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 ‑‑ Breaking, entering and committing indictable offence ‑‑ 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. 306(1)(b).
Appellant was charged with and acquitted of breaking and entering and committing the indictable offence of assault causing bodily harm contrary to s. 306(1) (b) of the Criminal Code . There was considerable evidence that he had been quite drunk when he broke into complainant's apartment and assaulted her and that he was acting very much out of character. The only defence advanced was lack of intent due to appellant's voluntary consumption of alcohol. At trial, the offence charged was held to be one requiring proof of a specific intent and consequently the evidence of self‑induced intoxication was considered. The Court of Appeal overturned the acquittal on appeal and entered a conviction. At issue was whether or not the "defence" of drunkenness was available.
Held (Dickson C.J. and Lamer and La Forest JJ. dissenting): The appeal should be dismissed.
Per Beetz and McIntyre JJ.: The charge against the appellant, which was framed under s. 306(1) (b) of the Criminal Code , is one of general intent to which the defence of drunkenness does not apply.
Per Wilson and L'Heureux‑Dubé JJ.: The offence of breaking and entering and committing the indictable offence of assault causing bodily harm under s. 306(1) (b) of the Criminal Code is an offence of general intent. The evidence of drunkenness was not such as to be capable of negating the minimal intent required under s. 306(1)(b) or of raising a reasonable doubt. The rule in Leary should have been applied.
Per Dickson C.J. and Lamer and La Forest JJ. (dissenting): The distinction between specific and general intent should be abandoned and evidence of self‑induced intoxication should be taken into account where relevant to the issue of intent. The trial judge heard and correctly considered evidence of self‑induced intoxication and concluded in the light of all the evidence that there was a reasonable doubt as to the accused's intent to commit the offence.
Cases Cited
By McIntyre J.
Applied: R. v. George, [1960] S.C.R. 871; Leary v. The Queen, [1978] 1 S.C.R. 29; R. v. Bernard, [1988] 2 S.C.R. 833.
By Wilson J.
Applied: R. v. Bernard, [1988] 2 S.C.R. 833; Leary v. The Queen, [1978] 1 S.C.R. 29.
By Dickson C.J. (dissenting)
R. v. Campbell (1974), 17 C.C.C. (2d) 320; R. v. Bernard, [1988] 2 S.C.R. 833.
Statutes and Regulations Cited
Criminal Code, R.S.C. 1970, c. C‑34, s. 306(1)(a), (b), (c), (d), (e).
APPEAL from a judgment of the Ontario Court of Appeal (1983), 9 C.C.C. (3d) 94, allowing an appeal from acquittal by Pickett Prov. Ct. J. and entering a conviction. Appeal dismissed, Dickson C.J. and Lamer and La Forest JJ. dissenting.
J. David McCombs, for the appellant.
Ian A. MacDonnell, for the respondent.
The reasons of Dickson C.J. and Lamer and La Forest JJ. were delivered by
1. The Chief Justice (dissenting)‑‑This appeal has been brought to the Court on a single question of law, namely:
Did the Court of Appeal for the Province of Ontario, err in law in holding that the "defence" of drunkenness was not available to the appellant, Mark Edward Quin, on the charge alleged in the information before the learned Provincial Judge?
2. The information charges that Quin unlawfully did break and enter a certain place to wit a dwelling house situated at 20 The Maples, 100 Bain Avenue, Toronto, Ontario, and did commit therein the indictable offence of assault causing bodily harm contrary to the Criminal Code, R.S.C. 1970, c. C‑34.
I
Facts
3. The complainant had ended her relationship with the appellant. He was very fond of her and was upset. He went drinking with a friend. They drank heavily. Shortly after midnight, on the morning of October 27, 1982, the appellant broke into the complainant's apartment and assaulted her. Later, he slashed his own throat. He and the complainant were treated for relatively minor injuries and released from hospital. The appellant was thereupon charged with the offence which is the subject of this appeal, causing bodily harm, contrary to s. 306(1)(b) of the Code. While certain factual details are in issue, there was no dispute that the appellant did break into the complainant's home and did assault her.
