Can voluntary intoxication be used as a defence?
In criminal law cases, the accused will sometimes mention that he or she was under the influence of alcohol or drugs at the time of the events. However, although voluntary intoxication is a defence recognized under the Criminal Code, it cannot be invoked in all cases. To this end, when is it possible to invoke voluntary intoxication as a defence?
To invoke voluntary intoxication, the intent must be specific
At the outset, it is important to understand that this defence is not useful when the charge involves a general intent offence. Indeed, a defendant can only use this defence when the offence requires a specific intent. In cases where the defence is open, the accused will then have to demonstrate, with a preponderance of evidence, that because of the intoxication, he or she was not in a position to know what he or she was doing, and therefore could not have formed the intention to commit the offence.
Is the amount of alcohol consumed sufficient?
Of course, it would not be possible to invoke this defence after consuming a light amount of alcohol, for example. The amount of alcohol consumed must be large enough to ensure that the intent could not have been formed in the accused’s mind, and that the accused was too intoxicated to understand the consequences of his actions. Canadian law indicates that the accused must be at least in an advanced state of intoxication before a judge can be convinced that the specific intent required was not present at the time the offence was committed. This defence will also be available in cases of extreme intoxication.
The Criminal Code and extreme intoxication
However, article 33.1 of the Criminal Code has been amended with respect to extreme intoxication. Previously, even for crimes of general intent such as manslaughter, assault or sexual assault, it was possible for the defence to plead voluntary intoxication by stating that the accused was practically unconscious at the time of the events. Since the legislative amendment of this section a few years ago, this is no longer possible. Parliament has clarified that, regardless of the degree of intoxication, section 33.1 cannot be invoked in a case of an offence of general intent where the physical well-being of a person is being violated.
Successfully invoking voluntary intoxication: the game is not over yet
That being said, it is important to be very careful. Indeed, in many cases, although the specific intent of an offence may be denied, the fact remains that one can be found guilty of a lesser and included offence. In other words, you won’t necessarily be acquitted at the end of the judicial process after successfully invoking voluntary intoxication. For example, in the case of premeditated murder, although it is possible to deny the specific intent related to this crime due to voluntary intoxication, one can be found guilty of the lesser and included offence of manslaughter.
What can be done to minimize the consequences of a criminal charge?
In short, for offences of specific intent, voluntary intoxication can be invoked if the level of intoxication is high enough. However, the judge still has to be convinced. As you can see, this is not a foregone conclusion.
If you have any questions, please do not hesitate to contact us. We work tirelessly to find defences for our clients and minimize the consequences of a criminal charge.
