Defences

R v Daviault

[1994] 3 SCR 63

R. v. Daviault

[1994] 3 S.C.R. 63
Supreme Court of Canada — Cory J. (majority), Sopinka J. (dissenting) | September 30, 1994

Background

Henri Daviault, a chronic alcoholic, was charged with sexual assault after attacking a 65-year-old partially paralysed woman who was confined to a wheelchair. The complainant knew Daviault through his wife. On the evening in question, Daviault arrived at her home carrying a 40-ounce bottle of brandy. The complainant drank part of a glass and fell asleep in her wheelchair. When she awoke to use the bathroom, Daviault grabbed her, wheeled her into the bedroom, threw her on the bed and sexually assaulted her. He left around 4:00 a.m., and the complainant discovered the brandy bottle was empty.

Daviault testified he had consumed seven or eight bottles of beer during the day, then the brandy at the complainant's residence. He had no memory of what happened between arriving and waking up nude in the complainant's bed. A pharmacologist testified that with Daviault's blood-alcohol levels, he would have suffered a blackout and been incapable of forming intent. The trial judge acquitted Daviault, but the Quebec Court of Appeal ordered a new trial.

Issues

1. Can evidence of extreme intoxication negate the mental element (mens rea) required for sexual assault?
2. Does the rule preventing intoxication as a defence to general intent offences violate sections 7 and 11(d) of the Charter?

The Intoxication Defence and Charter Rights

The Supreme Court ruled 6-3 that extreme intoxication — akin to automatism or insanity — can negate the mental element required for general intent offences like sexual assault. The majority found that the traditional Leary rule (which prevented intoxication as a defence to crimes like assault) violated Charter sections 7 and 11(d) by allowing conviction despite reasonable doubt about mental intent.

Justice Cory wrote that denying even a minimal mental element "is so drastic and so contrary to the principles of fundamental justice that it cannot be justified under s. 1 of the Charter." The court distinguished between ordinary drunkenness (no defence) and extreme intoxication producing a state "akin to automatism or insanity." However, the defence would only apply in the "rarest of cases" where the accused was so intoxicated they were incapable of forming even basic intent.

Justice Sopinka's strong dissent argued this opened dangerous floodgates, noting: "Society is entitled to punish those who of their own free will render themselves so intoxicated as to pose a threat to other members of the community."

Key Takeaway

Extreme intoxication can theoretically defeat criminal charges, but the bar is set extraordinarily high and the defence remains extremely rare in practice.

This decision sparked immediate legislative response — Parliament quickly amended the Criminal Code to limit this defence. For any case involving intoxication claims, the focus must be on whether the level of impairment truly approached automatism, not mere drunkenness.

Read the decision

R v Dryka

2000 CanLII 19584 (SK PC)

Her Majesty The Queen v. Justin Wade Dryka

2000 CanLII 19584 (SK PC)
Provincial Court of Saskatchewan — Judge H.W. Goliath | January 31, 2000

Background

Justin Dryka was driving north on Highway #2 near Northside, Saskatchewan when he encountered a van driven by Mr. Greening, a driving instructor. Greening had pulled off the highway to check his tires, then re-entered the traffic flow during heavy traffic conditions. As Greening accelerated to match traffic speed, Dryka approached rapidly from behind. Instead of slowing down or waiting, Dryka first attempted to pass on the left, saw oncoming traffic, then swerved right and passed Greening on the shoulder of the highway.

Greening, who had considerable experience as a driving instructor, considered the maneuver dangerous and followed Dryka to a gas station to discuss the incident. This led to Dryka being charged under section 48(1)(b) of The Highway Traffic Act for passing on the right, which requires drivers to pass on the left except at intersections.

Issues

1. Whether Dryka's admitted violation of the Highway Traffic Act could be excused by the defence of due diligence
2. Whether the defence of necessity applied to justify the illegal passing maneuver

The Defence of Necessity

Judge Goliath found that while due diligence didn't apply (Dryka hadn't taken all reasonable steps to avoid the situation), the defence of necessity did. Drawing on the Supreme Court of Canada's decision in Perka v. The Queen, the court explained that necessity applies when external forces create such an emergent situation that compliance with the law becomes impossible, and failure to act could endanger life or health.

The key finding was that an emergency situation had been created — whether by Dryka's speed, Greening's re-entry into traffic, or both. By the time Dryka realized he couldn't safely pass on the left due to oncoming traffic, he could no longer safely slow down or stop. His choice became: pass illegally on the right, or collide with the van. The court found this created the type of emergency that justifies breaking traffic laws.

Importantly, the judge noted that even if Dryka contributed to creating the dangerous situation (by driving too fast or following too closely), this doesn't prevent him from claiming necessity. As the Perka case established, "negligence or involvement in criminal or immoral activity does not disentitle the actor to the excuse of necessity."

Key Takeaway

The defence of necessity can excuse traffic violations when an emergency situation makes compliance with the law impossible and more dangerous than breaking it.

