Can Intoxication be Used in Criminal Defence?

Before reading anything else, you must understand that Impairment in a Criminal Context is a very complex, dynamic, and rapidly changing area of the law. Parliament has very recently set a new standard of when an intoxication defence can and can’t be used. All information below is accurate as of July 2024, however there is a chance by the time you read this that the law may have already changed. That is why if you have been charged with a criminal offence and you feel impairment or intoxication is relevant to your charges, please call us at (905) 541-2228 for a free consultation.

Intoxication and the Law

The influence that drugs and alcohol have on an individual can sometimes lead to them making decisions that they otherwise would not have. But can being impaired be a defence available in court? The answer is incredibly dependent on the context of your charges and level of impairment.

To understand how impairment can be used as a criminal defence, we first need to understand an important difference in Criminal Law, General Intent Offences and Specific Intent Offences.

Specific Versus General Intent Crimes

General intent crimes are crimes where the action itself make up the elements of the crime. For example, for driving under the influence, if you are driving under the influence, you are committing a crime. It is irrelevant whether or not you had the intention to be under the influence or to drive while under the influence. This is a general intent crime because while the crown still has to show you were aware of your actions, your intentions behind your actions are mostly irrelevant. 

Specific intent crimes involve not only the act itself, but also the specific intent to cause a specific result. For example, with First Degree Murder, harming someone causing their death on its own, is merely the charge of Manslaughter. First Degree Murder, however, requires the crown to prove the killing happened, but also that the accused had the specific intent to kill the victim. 

With this established, we also need to understand that not all intoxication is the same. Canadian Law has recognized three categories of Intoxication. 

  1. Mild Intoxication
  2. Advanced Intoxication
  3. Extreme Intoxication

Mild Intoxication Under Canadian Law

Mild intoxication is when an individual may be under the influence, but the evidence shows that the individual was still in control of their thoughts and actions and there is no doubt that they would still be able to form intentions. Say after a few beers, the court recognizes that you were intoxicated, but that you still would have been in control of your actions and intentions. 

As explained in R. v Tatton (2015), mild intoxication is not a defence to any crime. Where it can be relevant however is the judge is allowed to consider when an accused was intoxicated, albeit mildly, when it comes to their sentencing if found guilty. A judge may elect to grant a more lenient sentence if they were intoxicated but there is no guarantee, and it is completely down to the judge’s own discretion. 

Advanced Intoxication Under Canadian Law

Advanced Intoxication has been defined in R v Daley as “intoxication to the point where the accused lacks the specific intent, to the extent of an impairment of the accused’s foresight of the consequences of his or her act sufficient to raise a reasonable doubt about the requisite mens rea”.

In simpler terms, what the court is saying is advanced intoxication is when you are still in control of your actions but you’re now at the point where you might not be able to think your actions through enough to consider what consequences they may have. 

This is where the distinction between general intent offences and specific intent offences becomes relevant. Daley explains that advanced intoxication can never be used as a defence in general intent crimes, but they can be relevant to specific intent crimes. If the court finds that an individual could not have foreseen the consequences of their own actions, then the mental element of the crime may not be proven by the Crown, and a lesser charge of a general intent offence will likely be imposed. For example, a 1st degree murder charge may be dropped down to a manslaughter charge, or a Burglary charge may be dropped down to a Break and Enter.  

Extreme Intoxication Under Canadian Law

Extreme Intoxication as originally put in R. v. Daviault (1994) requires intoxication that is “akin to automatism”. What that means is to claim extreme intoxication, the court has to have deemed you based on the evidence to have had no control over your mind and body. In recent years, Extreme Intoxication has only been allowed for cases using a mix of alcohol and heavy hallucinogenic drugs like Magic Mushrooms as observed in R v Brown (2022). 

Extreme intoxication has a similar effect on specific intent crimes as Advanced intoxication, but the big differentiating factor to Advanced intoxication, is that Extreme Intoxication can be allowed as a defence for general intent crimes. Or at least in theory.

After the ruling in Brown, Parliament added that in order to use an extreme intoxication defence for general intent crimes, the accused must show they did not markedly depart “from the standard of care expected of a reasonable person in the circumstances with respect to the consumption of intoxicating substances”. Basically, you can’t have done anything that a reasonable person would not have done in getting to the level of intoxication that you were in to lose full control of your body.

The Courts as of the writing of this post have not determined yet what they will consider to be the standard of care expected. Parliament says that the court can consider how foreseeable was the risk of losing control and what measures did the accused take to avoid getting to that level of intoxication despite it occurring anyway. But until the court system directly engages with this new addition to the relevant Statute, there is no way to say for sure when the defence can and cannot be used for general intent offences. 

Collett Read LLP’s Expertise on Canadian Criminal Intoxication Charges

As you can likely tell, this is a very complicated area of the law. In order to successfully raise an intoxication-related defence, you need a team of highly skilled and talented lawyers on your side. Collett Read LLP has extensive experience in this area of the law, whether its public behaviour or while operating a vehicle. 

Do not hesitate to contact us for a free confidential consultation through our contact page or call us at (905) 541-2228.