Patricia Hughes

Daviault Case: The Effect on Canadian Women

Ruth Dumais, a 65 year old woman, partially paralysed and in a wheelchair, was sexually assaulted by Henri Daviault, a man of about the same age who had visited her one evening. He was a friend through his wife. Before visiting, he had drunk a number of beers and he brought with him a 40-ounce bottle of brandy. She had less than one drink and feel asleep. He had the rest of the bottle and at some point in the early hours of the morning, he pulled her from her wheel chair and sexually assaulted her. He did not remember anything after his first drink of brandy and this is the crux of the case. He had drunk so much that he was in a state akin to insanity - he was what we call an "automaton": he could act, but he was not aware of acting or of deciding to act. At his trial, he was acquitted because of that: the Court of Appeal said that that was an inappropriate factor to take into account and that he was guilty; the Supreme Court of Canada said it was a factor that could be considered and directed a new trial. It is important to understand that the Supreme Court did not acquit Mr. Daviault - did not say that he was not guilty - but rather that his defence of extreme intoxication should have been considered. When it was considered, he might have been acquitted or found guilty. I understand that Ruth Dumais has since died; I am not sure whether Mr. Daviault is being tried again. Last week, the Government introduced a bill which would prevent this defence from being used.

We do not want to convict the innocent (although increasingly it seem that we do); but what does that mean? This case is really about legal and moral responsibility, between legal and moral innocence; the dissent links these more closely than does the majority: thus those who may be considered morally reproachable may also be considered legally guilty even though their controllable behaviour did not directly relate to the crime with which they are charged. People who put themselves in a condition of extreme intoxication with these consequences (of sexual assault) are morally culpable and should be recognized as such by not being able to avoid their legal culpability. The protection of the public which is in large measure at the heart of criminal law in not promoted by allowing people who have behaved irresponsibly to use that very irresponsibility to avoid the consequences of their actions, especially since drinking (although not necessarily this state of extreme intoxication) is so often a part of a sexual assault scenario. The majority tie moral blameworthiness to the particular offence involved so that a general blameworthiness is not enough; moral blameworthiness, then, is defined by the blameworthiness attached to the offence. If the person is to be punished, it is for the offence charged and not for being irresponsible in drinking, especially since irresponsible drinking does not necessarily lead to sexual assault. There is a tension, then, between the requirements of law and the pull of public policy. You can see that in the widespread instinctive response to the Deviault decision and the outrage of women's groups (but not only women's groups), while the legal analysis does seem to lead in another direction. It is particularly difficult to accept this decision because of the close association between drinking and violence against women - not that is causes violence, but it establishes the circumstances under which it is more likely, whether this is physical assault against women by their partners or sexual assault, particularly but not only in "date-rape" situations.

In order to understand the legal issues in this case and what is likely to be an acceptable way of dealing with the problem which has arisen and which has been widely recognized - that someone who drinks so much might commit a crime, a crime like sexual assault and be acquitted - it is necessary to understand a little bit about criminal law. I will speak about it only narrowly; as with most of law, there are nearly always exceptions to the general rules. Put another way, I have simplified some of the issues because they do not affect the outcome. To give you just on example: we talk about the "defence of extreme intoxication", but that is not really accurate. It really relates to the Crown's ability to meet its onus to prove all the elements of a case; a failure to prove any one element beyond a reasonable doubt will result in an acquittal or a conviction on a lesser and included offence; here the element which will not be proven beyond a reasonable doubt is that the accused intended to commit the crime.

