S.C.C. No. 02529 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION Clarke, C.J.N.S., Hallett and Freeman, JJ.A. BETWEEN: HER MAJESTY THE QUEEN and RICHARD GEORGE SAULNIER Respondent Denise C. Smith for the Appellant R.K. Murray Judge for the Respondent Appeal Heard: February 4, 1992 Judgment Delivered: February 19, 1992 THE COURT: Appeal allowed, verdict of acquittal set aside, conviction entered on the charge set forth in the Information and matter remitted to trial judge for imposition of sentence, per reasons for judgment of Hallett, J.A., Clarke, C.J.N.S. and Freeman, J.A. concurring. HALLETT, J.A. This is an appeal from the acquittal of the respondent on a charge of assaulting his wife. The evidence indicates the respondent had come to visit his estranged wife on August 18, 1990. He complained of being tired and suffering from insomnia. She gave him sleeping pill at about 1:00 p.m. and told him that he should not consume alcohol. The respondent left but returned about 4:00 p.m. and at that time was in possession of quart of whiskey. He left shortly thereafter taking the whiskey with him. At approximately 2:00 a.m. the following morning he returned. His estranged wife had been asleep on the couch without any clothes on. She testified that the respondent was intoxicated. He got angry with her when she asked him what he was doing and he started to leave. She tried to prevent him from leaving as she did not want him to drive motor vehicle in an intoxicated condition. She pursued him into the hall. She testified that he hit her and butted out cigarette on her hand. He then lifted her up in an extremely crude manner and pushed her against the wall. Asked what then happened she testified: "he wanted me to go put something on in case someone come up the hallway and so we both went upstairs and put something on and we sat sat on the couch and he went on my bed and passed out...." In giving his decision acquitting the accused the learned trial judge stated: "The charge, as say, is on the face of it serious one. The behaviour of the accused at the time in question was, as described by Mrs. Saulnier, completely irrational and entirely out of character. She had earlier in the day administered sleeping pill to the accused and cautioned him against drinking. He nonetheless did drink. He doesn't know how much, he doesn't remember anything of the incidents which transpired from the time he went out that evening to have some drinks at bar at the Grand Hotel until the next morning when he woke up in his wife's apartment. It strikes me that the behaviour is all the more bizarre since the parties were reunited in their matrimonial relationship not long after this incident. There obviously is an affection displayed between them today in the court room. can't imagine what would prompt the behaviour of the accused to behave in the fashion he did towards his wife who is obviously attractive and who he obviously has some substantial regard for. Counsel for the accused argues that there is defence of automatism which would apply in these circumstances, the accused not understanding or appreciating what he was doing, that he suffered from delusions, that he apparently thought his wife was sack of potatoes or something, at the time. I'm not satisfied beyond reasonable doubt that he had the intent to assault his wife, or even to strike her." should note that the argument made at trial by counsel for the respondent that the respondent thought his wife was sack of potatoes or something at the time he was lifting her and pushing her against the wall was not supported by the evidence. The respondent testified that after he left his estanged wife's place that afternoon he received call to go back to work; he then went out drinking with some friends at the Grand Hotel. He has no recollection of anything that took place after that; his next recollection was getting phone call the following day to go to work. The Crown appeals on the following ground: "THAT the learned trial Judge erred in law in instructing himself on the defence of non‑insane automatism in the absence of an evidentiary foundation." The Crown asserts that there was no evidentiary basis for the trial judge's finding that he had reasonable doubt that the respondent had the intent to assault his wife. Therefore, one must ask whether the evidence of the respondent's state of intoxication supports finding of lack of intent to commit the assault on his wife. The leading case in Canada respecting the defence of drunkenness in relation to general intent offences, of which common assault is one, has been the decision of the Supreme Court of Canada in Leary v. The Queen (1977), 1977 CanLII (SCC), 33 C.C.C. (2d) 473, 74 D.L.R. (3d) 103, [1978] S.C.R. 29, 37 C.R.N.S. 60, [1977] W.W.R. 628, 13 N.R. 592. The decision has generally been interpreted as meaning that the defence of drunkenness has no application in general intent offence. In Bernard v. The Queen (1988), 1988 CanLII 22 (SCC), 45 C.C.C. (3d) the majority of the Supreme Court of Canada did not accept the appellant's invitation in that case to overrule the Leary decision. McIntyre J. with Beetz J. concurring re‑affirmed the distinction between general and specific intent offences and confirmed the Leary decision that the defence of intoxication has no application in offences of general intent. However, Wilson J., with L'Heureux‑Dube J. concurring, agreed that the Leary decision should not be overruled but felt that the Leary decision, properly understood, did not prevent an accused from relying on evidence of voluntary intoxication to negative the minimal intent required for general intent