behaving as the Crown witnesses testified the appellant did must be cleared of criminal responsibility? As to this, Lawton L.J. rightly said ante, p. 456b‑c:
"Although there was much reforming zeal and activity in the 19th century, Parliament never once considered whether self‑induced intoxication should be a defence generally to a criminal charge. It would have been a strange result if the merciful relaxation of a strict rule of law had ended, without any Parliamentary intervention, by whittling it away to such an extent that the more drunk a man became, provided he stopped short of making himself insane, the better chance he had of an acquittal."
If such be the inescapable result of the strict application of logic in this branch of the law, it is indeed not surprising that illogicality has long reigned, and the prospect of its dethronement must be regarded as alarming.
Lord Russell added these words, at p. 498:
...but logic in criminal law must not be allowed to run away with common sense, particularly when the preservation of the Queen's Peace is in question. The ordinary citizen who is badly beaten up would rightly think little of the criminal law as an effective protection if, because his attacker had deprived himself of ability to know what he was doing by getting himself drunk or going on a trip with drugs, the attacker is to be held innocent of any crime in the assault. Mens rea has many aspects. If asked to define it in such a case as the present I would say that the element of guilt or moral turpitude is supplied by the act of self‑intoxication reckless of possible consequences.
74. From the judgments in Majewski, it may be concluded that the law in England on this question is that in offences of general intent the defence of drunkenness shall not apply; that the requirement of mens rea in such offences is met by proof of voluntary intoxication; and that any logical weakness in this position is justified on the basis of sound social policy.
75. This Court in Leary approved the Majewski approach which has long been accepted in the law of Canada and, for the reasons which I have set out, it is my opinion that this Court's judgment in Leary ought not to be overruled. I must re‑emphasise that the Leary rule does not relieve the Crown from its obligation to prove the mens rea in a general intent offence. The fact that an accused may not rely on voluntary intoxication in such offences does not have that effect because of the nature of the offence and the mental elements which must be shown. The requisite state of mind may be proved in two ways. Firstly, there is the general proposition that triers of fact may infer mens rea from the actus reus itself: a person is presumed to have intended the natural and probable consequences of his actions. For example, in an offence involving the mere application of force, the minimal intent to apply that force will suffice to constitute the necessary mens rea and can be reasonably inferred from the act itself and the other evidence. Secondly, in cases where the accused was so intoxicated as to raise doubt as to the voluntary nature of his conduct, the Crown may meet its evidentiary obligation respecting the necessary blameworthy mental state of the accused by proving the fact of voluntary self‑induced intoxication by drugs or alcohol. This was the approach suggested in Majewski. In most cases involving intoxication in general intent offences, the trier of fact will be able to apply the first proposition, namely, that the intent is inferable from the actus reus itself. As Fauteux J. observed in R. v. George, supra, at p. 879, it is almost metaphysically inconceivable for a person to be so drunk as to be incapable of forming the minimal intent to apply force. Hence, only in cases of the most extreme self‑intoxication does the trier of fact need to use the second proposition, that is, that evidence of self‑induced intoxication is evidence of the guilty mind, the blameworthy mental state.
76. The result of this two‑fold approach is that for these crimes accused persons cannot hold up voluntary drunkenness as a defence. They cannot be heard to say: "I was so drunk that I did not know what I was doing". If they managed to get themselves so drunk that they did not know what they were doing, the reckless behaviour in attaining that level of intoxication affords the necessary evidence of the culpable mental condition. Hence, it is logically impossible for an accused person to throw up his voluntary drunkenness as a defence to a charge of general intent. Proof of his voluntary drunkenness can be proof of his guilty mind.
77. As I have endeavoured to show, the exclusion of the drunkenness defence in general intent cases is not without logical underpinnings but, whatever the logical weaknesses may be, an overwhelming justification for the exclusion may rest on policy, policy so compelling that it possesses its own logic. Intoxication, whether by alcohol or drugs, lies at the root of many if not most violent assaults: intoxication is clearly a major cause of violent crime. What then is preferable, a recognition of this fact and the adoption of a policy aimed at curbing the problem, or the application of what is said to be logic by providing in law that he who voluntarily partakes of that which is the cause of the crime should for that reason be excused from the consequences of his crime? If that is logic, I prefer policy.
