Can drunkenness be used as a defence?

An Ontario judge in November 2000 ruled that it is unconstitutional to deny an accused the right to use the defence that he was too drunk to know what he was doing. The ‘being too drunk’ defence is normally not permitted for violent crimes in Canada. But the judge in an aggravated assault case declared the Criminal Code provision to be unconstitutional. It was the first time a judge had accepted the drunkenness defence since 1995. That's the year when an amendment to the Criminal Code was passed because of a public outcry over its use in rape cases in the past. The ruling by the judge however is not binding on other judges but could be cited in other later cases.

The case involved a Langton, Ontario man accused in the beating of another Langton man in July 1998. The victim remains in a chronic care facility and needs help with basic day-to-day tasks. The accused was charged with aggravated assault. The accused's former girlfriend testified that before the attack, the pair consumed two cases of beer and a bottle of tequila. An expert on the effects of alcohol who testified at the trial said it is unlikely that someone could be so drunk that they have no idea what they are doing. He testified that someone may forget what they did after drinking too much, but would still be lucid at the time they committed the crime.

In August, 2006, Saskatchewan's highest court upheld the murder conviction of a 26-year-old Regina man who said he was too drunk to know what he was doing — although one Appeal Court justice thought he deserved a new trial. Wayne Joseph Daley was convicted of the second-degree murder of 23-year-old Teanda Manchur, his common law wife. She was found stabbed to death in the couple's home in April 2004. Daley was sentenced to life in prison without parole eligibility for 14 years.

Daley's lawyer argued his client had more than 30 alcoholic drinks and had no memory of his actions. He subsequently asked Saskatchewan's Court of Appeal to overturn his conviction and sentence. He argued that the Queen's Bench trial judge, did not adequately instruct the jury about the defence of drunkenness, it being ‘the concept of reasonable doubt’ and ‘the capacity to form intent to murder’ while in a drunken state of mind.

Two of the Appeal Court judges agreed with the Crown’s position that the trial judge did properly instruct the jury. However, a third judge dissented and said the trial judge failed to direct the jury to the evidence that Daley was extremely drunk. He said that the judge also failed to properly define the capacity to form the criminal intent to commit the murder.

Noa Nadruka, an Australian player for the Rugby club, Canberra Raiders was charged with assault. The magistrate heard that Nadruka, following a bout of heavy drinking, allegedly assaulted two women outside a Canberra night-club. Nothing unusual about that, you might say – if anything, it bears an unfortunate resemblance to any number of previous unsavory episodes involving inebriated sportsmen. But in this case there’s a twist in the tail – despite evidence to substantiate the charge. The footballer was acquitted!

Here are the facts. In October, 1997, the magistrate heard evidence that Nadruka had been drinking for 11 hours before the incident, so it is not surprising that Nadruka claimed to have no memory of the alleged assault, or probably anything else that happened that day, especially considering the amount of alcoholic beverage he drank prior to the assault.

Here is his defence. Nadruka raised the so-called ‘drunk’s defence’. This means he claimed to have been so drunk that he did not know what he was doing when he allegedly assaulted the women, and for this reason, he should therefore not be responsible for his actions. This is not as absurd as it seems, because it is based on the established principle of criminal law that all elements (or parts) of a crime have to be proved before a defendant can be found guilty. And one of those elements is ‘criminal intent’.

In a charge like assault, the prosecution has to prove, beyond a reasonable doubt, that the defendant committed the offence and ‘intended’ to commit it. In 1980 the High Court decided that evidence of drunkenness could be used by a defendant to show that they did not have the proper intent – it was therefore open to Nadruka to claim they he was so affected by alcohol that he did not have the necessary intent. Obviously he had to have consumed an enormous amount of alcohol to use this defence.

This is the position under common law; that is, laws that are made by judges, as opposed to legislation that is passed by parliaments. Some of the states in Australia have passed legislation to abolish this common law defence; however, the states of Victoria, South Australia and Australia’s Capital Territory (Canberra and immediate surrounding area) have not done this.

