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R. v. Robinson, 1996 CanLII 233 (SCC), [1996] 1 SCR 683

Her Majesty The Queen Appellant

Donald Robinson Respondent

Indexed as: R. v. Robinson

File No.: 24302.

1995: December 7; 1996: March 21.

Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.

on appeal from the court of appeal for british columbia

Criminal law ‑‑ Mens rea ‑‑ Murder -- Drunkenness ‑‑ Specific intent ‑‑ How juries should be instructed regarding evidence of intoxication ‑‑ Whether drunkenness must be at a level to render accused incapable of forming requisite intent or whether drunkenness can be considered in overall deliberation as to whether accused had necessary intent ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, ss. 229, (a)(i), (ii), 686(1)(b)(iii).

The accused killed a man but claimed to have acted without intent because he was intoxicated. The evidence revealed that he had been drinking with the victim and some friends and that the killing occurred when the victim said something to offend him. After being instructed on provocation, self‑defence and intoxication, the jury found the accused guilty of second‑degree murder. The Court of Appeal, however, allowed his appeal. At issue here are: (1) how juries should be instructed regarding evidence of intoxication; (2) whether the charge to the jury, read as a whole, constituted misdirection and reversible error on the issues of intoxication, the common-sense inference that a person intends the natural and probable consequences of his or her acts, and the burden on the Crown to prove the intent required for murder beyond a reasonable doubt; and (3) whether the curative provisions of s. 686(1)(b)(iii) of the Criminal Code should be applied.

Held (L'Heureux‑Dubé J. dissenting): The appeal should be dismissed.

Should MacAskill be Overruled?

Per Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.: The Beard rules (Director of Public Prosecutions v. Beard) on intoxication (adopted in MacAskill v. The King) should be overruled. These rules provide that intoxication is not a relevant factor for triers of fact to consider except where the intoxicant removed the accused's capacity to form the requisite intent. According to the Beard rules, the presumption that a person intends the natural consequences of his or her acts cannot be rebutted by evidence falling short of incapacity. This presumption to which Beard refers should only be interpreted as a common-sense inference that the jury can but is not compelled to make.

Five separate considerations favoured overruling the Beard rules: (1) the opinions of Laskin and Dickson C.JJ. which, albeit in dissent, suggested that the real focus should be on whether the Crown, in light of the intoxication evidence, has established the requisite intent beyond a reasonable doubt; (2) developments in provincial appellate courts which no longer follow the Beard rules and have developed two different approaches in its place ‑‑ R. v. Canute and R. v. MacKinlay; (3) developments in England, New Zealand and Australia where "capacity" language has fallen out of favour and intoxication is now simply a factor jurors can consider in assessing whether the prosecution has proved beyond a reasonable doubt that the accused had the required intent; (4) academic commentary which favours abandoning the Beard rules; and (5) the Canadian Charter of Rights and Freedoms which is violated by the Beard rules.

The Beard rules violate ss. 7 and 11(d) of the Charter because they put an accused in jeopardy of being convicted even though a reasonable doubt could exist in the minds of the jurors on the issue of actual intent. This restriction on an accused's legal rights does not constitute a reasonable limit under s. 1 of the Charter.

A strict application of the Oakes test is appropriate. While decisions of the legislatures may be entitled to judicial deference under s. 1 as a matter of policy, such deference is not required when reviewing judge‑made law. The protection of the public from intoxicated offenders is of sufficient importance to warrant overriding a constitutionally protected right. A rational connection exists between the "capacity" restriction of the defence contained in the impugned common law rule and its objective. The restriction fails the proportionality prong, however, because it does not impair an accused's ss. 7 and 11(d) rights as little as is reasonably possible. The Beard rules cast the criminal net too far in that all accused with the capacity to formulate the requisite intent cannot rely on their state of intoxication even though it might create a reasonable doubt as to whether the accused actually had the intent necessary to the crime.

Per L'Heureux-Dubé J.: The rule in MacAskill v. The King infringes ss. 7 and 11(d) of the Charter because it prevents the trier of fact from considering evidence capable of raising a reasonable doubt as to whether the accused had the specific intent required to commit the offence. The effect of the rule is that an accused may be convicted of murder even if the evidence raises a reasonable doubt as to the existence of the intent element of the offence.

The common law may impose reasonable limits on Charter rights. While the analysis of a common law rule under s. 1 need not adhere strictly to the structure set out in Oakes, the substance of the analysis will be similar because its purpose is to ascertain whether the particular rule is a justifiable limit on rights.

The rule in MacAskill is not a reasonable limit on the rights guaranteed in ss. 7 and 11(d) of the Charter. Case law from the many jurisdictions that have abandoned the rule has had no apparent adverse consequence that might give rise to pressing and substantial concerns. The absence of a convincing causative link between intoxication and violent crime, too, shows that the rule is not rationally connected to the objective of preventing crime. Finally, the MacAskill rule is not well tailored to address a particular objective in that it applies to all crimes of specific intent and therefore does not meet the proportionality or minimal impairment requirements.

For offences of specific intent, evidence of intoxication should no longer be subject to a rule requiring that it be considered only if intoxication attains such a degree that it deprives the accused of the capacity to form the specific intent. Evidence of intoxication can be considered with all other evidence in determining whether the accused actually had the specific intent required to constitute the offence.

The Replacement for the Beard Rules

Per Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.: A new rule consistent with the Constitution was devised. Before a trial judge is required by law to charge the jury on intoxication, he or she must be satisfied that the effect of the intoxication was such that the effect might have impaired the accused's foresight of consequences sufficiently to raise a reasonable doubt. Once a judge is satisfied that this threshold is met, he or she must then make it clear to the jury that the issue before them is whether the Crown has satisfied them beyond a reasonable doubt that the accused had the requisite intent.

A single step charge (Canute) is a useful model as it omits any reference to "capacity" or "capability" and focuses the jury on the question of "intent in fact". Arguments in favour of a two‑stage charge (MacKinlay) are based on the need to put the evidence of experts who often testify in "capacity" terms in context for the jury. In certain cases, in light of the particular facts of the case and/or in light of the expert evidence called, it may be appropriate to use the two-step charge.

If a two‑step charge is used with "capacity" and "capability" type language and the charge is the subject of an appeal, then a determination will have to be made by appellate courts on a case by case basis of whether there is a reasonable possibility that the jury may have been misled into believing that a determination of capacity was the only relevant inquiry. The following factors, not intended to be exhaustive, should be considered: (a) the number of times that reference to capacity is used; (b) the number of times that reference to the real inquiry of actual intent is used; (c) whether there is an additional "incapacity" defence; (d) the nature of the expert evidence (i.e., whether the expert's evidence relates to the issue of capacity rather than to the effect of alcohol on the brain); (e) the extent of the intoxication evidence; (f) whether the defence requested that references to "capacity" be used in the charge to the jury; (g) whether during a two‑step charge it was made clear that the primary function of the jury was to determine whether they were satisfied beyond a reasonable doubt that the accused possessed the requisite intent to commit the crime.

Per L'Heureux-Dubé J.: As a preliminary matter, the threshold for putting any defence to the jury is whether it has an evidentiary basis on which a reasonable jury might acquit. Where the accused’s defence rests on evidence of intoxication, the question is whether there is sufficient evidence of intoxication that a jury could have a reasonable doubt as to whether the accused had the specific intention, knowledge or foresight required for the offence.

Assuming that the evidence meets this threshold, two approaches have been developed as to how the judge must present the evidence of intoxication to the jury: a one-step charge, referring only to intent; and a two-step charge that also mentions that intoxication may be relevant to the accused’s capacity to form the required intent. Where a trial judge has referred to capacity or used a two-step charge, the question is not whether there is a “reasonable possibility that the jury may have been misled” since that question arises only after an ambiguity or error has been identified. If the evidence in a particular case puts the accused’s capacity in issue, it cannot be an error to tell the jury that they must acquit the accused if they have a reasonable doubt as to whether the accused had the capacity to form the required intent. Nor is a charge necessarily ambiguous simply because it discusses capacity. Rather, each charge must be reviewed individually to ascertain whether it meets the basic requirements of correctness, completeness and clarity. If it does, it cannot be impeached, regardless of whether it contains one step or two.

This Court need not and should not express a general preference for either form of charge, or construct a special test, based on minutiae, for determining whether references to capacity were acceptable. The role of an appellate court in reviewing a jury charge is to determine whether the effect of the charge as a whole is to leave the jurors with an adequate understanding of the issues involved, the law relating to the issues, and the evidence that they should consider in resolving the issues. It is not to express vague disapproval of a form of charge that, in frequent cases, will be perfectly appropriate.

Application to this Case

Per Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.: The charge in this case left the jury with the impression that there was a threshold test that had to be met before the intoxication evidence became relevant. No instruction was given informing the jury that they were entitled to consider whether, in light of the intoxication evidence, the accused had the requisite intent in fact. In this case, a charge linking the evidence of intoxication with the issue of intent in fact was particularly important since there was also some, albeit weak, evidence of provocation and self‑defence. The jury, even if it may have rejected each individual defence, could have had a reasonable doubt about intent had they been instructed that they could still consider the evidence of intoxication, provocation and self‑defence cumulatively on that issue.

The trial judge's incorrect use of the term presumption in discussing the common-sense inference that a sane and sober person intends the natural consequences of his or her actions did not result in reversible error when read in the context of the charge as a whole. He made it sufficiently clear to the jury that they were not obligated to follow it.

Where some evidence of intoxication exists, a trial judge must link his or her instructions on intoxication with the instruction on the common-sense inference so that the jury is specifically instructed that evidence of intoxication can rebut the inference. In both the model charges set out in MacKinlay and Canute, this approach is taken. This instruction is critical since in most cases jurors are likely to rely on the inference to find intent. Moreover, if no instruction is given, a confused jury may see a conflict between the inference and the defence and resolve that conflict in favour of their own evaluation of common sense. Therefore, an instruction which does not link the common-sense inference with the evidence of intoxication constitutes reversible error. In this case, the trial judge's failure to make this linkage constitutes reversible error.

The trial judge correctly stated the distinction between the two intents for murder under s. 229 at some points in the charge but he also misstated or blurred the distinction at others. The lapses and errors in the charge as it related to specific intent for murder in s. 229(a)(ii) of the Code aggravated the other errors in the charge but did not warrant ordering a new trial on this ground alone.

The jury would not have adequately understood the issues concerning intoxication and intent or the law and evidence relating to those issues. The curative provisions of s. 686(1)(b)(iii) of the Code should not be applied as the accused was denied a defence to which he was entitled to at law. The appeal was therefore dismissed.

Per L'Heureux‑Dubé J. (dissenting): Most of the errors alleged by the accused are non-existent, and the few imperfections that do exist are immaterial. In describing the common-sense inference that people intend the natural consequences of their acts, the use of the term “presumption” was not an error because the jury understood that the “presumption” or “inference” was optional. Moreover, the trial judge put the common-sense inference in its proper perspective and made it clear that the overriding issue was whether the Crown had proved specific intent. There is no absolute requirement that the evidence of intoxication be linked to the common-sense inference. It was clear to the jury, exercising its common sense, that the evidence of intoxication could be considered together with the other evidence in ascertaining the accused’s intent.

Cases Cited

By Lamer C.J.