In order to be found guilty of committing a crime, a person must be found to have voluntarily carried out the acts constituting the crime and to have done so intentionally, to have meant to have done so. The first of these, voluntarily carrying out the acts, is called the actus reus; the second of them, the mental element of intending to do what you did, to cause the results or to see that the results are likely to occur through your actions, is called the mens rea. In this case, then, the actus reus of sexual assault is engaging in sexual conduct with someone without her consent; but that is not enough - for someone who did that to be found guilty, it is necessary that the person intended to engage in sex without the other person's consent. The act was an exercise of the accused's free will, if you like, or as it has been said, mens rea refers to the accused's wrongful intention or guilty mind. The reason we require evidence of mens rea or wrongful intention is that we do not believe that morally innocent people would be held liable for their acts - in short, if people do not understand, or more to the point, are not capable of understanding that what they are doing is wrong, they should not be convicted under law. Understand that this is not the same as being ignorant of the law; it refers to a circumstance which means that the individual is not capable of forming the wrongful intent. Insanity is the best known example of this; and there is a specific provision in the Criminal Code dealing with insanity. A person who is mentally impaired might also be incapable of forming such an intent, of understanding that his or her action would be wrong. The same is said of someone who has an unexpected reaction to medication. This is also why we do not charge children with crimes and why we are so shocked when young children commit horrendous acts, as did the tow boys in Britain. Keep in mind that the consequences of these various conditions would be different, however. Someone found to be insane would be found not guilty by reason of insanity but would be detained in an institution for the criminally insane, while someone found not guilty by reason of the influence of drugs or alcohol would be acquitted, and in the case of children, there are no charges in the first place.

In this specific case, then, it was claimed that Mr. Daviault, as a result of how much he had drunk, had reached a point at which his mind and his actions became disassociated - he could act, but there was no connection between his thoughts and his acts, and specifically, he could not go through a process of deciding to do something wrong. He had, as it is commonly said, a "blackout". The expert witness at the trial testified that someone who is acting differently from his normal behaviour by acting violently, for example, it is likely that his is in a blackout. He was not aware of his action. We call this a state akin to "automatism". Extreme intoxication is one example; sleepwalking is another.

The second point which needs to be understood about criminal law is that there are two kinds of crime: those requiring specific intent and those requiring general intent. Examples of crimes requiring specific intent are murder, attempted murder, break and enter with intent to commit an indictable offence, robbery and theft: there is a higher level of intent required because of the stigma attaching to a conviction and the severity of the penalty and the mens rea has a greater part to play than with general intent offenses, however, where the intent required is lower - there is just a minimal intent required to do the act which is usually proved by proving the actus reus (mens rea can be inferred by from the actus reus since a person is presumed to have intended the natural and probable consequences of his or her actions). The higher level requires a subjective intent: did this person intend to commit the prohibited act, not can we infer that this person must have intended to so because any reasonable person would have intended to do so. Sexual assault is an example of a general intent offence, as are assault and manslaughter; the intent required is a minimal intent to apply force. Although the intent is minimal, it is still related to the particular offence involved, that is, it is not an intent to do something wrong, but an intent to do this particular wrong thing. It is not necessary, however, that there be an exact symmetry between the intent required and the precise consequence which is prohibited; all that is required is that the intent required be proportionate to the seriousness and consequences of the offence charged. And it can be argued that those who commit sexual assault are appropriately subject to moral disapproval; those who commit sexual assault when they have chosen to get drunk are at least equally blameworthy in that moral sense.

It is crucial to understand this case to appreciate that extreme drunkenness has been a defence to being charged with committing a specific intent offence (indeed, the distinction between the types of offenses arose in relation to the effect of drunkenness). If you are charged with murder, for example, you will not be convicted if you were so drunk that you could not form the intent to commit the murder, but you might be convicted of manslaughter since it is a general intent offence which is included in the offence of murder. Similarly, the offence of assault to resist or prevent arrest is a specific intent offence which includes the general intent offence of assault. You can see that the additional mental intent required is not just to hit or assault someone but to do so in order to prevent arrest. The reason murder is a specific intent offence is not that there is an ulterior or additional intent required but that it is so serious and carries a fixed penalty. But the same cannot be said of theft for which there are no lesser and included offence requiring only a general intent. But the defence has not been available for general intent offenses, partly because the intent required was minimal and therefore it was assumed that it was still possible for an accused to form it despite his state of intoxication. Furthermore, it was thought that voluntarily getting drunk in itself constituted the necessary blameworthy state, that it is a from substituted intent; persons who allowed themselves to get to this state are not morally innocent which, as you recall, is the reason we require evidence of wrongful intent. Thus the intentional act of the accused to become intoxicated voluntarily is substituted for the intention to commit the sexual assault or for the accused's recklessness as to the results of his actions. The problem with this is that while drinking is often involved in sexual assault, it is not the cause of the sexual assault: there is not such a strong connection that drinking inevitably leads to the assault.

