 |
| Patrick J Ducharme |
In Canada, if a crime is determined to be a general intent crime, intoxication is not a defence to the commission of it. Significantly, one will not find the designations or descriptions of “specific” or “specific intent” or “general” or “general intent” in any Canadian legislation related to crime. There is no reference to any criminal offence as requiring “specific” or “general” intent in over one thousand pages of Criminal Code.
The reason for this is the term ‘specific intent’ refers not to an element of the crime but to the alleged perpetrator’s “state of mind” at the time of the commission of the crime. It implies, without stating so specifically, that proof of the offence requires not only the doing of an unlawful act, but also the performance of that act with some unspecified additional subjective intent or objective.
One is left to “figure it out” by reading the case law and learning what specific offences our higher courts have classified as an offence requiring a specific intent, and which offences only require proof of a general intent. It is not an easy matter.
Experienced lawyers have generally come to know those offences that our courts have determined are to be treated as specific intent crimes. All other crimes presumably require proof of a general intent only unless they drop down even lower to negligence crime or ‘failing to do something’ crimes.
Although never described as specific intent crimes or general intent crimes, here is our take on the best way to surmise whether any offence requires proof of a specific intent as opposed to a general intent. Specific intent crimes usually have somewhere in their definition words such as:
intentionally.
willfully.
purposefully, or,
knowingly.
To add to the confusion, general intent crimes, still require the prosecutor to prove intent. Consequently, it seems that when our courts have determined an offence requires only proof of “general intent” what the court really means is that a general intent crime only requires that the accused intended to perform the act of the crime. The prosecutor is not required to prove mens rea beyond the commission of the act. The best definition then of a general intent crime is that the accused need only ‘to intend to commit the act’ that has been described in the Criminal Code as unlawful. General intent crimes are those crimes that the prosecutor only needs to prove that the accused intended the act, without any regard for the result of the act.
If our courts have determined that a crime requires a specific intent, the defence of intoxication may be successful to the extent that it vitiates the specific intent required to prove the crime alleged but may lead to a conviction of a lesser and included general intent crime. If the accused is charged with first degree murder, a crime that requires the prosecutor to prove that the accused planned and deliberated the death and therefore had the specific intent to commit first degree murder, the defence of drunkenness, if accepted by the trier of fact, may vitiate the “specific intent” required to be proved for the crime of first degree murder. And, if so, the accused may be convicted of the general intent crime of manslaughter.
The perplexing issue in this circumstance is that second degree murder is also considered a specific intent crime, yet intoxication that vitiates the intent required for first degree murder, may, arguably, also vitiate the intent required for second degree murder, which also requires proof of a specific intent to cause the death of another unlawfully. Trial Judges never jump from first degree murder down to manslaughter whatever defence is raised at trial. But both first and second degree murder are considered specific intent crimes.
Logically, if this distinction has any meaning at all, if the accused cannot specifically intend one crime (first degree murder) then one would think he could not commit the other specific intent crime of second degree murder.
Common sense, however, tells us someone either intends to do something or they do not so intend. The distinction between “specific” intent crimes and “general” intent crimes is a fiction created by our courts and has, unfortunately, carried on through the ages in our case law. Our courts have determined that some form of impaired thinking, causing an impairment in our ability to reason clearly, brought on because of consumption of drugs, alcohol or both may be acceptable as a limited defence, to reduce convictions for specific intent offences, but not for other lesser included offences that require only a “general intent.”
Since this distinction relating to types of intent was created by our Judges–a distinction that has never been embraced by our legislators whose responsibility it is to define specific crimes–the words “specific” or “general” in reference to the required intentional component of any crime has not been included in the definition of any offence or defence. One is required to read about fifty years of case law to distinguish one from another.
The defence of intoxication, if accepted by the trier of fact, may reduce first degree murder, an offence that requires the specific intention of planning and deliberation, to manslaughter, a charge that our courts have determined is a general intent crime. The defence of intoxication may also reduce what would otherwise be a conviction for first degree murder or second degree murder if the jury concludes that the intoxication of the accused nullifies the specific intent required for second degree murder.
Second degree murder requires that the accused causes the death of another unlawfully, and, that he had the required state of mind for murder. This requires the prosecutor to prove beyond a reasonable doubt that the accused unlawfully killed the victim either intending to kill him or intending to cause him bodily harm, knowing that his acts were likely to cause the victim to die, and/or was at least reckless whether the victim died.
Most Judges would advise the jury that the accused would need to know that his actions were so dangerous that the victim would likely die because of what he or she did. Thus, the accused must have the intention to kill or act in such a dangerous manner that he knew that what he did would likely kill and did, in fact, kill the victim.
If the accused at the time of his acts that caused the death was in a state of intoxication, by alcohol, drugs or both, the jury will be advised that they may find the accused intoxicated to the point where he could not have the requisite intent for first degree murder, or second degree murder and therefore his defence of intoxication leads to the inevitable conclusion that he would be guilty of the lesser an included offence of manslaughter, an offence that is thought to be a general intent crime.
The above is the an excerpt of Patrick J Ducharme's book, Canadian Criminal Procedure, available at Amazon or in bulk through MedicaLegal Publishing along with Criminal Trial Strategies.
Subscribe to Patrick Ducharme's Youtube Channel