Even if you contributed to creating the emergency through your own poor driving, you can still claim necessity if you're forced to choose between breaking a traffic law and risking serious harm. However, this is a very fact-specific defence that requires proving the situation was truly emergent with no other reasonable options.

Read the decision

R v Kytwayhat

2004 SKPC 33

R. v. Kytwayhat

2004 SKPC 33
Provincial Court of Saskatchewan — J.A. Nightingale, PCJ | February 24, 2004

Background

Frank Kytwayhat received an urgent call at work: his pregnant stepdaughter was going into labour and needed to get to the Meadow Lake Health Centre immediately. The trip from their home in Loon Lake was 60 kilometres on rural highways. Kytwayhat volunteered to drive her, choosing to make the journey at 151 km/h — a speed that RCMP radar caught just east of the Village of Makwa.

The emergency turned out to be a false alarm. The stepdaughter's pains weren't labour, and she delivered a healthy baby a week later after a presumably calmer hospital trip. But Kytwayhat was outraged at being charged with speeding under Saskatchewan's Highway Traffic Act, believing the officer should have shown compassion over law enforcement. The officer testified that he'd considered letting it slide, but two factors changed his mind: Kytwayhat had been caught speeding at 140 km/h just a week earlier, and even ambulance drivers limit themselves to 130 km/h for safety reasons.

Issues

1. Did the circumstances establish a defence of necessity for the speeding offence?
2. If necessity applied, was the degree of speeding proportional to the harm being avoided?

The Defence of Necessity

The court applied the three-part test from Latimer v. The Queen: (1) urgent situation of clear and imminent peril, (2) no reasonable legal alternative, and (3) proportionality between harm inflicted and harm avoided. The Crown bears the burden of proving necessity doesn't apply once the defence is raised.

Judge Nightingale found the first two branches satisfied. There was imminent peril — a situation where "normal human instincts cry out for action and make a counsel of patience unreasonable." And there was no evidence of reasonable alternatives: the Crown presented no proof about medical facilities at Loon Lake, ambulance availability, or whether local doctors could deliver babies. Based on Kytwayhat's reasonable belief that Meadow Lake was the only option, the necessity defence initially looked viable.

But the third branch — proportionality — killed the defence. The judge took judicial notice that the 60-kilometre journey would take 28 minutes at 130 km/h versus 24 minutes at 151 km/h. By traveling at more than 1.5 times the posted limit, Kytwayhat "put himself and his passengers at significant risk of serious bodily harm or death" to save merely four minutes. The court found this "grossly out of proportion to the harm avoided" — even though some measure of speeding might have been justified, 151 km/h was simply too fast.

Key Takeaway

Emergency circumstances can justify breaking traffic laws, but the response must be proportional to the actual risk.

The necessity defence has strict limits: you must face genuine imminent peril with no reasonable alternatives, and your law-breaking can't create risks far worse than what you're trying to prevent. Four minutes of time savings wasn't worth the massive safety risk of extreme speeding.

Read the decision

R v May

[1990] M.J. No. 667

R. v. May

[1990] M.J. No. 667
Manitoba Provincial Court, Criminal Division — Giesbrecht Prov. Ct. J. | December 17, 1990

Background

On a summer afternoon in 1989, Anthony May was driving his semi-trailer truck eastbound on Highway 1 near Brandon, Manitoba, hauling asphalt for Borland Construction. At approximately 3:30 p.m., without warning, May fell asleep at the wheel. His truck crossed the centerline and collided head-on with a westbound pickup truck, killing all three occupants: George Tudruk, Stephen Young, and Wesley Grant Wilson.

May had been working a normal construction day — he started between 5-6 a.m. and was about 10 hours into what was typically a 14-15 hour workday. There was no evidence of excessive speed, erratic driving, alcohol consumption, or visible signs of fatigue before the accident. Another Borland driver testified that May had been following at a safe distance and driving normally. May was charged with dangerous driving causing death.

Issues

1. Whether falling asleep while driving, by itself, establishes the necessary mens rea (guilty mind) for dangerous driving causing death
2. Whether expert evidence about involuntary sleep affects the legal analysis of driver culpability

The Mens Rea Requirement

The court faced conflicting case law on whether falling asleep alone proves dangerous driving. The Crown relied on cases like R. v. Longhurst, which held that drivers must know when they're becoming drowsy and should stop before falling asleep. But the defence pointed to R. v. Verma, which required "some indication of actual or constructive warning of fatigue" beyond just falling asleep.

The court heard expert testimony from Dr. David Koulack, a University of Manitoba psychology professor, who explained that people can fall asleep in mid-afternoon without prior awareness, especially during vulnerability windows (early morning and 2-5 p.m.). He testified that while a person feeling "wide awake" wouldn't suddenly fall asleep, someone experiencing normal sleepiness might not realize they were at risk of actually falling asleep — particularly if they'd never fallen asleep while driving before.

Judge Giesbrecht found the Verma approach more persuasive, noting that the Crown's case consisted "exclusively" of evidence that May fell asleep, with no proof he knew or should have known he was in danger of falling asleep. Unlike cases where drivers were awakened early, worked unreasonable hours, consumed alcohol, or showed visible signs of fatigue, May's situation presented none of these warning factors.