Overruled: MacAskill v. The King, 1931 58 (SCC), [1931] S.C.R. 330; considered: Mulligan v. The Queen, 1976 23 (SCC), [1977] 1 S.C.R. 612; R. v. Bernard, 1988 22 (SCC), [1988] 2 S.C.R. 833; R. v. Vasil, 1981 46 (SCC), [1981] 1 S.C.R. 469; Young v. The Queen, 1981 55 (SCC), [1981] 2 S.C.R. 39; R. v. Cooper, 1993 147 (SCC), [1993] 1 S.C.R. 146; R. v. MacKinlay (1986), 1986 111 (ON CA), 28 C.C.C. (3d) 306; R. v. Canute (1993), 1993 403 (BC CA), 80 C.C.C. (3d) 403; referred to: Director of Public Prosecutions v. Beard, [1920] A.C. 479; Reniger v. Fogassa (1551), 1 Plowden 1, 75 E.R. 1; R. v. Doherty (1887), 16 Cox C.C. 306; R. v. Meade, [1909] 1 K.B. 895; Malanik v. The Queen, 1952 43 (SCC), [1952] 2 S.C.R. 335; Bradley v. The Queen, 1956 87 (SCC), [1956] S.C.R. 723; R. v. Giannotti (1956), 1956 160 (ON CA), 115 C.C.C. 203; Latour v. The King, 1950 12 (SCC), [1951] S.C.R. 19; Capson v. The Queen, 1952 50 (SCC), [1953] 1 S.C.R. 44; R. v. George, 1960 45 (SCC), [1960] S.C.R. 871; Leary v. The Queen, 1977 2 (SCC), [1978] 1 S.C.R. 29; Alward v. The Queen, 1977 166 (SCC), [1978] 1 S.C.R. 559; Swietlinski v. The Queen, 1980 53 (SCC), [1980] 2 S.C.R. 956; Minister of Indian Affairs and Northern Development v. Ranville, 1982 202 (SCC), [1982] 2 S.C.R. 518; R. v. B. (K.G.), 1993 116 (SCC), [1993] 1 S.C.R. 740; Perrault v. The Queen, 1970 170 (SCC), [1971] S.C.R. 196; R. v. Dees (1978), 1978 2269 (ON CA), 40 C.C.C. (2d) 58; R. v. Dumais (1993), 1993 6679 (SK CA), 87 C.C.C. (3d) 281; R. v. Crane (1993), 1993 14701 (MB CA), 81 C.C.C. (3d) 276; R. v. Ivany (1991), 1991 6840 (NL CA), 89 Nfld. & P.E.I.R. 13; R. v. Allen (1994), 1994 9730 (NL CA), 120 Nfld. & P.E.I.R. 188; R. v. Neaves (1992), 1992 2462 (NS CA), 75 C.C.C. (3d) 201; R. v. Korzepa (1991), 1991 1915 (BC CA), 64 C.C.C. (3d) 489; R. v. Cormier (1993), 1993 4140 (QC CA), 86 C.C.C. (3d) 163; R. v. Larose (1993), 1993 407 (BC CA), 25 B.C.A.C. 264; R. v. Smoke, [1993] A.J. No. 758 (QL); R. v. Laisa, 1993 16530 (NWT CA), [1993] N.W.T.R. 199, leave to appeal refused, [1994] 1 S.C.R. viii; Sheehan and Moore (1975), 60 Cr. App. R. 308; R. v. Pordage, [1975] Crim. L.R. 575; Garlick (1980), 72 Cr. App. R. 291; R. v. Davies, [1991] Crim. L.R. 469; R. v. Kamipeli, [1975] 2 N.Z.L.R. 610; R. v. Hart, [1986] 2 N.Z.L.R. 408; R. v. Tihi, [1990] 1 N.Z.L.R. 540; Viro v. The Queen (1978), 141 C.L.R. 88; R. v. Vaillancourt, 1987 2 (SCC), [1987] 2 S.C.R. 636; R. v. Oakes, 1986 46 (SCC), [1986] 1 S.C.R. 103; RWDSU v. Dolphin Delivery Ltd., 1986 5 (SCC), [1986] 2 S.C.R. 573; Cloutier v. Langlois, 1990 122 (SCC), [1990] 1 S.C.R. 158; Dagenais v. Canadian Broadcasting Corp., 1994 39 (SCC), [1994] 3 S.C.R. 835; R. v. Clow (1985), 1985 5974 (ON CA), 44 C.R. (3d) 228; R. v. Desveaux (1986), 1986 153 (ON CA), 51 C.R. (3d) 173; R. v. Nealy (1986), 1986 4694 (ON CA), 54 C.R. (3d) 158.

By L'Heureux‑Dubé J. (dissenting)

Director of Public Prosecutions v. Beard, [1920] A.C. 479; R. v. Daviault, 1994 61 (SCC), [1994] 3 S.C.R. 63; MacAskill v. The King, 1931 58 (SCC), [1931] S.C.R. 330; Leary v. The Queen, 1977 2 (SCC), [1978] 1 S.C.R. 29; R. v. Bernard, 1988 22 (SCC), [1988] 2 S.C.R. 833; R. v. O'Connor, 1995 51 (SCC), [1995] 4 S.C.R. 411; RWDSU v. Dolphin Delivery Ltd., 1986 5 (SCC), [1986] 2 S.C.R. 573; Cloutier v. Langlois, 1990 122 (SCC), [1990] 1 S.C.R. 158; Dagenais v. Canadian Broadcasting Corp., 1994 39 (SCC), [1994] 3 S.C.R. 835; R. v. Vaillancourt, 1987 2 (SCC), [1987] 2 S.C.R. 636; R. v. Thomsen, 1988 73 (SCC), [1988] 1 S.C.R. 640; R. v. Swain, 1991 104 (SCC), [1991] 1 S.C.R. 933; Hill v. Church of Scientology of Toronto, 1995 59 (SCC), [1995] 2 S.C.R. 1130; R. v. Oakes, 1986 46 (SCC), [1986] 1 S.C.R. 103; Pappajohn v. The Queen, 1980 13 (SCC), [1980] 2 S.C.R. 120; R. v. Osolin, 1993 54 (SCC), [1993] 4 S.C.R. 595; R. v. Park, 1995 104 (SCC), [1995] 2 S.C.R. 836; R. v. Canute (1993), 1993 403 (BC CA), 80 C.C.C. (3d) 403; R. v. MacKinlay (1986), 1986 111 (ON CA), 28 C.C.C. (3d) 306; R. v. Marquard, 1993 37 (SCC), [1993] 4 S.C.R. 223; R. v. Brydon, 1995 48 (SCC), [1995] 4 S.C.R. 253; R. v. Cooper, 1993 147 (SCC), [1993] 1 S.C.R. 146; R. v. Crawford (1970), 1970 999 (BC CA), 1 C.C.C. (2d) 515.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, ss. 1, 7, 11(d).

Criminal Code, R.S.C., 1985, c. C‑46, ss. 229(a)(i), (ii), 686(1)(b)(iii).

Authors Cited

Berner, S. H. "The Defense of Drunkenness -‑ A Reconsideration" (1971), 6 U.B.C. L. Rev. 309.

Colvin, Eric. "A Theory of the Intoxication Defence" (1981), 59 Can. Bar Rev. 750.

Colvin, Eric. "Codification and Reform of the Intoxication Defence" (1983), 26 Crim. L.Q. 43.

Colvin, Eric. Principles of Criminal Law. Toronto: Carswell, 1986.

Gold, Alan D. "An Untrimmed `Beard': The Law of Intoxication as a Defence to a Criminal Charge" (1976-77), 19 Crim. L.Q. 34.

Healy, Patrick. "R. v. Bernard: Difficulties with Voluntary Intoxication" (1990), 35 McGill L.J. 610.

Quigley, Tim. "A Shorn Beard" (1987), 10 Dal. L.J. 167.

Smith, J. C., and Brian Hogan. Criminal Law, 7th ed. London: Butterworths, 1992.

Stuart, Don. Canadian Criminal Law: A Treatise, 3rd ed. Scarborough, Ont.: Carswell, 1995.

Williams, Glanville. Textbook of Criminal Law, 2nd ed. London: Stevens & Sons, 1983.

APPEAL from a judgment of the British Columbia Court of Appeal (1994), 1994 1747 (BC CA), 48 B.C.A.C. 161, 78 W.A.C. 161, 92 C.C.C. (3d) 193, allowing an appeal from conviction by Hutchison J. sitting with jury. Appeal dismissed, L'Heureux‑Dubé J. dissenting.

William F. Ehrcke, for the appellant.

G. D. McKinnon, Q.C., for the respondent.

The judgment of Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ. was delivered by

Lamer C.J. --

I. Introduction

1In March of 1920, Britain's House of Lords handed down judgment in the now famous Beard case (Director of Public Prosecutions v. Beard, [1920] A.C. 479). The issue before the court concerned the manner in which a jury should be instructed on the relationship between intoxication and intent. Lord Birkenhead, in speaking for the court, formulated rules that evidence of intoxication is to be considered by a jury only in those cases where its effect was to render the accused incapable of forming the requisite intent. In MacAskill v. The King, 1931 58 (SCC), [1931] S.C.R. 330, the Beard rules were incorporated into our law and they have been, for the most part, applied by this Court ever since.

2I am of the view that the time has finally come for this Court to review the adequacy of MacAskill in light of earlier opinions expressed by Laskin and Dickson C.JJ., the Canadian Charter of Rights and Freedoms and other relevant developments in this area in our provincial appellate courts and other common law countries.

II. Summary of the Facts

3Clark Hall was found stabbed to death, seated in a chair in his own apartment, on January 22, 1991. He was 52 years old. The autopsy revealed that he had suffered at least 12 blunt trauma wounds to the head which together would result in unconsciousness, but not death. Death was caused by three stab wounds to the upper part of the stomach, any one of which would have been fatal. The deceased had a blood alcohol level of 293 milligrams of alcohol per 100 millilitres of blood. The police found an empty litre-bottle of red wine in his apartment.

4According to the respondent's statement to the police, he stabbed the deceased in self-defence. The deceased apparently said something to the respondent who then struck the deceased on the head with a rock from his pocket. The respondent then went to the kitchen, returned with a bread knife and was standing with the knife in his right hand. The respondent remembered stabbing the deceased two times and pushing him back into his chair.

5The stabbing was witnessed by two other individuals. One of these witnesses, a self-described panhandler and street person of no fixed address, testified that both the deceased and the respondent had been drinking and that the respondent was very drunk. At some point, the deceased told another individual present to "get rid of your two friends" and the respondent then hit the deceased on the head with a rock. According to this witness, the deceased never stood up and remained in his chair as the respondent stabbed the deceased.

6In final submissions to the jury, defence counsel submitted that the most important issue in the case was how the jury was going to deal with the defence of intoxication. Crown counsel conceded that the respondent was under some degree of influence of intoxication. In his charge to the jury, the trial judge told them that intoxication in this case was "significant" and there was evidence that the respondent "consumed a considerable amount of alcohol before the alleged killing of Mr. Clark Hall."

7The respondent was convicted of second degree murder by a jury. He appealed his conviction to the British Columbia Court of Appeal primarily on the basis that the trial judge had misdirected the jury on the manner in which they could use the evidence of intoxication as it related to the requisite intent for murder. The British Columbia Court of Appeal allowed the appeal and the Crown appealed that decision to this Court on the basis of Gibbs J.A.'s dissent and pursuant to leave granted on March 2, 1995 ([1995] 1 S.C.R. x).

III. The Issues

8The issues to be decided in this appeal, as stated by the appellant Crown in its factum, are as follows:

[1.]Did the majority in the British Columbia Court of Appeal err in law in concluding that the trial judge's instructions to the jury, when read as a whole, constitute misdirection and reversible error on the issues of intoxication, the common sense inference that a person intends the natural and probable consequences of his acts, and the burden on the Crown to prove the intent required for murder beyond a reasonable doubt?

[2.] Did the British Columbia Court of Appeal err in law in following Regina v. Canute (1993), 1993 403 (BC CA), 80 C.C.C. (3d) 403 and in deciding that it is reversible error for a trial judge to instruct a jury on the defence of drunkenness in accordance with the "two-step" process enunciated in Regina v. MacKinlay (1986), 1986 111 (ON CA), 28 C.C.C. (3d) 306?

[3.] Did the British Columbia Court of Appeal err in law in failing to apply the provisions of s. 686(1)(b)(iii) [of the Criminal Code, R.S.C., 1985, c. C-46]?