Finally, the last factor to consider is the Canadian Charter of Rights and Freedoms. The reason the Supreme Court decided that Mr. Daviault should be able to raise his defence is that if he cannot raise it, his rights under section 7 and 11(d) of the Charter would be infringed. Section 7 says that

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

Section 11(d) says that "everyone has the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal."

Section 7 requires that an accused must be able to present a full defence and to prevent an accused's raising relevant defences (here that he could not form the intent to commit the crime) would result in his imprisonment without adherence to principles of fundamental justice. The point of action 11(d) is that it is the Crown which must prove that the accused did what he or she is accused of beyond a reasonable doubt, including intention to commit the prohibited act or that the act was committed voluntarily. If Mr. Daviault is allowed to raise his defence it would raise a reasonable doubt about whether he had the minimal intent required to commit the sexual assault. Substituting an intent for a different action denies the presumption of innocence until proven guilty. It is another way of saying that there is no intent required for sexual assault and this is not acceptable under the Charter.

The Leary case is central to this case. In law, many "rules" are developed in particular cases; they are not all found in statutes. Any easy way to refer to these common law rules developed by judges is by reference to the case in which they most clearly developed: thus "the rule in Leary's Case", decided in 1978. The rule is that self-induced intoxication - of any degree - cannot be raised as a defence to a criminal charge involving an offence requiring general intent. It is perhaps not insignificant that the Leary case also involved rape (which was then the offence, not the broader offence today of sexual assault).

The majority in the Supreme Court decided that it was consistent with the Charter to carve out an exception to the Leary rule; that is, when the drunkenness was so extreme that it resulted in a condition akin to automatism, it could be raised as a defence to general intent crimes. It would be limited to cases where the drunkenness was so extreme that the person would not know that he or she had even committed the act at all, never mind formed the intention to do so. The argument is that if you do not permit that, what you are really punishing the person for is getting drunk, not committing the sexual assault. And in fact, in Daviault, the dissent says that "Society is entitled to punish those who of their own free will render themselves so intoxicated as to pose a threat to other members of the community". But, on the other side, it is said that the person formed the intention to get drunk (or could see that continuing to drink would result in extreme intoxication), not to commit the sexual assault, and there is no crime of getting drunk. The defence applies only to extreme intoxication because the level of intention required is low and therefore drunkenness below that standard does not impair the ability to form that low level of intention.

I mention here an interesting point about which judges favour allowing this defence to be adduced in cases of sexual assault (and other general intent offenses). Although both Madame Justice Wilson and Madame Justice L'Heureux-Dubé are known for their strong commitment to equality for women under the law and have been forthright in a number of cases involving women's rights, they both in two earlier cases on the issue (the 1988 Bernard case, also involving sexual assault, and the 1990 Penno case, involving the care of a motor vehicle while impaired) and Madame Justice L'Heureux-Dubé also agreed that Mr. Daviault should have been allowed to put this defence forward (Madame Justice Wilson is no longer on the Court, of course). Madame Justice McLachlin has more consistently found in favour of accused who raise Charter issues and therefore it was not surprising that she would agree that Mr. Daviault should be allowed to put forward this defence.

So the Supreme Court had three choices: it could continue to apply the Leary rule, it could allow evidence of any degree of drunkenness to go to the jury or it could take the middle route of applying Leary flexibly and allowing only extreme intoxication to go to the jury. It found that the Leary rule, allowing no evidence of any degree of drunkenness to be raised, was contrary to the Charter and that the second option was not required by the Charter and therefore held that the Charter required only evidence of extreme drunkenness to go to the jury.