offences. Justice Wilson concluded that the Crown must prove an accused applied force intentionally in the case of an assault charge but to warrant acquittal based on intoxication the evidence of intoxication must be such that it shows an accused to have an absence of awareness akin to state of insanity or automatism. Therefore, in her opinion, it is only in cases of extreme drunkenness that evidence of intoxication is capable of raising reasonable doubt on the issue of intent in general intent offence. The other three members of the court, Dickson C.J.C., Lamer, J. and La Forest J. were of the opinion that the rule in Leary that defence of voluntary drunkenness has no application to general intent offences should be overruled. In R. v. Quin, 1988 CanLII 21 (SCC), 44 C.C.C. (3d) 570 which was handed down on the same date as the Bernard decision, the same panel of judges reached similar results in connection with whether or not the defence of drunkenness ought to have been available to the accused who in the Quin case broke and entered dwelling house and committed an assault causing bodily harm. It too was case of self‑induced intoxication. In the course of concluding that the defence of drunkenness was not available Wilson J. stated at p. 575: Although, as the Chief Justice notes, there was considerable evidence from both the appellant himself and from an expert witness that the appellant was "very drunk and acting very much out of character", there was no evidence of such extreme intoxication as to negate an aware state of mind as in the case of insanity or automatism. Accordingly, the rule in Leary v. The Queen (1977), 1977 CanLII (SCC), 33 C.C.C. (2d) 473, 74 D.L.R. (3d) 103, [1978] S.C.R. 29 (S.C.C.), should, in my view, have been applied by the trial judge. One can draw the following conclusions from the Bernard decision. The Leary decision has not been overruled. The distinction between specific and general intent offences has been preserved. In general intent offence the Crown need only prove beyond reasonable doubt that the accused had the intent to perform the actus reus of the offence. This intent can be inferred from the acts of the accused; it is minimal intent that he consciously did the act that constitutes the offence. agree with the conclusion reached by Madam Justice Wilson in the Bernard case where, after reviewing the comments made by Fauteux J. and Ritchie J. in R. v. George (1960), 1960 CanLII 45 (SCC), 128 C.C.C. 289, [1960] S.C.R. 871, 34 C.R. (S.C.C.) and the comments of Pigeon J. in the Leary decision respecting the intent required to be proven in offences of general intent, she stated at p. 41: "I believe that the Leary rule is perfectly consistent with an onus resting on the Crown to prove the minimal intent which should accompany the doing of the prohibited act in general intent offences. view it as preferable to preserve the Leary rule in its more flexible form as Pigeon J. applied it, i.e., so as to allow evidence of intoxication to go to the trier of fact in general intent offences only if it is evidence of extreme intoxication involving an absence of awareness akin to state of insanity or automatism. Only in such case is the evidence capable of raising reasonable doubt as to the existence of the minimal intent required for the offence. would not overrule Leary, as the Chief Justice would, and allow evidence of intoxication to go to the trier of fact in every case regardless of its possible relevance to the issue of the existence of the minimal intent required for the offence." For the policy reasons enunciated by McIntyre J. in the Leary case and the view of Wilson J. which I have quoted, I am of the opinion that voluntary intoxication of a person cannot be considered as raising a reasonable doubt as to his intent in connection with a general intent offence unless the degree of intoxication is so extreme that the accused did not even possess the minimal intent to perform the actus reus of the offence because his state of awareness was akin to automatism or insanity. This minimal intent requires that an accused perform conscious as opposed to accidental or unconscious acts. There will rarely be case in which the evidence will support finding that self‑induced intoxication caused an accused to be in so‑called state of automatism that would lead to finding of reasonable doubt as to the intent required to prove general intent offence. should note that the constitutionality of the common law rule that drunkenness is not defence to general intent offence was not raised by Notice of Contention on this appeal. In R. v. Penno, (1991) 1990 CanLII 88 (SCC), 115 N.R. 249 Lamer C.J.C. directed his mind to the effect of the majority decisions in the Bernard case. He stated at paragraph 75: "I conclude, therefore, that only minority [McIntyre J. with Beetz concurring] in Bernard expressed conclusive opinion as to the constitutionality of the rule denying defence of intoxication for all general intent offences. In cases where the intoxication would succeed in raising reasonable doubt as to an element of general intent offence, the question is, in my opinion, still open for this court to decide." In same same case Wilson J. commented at paragraph 33: "In R. v. Bernard, 1988 CanLII 22 (SCC), [1988] S.C.R. 833; 90 N.R. 321, this court held that denying the defence of intoxication in the case of an offence of general intent does not violate the Canadian Charter of Rights and Freedoms at least insofar as cases not involving 'substituted' mens rea are concerned. Accordingly, if Chief Justice Lamer's reasons in this case are not confined to "substituted" mens rea cases, which