Daviault, drunkenness, and discourse, the social construction of the drunkenness defence as a feminist issue

by Frieday, Karen

Abstract (Summary)
As part of an overall move towards protecting the public (especially those felt to be rnost vulnerable, e-g. wornen and children), legislation has recently been tabled which would forbid the use of a defence based on self-induced extreme intoxication producing a state akin to automatism (the drunkenness defence) in trials of general intent offences. This Iegislation (Bill C-72, S. 33.1), is in direct conflict with the 1994 ruling of the Supreme Court of Canada in Daviarrlt in which the majority found that to deny such a defence in general intent cases was in violation of the principles of fundamentaljustice enshrined in our Charter of Rights and Freedoms. The Supreme Court of Canada decided that the common-law precedents set by cases such as Beard, Maje>vski. and Leay, which did not ailow evidence of extreme intoxication in general intent cases, had the effect of convicting individuals for crimes in which they were lacking the necessary mens rea or voluntariness. The Daviault case brought to a head previous issues which had been raised regarding the illogicality of the specifidgeneral intent split in offences: the level of mens rea at which general intent offences (especially for sexual assault) coutd be distinguished kom specific intent offences; whether a lack of mens rea and/or actm rem brought about by severe intoxication was blamewonhy for either type of offence; the problems of holding individuals culpable for such behaviour despite lack of intent; or whether culpability could apply to the initial drunkemess; etc. Previously, the intoxication defence had been an exercise in legal and medical gymnastics in which the question was one of whether or not a man could be so drunk as to be void of the necessary intent or volition to commit a crime. It was ody with Davimilt did - --. 111 feminists and other wornen become central claims-makers. Feminist daims and rhetoric used to construct the drunkenness defence are examined from a sociaI constructionist perspective. Reference is made to legal and medical constructions as well. It is proposed that Bill C-72was tabled in response to ferninist claims-making, in addition to the public, and media outcry raised by the Daviault case. Ferninists concemed with issues of women and children's safety feared that the Supreme Coun mling would result in an increase in the use of the drunkenness defence, and that large numbers of offenders wouId be acquitted as a result of their own drunkemess. The drunke~ess defence was defined by ferninias as an equality issue, best resolved by "woman fiiendly" legislation (e-g. Bill C-72). Bill C-72 purports to protect the interests of vulnerable segments of society - women and children who are often the victims of violence. This Bill holds that each member of society must conduct themselves with a level of social comportment that does not infnnge on others' rights or fieedoms. Individuak who commit violent acts while in a state of self-induced intoxication have not taken the proper and required level of care to prevent such acts, and therefore should be held culpable and accountable. This legislation must be viewed as part of a trend towards the growing prominence of policy which hoIds the interests and protection of the public and potential victims paramount over those of offenders. This is exernplified by recent sexual onender registration and community notification laws which are al1 attempts to legislate greater public protection. Finally, 1 discuss other options which have been proposed to deal with the " drunkenness defence " .
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Source Type:Master's Thesis



Date of Publication:01/01/1999

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