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Criminal - Murder - Intoxication. R. v. Bhogal
In R. v. Bhogal (Ont CA, 2025) the Ontario Court of Appeal dismissed a criminal appeal, here from a jury conviction for first degree murder.
The court considers the 'air of reality' required to send an issue to the jury, here the defence of 'extreme intoxication' which has been held akin to automatism:[57] Trial judges are required to instruct juries on all defences that have an “air of reality”. A defence will have an air of reality when there is “evidence upon which a reasonable trier of fact, properly instructed in law and acting judicially, could conclude that the defence succeeds”: R. v. Fontaine, 2004 SCC 27, [2004] 1 S.C.R. 702, at paras. 57, 70. For most defences, where the Crown bears the onus of disproving the defence on the criminal standard of proof, the defence will succeed if the Crown cannot disprove at least one of its essential elements beyond a reasonable doubt. However, for reverse onus defences, including the defence of extreme intoxication akin to automatism, the defence will only succeed if the accused affirmatively establishes the defence’s essential elements on a balance of probabilities.
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[60] .... While some people who experience drug-induced psychosis may become so impaired that their actions can no longer be seen as volitional, not everyone who experiences psychotic symptoms – that is, delusions, hallucinations, or disordered thinking – will be affected so severely. The question of whether drug-induced psychotic symptoms caused a particular accused to enter an impaired mental state akin to automatism will depend on the circumstances and the evidence in that case. For instance, in R. v. Chan, the companion case that was decided together with Sullivan, this court ordered a new trial rather than entering an acquittal on the grounds that even though the trial judge had made a finding that the accused was experiencing “psychosis induced by intoxication”, he had “made no finding that Mr. Chan was not acting voluntarily” or that he had “reached the stage of automatism”: Sullivan (C.A.), at paras. 164, 166.[1]
[61] The same is true of the related question of whether the defence of extreme intoxication akin to automatism has an air of reality. For instance, in R. v. Morris, 2024 SKCA 36, 435 C.C.C. (3d) 490, where the Saskatchewan Court of Appeal found that it was an error for the trial judge not to have left the defence with the jury, the accused had adduced psychiatric opinion evidence that he had been acting in an automatistic state when he committed two robberies and sexually assaulted one of the robbery victims. If the jury had accepted this evidence, it would have permitted the jurors to find that the accused had met his burden of establishing the defence of extreme intoxication akin to automatism.
[62] There are some factual parallels between Morris and the appellant’s case. Like the appellant, the accused in Morris had no prior criminal record, and “some of [his] actions surrounding the criminal acts in question were bizarre”: Morris, at para. 101. However, the accused in Morris also had a history of unusual behaviour when he drank heavily, and “[t]here was also medical evidence of a past incident of a dissociative experience”: Morris, at para. 101. The most critical difference is that Dr. Rootenberg, unlike the forensic psychiatrist who testified for the defence in Morris, was never asked to give an opinion about whether the appellant’s possible cocaine-induced psychosis rose to the level where he was in a state akin to automatism. The appellant’s experienced trial counsel appears to have made a considered decision not to raise this issue with Dr. Rootenberg, and Crown counsel unsurprisingly did not do so herself in cross-examination.
[63] Absent any expert opinion evidence that the appellant’s cocaine consumption had caused him to act non-volitionally, as opposed to merely acting bizarrely or irrationally, perhaps because he was experiencing hallucinations, delusional beliefs or disordered thinking, there was in my view no air of reality to the defence of extreme intoxication akin to automatism.
[64] While I agree with Mr. Lockyer that there was considerable other evidence in the trial record that the appellant had acted bizarrely and irrationally that night, and that his conduct was seemingly out of character, this evidence was not capable, considered along with the appellant’s testimony about his lack of memory, of establishing on a balance of probabilities that his actions that night were non-volitional, rather than merely caused by his drug-impaired thought processes. Without expert evidence that the specific drugs the appellant had consumed that night (that is, cocaine and alcohol) were capable of causing extreme intoxication akin to automatism, it would have been speculative for the jury to jump to the conclusion that the appellant’s intoxication was so severe that he was no longer acting of his own volition.
[65] In my view, the appellant’s experienced trial counsel, despite initially indicating that the appellant would be seeking to advance the defence of extreme intoxication akin to automatism, correctly recognized at the end of the trial that the evidence that had been presented to the jury did not support this defence. This is why he took the position that this defence should not go to the jury. On the evidential record, the trial judge likewise made no error by not instructing the jury on this defence. . R. v. Bhogal
In R. v. Bhogal (Ont CA, 2025) the Ontario Court of Appeal dismissed a criminal appeal, here from a jury conviction for first degree murder.