IV. Analysis

(i) The Beard Rules: Capacity Is the Only Relevant Inquiry

IV. Analysis

9Arthur Beard was convicted of murder and sentenced to death in the rape and killing of a 13-year-old girl. Beard's position at trial was that he was only guilty of manslaughter as his self-induced intoxication rendered him incapable of knowing that what he was doing was likely to inflict serious injury. The case eventually found its way to Britain's House of Lords on a point of law described by Lord Birkenhead at p. 493 as one of "undoubted importance in the administration of the criminal law" -- the manner in which juries should be instructed concerning evidence of intoxication.

10It is important to recall that until the early nineteenth century, the law of England was such that drunkenness was never a mitigating factor in assessing liability: Reniger v. Fogassa (1551), 1 Plowden 1, 75 E.R. 1 (Ex. Ct.). This rigid rule was slowly relaxed over the next century (see, for example, R. v. Doherty (1887), 16 Cox C.C. 306 C.C.C., and R. v. Meade, [1909] 1 K.B. 895 (C.C.A.)) in cases involving serious offences such as murder to reflect the harshness of the sentence which often included the death penalty. The historical development of the English law, in this area, is discussed by Professor Quigley in "A Shorn Beard" (1987), 10 Dal. L.J. 167.

11In delivering his speech in Beard, supra, at pp. 501-502, Lord Birkenhead reviewed the developments over the last century and formulated the following famous rules of intoxication which he believed properly reflected the current state of the English law:

That evidence of drunkenness which renders the accused incapable of forming the specific intent essential to constitute the crime should be taken into consideration with the other facts proved in order to determine whether or not he had this intent.

That evidence of drunkenness falling short of a proved incapacity in the accused to form the intent necessary to constitute the crime, and merely establishing that his mind was affected by drink so that he more readily gave way to some violent passion, does not rebut the presumption that a man intends the natural consequences of his acts. [Emphasis added.]

Under these rules, intoxication is not a relevant factor for triers of fact to consider except in those cases where the alcohol or drugs has removed the accused's capacity to form the requisite intent.

(ii)The Incorporation of Beard into our Common Law: MacAskill and its Progeny

(ii) The Incorporation of Beard into our Common Law: MacAskill and its Progeny

12Some eleven years after the decision in Beard, this Court was given an opportunity to consider the manner in which juries should be instructed on the circumstances under which intoxication could reduce a charge of murder to manslaughter in MacAskill, supra. MacAskill had been convicted of murder and sentenced to death. In ruling on the propriety of the trial judge's charge to the jury, this Court held at p. 332 that the Beard "propositions embody the rules governing us on this appeal". Duff J. (as he then was) stated at p. 334:

The right direction ... is that evidence of drunkenness rendering the accused incapable of the state of mind defined by that subsection [s. 259(b)] may be taken into account with the other facts of the case for the purpose of determining whether or not, in fact, the accused had the intent necessary to bring the case within that subsection; but that the existence of drunkenness not involving such incapacity is not a defence.

13The only modification to the Beard rules came in Malanik v. The Queen, 1952 43 (SCC), [1952] 2 S.C.R. 335, at p. 341, where this Court held that the word "proved" should be removed from its rules. In other words, intoxication should be treated like any other defence where there is simply an evidentiary burden on the accused to adduce some evidence capable of raising a reasonable doubt.

14In Bradley v. The Queen, 1956 87 (SCC), [1956] S.C.R. 723, the following observation concerning the presumption that a person intends the natural consequences of his or her acts contained in the Beard rules was made (at pp. 728-29):

... it may be said that, when dealing generally with the presumption that a man is presumed to intend the natural consequences of his act, certain statements of the charge could be objectionable.

However, the Court did not find it necessary to make a modification to this aspect of the Beard rules in that case. Therefore, I wish to take the opportunity in this case to hold that the presumption of intent, to which Beard refers, should only be interpreted and referred to as a common sense and logical inference that the jury can but is not compelled to make. See Mulligan v. The Queen, 1976 23 (SCC), [1977] 1 S.C.R. 612, at p. 616 (per Spence J.), and R. v. Giannotti (1956), 1956 160 (ON CA), 115 C.C.C. 203 (Ont. C.A.).

15Since MacAskill, the Beard rules and "capacity" language have been approved of and relied on in many decisions of this Court. Some of these decisions include Latour v. The King, 1950 12 (SCC), [1951] S.C.R. 19, at pp. 29-30; Malanik, supra, at p. 341 ("the accused is entitled to the benefit of any reasonable doubt as to the capacity of the accused to form the necessary intent" (emphasis added)); Capson v. The Queen, 1952 50 (SCC), [1953] 1 S.C.R. 44, at p. 47; R. v. George, 1960 45 (SCC), [1960] S.C.R. 871, at p. 879 ("the question is whether, owing to drunkenness, respondent's condition was such that he was incapable of applying force intentionally" (emphasis added)); Mulligan, supra, at p. 625 ("This is not, therefore, a case in which, because of a pre-existing condition, the appellant was more likely to become incapable as a result of consuming alcohol" (emphasis added)); Leary v. The Queen, 1977 2 (SCC), [1978] 1 S.C.R. 29, at pp. 59-60; Alward v. The Queen, 1977 166 (SCC), [1978] 1 S.C.R. 559, at pp. 566-69; Swietlinski v. The Queen, 1980 53 (SCC), [1980] 2 S.C.R. 956, at pp. 970-71; and R. v. Bernard, 1988 22 (SCC), [1988] 2 S.C.R. 833, at pp. 864-65:

Drunkenness in a general sense is not a true defence to a criminal act. Where, however, in a case which involves a crime of specific intent, the accused is so affected by intoxication that he lacks the capacity to form the specific intent required to commit the crime charged it may apply. [Emphasis added.]

(iii) Should MacAskill Be Overruled?

16The important issue raised by this appeal is whether the Court should now overrule the Beard rules of intoxication incorporated in MacAskill and its progeny. It is clear that this Court may overrule its own decisions: see Minister of Indian Affairs and Northern Development v. Ranville, 1982 202 (SCC), [1982] 2 S.C.R. 518, at p. 527. Indeed, I recently overruled the long-standing rule concerning the admissibility of prior inconsistent statements for the truth of their contents in R. v. B. (K.G.), 1993 116 (SCC), [1993] 1 S.C.R. 740. However, as Dickson C.J. remarked in Bernard, at p. 849"[t]here must be compelling circumstances to justify departure from a prior decision".

17I am of the view that there are at least five separate considerations in the jurisprudence and academic commentary which support the conclusion that MacAskill should now be overruled.

(a) The Opinions of Former Chief Justices Laskin and Dickson

18While the bulk of authority following MacAskill in this Court continued to use "capacity" as the threshold for the intoxication defence, a number of judges, most notably Laskin and Dickson C.JJ., began to question Beard implicitly by suggesting that the real focus should be on whether, in light of the intoxication evidence, the Crown has established the requisite intent beyond a reasonable doubt. In addition, a number of decisions highlighted that the issue of the appropriateness of the Beard rules was a live and open one.

19In the early seventies, Laskin J., as he then was, writing in dissent along with Hall and Spence JJ. in Perrault v. The Queen, 1970 170 (SCC), [1971] S.C.R. 196, was the first to recognize that the real question was one of intent in fact and that even where the evidence of intoxication did not rise to the level of incapacity, it could still be relevant to intent in fact and therefore should not be rejected (at p. 207):

It is necessary, of course, in cases where drunkenness is raised as a defence, or where on the evidence it may be a defence, to a charge of murder, to avoid confusing the effect of drunkenness on the capacity to form the requisite intent with the question whether there was such intent in fact. The rejection of the one (that is, as a defence) does not automatically result in the establishment of the other.

20Laskin J.'s well-reasoned opinion was applauded by Professor S. H. Berner in "The Defense of Drunkenness -- A Reconsideration" (1971), 6 U.B.C. L. Rev. 309, who commented at p. 329 that:

Laskin's point is well taken, and it is unfortunate that the majority in Perrault refused to subscribe to his analysis. In principle at least, it seems quite clear that the distinction which Laskin, J. draws between drunkenness "as referable to capacity" and drunkenness as referable to "intent in fact" is valid.

21Similar views began to be expressed by Dickson J. in the late seventies. In Mulligan, Dickson J., alone in dissent, argued that the critical inquiry, notwithstanding the issue of capacity, is whether the accused had the requisite intent in fact, and therefore that all relevant evidence bearing on that issue, including evidence of intoxication, should be considered by the triers of fact (at pp. 627-28):

When deciding whether an accused can rely on the defence of drunkenness to negative capacity to form the intent to kill, one must consider the effect of the alcohol alleged to have been consumed upon the particular accused, at the particular time, and in his then mental state. Mental condition is a relevant, indeed essential, consideration to a determination of mens rea if, in conjunction with alcohol, it affects capacity to form an intention. Mental condition as well as the effect of alcohol are relevant to the critical question, not placed before the jury in this case, of whether the accused had the necessary intent.

The predominant question is intent. A rigid categorization of defences, keeping medical evidence of insanity entirely separate from evidence of drunkenness is not only unrealistic but a departure from all that is embraced in the phrase `mens rea'. The concern is with the particular accused and with his capacity to form the intent to kill when as here, for example, the defence contends the accused was in a dissociative state of mind, drunk and provoked. It was necessary for the jury to weigh and assess each of these elements separately; it was imperative also, in my view, to relate the evidence of drunkenness to the evidence of the mental state of the accused. These are not easy matters to explain to a jury. Obviously, the jury was confused here, as evidenced by the request for a recharge on provocation, insanity and intent. The attempt must, however, be made. If intent and capacity are to be anything more than catchwords, then all factors bearing upon capacity and intent, such as dissociative state, stress and drunkenness, must be considered jointly and severally as part of an overall picture and their respective influences, each upon the other, assessed. [Emphasis in original.]

22Dickson J.'s approach in Mulligan was further refined a year later in his dissenting reasons in Leary, wherein, joined by Laskin C.J. and Spence J., he stated at pp. 33 and 35:

Although the expression "defence of drunkenness" is often used, more precisely the defence is that the accused, by reason of drunkenness, lacked the capacity to form the requisite intent or lacked the intent in fact ....

I would answer the question of law posed in this appeal in this manner -- drunkenness ... may be considered by the jury, together with all other relevant evidence, in determining whether the prosecution has proved beyond a reasonable doubt the mens rea required to constitute the crime.

On principle, it would seem that evidence of intoxication should be relevant in determining the presence of the requisite mental element, inasmuch as intoxication undoubtedly affects a person's ability to appreciate the possible consequences or circumstances. Consumption of alcohol affects mental state. The state of mind of the accused being in issue it would seem reasonable to ask -- what was his actual state of mind at the time? If the evidence in the case discloses some degree of intoxication, one might think, consistent with fundamental principles of criminal responsibility, that such evidence would be relevant to any consideration of the mental state of the alleged offender. [Emphasis added.]

23Ten years later, in 1988, similar views were again expressed at p. 843 by now Dickson C.J., again in dissent, in Bernard, reasons in which I concurred:

In principle, therefore, intoxication is relevant to the mental element in crime, and should be considered, together with all other evidence, in determining whether the Crown has proved the requisite mental state beyond a reasonable doubt.

24By the 1980s, it was thus clear to some members of this Court that the validity of Beard and MacAskill was now prone to a challenge. In R. v. Vasil, 1981 46 (SCC), [1981] 1 S.C.R. 469, in order to ensure that we did not foreclose a future challenge, I held, at p. 496 for the majority which included Dickson J., that:

. . . I should like to mention that my agreement with the reasoning of that Court [the Ontario Court of Appeal] as to the relevancy of drunkenness need not and for that reason does not, for the purpose of disposing of this appeal, include an endorsement of the proposition that it is sufficient that the accused have "the capacity to form the intent ...."