What of the future? The next step is Parliament`s and then we can expect to see this issue at the Supreme Court of Canada again if Parliament does enact the proposed legislation now before it. In thinking about what the Court might say about a statutory provision addressed to preventing a Daviault situation occurring again, there are two important points to remember. The first is that in the Daviault case, the majority said that there is a difference between common law and statute law. I said that the rule about drunkenness as a defence is one which judges have developed in cases: it is a common law or "judge-made rule", not one that is written in the Criminal Code. The Court in some ways has more flexibility with common law rules than with legislation which has found to contravene the Charter. Generally speaking, the Court should be reluctant to rewrite statutes (that is the legislature's job) but since they made common law rules, they can also change them, even if their original rule could be upheld under section 1 of the Charter. Therefore, it is quite reasonable and appropriate for them to devise a new common law rule which does conform to the Charter of Rights. That is what they did in Daviault. It may seem ironic that the rule is one suggested by Madame Justice Bertha Wilson in one of the earlier cases to which I already referred, but because it is a narrow exception to the general rule that drunkenness is not a defence to crimes of general intent, the result is that "except in those rare situations where the degree of intoxication is so severe it is akin to automatism, drunkenness will not be a defence to crimes of general intent". Furthermore, the accused will be required to establish that his intoxication was extreme enough to be akin to automatism on a balance of probabilities; it should be understood that this is a contravention of the Charter because it places an onus on the accused whereas in criminal cases, the onus is generally on the Crown, specifically here to disprove a defence on beyond a reasonable doubt; but the Court believe that this contravention could be justified under section 1 of the Charter.

The second point is this observation by the majority in Daviault: "it is always open to Parliament to fashion a remedy which would make it a crime to commit a prohibited act while drunk". Parliament has a number of options in this regard. It could enact a Criminal Code provision which makes it an offence to commit a crime while in a state of extreme intoxication (and a private bill to this effect had been introduced, but was withdrawn when the government introduced its own bill). It could pass legislation providing that extreme intoxication is available as a defence when it negates the added intention beyond the minimal intention required to commit a crime - that is, it could codify the Leary rule that extreme intoxication is available only in relation to specific intent offenses. The option now before Parliament is to remove extreme intoxication as a defence to charges of violent crime, including sexual assault.

Under the proposed legislation, "people who voluntarily become so intoxicated that they lose conscious control of their behaviour or become unaware of what they are doing, and who cause harm to others, breach the standard of reasonable care generally recognized in Canadian society"; this breach of the standard of reasonable care would constitute fault sufficient to establish criminal liability. In effect, it substitutes the failure to conform to the standard of care for the intent necessary to the particular offence involved. Therefore, in this case, for example, it would not have been open for Mr. Daviault to argue that his intoxication meant that he was not able to form the necessary intent - his very intoxication would be evidence of the intent required. This reflects the dissent's view that the act of being voluntarily intoxicated to this extent is in itself blameworthy. The amendment would apply to the basic intent (the minimal intent) requirement for all crimes of violence; thus it would apply to sexual assault which, as I have indicated, requires only a basic intent. In the preamble there is specific reference to the particular effects of violence on women and children and to their rights to security of the person and equality rights under the Charter; this preamble reflects the preamble to the sexual assault provisions.

Despite the Court's comments about Parliament's ability to enact legislation about committing a crime while intoxicated, if the proposed provision becomes law, it will almost certainly run into difficulties under the Charter. On its face, it certainly raises similar problems to the common law rule and in addition, the notion of a "standard of care" may be thought to be rather vague since the consequence of not being able to raise the defence will probably be conviction for sexual assault. In fact, there does not seem much dispute that the provision would constitute an infringement of an accused's Charter rights under sections 7 and 11(d); the real issue is whether the government will be able to justify it under section 1 of the Charter which permits infringements of the rights only when the limits are reasonable, prescribed by law and "demonstrably justified in a free and democratic society". The Government hopes that the preamble will help to justify the provision, however; as appropriate, the Court will have to weigh the rights of an accused who has voluntarily drunk so much that he cannot control his actions against the rights of women to be safe and, perhaps, more significantly in practical terms, a commitment by the state that women's bodily integrity is of a public value higher than that of "the drunk accused".

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© 2007 Atlantic Human Rights Centre, St. Thomas University