78. It was argued by the appellant that the Leary rule converts the offence of sexual assault causing bodily harm into a crime of absolute liability in that the Crown need not prove the requisite intention for the completion of the offence. Therefore, it is said that Leary violates ss. 7 and 11(d) of the Charter. In Re B.C. Motor Vehicle Act,  2 S.C.R. 486, and in R. v. Vaillancourt,  2 S.C.R. 636, it was held that the requirement for a minimum mental state before the attachment of criminal liability is a principle of fundamental justice. Criminal offences, as a general rule, must have as one of their elements the requirement of a blameworthy mental state. The morally innocent ought not to be convicted. It is said that the Leary rule violates this fundamental premise. In my opinion, the Leary rule clearly does not offend this essential principle of criminal law but rather upholds it. The Leary rule recognizes that accused persons who have voluntarily consumed drugs or alcohol, thereby depriving themselves of self‑control leading to the commission of a crime, are not morally innocent and are, indeed, criminally blameworthy. While the rule excludes consideration of voluntary intoxication in the approach to general intent offences, it nonetheless recognizes that it may be a relevant factor in 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. It therefore intrudes upon the security of the person only in accordance with sound principle and within the established boundaries of the legal process. For these reasons, I would say that the Charter is not violated.
79. In the High Court of Australia in the case of O'Connor (1980), 4 A. Crim. R. 348, the court reached a different conclusion and its view has found favour in the judgment of the Chief Justice. I have tried to set out my reasons for rejecting the approach in the O'Connor case. I have done so on the basis that the existing law, resting on a recognition of the distinction between the general and specific intent, has not only served our society well but is not divorced from logical support and is based on sound policy. The present law has long been settled and applied in the United Kingdom. It has been accepted as well in Canada and has general support in the United States and up until the O'Connor case, as far as I have been able to ascertain, has been followed in both Australia and New Zealand. It has, in other words, embraced the greater part of the common law world. For this reason and those earlier outlined, I would not overrule the judgment of this Court in Leary and I would confirm the law as it presently stands. Parliament at some time in the future may intervene in the matter with such statutory provisions as it may consider appropriate but failing that occurrence I would not enlarge the defence of drunkenness, and I do not consider that the suggestion that juries may decline to give effect to such an enlarged defence is a factor to be urged in its favour.
80. I would therefore conclude that the courts below made no error and I would dismiss the appeal.
81. In any event, should it be considered that I am wrong in my approach to the Leary case, this is nonetheless a case in which the provisions of s. 613(1)(b)(iii) of the Criminal Code should be applied. The Court of Appeal, reaching the conclusion that it did, did not find it necessary to consider this question. The issue, however, was raised by the respondent Crown in its factum. The trial judge found no evidence of drunkenness, except the statement of the appellant made to the police before trial. The appellant himself did not see fit to give evidence at the trial. The trial judge in addressing the jury made the following statement:
You heard the evidence of the police officers and of the complainant of the condition of the accused with respect to drink. None of them say that he was drunk. Only the accused in his statement says "I was all drunked up too". There was no evidence of drunkenness except that statement and it is open to you to accept it and find that he was drunk but even if he was drunk drunkenness is no defence to the charge alleged against this accused. It is no defence.
It is my view that there is no sufficient evidence of drunkenness to form any basis whatever for the defence of drunkenness. I can only conclude after reviewing the evidence that even if the exclusion of the evidence of drunkenness was an error on the part of the trial judge, no substantial wrong or miscarriage of justice has occurred in this case and the verdict of the jury would necessarily have been the same, even if the evidence of drunkenness had not been excluded from the jury's consideration. Acting under the powers given in s. 623(1) of the Code, I would apply the proviso, dismiss the appeal, and confirm the conviction.