Key Takeaway

Falling asleep while driving doesn't automatically prove dangerous driving — the Crown must show the driver knew or should have known they were at risk of falling asleep.

This case establishes that inadvertent sleep, without warning signs or reckless behavior that created the risk, may not meet the mental element required for criminal driving offences, even when the consequences are tragic.

Read the decision

R v Tatton

2015 SCC 33

R. v. Tatton

2015 SCC 33
Supreme Court of Canada — Moldaver J. (McLachlin C.J. and Abella, Rothstein, Cromwell, Wagner and Gascon JJ. concurring) | June 4, 2015

Background

Paul Tatton was living in his ex-girlfriend Ms. Spencer's guest room, hoping they'd get back together. When she went to Kingston to visit friends, he got jealous and drank heavily — about 52 ounces of alcohol. While highly intoxicated, he decided to cook bacon, put oil in a pan, set the stove to "high," then drove to Tim Hortons for coffee. When he returned 20 minutes later, the house was on fire. The contents were destroyed, though firefighters saved the structure.

Tatton was charged with arson under section 434 of the Criminal Code. At trial, he claimed the fire was an accident — he thought he'd set the stove to "low." The key question was whether his extreme intoxication could be considered as a defence.

Issues

1. Is arson under section 434 a general intent or specific intent offence?
2. Can self-induced intoxication short of automatism be used as a defence to arson?

The General vs. Specific Intent Distinction

This case clarified a crucial distinction in criminal law. For general intent offences, you cannot use intoxication as a defence unless you were so drunk you were basically unconscious (automatism). For specific intent offences, intoxication can negate the required mental element even if you weren't unconscious.

The Supreme Court ruled that arson under section 434 is a general intent offence. The mental element is simply the intentional or reckless causing of damage to property by fire — no complex reasoning required. The Court emphasized that recognizing the obvious risk of leaving oil heating on a stove doesn't require sophisticated thought processes that intoxication could impair.

The Court also noted policy reasons: alcohol is commonly associated with property damage crimes, so allowing intoxication as a defence would be counterproductive. As the Court put it, allowing drunk people to escape arson charges because they were drunk would "contradict the social policy underlying these crimes."

Key Takeaway

You cannot use intoxication as a defence to most property damage offences, including arson.

This principle extends beyond Criminal Code offences to many Provincial Offences Act charges involving property damage or public safety. If you're charged with an offence where alcohol consumption is commonly involved, don't expect intoxication to provide a legal excuse unless you were literally unconscious.

Read the decision

R v Verma

Unreported

R. v. Verma

9 M.V.R. 150
Alberta Court of Queen's Bench — Purvis J. | December 19, 1980

Background

Devinder Kumar Verma was driving a Yellow Cab van southbound on Highway No. 2 near Edmonton on March 3, 1980, when he fell asleep at the wheel. His van drifted from the slow traffic lane behind a semi-trailer truck onto the highway shoulder, where it slammed into two parked vehicles. The collision seriously injured several people.

After the crash, Verma gave police a false story about automobiles racing on the shoulder and striking his van. When officers investigated further, he eventually admitted he had fallen asleep. He told police he typically worked from 5:30 AM to midnight and usually rested from noon to 3:00 PM, but on the day in question he couldn't rest because he had to wash his van. However, he claimed he didn't know he was tired and didn't report to the airport dispatcher that he was unfit to drive.

Issues

1. Whether Verma's conduct in falling asleep while driving constituted dangerous driving under the Criminal Code
2. Whether making a false statement to police to divert suspicion constituted public mischief
3. Whether the degree of negligence was sufficient to support criminal liability

The Standard for Criminal Negligence in Driving Cases

The court had to determine whether falling asleep at the wheel crossed the line from civil negligence to criminal negligence. Purvis J. explained that for dangerous driving convictions, there must be more than simple inadvertence — the Crown must prove either actual knowledge of the risk or circumstances showing such gross negligence that criminal liability is justified.

The judge noted that while Verma was clearly civilly liable for the accident, the evidence showed he genuinely didn't know he was tired. There was no evidence of "actual or constructive warning of the fatigue experienced by the driver" that would establish the deliberate risk-taking required for criminal liability. The court found that without proof the accused knew or should have known about his dangerous condition, the negligence wasn't sufficiently gross to warrant criminal conviction.

However, the court convicted Verma on the false statement charge, finding his lie to police was clearly intended to divert suspicion from himself — a textbook case of public mischief under section 128 of the Criminal Code.

Key Takeaway

Even serious accidents caused by falling asleep don't automatically result in criminal convictions — the Crown must prove the driver knew or should have known they were dangerously tired.

This case shows that criminal driving offences require more than just causing an accident through poor judgment. Courts look for evidence of deliberate risk-taking or circumstances showing the driver was aware of the danger they posed to others.

Read the decision

R v WEBB

[1995] O.J. No. 827

No summary has been written for this decision yet.

Read the decision