On February 8th, 1959, George tried to sell a fur to Mr. Avergis but the man declined. Late the same night, when the defendant was very drunk, he came back to the house and assaulted the man, stealing $22. He was charged with robbery under s.288 of the Criminal Code (now s.343). The accused stated that he was very drunk and did not remember much about the incident, but he did remember hitting someone, and remembered the house being the same one that he had been in earlier that day, and indeed it was the same one.
- Should the courts substitute the offence of common assault?
- Are charges divisible?
- Does drunkenness negate mens rea?
Appeal allowed, charge of common assault found, sentenced to time served.
The majority (with Locke J dissenting) states that the trial judge first erred by not considering whether or not to divide the charge of robbery into the theft and assault. They cite s.569 of the Code (now s.590(3)), which states that any charge for an indictable offence can be divided if the facts include another offence that is punishable by indictment or summary conviction. Therefore, the trial judge should have considered the charge of common assault.
The court then considered how the respondent's drunkenness affects the charges. The court agrees with the trial judge that the intoxication prevented the defendant from forming the specific intent required for the original charge. However, unless intoxicated to the point of insanity the accused could still form the intention to strike the man (and the charge of assault only requiring that the defendant have applied force intentionally). The court then enters a conviction for common assault, saying that they have the power to do so under s.600 of the Code (now s.695). They say that the difference between specific intention and regular mens rea is important in cases involving intoxication.
- When a case with a charge for an indictable offence contains facts that lead to a commission of another crime (whether punishable by indictment or summary conviction) the charge may be divided (s.590(3)).
- Intoxication often makes it impossible for a person to form the specific intention in crimes, however only intoxication to the point of insanity will negate mens rea altogether in cases involving only general intent.