they do not appear to be, it would appear that he is reopening the issue in Bernard. While this is, of course, perfectly open to him to do, tend to the view that Bernard was correctly decided. remain of the view that intoxication falling short of insanity or automatism is not defence to crimes of general intent. The defence of intoxication is, of course, available in the case of crimes of specific intent." At this time the two majority opinions in the Bernard case remain the law of Canada. Interpreting them in manner most favourable to the respondent, the majority opinions at least stand for the proposition that voluntary drunkenness is not generally defence to general intent offence but could be defence if the intoxication has induced state of automatism or insanity. In the Penno case Justice Wilson expressed the rationale for this rule at paragraph 36: "Intoxication has traditionally been viewed as relevant to mens rea. Certainly this was so in Bernard where, as already mentioned, it was held that the defence of intoxication was available only in relation to crimes of specific intent and not to crimes of general intent. The rationale in support of this finding was that intoxication could affect person's ability to foresee the consequences of an act, which is requirement for crimes of specific intent, but that, generally speaking, intoxication could not deprive person of the ability to know that he or she was committing the act, which is the minimal requirement for crimes of general intent." The learned trial judge found that he was not satisfied beyond reasonable doubt that the respondent had the intention to assault his estranged wife. As previously noted, the Crown asserts that the learned trial judge erred in law in instructing himself on the defence of non‑insane automatism in the absence of an evidentiary foundation for the defence. The evidence of the respondent's wife leads to the inference that the respondent had driven his car to her residence. Her evidence proves that he was extremely intoxicated and did not seem "like himself". There was no evidence as to the strength of the sleeping pill that he had taken. There was no evidence as to the amount of alcohol he drank on the day in question. The respondent simply has no recollection. There is no medical evidence as to the affect the sleeping pill and his drinking would have had on him. It would have added credibility to the defence theory that the respondent acted as if his wife was sack of potatoes if there was evidence that the respondent customarily used sacks of potatoes as punching bags and ashtrays but there was no such evidence to explain why he hit his wife and butted out cigarette on her hand. Likewise, there was no evidence that he customarily spoke to sacks of potatoes or was concerned about them not being properly clo thed. There is no evidence to support finding that his state of intoxication was anything but self‑induced. The courts, in number of cases, have commented that as general rule it is difficult to prove automatism in the absence of medical evidence. In Hill v. Baxter, [1958] All E.R. 193 (Q.E.D.) the court stated at p. 197: "I do not doubt that there are genuine cases of automatism and the like, but do not see how the layman can safely attempt without the help of some medical or scientific evidence to distinguish the genuine from the fraudulent." Similarly, in Bratty v. Attorney General for Northern Ireland [1963], A.C. 386 (H.L.) the court stated: "The evidence of the man himself will rarely be sufficient unless it is supported by medical evidence which points to the cause of the mental incapacity. It is not sufficient for man to say "I had black‑out": for "black‑out" as Stable J. said in Cooper v. McKenna, ex parte Cooper is one "of the first refuges of guilty conscience and popular excuse." The inability to remember events at later time, while perhaps some indication of automatism, does not in itself provide basis for finding of automatism. R.v. Clarke (1973), 1973 CanLII 1495 (NS SC), 16 C.C.C. (2d) 310 (N.S.S.C.A.D.); In R. v. Myers (1979), 31 N.S.R. (2d) 444 (S.C.A.D.) this court commented at paragraph 25 on the quality of evidence required where automatism is raised: "Evidence that the appellant was an automaton in fact was not merely insufficient; it was non‑existent. No direct medical or other evidence was given which showed that the appellant was in fact concussed. None of those who talked to him at the time of the accident, including the ambulance attendants, and none of the doctors or others who examined him the next morning, gave any evidence as to the nature of his injuries, or as to his response to questions, including the breathalyzer demand, from which the conclusion could be drawn that the appellant in fact was concussed and did not then know what he was doing. All Dr. Stevenson could say was that an accident such as described "could" cause concussion and false appearance of understanding and consciousness. No foundation of fact was laid from which an expert could infer that this man was probably an automaton when he refused the demand. See Bleta v. The Queen, 1964 CanLII 14 (SCC), [1964] S.C.R. 561, as to the vital necessity of proper factual foundation for medical opinions as to automatism." Apart from the fact that there was no medical evidence to support finding that the respondent's state of awareness was akin to that of automatism, the evidence of his wife shows that the respondent had the presence of mind to recognize that she was naked and to suggest to her that she get clothes on in case somebody came by. In short, the evidence cannot support finding that the respondent