This paper explains the impact on women--as victims/witnesses and as accused persons--of the Supreme Court of Canada's decision in R. v. Daviault' regarding the defense of intoxication. Prior to the decision in Daviault, the defense of intoxication was available for only one class of criminal offenses: those described as offenses (defined below). The defense was therefore absolutely barred for all other offenses, including sexual assault, manslaughter, and common assault. The effect of Daviault is to make a new defense, that of intoxication, available for all of these offenses. If successful, the defense means that men accused of sexual assault, wife assault, and femicide will be acquitted and not subject to any sanctions. This paper is divided into three sections. Section I gives an overview of the law of the intoxication defense and the impact of the Canadian Charter of Rights and Freedoms2 on the law and on the resulting Daviault decision. Section II analyzes the implications of Daviault for women who have been victimized by violent offenders and for women charged with criminal offenses. Section III provides a description and an assessment of options for reform of the law after Daviault, including those canvassed by the Department of Justice in its recodification project. I. The law of the intoxication defense A. Pre-Charter The early response of the criminal law in England to an accused's allegations that he should not be held responsible for a crime committed while intoxicated was unequivocally negative.3 In 1920 the English case of D.P.P. v. Beard4 established the intent/general classification that still survives in Canadian law today. This classification is anomalous in that it is applicable only to the law governing intoxication; it has no relevance to any other criminal law issue. The effect of this classification was to make voluntary intoxication available as a defense for certain crimes, those characterized as offenses, while still precluding intoxication as a defense for offenses. The Supreme Court of Canada has adopted, as part of Canadian common law, this understanding of the intoxication defense and the classification scheme, most notably in R. v. George,5 R. v. Leary,b and R. v Swietlinski.7 The law governing the intoxication defense applies whether the accused has abused alcohol, drugs, or some combination of the two.8 Specific intent offenses are, with some exceptions,9 those offenses where either the Criminal Code of Canada10 or the common law defines the mental element of the offense as one that is specifically focused on producing a particular consequence. The idea is that for such offenses, extreme intoxication could impair the accused's capacity to deliberately pursue a course of action intended to result in a particular outcome. For example, the following offenses have been put in the specific intent category by the judiciary: murder (requires proof of intention to cause the death of the victim),11 theft (requires proof of intent to deprive another permanently of his property),12 touching a child for a sexual purpose,13 uttering a threat to cause death,14 and using violence to overcome a victim's resistance.15 General intent offenses are those that have as their mental element an intent to commit the immediate act, without reference to producing any specific consequences. For these offenses, it is thought that the mental element is so minimal as to require only basic voluntariness, and that no amount of alcohol or drug consumption, short of insanity, could obliterate one's capacity to intend one's immediate physical movements. Alternatively, it has been stated by judges that the mental element involved in voluntarily incapacitating oneself is sufficiently blameworthy to allow it to be substituted for the mental element for general intent offenses. …
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