25Moreover, in Young v. The Queen, 1981 55 (SCC), [1981] 2 S.C.R. 39, I, in dissent with Laskin C.J. and Dickson J. but not on this point, declined at p. 43 to take up the appellant's request that we reconsider Beard since the issue had become moot in the context of the case:

Whilst acknowledging this, appellant invites us to reconsider this area of the law dealing with drunkenness, and order a new trial because of misdirection as to the proper test as regards the effect of intoxication on mens rea. As I am of the opinion that appellant should succeed on another ground, there is here no compelling reason to do so. Furthermore, I do not think that this is the proper case to reconsider that question as we have been invited to reconsider only the test, and, as a result have had the benefit of argument solely on that aspect of the question. Indeed, if and when we do so, it would then be desirable that we consider not only the test set out in Beard (capacity) but also, as was done by my brother Dickson in Leary v. The Queen, the logic and desirability of categorizing offences as of general or specific intent. A departure from the "capacity test", without reconsideration of the very existence of those categories, could lead to erratic and undesirable results when the defence of intoxication is applied.

26Finally, this Court's decision in R. v. Cooper, 1993 147 (SCC), [1993] 1 S.C.R. 146, confirmed that the issue of the validity of Beard and MacAskill was still an open one that would need to be soon addressed by this Court. Cory J., for the majority, stated at p. 164:

There is a difference of opinion among appellate courts as to the effect of evidence as to intoxication. In R. v. MacKinlay (1986), 1986 111 (ON CA), 28 C.C.C. (3d) 306 (Ont. C.A.), Martin J.A. held that evidence of intoxication which did not deprive the accused of the capacity to form the intent should still be taken into consideration in determining whether the accused did in fact form the requisite intent to commit the offence. In R. v. Korzepa (1991), 1991 1915 (BC CA), 64 C.C.C. (3d) 489, the British Columbia Court of Appeal rejected the MacKinlay decision. It was suggested that the reasoning of Martin J.A. was contrary to decisions of this Court. This is an issue that has not as yet been addressed. It would be inappropriate to do so in this case, as its validity was not raised or addressed before us.

While I dissented in the result in Cooper, I concurred with these comments of Cory J.

(b) Developments in our Provincial Appellate Courts

27In deciding that the time has come to overrule MacAskill, I am cognizant of the fact that the Beard rules are no longer followed by any provincial appellate court in this country that has considered the issue. In place of the Beard rules, two different approaches have developed over the years.

28The Ontario Court of Appeal was the first provincial appellate court to develop an alternative approach. In R. v. Dees (1978), 1978 2269 (ON CA), 40 C.C.C. (2d) 58, Arnup J.A., for the Court of Appeal, dissatisfied with the Beard rules, stated at p. 66:

The ultimate question must always be: did the accused have the requisite intent? Of course, if he lacked the capacity to form that intent, then he did not have the intent, but the converse proposition does not follow, i.e., it does not follow that just because he had the capacity, he also had the specific intent.

29The Ontario approach culminated in Martin J.A.'s decision in R. v. MacKinlay (1986), 1986 111 (ON CA), 28 C.C.C. (3d) 306 (C.A.). Under MacKinlay a jury is to be instructed as follows (at pp. 321-22):

Where intoxication is in issue, I think it would be helpful for the trial judge to draw the jury's attention to the common knowledge of the effects of the consumption of alcohol. He should first instruct the jury that intoxication causing a person to cast off restraint and act in a manner in which he would not have acted if sober affords no excuse for the commission of a crime while in that state if he had the intent required to constitute the crime. He should then instruct the jury that where a specific intent is necessary to constitute the crime, the crime is not committed if the accused lacked the specific intent essential to constitute the crime. In considering whether the Crown has proved beyond a reasonable doubt that the accused had the specific intent required to constitute the crime charged, they should take into account the accused's consumption of alcohol or drugs along with the other facts which throw light on the accused's intent. It would, as a general rule, be desirable for the judge to refer to the evidence as to the consumption of alcohol or drugs and to the other facts which throw light on the accused's intention. If the accused by reason of intoxication was incapable of forming the required intent, then obviously he could not have it. If the jury entertain a reasonable doubt whether the accused by reason of intoxication had the capacity to form the necessary intent, then the necessary intent has not been proved. If they are satisfied beyond a reasonable doubt that the accused had the capacity to form the necessary intent, they must then go on to consider whether, taking into account the consumption of liquor and the other facts, the prosecution has satisfied them beyond a reasonable doubt that the accused in fact had the required intent. [Underlining added; italics in original.]

30The MacKinlay charge has been approved of in Saskatchewan (R. v. Dumais (1993), 1993 6679 (SK CA), 87 C.C.C. (3d) 281 (C.A.), at pp. 284-85); Manitoba (R. v. Crane (1993), 1993 14701 (MB CA), 81 C.C.C. (3d) 276 (C.A.)); Newfoundland (R. v. Ivany (1991), 1991 6840 (NL CA), 89 Nfld. & P.E.I.R. 13 (C.A.), R. v. Allen (1994), 1994 9730 (NL CA), 120 Nfld. & P.E.I.R. 188 (C.A.), at p. 197); and Nova Scotia (R. v. Neaves (1992), 1992 2462 (NS CA), 75 C.C.C. (3d) 201 (C.A.)).

31The MacKinlay charge received an endorsement by this Court in Cooper, supra. In that case, the trial judge charged the jury in accordance with the spirit of MacKinlay and this Court noted at p. 164 that, in the context of the case, the "respondent had the benefit of a charge that was the most favourable to his position".

32In R. v. Korzepa (1991), 1991 1915 (BC CA), 64 C.C.C. (3d) 489, the British Columbia Court of Appeal rejected MacKinlay as unfaithful to Beard and other cases in this Court. However, some two years later in R. v. Canute (1993), 1993 403 (BC CA), 80 C.C.C. (3d) 403, that Court, faced with a constitutional challenge directed at Beard and MacAskill, agreed that the Beard rules were unconstitutional because they created a form of constructive liability that violated ss. 7 and 11(d) of the Charter and did not constitute a reasonable limit under s. 1. In deciding on the appropriate charge that should replace Beard, the Court in that case went further than MacKinlay and recommended that all references to capacity be removed. Wood J.A., for the Court, held at p. 418-19:

In fact, as was pointed out in Korzepa, the two-step test in MacKinlay is inherently confusing. What reason could there be for requiring a jury to struggle with the elusive concept of "capacity to form an intent", when at the end of that exercise they will only be required to turn their consideration to the real legal issue, namely, the actual intent of the accused? The issue of actual intent necessarily renders the question of capacity to form that intent redundant. With respect, it seems that the only likely result of retaining the two-step approach in MacKinlay, with its reference to "capacity", would be to confuse the jury into considering something other than the actual intent of the accused, with potentially unconstitutional consequences.

The Canute approach was approved of by the Quebec Court of Appeal in R. v. Cormier (1993), 1993 4140 (QC CA), 86 C.C.C. (3d) 163.

33In R. v. Larose (1993), 1993 407 (BC CA), 25 B.C.A.C. 264, a case handed down the same day as Canute, the same Court of Appeal noted that its decision in Canute should not be interpreted as requiring a new trial in every case where capacity language is used. What is required, the British Columbia court held, is an assessment in each case of whether the charge made it clear to the jury that the real issue is one of intent in fact. A similar interpretation of Canute was approved of by the Alberta Court of Appeal in R. v. Smoke, [1993] A.J. No. 758, and the North West Territories Court of Appeal in R. v. Laisa, 1993 16530 (NWT CA), [1993] N.W.T.R. 199, at pp. 204-205 (leave to appeal refused, [1994] 1 S.C.R. viii).

34Larose, Smoke and Laisa reveal that the differences between MacKinlay and Canute are not all that significant. They both highlight that the critical issue is intent in fact and that, so long as a trial judge's charge to the jury makes this point clear, he or she will not have committed reversible error.

(c) Developments in England, New Zealand and Australia

35In most common law countries, Beard's "capacity" language has fallen out of favour. Instead, intoxication is simply a factor jurors can consider in assessing whether the prosecution has proved beyond a reasonable doubt that the accused had the required intent. In Sheehan and Moore (1975), 60 Cr. App. R. 308 (C.A.), Geoffrey Lane L.J. held in dicta, at p. 312, that:

In the light of these changes in the law since 1920 we think that great care must be exercised when citing the opinion in Beard's case (supra) at the present time. Indeed, in cases where drunkenness and its possible effect upon the defendant's mens rea is an issue, we think that the proper direction to a jury is, first, to warn them that the mere fact that the defendant's mind was affected by drink so that he acted in a way in which he would not have done had he been sober does not assist him at all, provided that the necessary intention was there. A drunken intent is nevertheless an intent.

Secondly, and subject to this, the jury should merely be instructed to have regard to all the evidence, including that relating to drink, to draw such inferences as they think proper from the evidence, and on that basis to ask themselves whether they feel sure that at the material time the defendant had the requisite intent. [Emphasis added.]

36Sheehan's dicta has been approved of and applied in the subsequent English cases of R. v. Pordage, [1975] Crim. L.R. 575 (C.A.); Garlick (1980), 72 Cr. App. R. 291 (C.A.), at pp. 293-94, and R. v. Davies, [1991] Crim. L.R. 469 (C.A.). See too Smith and Hogan, Criminal Law (7th ed. 1992), at pp. 221-23, and Williams, Textbook of Criminal Law (2nd ed. 1983), at p. 468.

37In New Zealand, the proper direction to give to a jury was discussed by McCarthy P. in R. v. Kamipeli, [1975] 2 N.Z.L.R. 610 (C.A.), at p. 616:

Drunkenness is not a defence of itself. Its true relevance by way of defence, so it seems to us, is that when a jury is deciding whether an accused has the intention or recklessness required by the charge, they must regard all the evidence, including evidence as to the accused's drunken state, drawing such inferences from the evidence as appears proper in the circumstances. It is the fact of intent rather than the capacity for intent which must be the subject matter of the inquiry. [Emphasis added.]

See too R. v. Hart, [1986] 2 N.Z.L.R. 408 (C.A.), at p. 414, and R. v. Tihi, [1990] 1 N.Z.L.R. 540 (C.A.), at p. 546.

38The same result has been reached in Australia as evidenced in the following passage from the decision of the High Court of Australia in Viro v. The Queen (1978), 141 C.L.R. 88, where Gibbs J. held at p. 111:

It would be contrary to fundamental principle to hold that evidence of intoxication not amounting to incapacity is irrelevant to criminal responsibility where the commission of the crime requires a special intent. In the case of such a crime the issue is not whether the accused was incapable of forming the requisite intent, but whether he had in fact formed it. The Crown must prove beyond reasonable doubt that the accused actually formed the special intent necessary to constitute the crime. If no more were proved than that the accused was capable of forming such intent, the case for the prosecution would not have been established. Proof of capacity will not be elevated to proof of intent by the operation of a presumption that a man intends the natural consequences of his acts. [Emphasis added.]

(d) Academic Commentary

39Most of the academic commentary in Canada also favours abandoning the Beard rules. Professor Colvin is in favour of nailing the Beard coffin shut for the following reasons (Principles of Criminal Law (1986), at p. 262):

It is submitted that the better view is that the intoxication defence simply involves the negation of a mental element. The negation is accomplished by offering evidence of mental impairment in order to rebut the presumption of normal mental capacity and thereby defeat the inferences which would otherwise be drawn on the basis of that presumption. It is not, however, necessary that the evidence indicate an incapacity to form some mental element. This view is supported by the greater weight of contemporary authority in the common law world and by the overwhelming preponderance of authorities in which the issue has been carefully examined. It is also more compatible with ordinary principles of criminal culpability and with contemporary approaches to fact finding. The contrary view developed in an era when the fact finding process depended heavily on a rigid presumption that the natural consequences of acts are intended. Proposition (3) in Beard appears to suggest that only evidence of incapacity to form an intention can rebut this presumption. The more flexible approach to fact finding in modern times has allowed the inquiry to focus on what proposition (2) in Beard identified as the true substantive issue: the accused's actual state of mind with respect to the conduct.

