Court File and Parties
COURT FILE NO.: CR-19-40000581 DATE: 20220329
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – BIRHAN IMAM Defendant
Counsel: Joshua Tupper, Counsel for the Crown W. Glen Orr, Q.C. and Scott O’Neill, Counsel for the Defendant
HEARD: March 7-11, 14, 21-25, 28 and 29, 2022
Schabas J.
Ruling on intoxication defence
[1] The accused is charged with three offences: attempted murder, aggravated assault and carrying a concealed weapon. The charges arise from a stabbing alleged to have been committed by the accused against another man at a mall in Toronto.
[2] It is now time to charge the jury, and I have provided a copy of my draft charge to counsel.
[3] There is evidence that the accused was intoxicated at the time of the commission of the offences. I have agreed to put the defence of intoxication to the jury on the attempted murder charge, which is a crime of specific intent. This involves informing the jury that it should consider any evidence of intoxication, together with all the other evidence, in deciding whether the Crown has proven beyond a reasonable doubt that the accused had the specific intent to kill the victim. No objection is taken to that portion of my draft charge.
[4] Defence counsel submits, however, that I should include the defence of extreme intoxication in my charge to the jury for the offences of aggravated assault and carrying a concealed weapon.
[5] Those two offences, it is agreed, are offences of general intent as that distinction is recognized and described in the jurisprudence following the decision in DPP v. Beard, [1920] SC 479. In R. v. Daley, [2007] 3 S.C.R. 523, 2007 SCC 53, at para.35, the Supreme Court of Canada summarized the distinction as follows:
Courts in England and Canada have taken the reference in Beard to “forming the specific intent essential to constitute the crime” as drawing a distinction between crimes of specific intent and those of general intent, such that the defence of intoxication is traditionally only available with respect to the former. Specific intent offences require the mind to focus on an objective further to the immediate one at hand, while general intent offences require only a conscious doing of the prohibited act: see R. v. Bernard, [1988] 2 S.C.R. 833, and R. v. George, [1960] S.C.R. 871.
[6] Until R. v. Daviault, [1994] 3 SCR 63, intoxication was not recognized as a defence to crimes of general intent, consistent with the statement above. However, in Daviault the Supreme Court held that this limitation of the defence of intoxication to crimes of specific intent infringed the Canadian Charter of Rights and Freedoms stating, as summarized in Daley at para.37, that “extreme intoxication could, in rare cases, be a defence to general intent offences such as assault or sexual assault.” As the Court went on to explain in Daley, “in such cases, the minimal intent required for a general intent offence cannot be inferred from the commission of the prohibited act because ‘the very voluntariness or consciousness of that act may be put in question by the extreme intoxication of the accused’.”
[7] In Daviault Cory J. emphasized, at para.59, the need for extreme intoxication, observing that “even those who are significantly drunk will usually be able to form the requisite mens rea and will be found to have acted voluntarily.” Accordingly, the Court stated at para.60 that “it will only be on rare occasions that evidence of such an extreme state of intoxication can be advanced and perhaps only on still rarer occasions is it likely to be successful.”
[8] At para.63 of Daviault, the Court stated that those rare circumstances require the accused to show that his or her state was “akin to automatism or insanity.” As the Court continued:
Drunkenness of the extreme degree required in order for it to become relevant will only occur on rare occasions. It is only the accused who can give evidence as to the amount of alcohol consumed and its effect upon him. Expert evidence would be required to confirm that the accused was probably in a state akin to automatism or insanity as a result of his drinking. [Emphasis added.]
[9] Following the decision in Daviault, in 1995 Parliament passed s. 33.1 of the Criminal Code to limit this defence of extreme automatism for general intent offences to non-violent offences that do not include “an assault or any other interference or threat of interference by a person with the bodily integrity of another person.”
[10] In Daley, at para.43, the Supreme Court again observed that the defence of “extreme intoxication akin to automatism…would be extremely rare.” In stating this the Court observed that the extreme intoxication defence “negates voluntariness and thus is a complete defence to criminal responsibility.” Daley repeated the need for expert evidence, stating at para. 45:
As for extreme intoxication akin to automatism, the approach adopted in Daviault and confirmed in Stone, [1999] 2 SCR 290 imposes an evidentiary burden on the accused to satisfy the trial judge that there is evidence upon which a properly instructed jury could find that the accused acted involuntarily on a balance of probabilities. In all cases, this will require that the defence make an assertion of involuntariness and call confirming psychiatric evidence: see Stone, at paras.182-84; Daviault, at pp.101-2. [Emphasis added]
[11] The fact that it is a complete defence distinguishes the extreme intoxication defence from the limited intoxication defence for crimes of specific intent in which intoxication of the accused is a factor which may raise a reasonable doubt whether the accused had the required specific intent. However, in specific intent cases where the intoxication does raise a reasonable doubt, which typically arises in crimes of violence such as murder, the accused is often found guilty of the lesser included general intent offence of manslaughter. Although aggravated assault is not an included offence to attempted murder, a similar result could be reached in this case where, should the jury find the accused not guilty of the specific offence of attempted murder, it may find the accused guilty of the general intent offence of aggravated assault.
