R. v. Daviault [1994] 3 S.C.R.

63

- Most of you should have come across this case when you were doing criminal
law. It’s a case about sexual assault and the defence of intoxication.

1. FACTS
- Mr. Daviault was charged with dragging an old lady from her wheelchair and
sexually assaulting her, after he consumed 8 beers and a glass of brandy
- He claimed that he had no recollection of what occurred after he drank the
brandy and he just found himself naked in the lady’s bad the other day
- He denied sexually assaulting the lady.
- His expert witness testified that he might have suffered a blackout.

2. JUDICIAL HISTORY
- Trial judge: held that Daviault had committed the offence but acquitted him
 had a reasonable doubt about whether D, under his extreme intoxication,
had possessed the minimal intent necessary to commit sexual assault.
- The Court of Appeal: overturned the ruling +
 Held that the defence of intoxication was unavailable for the general
intent offences (which is sexual assault in the present case) even if it was of
such level as to induce a state akin to automatism.

3. ISSUE Before Supreme Court of Canada

- Whether the rule in Leary v Queen [which is - the mens rea of a general intent
offence can’t be negated by intoxication akin to insanity] offend s.7 and 11(d) of
the Canadian Charter of Rights and Freedoms. – including violating the
principle of fundamental justice by the absence of proving an essential element
of the offence and the accused’s right to presumption of innocence.

4. RULINGS BY THE SUPREME COURT

- The Supreme Court held, 6 to 3, that the application of Leary rule violates the
Charter. They overturned the verdict and ordered a new trial.
- The majority, led by Justice Cory, ruled that the mental element of the offence
has long been recognized as an integral part of crime and to eliminate it would
be to deprive an accused of fundamental justice.
- The necessary mental element can ordinarily be inferred from the proof that the
assault was committed by the accused, but the substituted mens rea of an
intention to become drunk cannot establish the mens rea to commit the
assault.
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 R. v. Daviault [1994] 3 S.C.R. 63

- Moreover, they held that presumption of innocence requires the Crown to bear
burden of establishing all elements of a crime, including the mental element of
voluntariness. There is no casual connection between alcohol abuse and
violence.]
- The majority came up with a test that evidence of intoxication could go before
a jury in general intent offences if the accused can
 establish on balance of probabilities that
 he suffered from extreme intoxication that there was an absence of
awareness akin to automatism or insanity
 however, it will be in “rare occasions” that evidence of such extreme
intoxication can be advanced.

5. MY CRITIQUE
- The case is actually about the need to maintain a balance between
 the rights of the accused not to be unfairly tried or imprisoned,
 the rights of the victims, and
 the interests of the public at large.

I believe that the majority judges erred in the decision due to 3 main grounds, esp.
on balancing laws and policy:

Firstly, the requirements of fundamental justice could be satisfied;

- Firstly, I agree with the dissenting opinion by Justice Sopinka that principles of
fundamental justice may actually be satisfied by the proof that the accused was
voluntarily intoxicated
- I don’t think people have to obey the rules simply because of the law’s authority
or coercive power. I believe the lawmakers should claim that there are good
reasons to criminalize the types of conduct it defines as crimes.
- The most obvious moral reason is that some acts must not be done, and even if it
might suit our individual interests to do them, it attaches significant penalties to
the conduct if we do them.
- Hence, the basis of offence requires
 a blameworthy mental element be proved
 the level of blameworthiness not be disproportionate to the seriousness of
the case
- These elements were satisifed in the Daviault case
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 R. v. Daviault [1994] 3 S.C.R. 63

- People who made themselves incapable of knowing what they are doing through
voluntary consumption of alcohol –
 are not morally innocent and
 they actually possess a sufficiently blameworthy state of mind
- They should be punished since they pose a threat to other members of the public.

Secondly, the case undermined the deterrence of criminal justice for violence or
other crimes associated with alcohol use.

- In Daviault, it was obvious that the rights of the accused, rather than the victims
or society, tipped the scales of justice.
- Although the majority’s reasoning that the mens rea of an intention to become
drunk cannot establish the mens rea to commit the assault is correct in a strict
logical sense, the judges failed to acknowledge the policy concerns and the
competing rights. The majority considered the state’s responsibility to the
accused under the Charter, but failed to acknowledge the accused’s responsibility
to society.
With the availability of the defence of self-induced extreme intoxication for
both “general” and “special” intent cases, there were risks that the Daviault decision
may be interpreted liberally in the lower courts, and judges would acquit
intoxicated offenders in circumstances less uncommon than those in the Daviault
case.
[As for moral culpability, Hart argues that we should explain excuse doctrines
not as aiming to exempt the morally faultless from criminal liability, but as aiming
to protect individual freedom by subjecting to liability only those who had a fair
opportunity to avoid it .]
Particularly, I found it hard to apprehend how Cory J concluded that “there is no
urgent policy or pressing objective which need to be addressed” based on the
experience of other jurisdictions which have completely abandoned the Leary rule.
[The Court was just trying to “let justice be done even though the public order is
threatened”. The strict legal reasoning may be sound, but it may not even create a
“just” result in terms of rights of the victims, and in terms of punishing the
wrongdoers.]
Indeed, the fundamental basis of criminal laws is to provide deterrence, punish
those who commit a crime and protect the public from the dangers these offenders
pose [prevent conduct that unjustifiably and inexcusably inflicts/ threatens
substantial harm to individual/ public interest]. 
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 R. v. Daviault [1994] 3 S.C.R. 63

The Leary rule has served all three purposes – it forced an accused to accept
for his responsibility for his actions which, while not committed in such a direct
causal result of the consumption of the liquor, were committed in such voluntary
state. If one could escape responsibility for his or her action merely because of
intoxication – the court ineffectively sanctions illegally activities by the fear of legal
repercussions. Personally speaking, I also support the creation of a new offence of
“dangerous intoxication” in the Criminal Code, which may also serve the above 3
purposes of criminal laws.
That is just like the “thin Skull Rule” in tort – the tortfeasor takes the victim as
he finds him, so he’s not excused from paying damages merely because, had it not
been for some pre-existing weakness of victim – tort would not have caused so
severe an injury
- without the rule – the injuries would be undercompensated and
underdeterred!
1. Possible critics: the autonomy and objectivity of law are secured by confining
legal analysis to the formal level – and if you agree that the logic behind is
correct – why still say it’s wrong
- It is against the previous case laws (e.g. Leary) where similar situations and
facts have been argued. It is alright to “treat like cases alike”
2. Autonomy and objectivity of law – should confine legal analysis to formal level
– require only an exploration of of relations among legal ideas. Will be
threatened when the legal outcome depend on the facts about the world (facts of
the dispute/ social / ethical facts relevant to creating / interpreting a rule)

(3) [A minor argument is that] It creates another area of distinction and

uncertainty [in the area of intoxication]– what amounts to extreme intoxication
due to consumption of alcohol.
For instance, even with the expert evidence, it is difficult to draw the line
between a person having a blackout or simply acting under the influence of alcohol.