The reasons of Wilson and L'Heureux‑Dubé JJ. were delivered by
82. Wilson J.‑‑I have had the benefit of the reasons of the Chief Justice and of my colleagues McIntyre and La Forest JJ. I agree with McIntyre J. for the reasons given by him that sexual assault causing bodily harm is an offence of general intent requiring only the minimal intent to apply force. I agree with him also that in most cases involving general intent offences and intoxication the Crown will be able to establish the accused's blameworthy mental state by inference from his or her acts. I think that is the case here. The evidence of intoxication withheld from the trier of fact in this case could not possibly have raised a reasonable doubt as to the existence of the minimal intent to apply force. It is accordingly not necessary in this case to resort to self‑induced intoxication as a substituted form of mens rea. And, indeed, I have some real concerns as to whether the imposition of criminal liability on that basis would survive a challenge under the Canadian Charter of Rights and Freedoms.
83. The facts are fully set out in the reasons of the Chief Justice and I refer to them only to underline why I agree with my colleague, McIntyre J., that the rule in Leary v. The Queen,  1 S.C.R. 29, should be preserved and applied in this case.
84. Sexual assault is a crime of violence. There is no requirement of an intent or purpose beyond the intentional application of force. It is first and foremost an assault. It is sexual in nature only because, objectively viewed, it is related to sex either on account of the area of the body to which the violence is applied or on account of words accompanying the violence. Indeed, the whole purpose, as I understand it, of the replacement of the offence of rape by the offence of sexual assault was to emphasize the aspect of violence and put paid to the benign concept that rape was simply the act of a man who was "carried away" by his emotions.
85. The appellant in his statement to the police admitted that he had forced the complainant to have sexual intercourse with him but claimed that because of his drunkenness he did not know why he had done this and that when he realized what he was doing he "got off" the complainant. There was evidence that the appellant had punched the complainant twice with his closed fist and had threatened to kill her. The doctor who examined the complainant testified that the complainant's right eye was swollen shut and that three stitches were required to close the wound. It is clear from this that there was intentional and voluntary, as opposed to accidental or involuntary, application of force.
86. The evidence of the appellant's intoxication consisted of his own statements to the police that he was drunk; the complainant's testimony that, while the appellant was acting out of character in making advances to her, he was able to walk, talk and put albums on the record player; a friend's testimony that prior to the incident the appellant had been drinking at a bar and had become "very rowdy" although still capable of talking and walking straight. By his own admission the appellant had sufficient wits about him after the violent assault to hide a bloodied towel and pillowcase from the police. There is no evidence that we are dealing here with extreme intoxication, verging on insanity or automatism, and as such capable of negating the inference that the minimal intent to apply force was present: see R. v. Swietlinski (1978), 44 C.C.C. (2d) 267 (Ont. C.A.), at p. 294, aff'd  2 S.C.R. 956. The evidence of intoxication in this case was simply not capable of raising a reasonable doubt as to the existence of the minimal intent required. In this I agree with McIntyre J.
87. I am less confident about the proposition accepted by my colleague that self‑induced intoxication may substitute for the mental element required to be present at the time the offence was committed although I realize that there are statements in judgments of this Court to that effect. I do not believe, however, that the Court has clearly adopted that proposition. The decision of the House of Lords in Director of Public Prosecutions v. Majewski,  A.C. 443, may stand for the rather harsh proposition that even self‑induced intoxication producing a state of automatism cannot constitute a defence to an offence of general intent such as assault but I doubt that our Canadian jurisprudence goes that far.
88. For example in R. v. George,  S.C.R. 871, Fauteux J. in holding the evidence of intoxication in that case not to be relevant in determining the minimal intent required for an assault conviction took care to note at pp. 878‑79:
There can be no pretence, in this case, that the manner in which force was applied by respondent to his victim was accidental‑‑excluding at the moment, from the consideration, the defence of drunkenness‑‑unintentional.
On this finding of fact, the accused was guilty of common assault unless there was evidence indicating a degree of drunkenness affording, under the law, a valid defence.
Hence, the question is whether, owing to drunkenness, respondent's condition was such that he was incapable of applying force intentionally. I do not know that, short of a degree of drunkenness creating a condition tantamount to insanity, such a situation could be metaphysically conceived in an assault of the kind here involved. It is certain that, on the facts found by the trial Judge, this situation did not exist in this case.