In the United Kingdom, the highest courts have refused to endorse this defence because they say it is not in the best interests of the public. In Canada, a 1995 law banned the use of extreme drunkenness as a defence to violent crimes, a response to a decision of the Supreme Court of Canada that was similar to the High Court’s decision in Australia. Canadian Justice Minister Allan Rock, in a comment that probably makes sense to most fair-minded people, said at the time, "We wanted to send a message that people have to be held responsible for their criminal conduct even if they intoxicate themselves voluntarily."

Let me tell you why the Canadian minister of justice decided to amend the criminal code so that drunkenness could no longer be used as a defence.

Sometime during September, 1994, I became aware of a Canadian criminal case where the defendant’s lawyer had argued that his client was in such a deep state of intoxication, he couldn’t have formed the intent to sexually assault the complainant. Further research brought me to the conclusion that this was a common defence in similar trials in earlier cases.

For a person to commit the offence of sexual assault or any other offence for that matter on his own volition, that person must not be coerced into committing the crime (such as having a gun pointed at his head) and not be so impaired (either by alcohol or drugs) that he was not able to form any intent to do anything whatsoever.

In that criminal case, the trial judge convicted the defendant whose lawyer had raised the defence of drunkenness as a mitigating factor. The defendant’s lawyer claimed that the accused had no recollection of the event. The crown submitted in his argument that the court should not regard self-induced intoxication as a mitigating factor. The judge agreed and so did I when I read the decision.

Up to then, there was no legislation in the Canadian criminal code that actually addressed that kind of defence. I was convinced in my mind that unless someone surreptitiously slipped a drug into someone’s drink that would render him so drunk, he couldn’t know what he was doing, that defence should be legislated away as a defence to a criminal charge.

I realized that since I wasn’t a member of parliament, I couldn’t bring in a bill to accomplish that aim, therefore the only way I could really bring the issue to the attention of parliament, and more specifically, the minister of justice, was to write an article on the subject and hopefully get it published in one of the three national newspapers in Canada. Well, as it turned out, the Globe and Mail published my article on October 6, 2004 and actually paid me $200.00 for it. They titled the article, “A Drunk is responsible for his own actions.” That is what I had conveyed in the article.

In the article, I said in part; “It is not an adequate defence to say that a man’s mind is affected by alcohol that he readily gives way to a violent passion or crime.” I also asked a rhetorical question. “If a person purposely consumes alcohol to such an extent that he subsequently becomes seriously impaired and as such, cannot form a criminal intent, should he be acquitted of a crime he committed while in that state?”

As an example; suppose a man took a loaded automatic rifle onto a busy street while he was seriously intoxicated, and then began shooting at everyone on the street that he could see. Is his defence that he was too drunk to really appreciate what he was doing, a valid defence that should result in him being acquitted of the crime of manslaughter if anyone was killed? The answer is no. Surely he would understand that aiming a loaded automatic rifle at people on the street and pulling the trigger of the rifle would result in injuries or death to those he was shooting at.

In my article, I said, “The accused’s mind does not have to be completely blank in order for him to be acquitted. Evidence of drunkenness that renders an accused incapable of forming a specific intent essential to commit a crime has to be taken into consideration as grounds for an acquittal.

For example, I doubt that any intoxicated man who for the most part is raping or otherwise sexually assaulting a woman doesn’t have the ability to form the intent to do so, not matter how intoxicated he is. His inhibition may be lowered but he still has the criminal intent to do the dirty deed. If he is really loaded, so to speak, where he can’t even stand up properly and stumbles repeatedly onto the ground, then I would willingly accept the premise that he probably wouldn’t have the ability to form the intent in his mind to approach the woman for the purpose of raping her. Mind you, while in that state, he might think that he is in bed with his wife and is merely doing what he thinks is his conjugal duty to her but that is really a stretch of the imagination so I am not going to go there.

In the case of a man walking down the street in a drunken state of mind, if his mind was functioning enough to give him the ability to load the gun and then pull the trigger while aiming it at people on the street, he had the criminal intent to injure or kill them or at the barest minimum, scare them.