See too Don Stuart, Canadian Criminal Law: A Treatise (3rd ed. 1995), at pp. 393-94; S. H. Berner, supra, at pp. 324-30; Alan D. Gold"An Untrimmed `Beard': The Law of Intoxication as a Defence to a Criminal Charge" (1976-77), 19 Crim. L.Q. 34, at pp. 40-51; Eric Colvin"A Theory of the Intoxication Defence" (1981), 59 Can. Bar Rev. 750, at pp. 773-77, and "Codification and Reform of the Intoxication Defence" (1983), 26 Crim. L.Q. 43, at pp. 50-52; Patrick Healy"R. v. Bernard: Difficulties with Voluntary Intoxication" (1990), 35 McGill L.J. 610, at pp. 615-18.

(e) The Charter

40It is my opinion that the Beard rules incorporated in MacAskill are inconsistent with our Charter. They violate ss. 7 and 11(d) because they create a form of constructive liability that was outlawed in R. v. Vaillancourt, 1987 2 (SCC), [1987] 2 S.C.R. 636, and its progeny. As Professor Stuart notes in Canadian Criminal Law, supra, at p. 393:

Taken literally the second Beard rule may lead to the startling result that the Crown does not have to prove beyond reasonable doubt the essential element of intent, but merely that the accused had the capacity to form the intent. Gold points out that in this way Beard imposes constructive liability in the case of specific intent offences.

41The Beard rules put an accused in jeopardy of being convicted despite the fact that a reasonable doubt could exist in the minds of the jurors on the issue of actual intent. Under these rules, if the jury is satisfied that the accused's voluntary intoxication did not render the accused incapable of forming the intent, then they would be compelled to convict despite the fact that the evidence of intoxication raised a reasonable doubt as to whether the accused possessed the requisite intent. MacAskill precludes the jury from acting on that reasonable doubt and therefore the Beard rules violate ss. 7 and 11(d).

42Having reached the conclusion that the Beard rules are a restriction on an accused's legal rights, we must next assess whether the restriction constitutes a reasonable limit under s. 1 of the Charter. Since we are dealing with a judge made rule rather than with a legislative enactment, I am of the view that a strict application of the Oakes test (R. v. Oakes, 1986 46 (SCC), [1986] 1 S.C.R. 103), and in particular of the proportionality prong of that test, is appropriate. While decisions of our legislatures may be entitled to judicial deference under s. 1 as a matter of policy, such deference is not required where we are being asked to review a law that we as judges have established.

43There is no question that the protection of the public from intoxicated offenders is of sufficient importance to warrant overriding a constitutionally protected right or freedom. I am also of the view that there is a rational connection between the "capacity" restriction of the defence contained in the impugned common law rule and its objective.

44However, in my opinion the restriction fails the proportionality prong because it does not impair an accused's ss. 7 and 11(d) rights as little as is reasonably possible. In the case at bar, there is more than minimal impairment of ss. 7 and 11(d) because the Beard rules lead to the result that all accused persons who had the capacity to form the requisite intent will be unable to rely on their state of intoxication despite the fact that that state might create a reasonable doubt in the minds of the triers of fact as to whether the accused actually intended to kill or cause bodily harm with subjective foresight of death. The objective of protecting society can be met by ensuring that only those who have the necessary blameworthy intent be imprisoned rather than through the creation of rule which threatens to cast the criminal net too far. It is also important to point out in this context that society is also protected because the defence is one of mitigation rather than of exculpation. In other words, even if the defence is successful, the accused will nonetheless be convicted of manslaughter which carries a maximum sentence of life imprisonment.

45I therefore conclude that the common law rule which limits the defence of intoxication to the capacity of an accused to form the specific intent is contrary to ss. 7 and 11(d) of the Charter and not a reasonable limit under s. 1.

46Consequently, I am of the view, particularly giving due consideration to ss. 7 and 11(d) of the Charter, that there are, to quote Dickson C.J. "compelling circumstances to justify" overruling this Court's decision in MacAskill concerning the relationship between intoxication and intent.

(iv) What New Rule Should Replace MacAskill?

47Having reached the conclusion that the Beard rules are constitutionally infirm and that therefore MacAskill should now be overruled, we need to determine what new common law rule should be put in its place. It is our duty as judges to ensure that the common law develops in a manner consistent with the supreme law of our country. See RWDSU v. Dolphin Delivery Ltd., 1986 5 (SCC), [1986] 2 S.C.R. 573, at p. 603; Cloutier v. Langlois, 1990 122 (SCC), [1990] 1 S.C.R. 158, at p. 184; Dagenais v. Canadian Broadcasting Corp., 1994 39 (SCC), [1994] 3 S.C.R. 835.

48How then should juries be instructed on the use they can make of evidence of intoxication? I am of the view that before a trial judge is required by law to charge the jury on intoxication, he or she must be satisfied that the effect of the intoxication was such that its effect might have impaired the accused's foresight of consequences sufficiently to raise a reasonable doubt. Once a judge is satisfied that this threshold is met, he or she must then make it clear to the jury that the issue before them is whether the Crown has satisfied them beyond a reasonable doubt that the accused had the requisite intent. In the case of murder the issue is whether the accused intended to kill or cause bodily harm with the foresight that the likely consequence was death.

49Therefore, a Canute-type charge is a useful model for trial judges to follow as it omits any reference to "capacity" or "capability" and focuses the jury on the question of "intent in fact". In most murder cases, the focus for the trier of fact will be on the foreseeability prong of s. 229(a)(ii) of the Criminal Code, R.S.C., 1985, c. C-46, that is, on determining whether the accused foresaw that his or her actions were likely to cause the death of the victim. For example, consider the case where an accused and another individual engage in a fight outside a bar. During the fight, the accused pins the other individual to the ground and delivers a kick to the head, which kills that person. In that type of a case, the jury will likely struggle, assuming they reject any self-defence or provocation claim, with the question of whether that accused foresaw that his or her actions would likely cause the death of the other individual. At this level of inquiry, the need for the jury to consider issues of capacity will rarely arise since a level of impairment falling short of incapacity will often be sufficient to raise a reasonable doubt on the question of foreseeability.

50In these types of murder prosecutions, the evidence of intoxication usually consists of witnesses testifying as to the quantity of alcohol consumed by the accused, his or her appearance (i.e., slurred speech or bloodshot eyes), and sometimes evidence of the accused as to his or her mental state. This evidence is usually offered by the defence not in isolation but along with other relevant evidence to be considered in relation to the question of whether the accused knew the likely consequences of his or her acts.

51Those who would favour a two-stage charge even in these types of cases argue that such a charge is necessary in order to put in context for the jury the evidence of experts who often testify in "capacity" terms. While it is true that experts will testify in terms of the effect of alcohol or other intoxicants on capacity if so questioned, this need not always be the case. We could simply have experts only testify about such things as the effects of alcohol on the functioning of the brain. Experts could also testify by way of a hypothetical and be asked whether in their opinion, taking into consideration all of the relevant facts, the hypothetical person would have foreseen that his or her actions would likely cause death.

52I should not want to be taken as suggesting that reference to "capacity" as part of a two-step procedure will never be appropriate in a charge to the jury. Indeed, in cases where the only question is whether the accused intended to kill the victim (s. 229(a)(i) of the Code), while the accused is entitled to rely on any evidence of intoxication to argue that he or she lacked the requisite intent and is entitled to receive such an instruction from the trial judge (assuming of course that there is an "air of reality" to the defence), it is my opinion that intoxication short of incapacity will in most cases rarely raise a reasonable doubt in the minds of jurors. For example, in a case where an accused points a shotgun within a few inches of someone's head and pulls the trigger, it is difficult to conceive of a successful intoxication defence unless the jury is satisfied that the accused was so drunk that he or she was not capable of forming an intent to kill. It is in these types of cases where it may be appropriate for trial judges to use a two-step MacKinlay-type charge. In addition, I suspect that most accused will want the trial judge to refer to capacity since his or her defence will likely be one of incapacity.

53Furthermore, there may well be some other cases where a two-step charge will be helpful to the jury, for example, where there has been expert evidence concerning issues of capacity, where the evidence reveals that the accused consumed a considerable amount of alcohol or where the accused specifically requests a "capacity" charge as part of his or her defence. If a two-step charge is used and the charge is later challenged on appeal, the role of an appellate court will be to review the charge and determine whether there is a reasonable possibility that the jury may have been misled into believing that a determination of capacity was the only relevant inquiry.

54It may be of some assistance to summarize my conclusions in the following manner:

A MacAskill charge which only refers to capacity is constitutionally infirm and constitutes reversible error;

2.A Canute-type charge which only asks the jury to consider whether the evidence of intoxication, along with all of the other evidence in the case, impacted on whether the accused possessed the requisite specific intent is to be preferred for the reasons set out at paras. 49-51;

3.In certain cases, in light of the particular facts of the case and/or in light of the expert evidence called, it may be appropriate to charge both with regard to the capacity to form the requisite intent and with regard to the need to determine in all the circumstances whether the requisite intent was in fact formed by the accused. In these circumstances a jury might be instructed that their overall duty is to determine whether or not the accused possessed the requisite intent for the crime. If on the basis of the expert evidence the jury is left with a reasonable doubt as to whether, as a result of the consumption of alcohol, the accused had the capacity to form the requisite intent then that ends the inquiry and the accused must be acquitted of the offence and consideration must then be given to any included lesser offences. However, if the jury is not left in a reasonable doubt as a result of the expert evidence as to the capacity to form the intent then of course they must consider and take into account all the surrounding circumstances and the evidence pertaining to those circumstances in determining whether or not the accused possessed the requisite intent for the offence.

If a two-step charge is used with "capacity" and "capability" type language and the charge is the subject of an appeal, then a determination will have to be made by appellate courts on a case by case basis of whether there is a reasonable possibility that the jury may have been misled into believing that a determination of capacity was the only relevant inquiry. The following factors, not intended to be exhaustive, should be considered:

(a) the number of times that reference to capacity is used;

(b) the number of times that reference to the real inquiry of actual intent is used;

(d) the nature of the expert evidence (i.e., whether the expert's evidence relates to the issue of capacity rather than on the effect of alcohol on the brain);

(e) the extent of the intoxication evidence;

(f) whether the defence requested that references to "capacity" be used in the charge to the jury;

(g) whether during a two-step charge it was made clear that the primary function of the jury was to determine whether they were satisfied beyond a reasonable doubt that the accused possessed the requisite intent to commit the crime. If this is emphasized during the course of the two- step charge, that will often be sufficient to make the charge acceptable and appropriate in this respect.

IV. Application of the Analysis to this Case

(a) The Charge on Intoxication

IV. Application of the Analysis to this Case

55I am of the view that the trial judge's charge to the jury in this case incorrectly instructed them on the relationship between intoxication and intent in fact. The trial judge began his charge as follows:

56At no time did the trial judge further instruct them that, even if they were satisfied that the appellant had the ability to form the intent, they were then to consider whether he in fact had the intent in light of the evidence of drunkenness. Shortly after referring to the accused's "ability" to form the intent, the trial judge instructed them as follows:

. . . a person can be too drunk to form the specific intent to cause death or to cause the deceased bodily harm.... But he may still have sufficient operating mind to form the general intent to do something he knows is wrong.... [Emphasis added.]

Later he instructed them:

As with all defences, the Crown must prove beyond a reasonable doubt that the defence of intoxication cannot succeed. The accused does not have to prove anything. You will keep in mind three things. If you accept the evidence in support of the defence of intoxication, you must return a verdict of not guilty of second degree murder, but guilty of the included offence of manslaughter.

Now, the evidence here hardly seems to go far enough, though it is a question of fact for a jury, to say that he didn't know the nature and consequences of his act or that it was wrong. That is drunkenness to the state almost of insanity, but not argued by defence here. But it is, as I say, a question of fact. [Emphasis added.]

