Intoxication: Not a Defence for Crime There has been too many times where intoxication was used as a defence in criminal cases where it should not have been considered as a defence. Intoxication in criminal cases and whether it should be considered or not considered as a defence is very controversial. Voluntary intoxication should not be considered as a defence of crime.
The main arguments against using intoxication as a defence are: the degree of proof required to prove intoxication is not sufficient, it is unfair to the victim if the accused gets away with a lighter sentence or no sentence at all because of the defence of intoxication, and last, in the case of voluntary intoxication, the mens rea should be considered satisfied toward general intent crimes. Analyzing these arguments proves that voluntary intoxication should not be used as a defence for criminal cases.
The degree of proof required to prove intoxication is not rigorous enough. The degree of proof required to prove intoxication is balance of probabilities. When dealing with a serious charge, such as murder or sexual assault, the degree of proof for intoxication should be beyond a reasonable doubt, just like the prosecution is required to prove their case beyond a reasonable doubt to convict the accused. There can be cases where intoxication might have occurred post offence and used as a defence to avoid penalties or punishment.
For example, Mr. X bought a bottle of alcohol at 5 PM and went home. He killed his wife with a knife at 7 PM. After killing his wife, he started drinking and became extremely intoxicated. At 9 PM, his son came home and found his mother (wife of Mr. X) dead and his father (Mr. X) unconscious with a bloody knife close to him. The son called the police and the father was arrested with police charging the father with murder. The accused, Mr. X, went on to claim intoxication as a part of his defence.
The charge was reduced to manslaughter. This example shows that the degree of proof required proving intoxication is not rigorous enough. Mr. X began drinking after he killed his wife, however because there was no witness, the claim of Mr. X that he was intoxicated at the time of his wife’s murder cannot be effectively refuted and he would be tried for a lesser charge. Mr. X was able to reduce his charge by making a false statement while not having to prove that statement. That is obstruction of justice and perjury. If ntoxication was not allowed to be used as a defence of intent of the crime, Mr. X would not be able to get his charge reduced and therefore he would be charged with the crime that he actually committed. If intoxication is used as a defence for crime and the accused receives a lighter sentence or no sentence at all, it is unfair to the victim. If a person has been sexually assaulted by someone who was intoxicated, is it not the victim’s right to see justice being served? R. v. Daviault,  3 S. C. R. 63 is a case where Mr.
Daviault sexually assaulted an elderly woman with a disability during extreme intoxication. This is a controversial case because of the argument made by Justice Cory that if Daviault had only been a “little” drunk, he may have had the mental ability to make the decision that he should not sexually assault the victim. In this case, it was established that the defence of intoxication could only be used in cases of “extreme” intoxication such as this. This case is an example of exceptional circumstances where extreme intoxication was proven beyond a reasonable doubt.
The disabled elderly woman who was the victim of this case still suffered and does not even have the satisfaction of knowing that the person that wronged her may not be punished. The degree of intoxication may not even matter in most sexual assault cases. Research suggests that intoxication is merely used as an excuse to get away with the crime. On Canlii. org (Canadian Legal Information Institute), only a small percentage of sexual assault cases involved incest while intoxicated. Canlii. org showed the difference in search results of sexual assaults due to intoxication and incest due to intoxication. 490 cases were found of sexual assault while intoxicated and 121 cases were found of incest while intoxicated. One could question that if a sexual offender, while intoxicated, has the mental ability to distinguish between a related and unrelated person, then that offender has the mental ability to have the reasonable mind set to know the consequences of sexual assault and that it is illegal. Further to the research on Canlii. org, the use of intoxication as a defence encourages crime while being insensitive to the needs and rights of the victim.
For example, a victim of sexual assault may be labelled as “available” or worse, hurtful words that may lead to psychological issues. A lighter sentence to the perpetrator would not help the psychological damage that victim has to deal with. Instead it might be worse because the victim may feel that they have been wronged for the second time; the second time being by the justice system. There are always precautions that can be taken to avoid situations when one is voluntarily intoxicated. R. v. Mascarenhas,  60 O. R (3d) 465 (C. A. ) is a case of driving under the influence.
In this case, Mascarenhas was driving under the influence and killed two pedestrians. This is a general intent crime where a mens rea is not required. The proof of the act, actus reus, is required. Mascarenhas may not have intended to kill the pedestrians but nevertheless, two lives were taken. Mascarenhas cannot use the defence of intoxication for this crime. Precautions could have been taken to avoid the accident. If Mascarenhas had taken reasonable care of himself or possibly had someone to take care of him in voluntary intoxication, driving under the influence would have been avoided and therefore the pedestrians might still be alive.
This connects to criminal negligence. Mascarenhas disregarded the safety of others and therefore was also sentenced for being criminally negligent. During voluntary intoxication, a person should be responsible his or her own actions. Mascarenhas was convicted with criminal negligence, impaired operation of a motor vehicle as well as other convictions. This case is a good example of when the justice system made the right decision. The mens rea of an intoxicated person was not taken into consideration since the law does not require mens rea as a part of a general intent crime.
Other crimes should also be dealt in the same manner and consider mens rea satisfied if the person was voluntarily intoxicated. Based on the analysis of the arguments that voluntary intoxication does not require a sufficient amount of proof, that it is unfair to the victim, and that the mens rea is considered to be satisfied in the case of intoxication in general intent crimes, it is safe to say that voluntary intoxication should not be used as a defence in criminal offences. Criminals who are voluntarily intoxicated and commit a crime deserve the original sentence that comes with the act.
The sentence should not be reduced. Voluntary intoxication means that one has the control to decide whether he or she wants to be intoxicated or not. They have the responsibility of reasonable care. Therefore, voluntary intoxication should not be used as a defence of crime. Works Cited: Section 33. 1: Criminal Code (R. S. C. , 1985, c-46) Section 219. 1: Criminal Code (R. S. C. , 1985, c-46) R. v. Mascarenhas,  60 O. R (3d) 465 (C. A). R. v. Mascarenhas, 2002 CanLII 41625 (ON CA) R. v. Daviault,  3 S. C. R. 63 R. v.
Daviault, 1994 CanLII 61 (SCC),  3 SCR 63 Lamb, W. Kaye. “Defence of Intoxication. ” The Canadian Encyclopedia. Historica Foundation, 2007. 1 Sep 2007. http://www. thecanadianencyclopedia. com. Souper, M. “General defences – intoxication”. Sixth Form Law. 2000-2008. http://sixthformlaw. info. “Intoxication and legal defences” Advances in Psychiatric Treatment. The Royal College of Psychiatrists, 2013. http://apt. rcpsych. org. Weaver, Rheyanne. “The Mental Health Consequences of Rape”. EmpowHER, 2012. http:empower. com.
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