[12] This is not the time or place to delve into the debate over the distinction between crimes of general and specific intent, and whether it can be justified on a principled or constitutional basis. The distinction has, however, been seen as a practical compromise between acquitting accused persons for serious crimes of specific intent because they are drunk, and the need to protect society by holding people legally responsible for their actions, including what may be reckless behaviour in becoming intoxicated and committing crimes. See, e.g., Justice Sopinka’s dissent in Daviault at para.134.
[13] Section 33.1 of the Criminal Code was recently held to be unconstitutional by the Ontario Court of Appeal in R. v. Sullivan, 2020 ONCA 333, re-opening the door to the use of the extreme intoxication defence for the charge of aggravated assault in this case, in addition to its application to the charge of carrying a concealed weapon. I note that leave to appeal in Sullivan was granted by the Supreme Court of Canada, which reserved judgment in the case on October 12, 2021.
[14] In Sullivan at para.49, the Court of Appeal referred to the need for expert evidence mentioned in Daviault, stating the majority decision in that case held “that it is a reasonable limitation on the Charter rights identified to require accused persons to establish automatism with the assistance of expert evidence, on the balance of probabilities.”
[15] In this case, there is evidence of intoxication. Mr. Imam is observed by police officers and others to be in “a daze” or “out of it” or “non-responsive” immediately following the offence and for some period of time afterwards. On the other hand, Mr. Imam followed the police command to drop to the ground on his arrest, which was within 15 minutes of the stabbing. About 20 minutes later he told paramedics his name, which he spelled for them, and that he “drank gin and smoked weed.” When booked at the police station a few hours after the stabbing, the accused told the police he had consumed 10 ounces of gin, although there is no evidence as to the time period in which he did so, and he gave no details of smoking “weed.”
[16] The accused did not testify.
[17] The defence did call an expert witness, a toxicologist, Dr. Joel Mayer, who interpreted Mr. Imam’s blood alcohol content based on blood taken from him at a hospital less than 2 hours after the incident. Mr. Imam’s blood alcohol content was 170 milligrams per 100 millilitres of blood, or a little over twice the legal limit for driving. Dr. Mayer’s opinion was that the accused’s blood alcohol content at the time of the stabbing would have been between 170 and 210 mgs. For a person to have this level of intoxication Dr. Mayer said they would have had to consume the equivalent of at least seven and a half standard drinks; however, he had no information as to how much alcohol Mr. Imam had actually consumed, or when he consumed it. Nor did Dr. Mayer have any information about the extent to which Mr. Imam may have “smoked weed.”
[18] Dr. Mayer said that an individual with a blood alcohol content of between 170 and 210 mgs would show signs of significant intoxication, the possible effects of which would include loss of inhibition, a negative impact on the ability to think things through, and possibly impaired judgment or decision-making. He said that this can result in people engaging in highly risky behaviour in which they do not fully appreciate the consequences of their actions as their thought process is impaired and they may be operating in a fog.
[19] This is as far as Dr. Mayer’s evidence went. He did not opine that Mr. Imam’s state of intoxication would rise to the level of extreme intoxication contemplated by the Supreme Court in Daviault.
[20] In my view, the accused has failed to establish a basis for putting the defence of extreme intoxication to the jury. He has failed to meet the burden on him of leading evidence of the amount of alcohol he consumed and its effect upon him. While there is some evidence that he was non-responsive to the police and “in a daze” and “out of it”, there is also evidence that he was responsive to some commands and questions. There is also no expert evidence which is required to “confirm that the accused was probably in a state akin to automatism or insanity as a result of his drinking”: Daviault at para.63.
[21] The evidentiary requirements for extreme intoxication will be met only on “rare occasions.” The bar is high because the state of intoxication is self-induced and its application results in an acquittal. The defence should only be put to a jury in cases where the evidentiary requirements are met. This is not one of them. Put another way, in the absence of the required evidence the extreme intoxication defence has no air of reality and should not be left with the jury.
Paul B. Schabas J. Released: March 29, 2022