Likewise Ritchie J. concluded at pp. 890‑91:
The fact that the learned trial judge found, as I think he did, that the respondent had "violently manhandled" an old man but was not guilty of assault because he was drunk at the time raises the question of law posed by the appellant as to whether, under the circumstances as found by the trial judge, drunkenness is a valid defence to common assault.
In considering the question of mens rea, a distinction is to be drawn between "intention" as applied to acts done to achieve an immediate end on the one hand and acts done with the specific and ulterior motive and intention of furthering or achieving an illegal object on the other hand. Illegal acts of the former kind are done "intentionally" in the sense that they are not done by accident or through honest mistake, but acts of the latter kind are the product of preconception and are deliberate steps taken towards an illegal goal. The former acts may be the purely physical products of momentary passion, whereas the latter involve the mental process of formulating a specific intent. A man, far advanced in drink, may intentionally strike his fellow in the former sense at a time when his mind is so befogged with liquor as to be unable to formulate a specific intent in the latter sense.
The decision of the learned trial judge, in my opinion, constitutes a finding that the respondent violently manhandled a man and knew that he was hitting him. Under these circumstances, evidence that the accused was in a state of voluntary drunkenness cannot be treated as a defence to a charge of common assault because there is no suggestion that the drink which had been consumed had produced permanent or temporary insanity and the respondent's own statement indicates that he knew that he was applying force to the person of another.
89. In Leary, supra, although Pigeon J. categorically stated at p. 57 that because rape was an offence of general intent it was "therefore a crime in which the defence of drunkenness can have no application", he went on to say that he was obliged to determine whether on the facts of the case the application of the law would result in a miscarriage of justice. In order to do this he addressed the question whether there was evidence that the accused was so intoxicated that he could not form a criminal intent and concluded at pp. 59‑60:
Therefore, in the circumstances, although it is not strictly necessary in view of my conclusion on the question of law, I wish to say that, even if I held a different view, I would have to hold that in the instant case there was no evidence that the accused was drunk to such a degree as to be incapable of forming the intent to commit rape. Here is what Bull J.A. said:
The evidence was clear that the appellant was intoxicated (as was the boy friend Lesley) but there was no suggestion that he was in such a drunken condition either that he did not know what he was doing or that he would not appreciate that his menacing use of the knife, combined with this insistence on sexual intercourse, extorted submission or consent to the act. The appellant's position, as voluntarily made to the police, was merely that he "started petting" with her, removed her tampax for her and had intercourse. The whole statement was clear and concise as to the event and details and negated any such drunken condition.
I do not think that the trial judge's remark indicates that he thought there was some evidence of drunkenness going to the extent of an inability to form a criminal intent. (Assuming this is at all possible in a rape case, see Glanville L. Williams, The Mental Element in Crime (1965), p. 47.) In my opinion, the trial judge merely wanted to guard against the erroneous view that mere drunken condition could be a defence.
90. I believe that the Leary rule is perfectly consistent with an onus resting on the Crown to prove the minimal intent which should accompany the doing of the prohibited act in general intent offences. I view it as preferable to preserve the Leary rule in its more flexible form as Pigeon J. applied it, i.e., so as to allow evidence of intoxication to go to the trier of fact in general intent offences only if it is evidence of extreme intoxication involving an absence of awareness akin to a state of insanity or automatism. Only in such a case is the evidence capable of raising a reasonable doubt as to the existence of the minimal intent required for the offence. I would not overrule Leary, as the Chief Justice would, and allow evidence of intoxication to go to the trier of fact in every case regardless of its possible relevance to the issue of the existence of the minimal intent required for the offence.
