R. v. Crossley, 2025 BCCA 224
[31] In R. v. Daley, 2007 SCC 53, the Supreme Court of Canada explained that a person who is not “so intoxicated as to lack [any] capacity” to form intent, may nonetheless raise a reasonable doubt on the Crown’s proof of a specific intent by arguing that intoxication impacted their ability to exercise that capacity: at para. 40, emphasis added.
[32] Daley made it clear that with a specific intent offence (including murder), the defence of intoxication will not succeed on evidence of “mild” intoxication: at para. 41. This is because “mild” intoxication will generally cause a person’s “inhibitions and socially acceptable behaviour” to be relaxed but will not negate specific intent: at para. 41. Instead, a successful intoxication defence requires evidence of “advanced” intoxication: Daley at para. 41.
[33] What does that mean? Daley did not specify the kind of evidence necessary to meet this threshold or identify specific indicia of impairment that must be present for the defence to succeed. Instead, the focus of the “advanced” intoxication inquiry is the overall impact of intoxication on the accused’s state of mind at the time of the offence, as borne out by the entirety of the evidence. In the murder context, evidence of “advanced” intoxication is evidence that reasonably supports a finding that intoxication impaired the accused’s “… foresight of the consequences of [their] act sufficient to raise a reasonable doubt about the requisite mens rea”: Daley at para. 41. In other words, it is evidence that reasonably raises a doubt as to whether the accused intended to kill the victim or meant to cause the victim bodily harm that the accused knew was likely to cause their death and was reckless as to whether death ensued.
[34] As a practical matter, whether the evidence of intoxication in a particular case will be sufficient to raise a reasonable doubt on the intent for murder will vary with the circumstances: Daley at para. 42, citing R. v. Robinson, [1996] 1 S.C.R. 683 at para. 52, 1996 CanLII 233. See also R. v. Sundman, 2021 BCCA 53 at para. 103, aff’d 2022 SCC 31; R. v. Arjun, 2015 BCCA 273 at para. 5, leave to appeal ref’d [2015] S.C.C.A. No. 324; R. v. Florence, 2014 BCCA 288 at para. 22. This is an individualized inquiry.
[35] For example, in a case where the accused is alleged to have killed someone by pointing a loaded shotgun directly at their head and pulling the trigger, the evidence of intoxication will likely “have to establish a particularly advanced degree of intoxication” before it will be sufficient to raise a reasonable doubt on the intent for murder because death will have been such an obviously foreseeable consequence of the unlawful act: Daley at para. 42, emphasis added. In a different case, where the natural and probable consequences of the unlawful act that causes death may not be as clear, “advanced” intoxication of a lesser degree may suffice to raise a reasonable doubt. It is generally the case that the “… more severe the injuries and the more force required to inflict them, the stronger the inference will be that the accused [including an intoxicated accused] intended to kill the victim or cause the victim bodily harm knowing it was likely to cause death …”: R. v. So, 2024 BCCA 101 at para. 91, citing R. v. Rodgerson, 2015 SCC 38 at paras. 20, 55.
[36] Deciding whether evidence of intoxication reasonably supports the defence is determined case-by-case. What is critical in the murder context is that whatever the evidence might consist of, it must be sufficient to raise a reasonable doubt as to whether intoxication by drugs or alcohol impaired the accused’s foresight of the consequences of their actions: Daley at para. 41. As aptly articulated by this Court in R. v. Ruff, 2019 BCCA 412, the evidence must be sufficient to “reduce” the accused’s “appreciation of the consequences of [their] actions, at the time of the act”: at para. 21.
[37] In making this assessment, the trier of fact may consider: the nature of the act(s) that caused death; the manner in which those acts were committed; the quantity of alcohol or drugs consumed before the offence; whether the accused was displaying impairment at the time of the offence and to what extent; evidence of purposive behaviour before, during, and after the offence; and any expert evidence that may be adduced specific to intoxication, including its likely effect on the accused’s ability to appreciate the consequences of their actions: Sundman at para. 108. This is not a closed list. There may be other types of evidence relevant to the assessment. Again, as explained in R. v. Matchatis, 2020 ABCA 435, “[d]etermining whether an accused’s level of intoxication rises to the level of impairing an accused’s foresight of the consequences of their acts is a highly factual and contextual exercise”: at paras. 26–27. The trier of fact:
[32] … must weigh and consider all of the evidence of intoxication in a contextual manner to determine whether the accused’s intoxication crossed the line from mere loss of inhibition, impaired judgment and increased bravado to the point where they are left with a reasonable doubt as to whether the intoxication was severe enough that its effect might have impaired the accused’s foresight of the consequences of their actions.
[Matchatis, emphasis added.]
See also R. v. Rogers, 2024 NSCA 100 at paras. 56–57.
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