4. The only defence advanced was lack of intent due to the appellant's voluntary consumption of alcohol. There was considerable evidence from both Crown and defence witnesses that the appellant was very drunk and acting very much out of character when he broke the window on the front door, unlocked it and forced his way into the apartment. The appellant testified he had not eaten all day, he had slept little in the previous four days, and he had consumed a great deal of alcohol between 8:00 p.m. on October 26th and 12:30 a.m. on October 27th. The defence also led expert psychiatric evidence to establish the effect of the appellant's consumption of alcohol on his mental processes considering the amount he had imbibed, his lack of sleep, and failure to eat that day.
II
Judgments in the Ontario Courts
5. The Provincial Court Judge referred in his reasons to the decision of the Ontario Court of Appeal in R. v. Campbell (1974), 17 C.C.C. (2d) 320, where it was held that the offence of breaking and entering with intent to commit an indictable offence was an offence requiring proof of a specific intent and concluded therefore that evidence of self‑induced intoxication could be considered. The judge held that in light of all the evidence, including that of self‑induced intoxication, there was a reasonable doubt as to whether the accused had the intention to commit the offence. Quin was acquitted.
6. The Crown appealed the acquittal of Quin and the Ontario Court of Appeal (MacKinnon A.C.J.O., Martin and Zuber JJ.A.) reversed the acquittal and entered a conviction: see (1983), 9 C.C.C. (3d) 94. The Court held that Campbell was not governing as the charge there fell under s. 306(1)(a) and not 306(1)(b) as in the instant case.
7. Section 306(1) of the Criminal Code reads:
306. (1) Every one who
(a) breaks and enters a place with intent to commit an indictable offence therein,
(b) breaks and enters a place and commits an indictable offence therein, or
(c) breaks out of a place after
(i) committing an indictable offence therein, or
(ii) entering the place with intent to commit an indictable offence therein,
is guilty of an indictable offence and is liable
(d) to imprisonment for life, if the offence is committed in relation to a dwelling‑house, or
(e) to imprisonment for fourteen years, if the offence is committed in relation to a place other than a dwelling‑house. [Emphasis added.]
8. The court stated that "It is common ground that drunkenness, depending upon the evidence, is a defence to crimes of specific intent". Section 306(1)(a) deals with charges of breaking and entering a place with intent to commit an indictable offence therein, and has been held to create a crime of specific intent. The charge here, however, is under s. 306(1)(b), which involves breaking and entering and committing an indictable offence. The court continued at p. 96:
It was not strenuously argued by counsel for the respondent that the offence of assault causing bodily harm was not a crime of basic or general intent: D.P.P. v. Majewski, [1977] A.C. 443; R. v. Janvier (1979), 11 C.R. (3d) 399. If the offence alleged to have been committed inside the building after the break and enter is one of specific intent, which does not contain an included offence of general intent, then the offence of drunkenness is available in respect of that offence and consequently the charge in such cases would not be made out. It is equally clear that the defence of self‑induced intoxication negativing the requisite criminal intent is not available to charges of crimes of general intent. R. v. George (1960), 128 C.C.C. 287, [1960] S.C.R. 87, 34 C.R. 1; Leary v. The Queen (1977), 33 C.C.C. (2d) 473, 74 D.L.R. (3d) 103, [1978] 1 S.C.R. 29. This being so the defence of intoxication was not available to the defendant in the instant case, and that position affects the entire charge, namely, break and enter and committing the indictable offence of assault causing bodily harm. The acquittal therefore must be set aside and a conviction registered.
III
Disposition
9. In R. v. Bernard, [1988] 2 S.C.R. 833, I have indicated that the distinction between specific and general intent should be abandoned and that in all cases, evidence of self‑induced intoxication should be taken into account where relevant to the issue of intent.