91. It was argued by the appellant and indeed accepted by the Chief Justice in his reasons that the Leary rule converts the offence of sexual assault causing bodily harm into a crime of absolute liability in that the Crown need not prove any mental element. This is said to offend s. 7 of the Charter as interpreted in Re B.C. Motor Vehicle Act,  2 S.C.R. 486 and in R. v. Vaillancourt,  2 S.C.R. 636. With all due respect to those who think differently I do not believe that the Crown is relieved from proving the existence of the required minimal intent by the operation of Leary. In R. v. Sault Ste. Marie,  2 S.C.R. 1299, Dickson J., as he then was, stated at p. 1310:
In sharp contrast, "absolute liability" entails conviction on proof merely that the defendant committed the prohibited act constituting the actus reus of the offence. There is no relevant mental element. It is no defence that the accused was entirely without fault. He may be morally innocent in every sense, yet be branded as a malefactor and punished as such.
When the Leary rule is applied in this case the Crown must still prove beyond a reasonable doubt the existence of the required mental element of the intentional application of force. The offence cannot be said to be one of absolute liability in the sense that no mental element has to be proved in order to obtain a conviction. As Alan Mewett and Morris Manning write in Criminal Law (2nd ed. 1985), at p. 210:
The courts are not saying that crimes of general or basic intent do not require mens rea. Rather they are saying that those crimes have a mens rea of a type directed solely to the present and that drunkenness is not sufficient to negate that type of thought process.
Similarly, Glanville Williams argues in his Textbook of Criminal Law (2nd ed. 1983), at pp. 475‑76, that it is a misunderstanding to read even Majewski, supra, as transforming general intent offences into absolute liability offences because "even on a charge of a crime of basic intent the jury must have regard to all the evidence except the evidence of intoxication in determining the defendant's intention." In short, when evidence of intoxication is withheld from the jury, the Crown still bears the burden of proving a blameworthy state of mind.
92. It was also argued by the appellant and accepted by the Chief Justice that the application of the Leary rule violates s. 11(d) of the Charter by allowing an accused to be convicted even although the trier of fact might well have a reasonable doubt as to the existence of the essential mental element of the offence or as to the availability of a defence which could raise a reasonable doubt as to the guilt of the accused: see Vaillancourt, supra; R. v. Whyte,  2 S.C.R. 3. Again I find myself in respectful disagreement with the Chief Justice and the appellant on this issue. To my mind, the operation of the Leary rule in this case does not have that result because the Crown still must prove that the accused applied force intentionally and the evidence of intoxication is withheld from the jury only because it is incapable of raising a reasonable doubt as to the accused's guilt. This is not a case in which self‑induced intoxication is being resorted to as a substituted mens rea for the intentional application of force.
93. It is, in my view, not strictly necessary in this case to address the constitutionality of substituting self‑induced intoxication as the mens rea for the minimal mens rea requirements of general intent offences. The issue would, in my view, only arise in those rare cases in which the intoxication is extreme enough to raise doubts as to the existence of the minimal intent which characterizes conscious and volitional conduct. However, as both the Chief Justice and McIntyre J. have addressed the issue, I will express my own somewhat tentative views upon it.
94. This Court has affirmed as fundamental the proposition that a person should not be exposed to a deprivation of liberty unless the Crown proves the existence of a blameworthy or culpable state of mind: see Re B.C. Motor Vehicle Act, supra, at pp. 513‑20. It does not follow from this, however, that those who, through the voluntary consumption of alcohol or drugs incapacitate themselves from knowing what they are doing, fall within the category of the "morally innocent" deserving of such protection. This is not to say that such persons do not have a right under ss. 7 or 12 of the Charter to be protected against punishment that is disproportionate to their crime and degree of culpability: see Re B.C. Motor Vehicle Act, supra, at pp. 532‑34; R. v. Smith (Edward Dewey),  1 S.C.R. 1045. They do, especially if the consequences of their becoming intoxicated were not intended or foreseen.
95. The real concern over the substituted form of mens rea arises, it seems to me, under s. 11(d) of the Charter. While this Court has recognized that in some cases proof of an essential element of a criminal offence can be replaced by proof of a different element, it has placed stringent limitations on when this can happen. In Vaillancourt, supra, Lamer J. said at p. 656:
Finally, the legislature, rather than simply eliminating any need to prove the essential element, may substitute proof of a different element. In my view, this will be constitutionally valid only if upon proof beyond reasonable doubt of the substituted element it would be unreasonable for the trier of fact not to be satisfied beyond reasonable doubt of the existence of the essential element. If the trier of fact may have a reasonable doubt as to the essential element notwithstanding proof beyond a reasonable doubt of the substituted element, then the substitution infringes ss. 7 and 11(d).
