R v Tatton: The Confounding Distinction between Specific and General Intent

The Supreme Court of Canada’s (“SCC”) recent decision in R v Tatton, 2015 SCC 33 [Tatton] takes place in the context of a larger and more protracted debate about the defence of intoxication. In what cases, if any, can a self-induced state of intoxication negate intent, and provide an accused with a full acquittal?

Courts have been grappling with this question since the Exchequer Court’s decision in Reniger v Fogassa, 75 ER 1 (Ex) nearly 500 years ago. In Tatton, the SCC took the opportunity to review and clarify its earlier decision in R v Daviault, [1994] 3 SCR 63 [Daviault], which outlined the approach to classifying crimes as either “general” or “specific” intent. However, this decision exposes a weak-point in the criminal law, and has more fundamental implications on the application of the defence of intoxication, generally.

 Synopsis of the Supreme Court Decision

Self-induced intoxication (short of automatism) is no defence to a crime of “general intent,” although it may be admissible as a defence to a crime of “specific intent.” Crimes of general intent are those where the mens rea – or the criminal intent that renders an act criminally culpable – involves “such minimal thought and reasoning process” that even a high degree of intoxication is unlikely to absolve the accused of any criminal liability.

By contrast, specific intent crimes are those where the mental element involves some sophistication of thought, to the point that intoxication may negate the existence of a guilty state of mind. Whereas the more serious offences of murder and robbery have been classified as being of specific intent, the “lesser” offences of manslaughter and assault are of general intent (See R v George, [1960] SCR 871).

At issue before the SCC in Tatton was whether arson constituted a specific intent offence, so as to permit the accused to rely on his state of intoxication as a defence to his charge contrary to s. 434 of the Criminal Code, RSC 1985, c C-46.

While cooking bacon in a self-induced state of heavy intoxication, Ryan Tatton left his girlfriend’s house to get a coffee from Tim Horton’s. With the stove left on “high,” the house caught ablaze, and Tatton was ultimately charged with arson. At trial, Tatton raised the defence of intoxication. The presiding trial judge determined that arson was a specific intent offence, and was not convinced beyond a reasonable doubt that Tatton had intentionally or recklessly damaged the property. The acquittal was upheld by a majority of the Ontario Court of Appeal – although for different reasons.

Justice Moldaver, writing for a unanimous bench, overturned the decisions of both Ontario courts, and instead found that arson was an offence of general intent. It was determined that the mens rea of arson is the intentional or reckless performance of the illegal act – the damaging of property by fire. As this requires no sophisticated reasoning process, the Court found it “difficult to see how intoxication short of automatism could deprive the accused of the low level of intent required” (Tatton, para 41).

Analysis

Since the classification of crimes as either general or specific, intent is not evident from the wording of the provision; such an inquiry involves a judicial exercise in statutory interpretation. Of course, this is straightforward when the existing jurisprudence has already determined the appropriate classification. However, absent case law on the point, judges must resort to the two-part Daviault test, which left a number of questions unanswered.

In Tatton, Justice Moldaver took the opportunity to review, re-state and clarify this test, in an attempt to bring “some added clarity to an area of law that continues to perplex and confound” (Tatton, para 33). The test has been rearticulated as follows:

1.  What is the mental element of the offence, and its ‘relative importance?’ Crimes with a more sophisticated and relatively important mens rea will likely be classified as specific intent, whereas those which require little mental acuity – in other words, where the actus reus is truly the crux of the offence – would fall under the latter category.
2.  If the analysis under (i) fails to yield a clear answer, courts should direct their intention towards policy considerations. Would it be wise, given the nature of the crime, for accused persons to rely on self-induced intoxication as an exculpatory defence?   Where alcohol consumption is habitually associated with the crime in question, recognizing intoxication as a defence may be counterintuitive.

Indeed, the decision in Tatton is the first time Canada’s highest court undertook a thorough analysis of the intoxication defence since the 1994 pronouncement in Daviault. For many, this decision was long overdue. The discretionary nature of the Daviault test has been applied in a largely inconsistent and unpredictable manner, and has produced some confounding and counter-intuitive results. As put by Professor Kent Roach, this distinction is, at best, a “rough and ready distinction” that is typically influenced by concerns about “the ultimate disposition of the accused” (Kent Roach, Criminal Law, 5^th ed (Toronto: Irwin Law, 2012) at 247). Even former Chief Justice Dickson was heavily critical of this approach in his dissenting opinion in R v Bernard, [1988] 2 SCR 833 [Bernard], where he characterized the distinction between general and specific intent as confusing, artificial, and wholly unnecessary to ensure social protection (Bernard, paras 20, 49).

These concerns did not fall upon deaf ears. Towards the beginning of its analysis in Tatton, the SCC admitted that the Criminal Code provides little direction about the classification of the crime, and that the common-law test may lead to “arbitrary and inconsistent results from court to court, offence to offence, and jurisdiction to jurisdiction” (Tatton, para 22). Professor Don Stuart went as far as to state that:

Our adversary system, which requires cases to be fairly put to impartial judges or juries, and the presumption of innocence, cannot work with legitimacy where there is confusion as to the applicable tests on even basic matters such as the fault requirements (Don Stuart, Canadian Criminal Law, 6^th ed (Toronto: Carswell, 2011) at 78).

For an example of how this plays out in practice, we need look no further than the judicial consideration of the test in Tatton. Using the Daviault framework, three different courts applied the law to the facts and came up with three different determinations.   Even more startling was the inconsistent approach to the offence of sexual assault, prior to the SCC’s decision in R v Leary, [1978] 1 SCR 29. Applying the same fundamental approach to the same federal offence, British Columbia courts held that rape was a general intent crime, while those of Ontario instead found it to be one of specific intent. As the law previously stood, an accused could rely on self-induced intoxication as a defence for rape in Ontario – but not in British Columbia.

The Canadian legal system is fundamentally premised on fairness and justice. This is especially true of the criminal law, which has the function of maintaining a system of order in our society. What is oftentimes forgotten, especially from academic commentators, is that a breakdown of this system has real effects on real people. The misapplication of the defence of intoxication can see an accused unjustly deprived of her liberty without having formed any criminal intent, or conversely, can see a guilty party fully acquitted, leaving society all the more vulnerable.

Fortunately, this was recognized by the unanimous SCC bench, which recast the test for the first time since 1994, with the aim of providing a greater degree of stability in the application of the criminal law. What is hoped for – if not expected – is that Canadian courts step up to the plate, and ensure that legislation and common law work together for the creation of a predictable and just model.   Our social order demands nothing less.

Conclusion

The common law classification of offences as either “general intent” or “specific intent” has been a contentious legal issue for centuries, and continues to trouble the criminal law. In Tatton, the SCC recognized these inherent difficulties, and displayed a willingness to bring more continuity and uniformity to the way intoxication, as a defence, is to be applied.

It is far too early to assess the full impact this decision will have on the functioning of the criminal law. In the best-case scenario, it will equip judges with a more rigid set of guidelines, and will ultimately eliminate much of the uncertainty produced under the former regime. If nothing else, however, we can hope that the Court’s unanimous decision in Tatton will spark positive change, and bring the consistency and fairness demanded of our legal system.