was so extremely intoxicated that he should not be presumed to have intended the consequences of his act of assaulting his wife as would be the case if his state of awareness was akin to that of state of insanity or automatism. In fact, the wife\'s evidence indicates the respondent had an appreciation of the circumstances of the assault at the time, although he cannot remember. The "sack of potatoes defence" is not supported by any evidence. am of the opinion that the trial judge did not properly direct himself as to the type of evidence necessary to conclude, as result of the respondent's degree of intoxication, that there was reasonable doubt that the respondent had the minimal intent required for the general intent offence of common assault. It is necessary to consider how to dispose of this appeal. Section 686(4) of the Criminal Code, 1985, provides: (4) Where an appeal is from an acquittal the court of appeal may (a) dismiss the appeal; or (b) allow the appeal, set aside the verdict and (i) order new trial, or (ii) except where the verdict is that of court composed of judge and jury, enter verdict of guilty with respect to the offence of which, in its opinion, the accused should have been found guilty but for the error in law, and pass sentence that is warranted in law, or remit the matter to the trial court and direct the trial court to impose sentence that is warranted in law. The Crown requests the following relief: The Appellant respectfully submits the appeal be allowed, the verdict of acquittal set aside, and verdict of guilty entered, and sentence warranted in law passed, or the matter of sentence remitted to the trial court with the direction sentence warranted in law be passed; or in the alternative, that the appeal be allowed, the verdict of acquittal set aside, and new trial ordered. In order to exercise jurisdiction to enter conviction court of appeal must be satisfied all findings of fact necessary to support finding of guilt were made either explicitly or implicitly by the trial judge. This common law rule must be strictly applied. R. v. Cassidy (1989), 1989 CanLII 25 (SCC), 50 C.C.C. (3d) 193, 61 D.L.R. (4th) 480, [1989] S.C.R. 245. It is clear from reviewing the reasons given by the trial judge he found that the respondent did assault his wife. He stated: "The Court is conscious of the seriousness of spousal assault. There was clearly an assault here." He then went on to describe the assault. However, the learned trial judge stated in the last paragraph of his decision that "he didn't strike her". Considering his previous finding that there had been an assault and considering the context in which the remark was made assume the learned trial judge meant that the respondent did not intentionally or consciously strike her. For the reasons which have already stated the evidence did not support such finding. There is presumption person intends the natural consequences of his/her acts. Having found there was, in fact, an assault and as the evidence of intoxication was totally insufficient to raise reasonable doubt as to the minimal intent required to prove general intent offence the learned trial judge by implication found the respondent' had the requisite intent for the offence of common assault when he concluded there, in fact, was an assault. Therefore, I am of the opinion the respondent "should have been found guilty but for the error in law" which I have identified. I would set aside the acquittal and enter a verdict of guilty pursuant to the powers vested in this Court by Section 686(4)(b)(ii) of the Criminal Code. Both counsel requested that if guilty verdict were entered the matter should be remitted to the trial judge for sentence so that pre‑sentence report could be prepared. would make such an order directing the trial judge to impose sentence that is warranted in law. J.A. Concurred in: Clarke, C.J.N.S. Freeman, J.A. CY 5968 IN THE COUNTY COURT OF DISTRICT NUMBER THREE BETWEEN: HER MAJESTY THE QUEEN and RICHARD GEORGE SAULNIER HEARD: At Yarmouth, in the County of Yarmouth, Nova Scotia on the 17th day of May, A.D., 1991 BEFORE: The Honourable Judge C. E. Haliburton, JCC CHARGE: C.C. Section 266(a) DECISION: On the 17th day of May, A.D., 1991 COUNSEL: R.M.J. Prince, Esq., Crown Attorney R.K. Murray Judge, Esq., Defence Attorney S.C.C. No. 02529 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION BETWEEN: HER MAJESTY THE QUEEN and RICHARD GEORGE SAULNIER Respondent REASONS FOR JUDGMENT BY: HALLETT, J.A.
, The Crown appealed the acquittal of the respondent on a charge of assaulting his wife. The trial judge had found the respondent, who had taken a sleeping pill and was drunk at the time of the assault, did not have the intent to commit the assault. Allowing the appeal, that voluntary intoxication cannot be considered as raising a reasonable doubt as to intent in a general intent offence unless the degree of intoxication is so extreme that the accused did not even possess the minimal intent to perform the actus reus because his state was akin to automatism or insanity. The Court noted that no medical evidence as to the affect of the sleeping pill with the alcohol was adduced, nor was there any evidence concerning the strength of the pill or the amount of alcohol consumed and concluded that the evidence supported the conclusion that the respondent appreciated the circumstances of the assault, even though he could not remember it afterward. The Court set aside the acquittal and entered a verdict of guilty pursuant to s. 686(4)(b)(ii) of the Criminal Code as it had concluded that the respondent 'should have been found guilty but for the error in law'.