In Whyte, supra, the Chief Justice approved the above statement at pp. 18‑19 and added:
In the passage from Vaillancourt quoted earlier, Lamer J. recognized that in some cases substituting proof of one element for proof of an essential element will not infringe the presumption of innocence if, upon proof of the substituted element, it would be unreasonable for the trier of fact not to be satisfied beyond a reasonable doubt of the existence of the essential element. This is another way of saying that a statutory presumption infringes the presumption of innocence if it requires the trier of fact to convict in spite of a reasonable doubt. Only if the existence of the substituted fact leads inexorably to the conclusion that the essential element exists, with no other reasonable possibilities, will the statutory presumption be constitutionally valid.
In my tentative view, it is unlikely that in those cases in which it is necessary to resort to self‑induced intoxication as the substituted element for the minimal intent, proof of the substituted element will "inexorably" lead to the conclusion that the essential element of the minimal intent existed at the time the criminal act was committed. But I prefer to leave this question open as it is unnecessary to decide it in order to dispose of this appeal.
96. I agree with my colleagues McIntyre and La Forest JJ. that, had there been error in the court below, no substantial wrong or miscarriage of justice resulted from it and that it would accordingly be appropriate to apply s. 613(1)(b)(iii) of the Criminal Code. I would dismiss the appeal.
The following are the reasons delivered by
97. La Forest J.‑‑I have had the advantage of reading the opinions prepared by the Chief Justice and Justice McIntyre. The requirement of mens rea in truly criminal offences is, as the Chief Justice has demonstrated, so fundamental that it cannot, since the Canadian Charter of Rights and Freedoms, be removed on the basis of judicially‑developed policy. It would be anomalous if the courts could infringe such a fundamental right on the basis of such policies when not demonstrated to be essential, while any attempt by Parliament to do so would be subjected to searching scrutiny under s. 1 as established by this Court.
98. In my dissenting reasons in R. v. Landry,  1 S.C.R. 145, at p. 187, I set forth my views regarding the general issue posed here. I there observed that in the changed constitutional environment brought about by the Charter, if incursions are to be made upon fundamental legal values, it is for Parliament to do so, not the courts. It is the duty of Parliament to respond to the challenge of criminal activities. While the courts must sensitively consider actions taken by Parliament for the protection of the public generally, they must be forever diligent to prevent undue intrusions on our liberty. The courts are the protectors of our rights. It does not sit well for them to make rules intruding on fundamental rights even when this may appear to them to be desirable in a properly balanced system of criminal justice. That is Parliament's work. I added, at p. 189 of Landry:
If Parliament in its wisdom finds it necessary to adjust the balance, it can do so. It is in a better position to provide for the precise balance and has a far better access to the knowledge required to achieve that balance than the courts. The courts can then perform their duty of scrutinizing Parliament's laws both in their general tenor and in their particular application to safeguard our traditional values.
99. Established common law rules should not, it is true, lightly be assumed to violate the Charter. As a repository of our traditional values they may, in fact, assist in defining its norms. But when a common law rule is found to infringe upon a right or freedom guaranteed by the Charter, it must be justified in the same way as legislative rules. No adequate justification was made here.
100. Accordingly, I am in general agreement with the law as stated by the Chief Justice. However, I agree with McIntyre J. that on the particular facts of this case no substantial wrong or miscarriage of justice has occurred and it is, therefore, a proper case to apply s. 613(1)(b)(iii) of the Criminal Code. For this reason, I would dispose of the case in the manner proposed by McIntyre J.
Appeal dismissed, Dickson C.J. and Lamer J. dissenting.
Solicitors for the appellant: Ruby & Edwardh, Toronto.
Solicitor for the respondent: The Attorney General for Ontario, Toronto.