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Daviault, an alcoholic, delivered a bottle of brandy to a 65 year-old woman in a wheelchair. She had one drink and fell asleep. Daviault, who had already had seven or eight beers during the day, drank the rest of the 40-ounce bottle of brandy. This put him at a level of intoxication that would lead to coma or death in most people. He sexually assaulted the woman; however he was so drunk that he did not remember any of it. Expert evidence was adduced at trial stating that a blood alcohol level as high as Daviault's could have resulted in an episode of "l'amnésie-automatisme", also known as a blackout. Daviault was acquitted at trial, as the judge held he was so intoxicated that he was unable to form the mens rea of the offence, but the Court of Appeal substituted a conviction.


  1. Does voluntary intoxication to a point that closely resembles automatism act as a defence for crimes of general intent?


Appeal allowed, new trial ordered


Prior to this case it was established (in Leary v The Queen) that voluntary intoxication acts as a defence in crimes requiring specific intent because it precludes the voluntariness and intent required to commit the crime. However, no decision has been made for crimes requiring only general intent since the Charter. In England this has been strictly denied; however in Australia and New Zealand it is allowed and unqualified.



Cory, writing for the majority, finds that voluntary intoxication can act as a defence in crimes of general intent only if the intoxication was such that the person was in a state of automatism. Allowing people to be convicted even though they were acting autonomously violates s.7 and s.11(d) of the Charter. Allowing convictions in these cases the court would essentially be substituting the intent to get drunk for the intent to commit the crime, which is unfair. Mens rea and voluntariness are two of the most important aspects of any crime, therefore, any reasonable doubt concerning them should act as a defence. They are very clear when they state that this only operates in cases of extreme intoxication resulting in autonomous actions – it does not apply when the defendant was just drunk.

The majority also holds that the burden is on the claimant to establish that they were drunk to the requisite extent on a balance of probabilities (similar to automatism). This prima facie violates the Charter, but it is saved by s.1. Presenting this evidence will "undoubtedly require" the testimony of an expert.

Sopinka, in the dissent, argues that denying this defence is not contrary to the Charter. He does not think that voluntariness to commit the actus reus of an offence is a principle of fundamental justice. He states that automatism does not apply in cases where the accused has brought the state on by his or her own fault. He holds that although the distinction between general and specific intent crimes is illogical for some things, it makes sense for this – therefore the Leary rule applies and the defence of drunkenness does not apply in cases of general intent.


  • If an accused is intoxicated to the extent that they have no control over their action and they are acting autonomously then they form the necessary mens rea to commit crimes, or be said to act voluntarily; thus, being this intoxicated is a defence to crimes requiring both general and specific intent.
  • The burden of proof is on the accused to prove this on a balance of probabilities.