R. v. Gregory, 2013 NSCA 102:
 Turning first to intoxication, “drunkenness” is not really a defence to a criminal act. It is a suggestion that, due to the consumption of alcohol, or other mind altering substances, the Crown cannot prove beyond a reasonable doubt the necessary mens rea to establish criminal liability. In the absence of such evidence, the trier of fact is entitled to apply the common-sense inference that a sane and sober person intends the natural consequences of his or her actions.
 In terms of the offence of murder, consumption of intoxicants could be to such an extent that an accused did not have the capacity to form the intent to commit murder, or based on all of the evidence, might raise a reasonable doubt that the accused in fact intended to cause bodily harm with the foresight that the likely consequence was death.
 Authorities long debated the proper jury charge on voluntary consumption of intoxicants. Should it be restricted to the accused’s capacity to form intent or on the ultimate issue: did the accused in fact form the necessary intent?
 The debate was somewhat resolved by the seminal decision of the Supreme Court of Canada in R .v. Robinson, 1996 CanLII 233 (SCC),  1 S.C.R. 683. Lamer C.J., for the majority, concluded that a charge that only focussed on capacity would violate the Canadian Charter of Rights and Freedoms. He wrote of how and when a jury should be instructed on intoxication:
 How then should juries be instructed on the use they can make of evidence of intoxication? I am of the view that before a trial judge is required by law to charge the jury on intoxication, he or she must be satisfied that the effect of the intoxication was such that its effectmight have impaired the accused’s foresight of consequences sufficiently to raise a reasonable doubt. Once a judge is satisfied that this threshold is met, he or she must then make it clear to the jury that the issue before them is whether the Crown has satisfied them beyond a reasonable doubt that the accused had the requisite intent. In the case of murder the issue is whether the accused intended to kill or cause bodily harm with the foresight that the likely consequence was death. [emphasis added]
 However, Lamer C.J. was careful not to rule out that there may still be cases where it is appropriate to charge a jury about intoxication to the point of incapacity to form the intent to commit murder. He said this:
 I should not want to be taken as suggesting that reference to “capacity” as part of a two-step procedure will never be appropriate in a charge to the jury. Indeed, in cases where the only question is whether the accused intended to kill the victim (s. 229(a)(i) of the Code), while the accused is entitled to rely on any evidence of intoxication to argue that he or she lacked the requisite intent and is entitled to receive such an instruction from the trial judge (assuming of course that there is an “air of reality” to the defence), it is my opinion that intoxication short of incapacity will in most cases rarely raise a reasonable doubt in the minds of jurors. For example, in a case where an accused points a shotgun within a few inches of someone’s head and pulls the trigger, it is difficult to conceive of a successful intoxication defence unless the jury is satisfied that the accused was so drunk that he or she was not capable of forming an intent to kill. It is in these types of cases where it may be appropriate for trial judges to use a two-step MacKinlay-type charge. In addition, I suspect that most accused will want the trial judge to refer to capacity since his or her defence will likely be one of incapacity.
 A little more than ten years later, the Supreme Court in R. v. Daley, 2007 SCC 53 (CanLII), 2007 SCC 53 reviewed the role of voluntary intoxication as a defence. Bastarache J., writing for the majority, described the legally relevant degrees of intoxication: mild, advanced, and extreme intoxication, akin to automatism. The latter is extremely rare and by operation of s. 33.1 of the Criminal Code is limited to non-violent offences (Daley, ¶43). It is therefore of no relevance here, factually or legally.
 With respect to the first two degrees of intoxication, mild intoxication causing a relaxation of inhibitions is not legally relevant; advanced intoxication must be to the extent of an impairment of the accused’s foresight of the consequences of his or her actions. In this regard, Bastarache J. accepted the legal principles earlier set out in R. v. Robinson. He wrote:
 Our case law suggests there are three legally relevant degrees of intoxication. First, there is what we might call “mild” intoxication. This is where there is alcohol-induced relaxation of both inhibitions and socially acceptable behaviour. This has never been accepted as a factor or excuse in determining whether the accused possessed the requisite mens rea. See Daviault, at p. 99. Second, there is what we might call “advanced” intoxication. This occurs where there is intoxication to the point where the accused lacks specific intent, to the extent of an impairment of the accused’s foresight of the consequences of his or her act sufficient to raise a reasonable doubt about the requisite mens rea. The Court in Robinson noted that this will most often be the degree of intoxication the jury will grapple with in murder trials: …
Robert Karrass is a partner at Morton Karrass LLP and specializes in the areas of criminal law, administrative/regulatory law, and appeals.