57In these passages, the trial judge not only referred again to a capacity threshold but introduced a concept of the "operating mind" as well as part of the threshold test for insanity. This reference was further complicated by his reference to "insanity". In light of these instructions, the jury would almost certainly have been under the impression that they could only consider evidence of intoxication that was so severe that it created a condition akin to that of insanity. This error particularly prejudiced the respondent in light of the trial judge's personal assessment that the evidence did not reach that level.

58The appellant argues that the trial judge did not refer to "capacity"-like language in a repetitive fashion so as to confuse and mislead the jury from their real task of determining intent in fact. While it is true that "capacity" language was not used, the charge left the jury with the impression that there was a threshold test that had to be met before the intoxication evidence became relevant. This impression was aggravated by the fact that the jury did not receive a single instruction from the trial judge that they could consider the evidence of intoxication not on the issue of whether the respondent "had the ability" or whether he was "too drunk", but more importantly on whether the respondent had the requisite intent in fact. The appellant's argument also fails when one considers the trial judge's reference to a state of insanity.

59I wish also to add that in this case, a charge linking the evidence of intoxication with the issue of intent in fact was particularly important since there was also some, albeit weak, evidence of provocation and self-defence. Thus, while the jury may have rejected each individual defence, they may have had a reasonable doubt about intent had they been instructed that they could still consider the evidence of intoxication, provocation and self-defence cumulatively on that issue. This is commonly known as the "rolled-up" charge. See R. v. Clow (1985), 1985 5974 (ON CA), 44 C.R. (3d) 228 (Ont. C.A.); R. v. Desveaux (1986), 1986 153 (ON CA), 51 C.R. (3d) 173 (Ont. C.A.); and R. v. Nealy (1986), 1986 4694 (ON CA), 54 C.R. (3d) 158 (Ont. C.A.).

60I am thus satisfied that there is a reasonable possibility that the trial judge's charge to the jury on the defence of intoxication, when read as a whole, may have misled the jury into believing that a verdict of manslaughter could only have been arrived at if they had a reasonable doubt about whether the respondent had the capacity to form the requisite intent as a result of his drinking.

(b) The Charge on the "Common-sense Inference"

61The trial judge charged the jury on the common-sense inference as follows:

Now, I should summarize that in the Crown's words there was sufficient operating mind of Mr. Robinson to form the necessary intent to kill or cause grievous bodily harm and knowing that -- well, I will paraphrase that, they said that Mr. Robinson had the necessary intent, that is to cause the death or meaning to cause him, Mr. Clark, bodily harm, that he knows is likely to cause death and is reckless whether death ensued or not. The real key here is whether he had that intent and that is for you. In the course of my remarks I said that you might rely on the presumption that sometimes that people have been known to mean the natural and probable consequences of their acts. That is a presumption that need not be followed. It is a permissive one only. It is maybe some help, but the real question is one of subjective foreseeability on the part of Mr. Robinson that he would cause bodily harm that he knows was likely to cause death, and is reckless whether death ensues or not or that he meant to cause death. That's the key issue. It is intent here and if you have reasonable doubt in that, I have told you about the lesser included offence of manslaughter....

62While the trial judge incorrectly used the term presumption in discussing the common-sense inference that a sane and sober person intends the natural consequences of his or her actions, I think he made it sufficiently clear to the jury that they were not obligated to follow it. Moreover, when the trial judge first introduced the common-sense inference he did not use the word presumption. Consequently, when this error is read in the context of the charge as a whole, I agree with the appellant that we should find no reversible error on this issue.

63The respondent's principal argument on this point was that the trial judge failed to discuss the evidence of intoxication when he referred to the common-sense inference. He argued that the "natural flow" approach discussed in Canute should have been followed. Under this approach a jury charge should first define the requisite intent and the Crown's obligation to prove it beyond a reasonable doubt. It should then discuss the reasonable common-sense inference that a person intends the natural and probable consequences of his or her acts.

If the defence of intoxication has an evidentiary foundation, it should be explained next so that the jury may then be told they would not be entitled to draw the inference if, after a consideration of the evidence as a whole including that relating to the intoxication of the accused, they are left with a reasonable doubt whether the required intent has been proved by the Crown....

(Canute, supra, at p. 420.)

64While the majority of the Court of Appeal held that there was no magic to this "natural flow" approach and the fact that a particular sequence was not followed was not necessarily reversible error, they ultimately held that, at the end of the day, the trial judge's failure to provide the jury with a link between the common-sense inference and the evidence of intoxication was in error. In their opinion, his failure resulted in the jury's not being left with the impression that:

the reasonable common-sense inference could be drawn only after an assessment of all of the evidence, including the evidence of intoxication; and,
the inference could not be applied if they were left with a reasonable doubt about the appellant's intention.

65The respondent correctly argues, in my view, that where there is some evidence of intoxication, a trial judge must link his or her instructions on intoxication with the instructions on the common-sense inference so that the jury is specifically instructed that evidence of intoxication can rebut the inference. In both the model charges set out in MacKinlay and Canute, this approach is taken. This instruction is critical since in most cases jurors are likely to rely on the inference to find intent. Moreover, if no instruction is given, then a confused jury may see a conflict between the inference and the defence and resolve that conflict in favour of their own evaluation of common sense (see Korzepa, at p. 505). Therefore, an instruction which does not link the common-sense inference with the evidence of intoxication constitutes reversible error. In this case, the trial judge's failure to make this linkage constitutes reversible error.

(c) The Charge on Intent

66In this case, the Crown's theory was one of establishing that the respondent had the specific intent for murder under s. 229(a)(ii) (i.e."means to cause ... bodily harm that he knows is likely to cause ... death, and is reckless whether death ensues or not"). I agree with the respondent that it is likely that the jury would have been most concerned with this issue given the nature of the evidence bearing on it (i.e., the absence of motive to kill, the degree of intoxication, the respondent's silence at the time of the killing, and his statement to the police admitting that he stabbed the deceased but thought that the wounds were not serious).

67In his charge to the jury, the trial judge correctly stated the distinction between the two intents for murder under s. 229 at some points but he also misstated or blurred the distinction at others. In particular, he instructed them at three different occasions:

[1.] Now, in order to find the accused guilty of murder in this section you must be satisfied beyond a reasonable doubt that the attack either caused his death or caused bodily harm which he knew was likely to cause death and was reckless whether death ensued or not.

[2.]The Crown has not suggested that Mr. Robinson planned or deliberated the killing here, but they do say he had the necessary intent to kill or cause bodily harm and knowing it was likely to cause death or was reckless whether death ensued or not.

[3.]Nonetheless, a person can be too drunk to form the specific intent to cause death or to cause the deceased bodily harm that he knew was likely to cause death and was reckless as to whether death ensued or not.

In light of the theory of the Crown, the majority of the Court of Appeal held that his charge in this respect was in error.

68While it was important for the jury to be properly instructed on the intent requirement in s. 229(a)(ii) in light of the evidence and the Crown's theory, I do not think these three sentences would by themselves constitute reversible error. The respondent's complaint with passage (1) is that it omits the phrase means to cause death and means to cause bodily harm. However, that sentence was immediately preceded by the trial judge's reading the actual words of ss. 229(a)(i) and (ii) which include a proper statement of the intent required under each clause. This sentence was also followed by the words "[t]he next question is how is intent proved? When I refer to the accused meaning to cause death or bodily harm, I refer, of course, to his intention." I am therefore satisfied that sentence (1) is not misleading when read in context. Sentence (2) improperly uses the word "or" rather than the word "and" in the phrase "knowing it was likely to cause death or was reckless whether death ensued". However, I am satisfied that this lapse was not misleading since the intent in s. 229(a)(ii) was repeatedly described in conjunctive terms. The complaint about sentence (3) seems to be that the trial judge failed to link the evidence of intoxication to the issue of whether the respondent measured or foresaw the likely consequences of his acts. However, in all fairness to the trial judge, he did at one point state:

You should know from what I have already said that the Crown must prove beyond a reasonable doubt not only that Mr. Robinson intended to cause bodily harm and that he was reckless whether death ensued or not, but despite his intoxication he knew that what he was doing was likely to cause death.

69While the trial judge's charge on this issue contained some lapses and errors, I would not order a new trial on this ground alone. Rather, I view this part of his charge as further aggravating the errors I dealt with earlier in this judgment.

V. Disposition

70In my opinion, the appeal should be dismissed. I am not satisfied that at the end of the day, the jury would have adequately understood the issues concerning intoxication and intent or the law and evidence relating to those issues (see Cooper, supra, at p. 163).

71The appellant Crown has urged us to apply the curative proviso contained in s. 686(1)(b)(iii) of the Code to cure any errors made in the trial judge's charge to the jury. However, I am of the view that in a case such as this, s. 686(1)(b)(iii) should not be applied since the accused was denied a defence he was entitled to in law. I reach this conclusion as a matter of fairness and logic. In this case, there existed an "air of reality" for the intoxication defence which meant that there was some evidence upon which a properly instructed jury could reasonably have reached a verdict of manslaughter. The respondent was precluded by the trial judge's instructions from having a jury of his peers assess whether, as a result of his intoxication, he did not have the specific intent to kill the deceased. It is not the role of this Court to re-weigh the evidence and consider issues of credibility, in this type of a case, in order to determine whether a reasonable jury properly instructed would have reached the same verdict as rendered by the jury.

The following are the reasons delivered by

Dissenting Reasons of L'Heureux-Dubé J.

72L'Heureux-Dubé J. (dissenting) -- The facts of this case may be briefly summarized. On January 22, 1991, the respondent killed Clark Hall by repeatedly striking him on the head with a rock and stabbing him three times in the stomach with a bread knife. The respondent admitted to killing Mr. Hall, but claimed that he had acted without intent because he was intoxicated. The evidence revealed that the respondent had been drinking with Mr. Hall and some friends at Mr. Hall's apartment during the evening of January 21 and the morning of January 22, and that the killing occurred when Mr. Hall said something to offend the respondent. After being instructed on provocation, self-defence and intoxication, the jury found the respondent guilty of second-degree murder.

73The basic issue in this appeal relates to the adequacy of the trial judge's charge to the jury. This appeal also raises the more fundamental question of whether the Court should abandon the traditional rule that limits the use of evidence of intoxication by triers of fact where an accused is charged with a specific intent offence.

74I have had the advantage of reading the reasons of Chief Justice Lamer, and I disagree with them on three points. First, although I share the Chief Justice's opinion that the traditional rule should be abandoned, I have substantial concerns with the reasons that he invokes to reach that conclusion. Second, I disagree with the Chief Justice's analysis of the requirements of a charge to the jury in cases where there is evidence of intoxication. Finally, I am unable to subscribe to the Chief Justice's assessment of the trial judge's charge in the case at bar. I would allow the Crown's appeal and restore the conviction entered at trial.

I.The Traditional Rule

I. The Traditional Rule

75The Canadian "law of drunkenness" traces its origins to the decision of the House of Lords in Director of Public Prosecutions v. Beard, [1920] A.C. 479. The principles set out by Birkenhead L.C. in that case have given rise to two common law rules in Canada. First, where an offence can be committed with only "general intent", as opposed to "specific intent", evidence of intoxication may not be considered in the assessment of whether the accused had the requisite intent unless the intoxication was so extreme as to verge upon automatism. This rule was adopted in its present form in R. v. Daviault, 1994 61 (SCC), [1994] 3 S.C.R. 63, and is not under review in this appeal. The second rule provides that, even where an offence does require specific intent, evidence of intoxication may not be considered in the assessment of whether the accused had the requisite intent, unless the intoxication resulted in an incapacity to form the requisite intent: MacAskill v. The King, 1931 58 (SCC), [1931] S.C.R. 330. This Court must now decide whether to abolish this second rule by overruling MacAskill.