Here the court considers the appellate defence of 'extreme intoxication':[7] First, the appellant argues that the trial judge should have instructed the jury on extreme intoxication akin to automatism as a defence to the alleged sexual assault, which was relied on by the Crown to elevate the killing of Ms. Taggart from second to first degree murder. He acknowledges that his trial counsel (not Mr. Lockyer) had taken the position at trial that the appellant was not relying on this defence, and that it should not be left with the jury. However, the appellant now argues that this defence was supported by the evidence, and that the trial judge thus should have left it with the jury, notwithstanding his trial counsel’s contrary position. Counsel on appeal agree that if this ground were successful, the appropriate remedy would be to substitute a conviction for second degree murder.
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[36] .... he [SS: the appellant] argues that the trial judge erred by not leaving extreme intoxication with the jury as a potential defence to the allegation that he had sexually assaulted Ms. Taggart before killing her. Although the appellant was not being tried directly for sexual assault, the Crown was relying on the alleged sexual assault to elevate the appellant’s killing of Ms. Taggart from second degree murder to first degree murder, pursuant to s. 231(5)(b) of the Criminal Code, R.S.C. 1985, c. C-46.
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(2) Should the trial judge have left the defence of extreme intoxication with the jury?
(a) The defence of extreme intoxication
[42] At common law, intoxication was traditionally not a defence to crimes of “general intent”, a category of offences that includes sexual assault. However, in R. v. Daviault, 1994 CanLII 61 (SCC), [1994] 3 S.C.R. 63, the Supreme Court of Canada held that the Charter precludes the conviction of persons who act non-volitionally while they are in a state of self-induced intoxication akin to automatism. As Kasirer J. later explained in R. v. Brown, 2022 SCC 18, [2022] 1 S.C.R. 374, at para. 6:The majority in Daviault recognized … that the Charter mandated an exception to the common law rule: where intoxication is so extreme that an accused falls into a condition akin to automatism, a conviction for the offence charged would violate ss. 7 and 11(d) of the Charter. It would be unfair, reasoned the Court, to hold an individual responsible for crimes committed while in a state of automatism, as they are incapable of voluntarily committing a guilty act or of having a guilty mind. [43] In response to Daviault, Parliament amended the Criminal Code by adding s. 33.1, which effectively eliminated the defence of extreme intoxication when the accused’s intoxication was self-induced. However, in 2020 this court struck down s. 33.1 as unconstitutional: R. v. Sullivan, 2020 ONCA 333, 151 O.R. (3d) 353, in a decision that was affirmed two years later by the Supreme Court of Canada: 2022 SCC 19, [2022] 1 S.C.R. 460; see also the companion case in the Supreme Court of Canada, Brown. When the appellant was tried in the fall of 2021 the Supreme Court of Canada had not yet ruled on the constitutional validity of s. 33.1, but this court in Sullivan had already declared it to be of no force or effect. Accordingly, at the time of the appellant’s trial the common law defence of extreme intoxication established in Daviault had already been restored in Ontario.
[44] The Daviault defence of extreme intoxication reverses the onus, requiring the accused to establish on a balance of probabilities that “he was in a state of extreme intoxication akin to automatism or insanity”: Daviault, at p. 103.Cory J. noted further that “[t]his will undoubtedly require the testimony of an expert”: Daviault, at p. 103; see also Daley, at para. 45. An accused who meets the burden of establishing the defence is entitled to an acquittal because being in a state of intoxication “so extreme that [it was] akin to automatism” will “render an accused incapable of either performing a willed act or of forming the minimal intent required for a general intent offence”: Daviault, at p. 77.
[45] In contrast, an accused charged with a specific intent offence, including murder, can point to evidence of their intoxication as a factor that may contribute to the jury having a reasonable doubt about whether the accused had the requisite mens rea for that offence: see R. v. Robinson, 1996 CanLII 233 (SCC), [1996] 1 S.C.R. 683, at p. 708. When intoxication is advanced as a defence on this basis, there is no reverse onus: the Crown must affirmatively prove all of the essential physical and mental elements of the charged offence on the evidence as a whole, including the evidence of the accused’s intoxication. When the charged offence is murder, the Crown must prove either the intent to kill, or the intent to inflict bodily harm that the accused subjectively knew was likely to cause death: Criminal Code, ss. 229(a)(i) and (ii). . R. v. Necan
In R. v. Necan (Ont CA, 2024) the Ontario Court of Appeal dismissed a defendant's appeal where the only issue was intent to murder, and a primary factor was intoxication and it's role in the jury charge:[3] The appellant relied heavily on the fact of his intoxication when arguing that he did not have the intention for murder. Although he did not claim to be in a state of intoxicated automatism, he argued that his degree of intoxication informed why the jury should have a reasonable doubt about whether he formed the specific intent for murder: see R. v. Brown, 2022 SCC 18, 472 D.L.R. (4th) 459, at para. 43; R. v. Gibb, 2024 ONCA 255, 436 C.C.C. (3d) 131, at para. 16.
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