The Charter and intoxication: some observations on possible Charter challenges to an Act to Amend the Criminal Code (Self-Induced Intoxication), 1995, C-72

Abstract

When a person is accused of a criminal offense in Canada, a variety of basic rules come into play. These rules are part of what is more broadly considered to be the of which is articulated in the utterances of judges (common law), the Criminal Code and, more recently, the Charter of Rights and Freedoms. One of the functions of the Rule of Law, which is cherished as a foundation of a free and democratic society, is to make it very clear and certain under what circumstances people can be deprived of or have constraints placed upon their freedoms and rights. Over many years, in attempts to pin down the nature of these circumstances, successive legislatures and courts have required that when people are accused of offenses, certain conditions must be met in order to secure a legitimate conviction and to impose legitimate sanctions. Among these conditions are: 1. The accused must be shown to have committed an offense through the presentation of evidence by the prosecution. This condition is often referred to as the presumption of innocence, which is now enshrined as section 11 (d) of the Charter. Another aspect of this condition is that the burden of proof of an offense is upon the prosecution. 2. In certain types of offenses (usually the most serious), the accused must be shown to have possessed a certain state of mind at the time of the wrongdoing. This state of mind varies from one offense to another, but it may involve the demonstration of intention, recklessness or negligence. For example (and generally speaking), the crime of murder requires demonstration of to kill (among other things), while the crime of manslaughter requires only that the accused be indifferent or reckless as to the outcome of his or her actions. Offenses requiring proof of a particular state of mind to secure a conviction are often called specific intent offenses; those that do not require it are called intent offenses. Much controversy surrounds the rationality and usefulness of this distinction, but the point for present purposes is that when there is a requirement to prove a certain state of mind (the so-called principle of (mens rea or guilty mind), it is a right of the accused under section 7 of the Charter to have this element of the offense proved against him or her. Section 7 of the Charter says that no one shall be deprived of life, liberty or security of the person except in accordance with the principles of fundamental justice. Proof of requisite state of mind is a tenet of the principles of fundamental justice according to most judges and legal scholars. Charter issues raised by the intoxication defense The argument that intoxication cannot give rise to a defense to crimes of general (such as sexual assault) troubles some judges and legal scholars because they say it offends section 7 of the Charter and possibly section 11(d) also. By artificially limiting an accused person's right to claim lack of requisite state of mind because of intoxication is to fly in the face of the requirements of fundamental justice (s. …