In my article, I quoted a judge in a famous case heard in England in 1881 in which the judge said in part; “Nobody must suppose that drunkenness is any kind of an excuse for a crime. If this man had been raging drunk and killed his sister-in-law, he would have stood at the bar and been found guilty of murder.”

However, we went on to say that; “Drunkenness is one thing, but the diseases to which drunkenness leads are different things and if a man by drunkenness brings on a state of disease which causes such a degree of madness which would have relieved him from responsibility if it had been caused by any other way, then he would not be criminally responsible.” I think what he was saying was that if the man had previously been insane and then got seriously drunk, thereby causing him to re-enter that world of the insane, he would not be held responsible for the crime of murder or any other crime he might commit while he was in that state. Incidentally, the accused in that case was found insane and was confined in a hospital for the criminally insane.

In my article I said, “The actions of a person who drinks himself into a near stupor is acting in a reckless manner and if he commits a crime while in that state. He should be considered ‘criminally reckless.”

In Canada, if a man who is driving a vehicle while his ability to drive is impaired by alcohol or drugs, and he kills someone as a result of the accident he caused, he can be convicted of criminal negligence causing death. That also applies to causing injuries too. That has been in the code for a very long time. I suppose what I was hoping for was a new section in the code being added, to wit; criminal recklessness causing death or injury. I suppose there isn’t a big leap between negligence and recklessness.

The Hon. Allan Rock, the Canadian minister of justice decided in the month after my article was published, to add a new criminal offence in the code that addressed my concerns and the concerns of many others. I refer you to the additional offence. It is as follows.

33.1 (1) It is not a defence to an offence referred to in subsection (3) that the accused, by reason of self-induced intoxication, lacked the general intent or the voluntariness required to commit the offence, where the accused departed markedly from the standard of care as described in subsection (2).

(2) For the purposes of this section, a person departs markedly from the standard of reasonable care generally recognized in Canadian society and is thereby criminally at fault where the person, while in a state of self-induced intoxication that renders the person unaware of, or incapable of consciously controlling, their behaviour, voluntarily or involuntarily interferes or threatens to interfere with the bodily integrity of another person.

(3) This section applies in respect of an offence under this Act or any other Act of Parliament that includes as an element, an assault or any other interference or threat of interference by a person with the bodily integrity of another person.

What this means in its simplest terms is, if you threaten to punch someone in the nose and you are charged with threatening, (a criminal offence) you’re claiming that you did know what you were saying because you were drunk, that defence will not get you any sympathy from the judge at all. If you had the ability to form a sentence that clearly implied that you were going to punch the man in the nose, you were not so drunk that you couldn’t form the criminal intent to make the threat.

I said in my article, “As I perceive it, anyone who drinks to such an excess (this would also apply to those who take drugs to excess) that he cannot appreciate the fact that he is committing a criminal act, should be held accountable for his actions. If this is true, then a man who rapes a woman while in a self-induced, semi-drunken stupor wouldn’t be guilty of rape but he certainly would be guilty of ‘criminal recklessness’ and as such, be subjected to severe sanctions such as imprisonment.”

I made that statement at a time before the new offence came into existence. Obviously with the new addition of section 331(1) into the Canadian criminal code, the person could still be convicted of rape (if that kind of charge still existed—which it doesn’t anymore since it was replaced with sexual assault)because he no longer has a defence involving severe intoxication available to him like it might have been in the past.

With respect to the 2000 case I placed in the beginning of this article, where an appeal was filed on the basis that the man’s constitutional rights were denied him because section 331(1) of the code was considered unconstitutional by his lawyer, I couldn’t find the decision of the Court of Appeal however I doubt that the appellant would have got a decision in his favour. Even if that section was unconstitutional, section one of the Charter permits the court to ignore the unconstitutionality of a section of the criminal code if in doing so, it is in the best interests of the general public.

So far, section 331(1) of the Canadian criminal code is still on the books and people who are charged with criminal offences and still think that claiming they were too drunk to know what they were doing is going to get them off, are getting about as much sympathy nowadays that a small fish gets from a Great White shark when it accidentally swims into the shark's jaws. The reaction of the court is not dissimilar. CRUNCH.