10. I would, therefore, in the case at bar, adopt the reasons in Bernard, allow the appeal, set aside the judgment of the Ontario Court of Appeal and restore the verdict of acquittal. The trial judge heard the evidence and correctly considered evidence of self‑induced intoxication and concluded in the light of all the evidence that there was a reasonable doubt as to the accused's intent to commit the offence.
The judgment of Beetz and McIntyre JJ. was delivered by
11. McIntyre J.‑‑The facts and issues arising in this case have been adequately set out in the reasons for judgment of the Chief Justice. The charge against the appellant was framed under s. 306(1) (b) of the Criminal Code and, as the Court of Appeal found, is one of general intent to which the defence of drunkenness does not apply: see R. v. George, [1960] S.C.R. 871, and Leary v. The Queen, [1978] 1 S.C.R. 29. For the reasons which I have expressed in R. v. Bernard, [1988] 2 S.C.R. 833, I would dismiss the appeal.
The judgment of Wilson and L'Heureux‑Dubé JJ. was delivered by
12. Wilson J.‑‑I have had the benefit of the reasons of the Chief Justice and of my colleague, Justice McIntyre. I agree with McIntyre J. for the reasons given by him that the offence of breaking and entering and committing the indictable offence of assault causing bodily harm under s. 306(1) (b) of the Criminal Code is an offence of general intent.
13. The facts of this case are set out in the reasons of the Chief Justice. I would add only that, according to the agreed statement of facts, the appellant had telephoned the complainant at 10:30 p.m. on the evening in question, subsequently made his way to the house in which she lived and, upon his arrival, broke the window on the front door and unlocked it and forced his way into her apartment. He then assaulted her, throttled her, verbally abused her and struck her on the head with a beer bottle. The appellant admitted forcing his way into the apartment and pushing the complainant against the wall and sliding to the floor on top of her. As in R. v. Bernard, [1988] 2 S.C.R. 833, we are dealing with a case of intentional application of force.
14. Although, as the Chief Justice notes, there was considerable evidence from both the appellant himself and from an expert witness that the appellant was "very drunk and acting very much out of character", there was no evidence of such extreme intoxication as to negate an aware state of mind as in the case of insanity or automatism. Accordingly, the rule in Leary v. The Queen, [1978] 1 S.C.R. 29, should, in my view, have been applied by the trial judge.
15. The Chief Justice in his reasons points out that the trial judge concluded in light of all the evidence, including that of voluntary intoxication, that there was a reasonable doubt as to the accused's intent to commit the offence. The trial judge, in my view, and for the reasons given by the Ontario Court of Appeal (1983), 9 C.C.C. (3d) 94, misdirected himself as to the minimal requirements of s. 306(1) (b) of the Criminal Code . He proceeded in fact as if the appellant had been charged under s. 306(1)(a). As the Court of Appeal noted at pp. 95‑96:
The provincial judge was of the view that the judgment of this Court in R. v. Campbell (1974), 17 C.C.C. (2d) 320, was determinative of the issue whether drunkenness was a defence to the offence charged. However, as pointed out by Mr. Doherty, the charge in R. v. Campbell, supra, concerned a charge under s. 306(1)(a) of the Code not s. 306(1)(b) as in the instant case. Section 306(1)(a) deals with charges of breaking and entering a place with intent to commit an indictable offence therein, creating crimes of specific intent in all cases under the subsection. It is common ground that drunkenness, depending upon the evidence, is a defence to crimes of specific intent. The charge here covers break and enter and committing the offence of assault causing bodily harm.
16. I would agree with the Chief Justice's reasoning and result if the appellant had been charged with the specific intent offence under s. 306(1) (a) of the Criminal Code . He was, however, charged with the general intent offence under s. 306(1)(b). Since the evidence was not such as to be capable of negating the minimal intent required under s. 306(1)(b), I would dismiss the appeal.
Appeal dismissed, Dickson C.J. and Lamer and La Forest JJ. dissenting.
Solicitor for the appellant: J. David McCombs, Toronto.
Solicitor for the respondent: The Attorney General for Ontario, Toronto.
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