Assault is one of the most common charges to come before Calgary courts, and alcohol intoxication is often a factor in the case.
However, if intoxication is a factor, it is neither a blanket defence nor completely irrelevant to the case. The legal reality is more nuanced: alcohol intoxication can affect an assault defence in several distinct ways, depending on:
- The precise charge.
- The level of intoxication.
- How the intoxication came about.
The law in this area has also changed significantly since 2022, following landmark Supreme Court of Canada decisions and subsequent amendments to the Criminal Code.
Understanding where intoxication fits into an assault defence, and where it does not, is essential for anyone facing an assault charge in Calgary.
The basic rule: Being drunk is not a defence to assault
Assault is defined under Section 265 of the Criminal Code as the intentional application of force, or the threat of force, directly or indirectly, without another person’s consent.
Being drunk or high on drugs, short of extreme intoxication, is never a defence where a person commits a crime such as assault, sexual assault, or manslaughter.
A person who drinks voluntarily, gets into a fight, and claims they “didn’t know what they were doing” because they were intoxicated will not succeed on that basis alone in Alberta courts and Canadian courts generally.
Where the assault offence is classified as a “general intent” offence, criminal responsibility is not negated due to voluntary intoxication, regardless of how much alcohol was consumed, as long as the accused retained some awareness of their actions.
Understanding the distinction between “general intent” and “specific intent” offences is essential in assault cases.
What is a general intent offence?
Assault (s.265), assault causing bodily harm (s.267), sexual assault (s.271), and most aggravated assault (s.268) offences are classified as general intent offences, i.e., they require only that the accused intended the physical act itself, not any particular outcome.
Voluntary intoxication is not available as a defence to general intent offences in Canada.
This is where most alcohol-related assault charges sit, and why many accused persons are disappointed to learn that intoxication carries little weight.
What are the exceptions (“specific intent” offences)?
Some assault-related charges require proof of a specific intent to cause a certain outcome. These include assault with intent to resist arrest (s.270(1)(b)).
For specific intent offences, evidence of intoxication may be relevant to whether the accused was capable of forming the required intent.
If it is agreed that intoxication was a major contributing factor, the accused will not necessarily be acquitted, but instead, the Crown may seek a conviction on a lesser included general intent offence instead.
What is the extreme intoxication defence, and when can it apply?
Extreme intoxication, also known as “automatism”, is a state where a person is unaware of or has no voluntary control over their actions as a result of intoxication.
The threshold for using this defence is extremely high, requiring a state of complete automatism where the accused has no control over their body. The Supreme Court of Canada has recognized that alcohol alone will rarely lead to this state, and so it is considered a very narrow defence.
In a landmark decision in 2022, however, the Supreme Court of Canada struck down the previous version of s.33.1 of the Criminal Code (R. v. Brown, 2022 SCC 18, [2022] 1 S.C.R. 374 and R. v. Sullivan, 2022 SCC 19, [2022] 1 S.C.R. 460)
The ruling found that accused persons should be able to use extreme intoxication as a defence where a reasonable person would not have foreseen the risk of a violent loss of control.
Extreme intoxication may, therefore, be a viable defence if the accused is proven to have been, for example, in a state of psychosis and not in control of their actions or body.
How do the Criminal Code changes in 2022 affect your case?
Under the changes to the Criminal Code enacted in 2022, if you harmed another person while in a state of extreme intoxication, you will be held criminally responsible if:
- There was a foreseeable risk that you could violently lose control when you consumed the intoxicants, and
- You failed to take enough care to prevent that risk.
In other words, if a reasonable person in your position should have known that consuming these substances could cause them to violently lose control, the extreme intoxication defence is not available.
The changes to the Criminal Code make extreme intoxication defence available for truly unforeseeable automatism, but close the gap for those who recklessly intoxicate themselves.
How do you prove extreme intoxication?
As you might imagine, proving that a person was not in control of their body or in a state of psychosis when committing an assault is challenging.
Specialized psychiatric or medical testimony is usually required. This can be expensive and will add considerably to the costs of the defence. Even if enough evidence is provided, the outcome may not be an acquittal.
The judge will need to decide whether the high threshold has been met. In many cases, the threshold is not met, which is why this defence is rarely used by criminal defence lawyers in Calgary.
Can intoxication be a factor in your case but not a defence?
Even if you cannot forward intoxication as a defence to your assault charge, it may still play a role in your case. For instance:
- Intoxication at the time of the incident can affect the reliability of witness accounts and the complainant’s recollection (the accuracy of evidence).
- Where intoxication was involuntary, different legal principles may apply, making evidence about the circumstances under which intoxication occurred highly relevant.
- Intoxication may be a path to alternative measures, diversion, or a peace bond, or a mitigating factor at sentencing. This is particularly the case for first-time offenders with no prior history of violence who have addressed substance use issues, completed treatment, or demonstrated remorse.
The priority if you have been charged with assault, whether or not intoxication was a factor, should be to contact a criminal defence lawyer to begin work on your defence.
Speak with a criminal defence lawyer at Wilson Criminal Defence during a free, no-obligation consultation if you have been charged with assault in Calgary. Call 403-978-6052 or email us here.