(a)Stare decisis

(a) Stare decisis

76It is beyond doubt that this Court has the power to overrule one of its previous decisions if there are compelling reasons for departing from the principle of stare decisis. At the end of the day, I do agree that we must overrule MacAskill and replace the common law rule which it incorporates. However, I have serious reservations about the justifications which the Chief Justice offers for the exercise of this exceptional power.

77The Chief Justice has identified five considerations which, in his view, warrant overruling MacAskill: a series of dissenting opinions of Laskin and Dickson C.JJ.; the Canadian Charter of Rights and Freedoms; the fact that no provincial appellate Court is currently following MacAskill; the situation in England, Australia and New Zealand; and the unanimity of academic opinion in opposition to MacAskill.

78Upon examination, however, many of these considerations are revealed to be less than compelling. For example, the Chief Justice places some emphasis on dissenting opinions in which Dickson C.J. argued in favour of abolishing the dichotomy between general and specific intent offences: Leary v. The Queen, 1977 2 (SCC); R. v. Bernard, 1988 22 (SCC). However, the position advanced in those cases by Dickson C.J., and supported by Laskin and Lamer C.JJ., has never attracted the support of a majority in this Court. On the contrary, the Court has consistently rejected their position, most recently in Daviault, supra. In such circumstances, the position taken on intoxication by the Chief Justice and his two immediate predecessors can hardly provide a compelling reason for overruling MacAskill.

79Similarly, the fact that lower courts have abandoned MacAskill is not, in itself, a compelling reason to abolish the rule. In our system of law, lower courts are obliged to follow the decisions of this Court and, if they fail to do so, they may be in error.

80In my opinion, the Charter provides the only compelling reason to reassess MacAskill. As we recently held in R. v. O'Connor, 1995 51 (SCC), [1995] 4 S.C.R. 411, courts must ensure that the common law develops in a manner that is respectful of the rights and values enshrined in the Charter. See also RWDSU v. Dolphin Delivery Ltd., 1986 5 (SCC), [1986] 2 S.C.R. 573, at p. 603, per McIntyre J.; Cloutier v. Langlois, 1990 122 (SCC), [1990] 1 S.C.R. 158, at p. 184, per L'Heureux-Dubé J.; Dagenais v. Canadian Broadcasting Corp., 1994 39 (SCC), [1994] 3 S.C.R. 835, per Lamer C.J. Indeed, the provincial appellate courts that have rejected the rule in MacAskill have done so after measuring the rule against ss. 7 and 11(d) of the Charter. This is an exercise that has never been performed by this Court. Consequently, the principle of stare decisis does not stand in the way of a re-examination of the rule by this Court in light of the Charter.

(b)Charter Analysis of the Rule in MacAskill

(b) Charter Analysis of the Rule in MacAskill

81The constitutional difficulty with the MacAskill rule is easily articulated. The rule requires the trier of fact to ignore evidence that may be relevant to the existence of the specific intent element of the offence, with the result that an accused may be convicted even though the evidence may raise a reasonable doubt as to that intent. It follows that the rule infringes ss. 7 and 11(d) of the Charter.

82As the Chief Justice observes, this conclusion is supported by his ruling in R. v. Vaillancourt, 1987 2 (SCC), [1987] 2 S.C.R. 636. However, it flows even more directly from Wilson J.'s opinion in Bernard, supra, and the decision of this Court in Daviault, supra. In Bernard, Wilson J. expressed the tentative view that s. 11(d) of the Charter would be violated if the trier of fact were prevented from considering evidence of intoxication relevant to the existence of the mens rea for the offence. Wilson J.'s approach was expressly adopted by the majority in Daviault. In the latter case, the Court specifically held that, by virtue of ss. 7 and 11(d), the trier of fact must be permitted to consider evidence of intoxication, if that evidence is capable of raising a reasonable doubt as to the existence of the mens rea for the offence.

83At the same time, the Court held in Daviault that, for offences of general intent, evidence of intoxication can only be considered in situations of extreme intoxication akin to automatism. This limitation is based on the fundamental distinction between offences of general and specific intent. The category of general intent offences is defined by the fact that such offences require only "the minimal intent which characterizes conscious and volitional conduct": Bernard, supra, per Wilson J. at p. 889. A distinguishing feature of such offences is that the mens rea is so basic that it will not be affected by intoxication, unless the degree of intoxication is so extreme as to verge on automatism. By definition, specific intent offences do not share this feature. There is no reason to assume that the existence of the mens rea required for a specific intent offence might not be affected by intoxication, even if the degree of intoxication falls short of automatism and does not deprive the accused of the capacity to form the specific intent. Consequently, for specific intent offences, the requirements of ss. 7 and 11(d) recognized in Daviault mean that the trier of fact should be permitted to consider evidence of intoxication in determining whether the accused actually had the requisite intent.

84It follows that the MacAskill rule runs afoul of ss. 7 and 11(d) because it prevents the trier of fact from considering evidence capable of raising a reasonable doubt as to whether the accused had the specific intent required to commit the offence. The effect of the MacAskill rule is that an accused may be convicted of murder even if the evidence raises a reasonable doubt as to the existence of the intent element of the offence.

85What, then, should be the fate of MacAskill? An extensive body of case law establishes that the common law may impose reasonable limits on Charter rights. See, for example, R. v. Thomsen, 1988 73 (SCC), [1988] 1 S.C.R. 640, at pp. 650-51; R. v. Swain, 1991 104 (SCC), [1991] 1 S.C.R. 933, at p. 968; Hill v. Church of Scientology of Toronto, 1995 59 (SCC), [1995] 2 S.C.R. 1130. An excellent illustration of the principle may be found in the Chief Justice's majority reasons in Dagenais, supra, a case involving the common law power of a trial judge to issue a publication ban. The common law power in question clearly amounted to an authorization to limit the freedom of expression. Nevertheless, the Chief Justice did not hold that the common law power was invalid. Nor did he replace it with a new common law rule which would impose no limits on freedom of expression. Instead, the Chief Justice held, at p. 878, that each publication ban should be subjected to a balancing test "which clearly reflects the substance of the Oakes test applicable when assessing legislation under s. 1 of the Charter". In other words, the essential inquiry is whether the infringement of rights resulting from the common law rule is a reasonable limit.

86Section 1 plays an important role in our constitutional system. More than simply an instruction to courts that they defer to legislatures as a matter of policy, s. 1 of the Charter is a recognition that individual rights must be balanced against one another and against important collective goals: R. v. Oakes, 1986 46 (SCC), [1986] 1 S.C.R. 103, at p. 136. This balancing process is not rendered unnecessary simply because the law in question was created by a judge. The analysis under s. 1 need not adhere strictly to the structure set out in Oakes. Nevertheless, the substance of the analysis will undoubtedly be similar, because its purpose, like that of the Oakes analysis, is to ascertain whether a particular rule is a justifiable limit on rights.

87I now turn to the question of whether the rule in MacAskill is a reasonable limit on the rights protected in ss. 7 and 11(d). I agree with the Chief Justice's conclusion that the rule is not a reasonable limit. However, I observe that the Chief Justice's analysis departs from the approach taken by Cory J., in Daviault, supra, in relation to the common law rule excluding evidence of intoxication from consideration in relation to general intent. In that case, Cory J. concluded, at pp. 92-93, that the so-called "Leary rule" could not be justified under s. 1, for the following reasons:

The experience of other jurisdictions which have completely abandoned the Leary rule, coupled with the fact that under the proposed approach, the defence would be available only in the rarest of cases, demonstrate that there is no urgent policy or pressing objective which need to be addressed. Studies on the relationship between intoxication and crime do not establish any rational link. Finally, as the Leary rule applies to all crimes of general intent, it cannot be said to be well tailored to address a particular objective and it would not meet either the proportionality or the minimum impairment requirements.

In my view, Cory J.'s analysis should not be ignored, because similar observations may be made about the rule in MacAskill as were made by Cory J. about the rule in Leary.

88For example, provincial appellate courts in at least eight Canadian jurisdictions have, over the last several years, abandoned the MacAskill rule in relation to specific intent offences. Like the Leary rule, the rule in MacAskill has also been abandoned in England, Australia and New Zealand. There is no evidence that this case law has had any adverse consequence that might give rise to pressing and substantial concerns. As well, the absence of a convincing causative link between intoxication and violent crime, noted by Cory J. in Daviault, supra, at pp. 87-88, shows that the rule in MacAskill is not rationally connected to the objective of preventing crime. Finally, as the MacAskill rule applies to all crimes of specific intent, it cannot be said to be well tailored to address a particular objective. It would, therefore, not meet the proportionality or minimal impairment requirements. In short, the rule in MacAskill is not a reasonable limit on the rights guaranteed in ss. 7 and 11(d) of the Charter.

89I conclude that, for offences of specific intent, evidence of intoxication should no longer be subject to a rule requiring that it be considered only if it attains such a degree that it deprives the accused of the capacity to form the specific intent. Evidence of intoxication can be considered with all other evidence in determining whether the accused actually had the specific intent required to constitute the offence.

II. Charge to the Jury

90The next step, after concluding that the restrictions in MacAskill should be abolished, is to decide what the jury must be told regarding intoxication.

91A preliminary issue identified by the Chief Justice relates to the evidentiary threshold. The Chief Justice, at para. 48, would describe the test as follows:

... before a trial judge is required by law to charge the jury on intoxication, he or she must be satisfied that the effect of the intoxication was such that its effect might have impaired the accused's foresight of consequences sufficiently to raise a reasonable doubt. [Emphasis in original.]

I prefer to put the threshold differently, in terms of the required evidentiary basis. Traditionally, the threshold for putting any defence to the jury is whether it has an evidentiary basis on which a reasonable jury might acquit: see Pappajohn v. The Queen, 1980 13 (SCC), [1980] 2 S.C.R. 120; R. v. Osolin, 1993 54 (SCC), [1993] 4 S.C.R. 595, at pp. 682-83, per Cory J.; R. v. Park, 1995 104 (SCC), [1995] 2 S.C.R. 836, at para. 11, per L'Heureux-Dubé J. for the Court. Therefore, where the accused's defence rests on evidence of intoxication, the question is whether there is sufficient evidence of intoxication that a jury could have a reasonable doubt as to whether the accused had the specific intention, knowledge or foresight required for the offence.

92Assuming that the evidence meets this threshold, the next question is how the judge must present the evidence of intoxication to the jury. On this point, there is a disagreement in the provincial appellate courts over whether the charge should refer only to intent (a "one-step" charge), or whether the charge should also mention that intoxication may be relevant to the accused's capacity to form the required intent (a "two-step" charge): see R. v. Canute (1993), 1993 403 (BC CA), 80 C.C.C. (3d) 403 (B.C.C.A.), per Wood J.A., and R. v. MacKinlay (1986), 1986 111 (ON CA), 28 C.C.C. (3d) 306 (Ont. C.A.), per Martin J.A.

93The Chief Justice prefers a one-step charge, which would omit any reference to capacity. He concedes that the trial judge would not necessarily commit reversible error by referring to capacity or using a two-step charge. However, the Chief Justice adds at para. 53 that if such a charge is used, then an appellate court must ask whether there is a "reasonable possibility that the jury may have been misled into believing that a determination of capacity was the only relevant inquiry" (emphasis in original). The Chief Justice also sets out a number of factors which should be considered in making this determination.

94I must take issue at the outset with the Chief Justice's statement of the standard of review. In our law, it is only after an error or ambiguity is identified that the question arises whether there is a reasonable possibility that the jury was misled: see, for example, R. v. Marquard, 1993 37 (SCC), [1993] 4 S.C.R. 223, at pp. 246-47; R. v. Brydon, 1995 48 (SCC), [1995] 4 S.C.R. 253. By saying that this test should be applied whenever a charge refers to capacity, the Chief Justice is in effect presuming that such a charge is erroneous or ambiguous. This presumption is, of course, unwarranted. As the Chief Justice himself acknowledges, the evidence in a particular case may be sufficient to put the accused's capacity in issue. If this occurs, it cannot be an error to tell the jury that they must acquit the accused if they have a reasonable doubt as to whether the accused had the capacity to form the required intent. Nor is a charge necessarily ambiguous simply because it discusses the issue of capacity. Rather, each charge must be reviewed individually, to ascertain whether it meets the basic requirements of correctness, completeness and clarity. If it does, it cannot be impeached, regardless of whether it contains one step or two.

