Calder v. The Queen

The learned trial judge continued:

THE

The first statement perhaps should be considered. It was obviously written in the words of someone who has not had too much education. In his second paragraph after recalling the drinking period, he said: Ritchie J. "Then I came to and I was in house and I remember hitting man and I don't remember where I went after."

Notwithstanding these findings, the learned trial judge acquitted the respondent, saying:

To me it is very much a border line case. That being so it is my duty to give the accused the benefit of the doubt on the defence of drunkenness that has been set up in my mind.

After acquitting him, the learned trial judge addressed the accused in part as follows:

You are being acquitted not because you didn't do it-there is no doubt in my mind that you did do it-you are being acquitted because I have found that you were so drunk on the night in question that you were unable to form an intent to do it.

From this acquittal the Crown appealed to the Court of Appeal of British Columbia, and in renderina the decision of the majority of that Court Mr. Justice O'Halloran said': I am unable with respect to accept Crown counsel's submission that in failing to convict respondent of assault upon this charge of robbery, the learned trial Judge omitted to instruct himself regarding any difference between the intent to commit the robbery and a specific intent to commit assault as one of the essential ingredients of the robbery with which he was charged.

In my judgment, with respect, a sufficient answer thereto is; that having found the respondent so incapacitated by liquor that he could not form an intent to commit the robbery, it follows rationally in the circumstances here, that he must also be deemed to have found that respondent was equally incapable for the same reason of having an intent to commit the assault. If he could not have the intent to commit the robbery, viz. to assault and steal as charged, then he could not have the intent either to assault or to steal when both occurred together as charged; the charge reads "by violence steal".

Mr. Justice Sheppard dismissed the appeal on another ground, namely, that the Crown's case at the trial was confined to the charge of robbery with violence, and that in any event a conviction of assault should not be entered in the Court of Appeal without the accused having been given an opportunity to meet that included offence as the failure to do so in the circumstances of this case may have 1126 C.C.C. at 128.

been due to his having been misled by Crown counsel presenting the case as solely that of robbery with violence. In the course of his decision Mr. Justice Sheppard said': It is to be noted that the report of the learned trial judge was not part of the record before this Court and this observation by Mr. Justice Sheppard is the sole reference made to it in the course of the proceedings.

Leave to appeal to this Court was granted pursuant to an application made on behalf of the Attorney-General of British Columbia. No appeal was taken from the acquittal of the respondent on the charge of robbery and the first five grounds of appeal are, in large measure, devoted to the question of whether a distinction should be drawn "between the degree of drunkenness required to negative the existence of" that intent which is, under the Criminal Code, an essential ingredient of the crime of robbery and the degree of drunkenness which is necessary to negative such intent as is an ingredient of common assault.

The sixth ground of appeal was directed to the decision of Mr. Justice Sheppard and the appellant put the question thereby raised in the following terms:

Pursuant to s. 569 of the Criminal Code, the learned trial judge was under a duty to direct his mind to the "included offence" of assault, and in the absence of any evidence to the contrary, I do not think that it should be assumed that he did not do so. Whether or not he properly directed himself as to the effect of drunkenness in negativing the intent to commit this offence is another question. The report of the learned trial judge is not before us, and, with the greatest respect for those who may take a contrary view, I do not consider that the fact that it contains a statement "that common assault was not raised by Crown counsel at the trial" is sufficient ground for concluding that the learned trial judge did not consider this offence. In my opinion, the duty which rests upon the trial judge to direct himself with respect to all included offences of which there is evidence can, in no way, be affected by the fact that the Crown Prosecutor has omitted to make reference to such offences. It follows, in my view, that in a case where the trial judge has wrongly applied the law applicable to such an offence the Crown is not deprived of its statutory right of appeal because of the omission of its agent at the trial to address the Court on the matter. The fact that the learned trial judge found, as I think he did, that the respondent had "violently manhandled" an old man but was not guilty of assault because he was drunk at the time raises the question of law posed by the appellant as to whether, under the circumstances as found by the trial judge, drunkenness is a valid defence to common assault.

In considering the question of mens rea, a distinction is to be drawn between "intention" as applied to acts done to achieve an immediate end on the one hand and acts done with the specific and ulterior motive and intention of furthering or achieving an illegal object on the other hand. Illegal acts of the former kind are done "intentionally" in the sense that they are not done by accident or through honest mistake, but acts of the latter kind are the product of preconception and are deliberate steps taken towards an illegal goal. The former acts may be the purely physical products of momentary passion, whereas the latter involve the mental process of formulating a specific intent. A man, far advanced in drink, may intentionally strike his fellow in the former sense at a time when his mind is so befogged with liquor as to be unable to formulate a specific intent in the latter sense. The offence of robbery, as defined by the Criminal Code, requires the presence of the kind of intent and purpose specified in ss. 269 and 288, but the use of the word "intentionally" in defining "common assault" in s. 230(a) of the Criminal Code is exclusively referable to the physical act of applying force to the person of another. I would adopt the following passage from Kenny's Outlines of Criminal Law, 17th ed., p. 58, para. 42, as an THE authoritative statement on this subject. He there says:

. . . in Director of Public Prosecution v. Beard, (1920) A.C. 479 . . . Ritchie J. it was laid down that evidence of such drunkenness as "renders the accused incapable of forming the specific intent, essential to constitute the crime, should be taken into consideration, with the other facts proved, in order to determine whether or not he had this intent". In such a case the drunkenness, if it negatives the existence of the indispensable mental element of the crime "negatives the commission of that crime". Thus a drunken man's inability to form an intention to kill, or to do grievous bodily harm involving the risk of killing, at the time of committing a homicide, may reduce his offence from murder to manslaughter (which latter crime requires no more than a realization that some bodily harm may be caused). Drunkenness may likewise show that a supposed burglar had no intention of stealing, or that wounds were inflicted without any

"intent to do grievous bodily harm", or that a false pretence was made with no "intent to defraud". But it must be remembered that a man may be so drunk as not to form an intention to kill or do grievous bodily harm while yet in sufficient control of his senses to be able to contemplate some harm and so to be guilty of manslaughter or of an unlawful wounding.

The decision of the learned trial judge, in my opinion, constitutes a finding that the respondent violently manhandled a man and knew that he was hitting him. Underthese circumstances, evidence that the accused was in a state of voluntary drunkenness cannot be treated as a defence to a charge o common assault because there is no suggestion that the drink which had been consumed had produced permanent or temporary insanity and the respondent's own statement indicates that he knew that he was applying force to the person of another

In view of the above, I would allow the appeal, and, having regard to the circumstances mentioned by him, I would dispose of this appeal as proposed by my brother

Fauteux.

Appeal allowed, Locke J. (dissenting)

. Accused found guilty of common assault and sentenced to time already spent in gaol.

Solicitor for the appellant: V. L. Dryer.

Solicitor for the respondent: E. A. Alexander.

S.C.R.