95It is neither necessary nor appropriate for this Court to express a general preference for either form of charge. It goes without saying that the jury charge must not be worded in such a way as to suggest that, once capacity is found, intent should be presumed. Nor should the charge suggest that intoxication cannot be considered in relation to the existence of the required specific intent. However, I see no reason for this Court to hold that, as a general rule, a one-step charge is "preferred". It is equally unwarranted to construct a special test for determining whether references to capacity in a particular jury charge were acceptable, based on minutiae such as the number of times the word "capacity" was used. The Chief Justice appears to be proposing that appellate courts do precisely what was warned against in R. v. Cooper, 1993 147 (SCC), [1993] 1 S.C.R. 146, at p. 163:

Directions to the jury need not, as a general rule, be endlessly dissected and subjected to minute scrutiny and criticism.

The role of an appellate court in reviewing a jury charge is to determine whether the effect of the charge as a whole is to leave the jurors with an adequate understanding of the issues involved, the law relating to the issues, and the evidence they should consider in resolving the issues. Our role is not to express vague disapproval of a form of charge that, in frequent cases, will be perfectly appropriate.

III.Application to this case

III. Application to this case

96In reasons written by Rowles J.A. ((1994), 1994 1747 (BC CA), 92 C.C.C. (3d) 193), the majority in the Court of Appeal held that the cumulative effect of a number of errors in the charge was to deprive the jury of an adequate understanding of the evidence relating to intoxication and of the mens rea for murder. I do not share this opinion. Like Gibbs J.A., the dissenting judge in the Court of Appeal, I am of the view that most of the errors alleged by the respondent are non-existent, and that the few imperfections that do exist are immaterial. I will deal with each alleged error in turn.

(a)Proof of Intent and the Common-sense Inference

(i)Reference to the Common-sense Inference as a "Presumption"

(a) Proof of Intent and the Common-sense Inference

97In explaining how the Crown might prove intent, the trial judge described the common-sense inference that people intend the natural consequences of their acts. Although he described it once as an "inference", the trial judge also told the jury that they were entitled to "use an objective element such as people being presumed to mean the natural consequences of their acts" (emphasis added). Counsel for the accused later asked the trial judge to explain that the "presumption" was optional. The trial judge complied with this request.

98On behalf of the majority in the Court of Appeal, Rowles J.A. held that the use of the term "presumption" was an error. I disagree. As the appellant points out, the lay person would not necessarily attribute different meanings to the words "presumption" and "inference". Consequently, the use of the term "presumption" is not an error if the jury understood that they could conclude, but were not required to conclude that the respondent intended the natural consequences of his acts: R. v. Crawford (1970), 1970 999 (BC CA), 1 C.C.C. (2d) 515 (B.C.C.A.). In the case at bar, the charge made it very clear that the "presumption" or "inference" was optional. I conclude that there was no error.

(ii)Failure to Link the Instructions on Proof of Intent with the Instructions on the Evidence of Intoxication

99According to Rowles J.A., the trial judge's discussion of the common-sense inference was lacking because it failed to link the evidence of intoxication to the issue of intention. Even though the trial judge reviewed the evidence of intoxication, his discussion, at p. 212, of the common-sense inference

might well have left the jury without a clear understanding that: (1) the reasonable common sense inference could be drawn only after an assessment of all of the evidence, including the evidence of intoxication, and (2) the inference could not be applied if they were left with a reasonable doubt about the appellant's intention.

I respectfully disagree with these conclusions. In my opinion, the charge was not deficient in any of the ways alleged.

100The trial judge told the jury that the common-sense inference was simply a tool which the jury could use or not use, depending on the other evidence, in determining the central issue of whether the accused had the necessary intent for murder. For example, the trial judge said:

Generally, it is a reasonable inference if a person intended the natural consequences of his acts. If a person does something which any reasonable person knows will result in the death of another and if from those acts death does follow, then you might conclude that he intended to kill. So, in the present case if you conclude that the accused did something that any reasonable person would know would result in death, then it is a proposition of common sense that would be evidence from which you could conclude that the accused intended to kill. It is entirely for you to say whether you find those facts. Of course, the conclusion I have discussed with you may in your opinion be contradicted by the evidence.

And, further:

The real key here is whether he had that intent and that is for you. In the course of my remarks I said that you might rely on the presumption that sometimes that people have been known to mean the natural and probable consequences of their acts. That is a presumption that need not be followed. It is a permissive one only. It is maybe some help, but the real question is one of subjective foreseeability on the part of Mr. Robinson that he would cause bodily harm that he knows was likely to cause death, and is reckless whether death ensues or not or that he meant to cause death. That's the key issue. It is intent here and if you have reasonable doubt in that, I have told you about the lesser included offence of manslaughter. . . .

As these excerpts from the charge show, the trial judge put the common-sense inference in its proper perspective and made it clear that the overriding issue was whether the Crown had proved specific intent.

101Moreover, as Gibbs J.A. observed in his dissenting opinion in the Court of Appeal, there is no absolute requirement that the evidence of intoxication be linked to the common-sense inference. The judge told the jury to consider the evidence before deciding whether to apply the common-sense inference. It was not necessary to make specific reference at that stage to the evidence of intoxication. It is apparent to most people, as a matter of common experience, that alcohol consumption can be relevant in determining what the accused intended, foresaw or knew: see Alan D. Gold"An Untrimmed `Beard': The Law of Intoxication as a Defence to a Criminal Charge" (1976-77), 19 Crim. L.Q. 34, at p. 39, fn. 19, and the authorities cited therein. I see no reason, therefore, why it should be mandatory for the trial judge to add a phrase such as "including the evidence of intoxication", when he or she tells the jury to consider all of the evidence.

(b)Misdirection Limiting Consideration of Intoxication to Question of Capacity to Form Intent

(b) Misdirection Limiting Consideration of Intoxication to Question of Capacity to Form Intent

102According to the respondent, the trial judge gave the impression that evidence of intoxication could be considered only if it was so severe as to deprive the accused of the capacity to form specific intent. Because the charge on intoxication is not very long, it is useful to reproduce it here in its entirety:

You must first consider whether the mind of the accused was so affected by his consumption of alcohol that he did not have the ability to form the specific intent to cause death or bodily harm that he knew was likely to cause death and was reckless. You may find in the end that you have a reasonable doubt about that, but bear in mind the mere fact that a person who has taken alcohol is not in itself a defence to a criminal prosecution if the effect upon a person is merely to result in that person casting off restraint or acting in a manner which he would not act in if he had not consumed alcohol. That condition affords no excuse for the commission of a crime because sometimes the consumption of alcohol gives people a sense of false courage and inflames their passion. Nonetheless, a person can be too drunk to form the specific intent to cause death or to cause the deceased bodily harm that he knew was likely to cause death and was reckless as to whether death ensued or not. But he may still have sufficient operating mind to form the general intent to do something he knows is wrong, thus a homicide by wrongful act or culpable homicide which is manslaughter which I have already instructed is a lesser included offence on a charge of second degree murder.

Now, in this case there is evidence that Mr. Robinson consumed a considerable amount of alcohol before the alleged killing of Mr. Clark Hall. You should know from what I have already said that the Crown must prove beyond a reasonable doubt not only that Mr. Robinson intended to cause bodily harm and that he was reckless whether death ensued or not, but despite his intoxication he knew that what he was doing was likely to cause death. As with all defences, the Crown must prove beyond a reasonable doubt that the defence of intoxication cannot succeed. The accused does not have to prove anything. You will keep in mind three things. If you accept the evidence in support of the defence of intoxication, you must return a verdict of not guilty of second degree murder, but guilty of the included offence of manslaughter. [Emphasis added.]

The trial judge then made a comment about drunkenness to the "state almost of insanity", which I will discuss in the next section.

103I agree with Gibbs J.A. that the trial judge did not limit the jury to considering whether intoxication rendered the accused "incapable" of forming the requisite intent. It is true that in the first underlined passage, above, the trial judge told the jury that intoxication could affect the accused's capacity. However, as I have said, this is not an error. Moreover, in the second underlined passage, the trial judge indicated that intoxication could also affect the actual knowledge required to constitute murder. The jury also heard many times from the trial judge that the crucial question was the accused's actual intent. Read as a whole, the charge made it clear to the jury, exercising its common-sense, that the evidence of intoxication could be considered together with the other evidence in ascertaining the accused's intent. I conclude that there was no error in the charge on this point.

(c)Introduction of the Concept of Insanity

(c) Introduction of the Concept of Insanity

104Immediately following the above-quoted passage, the trial judge added a comment about intoxication verging on insanity:

This comment was perhaps unnecessary. However, I share the opinion of Gibbs J.A. that the jury would not have been misled. The trial judge's comments were obviously an aside and it would have been clear to the jury that the defence of "almost insanity" was an issue distinct from the accused's actual intent.

(d)Failure to Distinguish Between two Kinds of Intent for Murder

(d) Failure to Distinguish Between two Kinds of Intent for Murder

105Finally, the respondent argues that the trial judge misstated or blurred the distinction between the two alternative intents for murder: meaning to cause death (s. 229(a)(i)); and meaning to cause bodily harm that he knows is likely to cause death, and being reckless as to whether death ensues or not (s. 229(a)(ii)). Moreover, the respondent submits that the jury should have been instructed that evidence of intoxication could be considered when determining whether the accused knew the likely consequences of his acts under s. 229(a)(ii).

106Taking the second point first, I observe that the jury was in fact instructed that it could consider evidence of intoxication when determining whether the accused knew the likely consequences of his acts. Specifically, the trial judge said:

Consequently, the respondent's argument must fail.

107On the other point, the respondent is no more successful. His argument is based on a few small slips which, as the Chief Justice acknowledges in his reasons, are insignificant in the context of the rest of the charge. When the charge is taken as a whole, the jury would not have been misled as to the intent required for murder.

IV.Conclusion and Disposition

IV. Conclusion and Disposition

108The MacAskill rule is inconsistent with the Charter and should be abandoned. Where an offence requires specific intent, evidence of intoxication should be considered, together with the other evidence, in determining whether the accused had the requisite intent.

109Nevertheless, the trial judge's instructions as to the law and his review of the evidence were accurate, complete and understandable. When the charge is read as a whole, I have no doubt that the jury understood the applicable legal principles and the evidence they could consider in resolving the factual issues. In particular, the jury would have understood that they could examine the evidence of intoxication, together with the rest of the evidence, in determining whether the accused had the requisite specific intent. Since the jury charge met all of these fundamental requirements, the Court of Appeal was wrong to overturn the conviction. I would allow the appeal and restore the conviction entered at trial.

Appeal dismissed, L'Heureux‑Dubé J. dissenting.

Solicitor for the appellant: The Attorney General of British Columbia, Vancouver.

Solicitor for the respondent: Gil D. McKinnon, Vancouver.

R. v. Robinson, 1996 CanLII 233 (SCC), [1996] 1 SCR 683

I. Introduction

II. Summary of the Facts

III. The Issues

IV. Analysis

(ii) The Incorporation of Beard into our Common Law: MacAskill and its Progeny

(iii) Should MacAskill Be Overruled?

(a) The Opinions of Former Chief Justices Laskin and Dickson

(b) Developments in our Provincial Appellate Courts

(c) Developments in England, New Zealand and Australia

(d) Academic Commentary

(e) The Charter

(iv) What New Rule Should Replace MacAskill?

IV. Application of the Analysis to this Case