R. v. Whyte

The Chief Justice‑‑Section 234(1) of the Criminal Code, R.S.C. 1970, c. C‑34, provides that every one who drives a motor vehicle or has the care or control of a motor vehicle, whether it is in motion or not, while his ability to drive a motor vehicle is impaired by alcohol or a drug, is guilty of an indictable offence or an offence punishable on summary conviction. Section 237(1)(a) then legislates a presumption against an accused to the following effect:

237. (1) In any proceedings under section 234 or 236,

(a) where it is proved that the accused occupied the seat ordinarily occupied by the driver of a motor vehicle, he shall be deemed to have had the care or control of the vehicle unless he establishes that he did not enter or mount the vehicle for the purpose of setting it in motion;

The issue in this appeal is whether this provision infringes the rights of the accused under the Canadian Charter of Rights and Freedoms .

Section 11(d) of the Charter reads:

11. Any person charged with an offence has the right

...

(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;

Section 2 of the Canadian Bill of Rights , S.C. 1960, c. 44 , reads:

2. Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or applied so as to

...

(f) deprive a person charged with a criminal offence of the right to be presumed innocent until proved guilty according to law in a fair and public hearing by an independent and impartial tribunal, or of the right to reasonable bail without just cause;

Leave to appeal to this Court was sought on a number of points, but denied except with respect to the following ground which formed the basis for Hutcheon J.A.'s dissent in the British Columbia Court of Appeal:

Did the Court of Appeal for British Columbia err in law in holding that the reverse onus provision in Section 237(1) (a) of the Criminal Code of Canada is not inconsistent with Section 11(d) of the Charter of Rights and Freedoms and of no force and effect.

Later, pursuant to Rule 32 of the Rules of the Supreme Court of Canada, the following constitutional questions were stated for consideration by this Court:

1. Does section 237(1) (a) of the Criminal Code of Canada , R.S.C. 1970, c. C‑34, infringe or deny the rights and freedoms guaranteed by s. 11(d) of the Canadian Charter of Rights and Freedoms ?

2. If section 237(1) (a) of the Criminal Code infringes or denies the rights and freedoms guaranteed by s. 11(d) of the Charter , is this section justified by s. 1 of the Charter and therefore not inconsistent with the Constitution Act, 1982 ?

The Attorney General of Canada intervened to support the constitutionality of the legislation.

It should be noted that this case has been argued throughout on the law as it stood prior to the amendments made by the Criminal Law Amendment Act, 1985, S.C. 1985, c. 19, s. 36.

I

The Facts

The evidence disclosed that when the investigating constables came upon the appellant's vehicle, it was in a parked position along the roadside, its hood was warm, the dashboard ignition light was on, keys were in the ignition, but the engine was not running. The appellant was seated in the driver's seat with his body slumped over the steering wheel. Counsel for the defence concedes that the appellant's ability to operate a motor vehicle was impaired by alcohol when he was found by the police.

II

Decisions of the British Columbia Courts

1. Provincial Court

The accused was tried by Coultas Prov. Ct. J. on September 10, 1982: [1983] B.C.D. Crim. Conv. 5600‑01. He argued that the presumption contained in s. 237(1)(a) violated paras. (c) and (d) of s. 11 of the Charter , which guarantee the right not to be forced to testify against oneself and the right to be presumed innocent until proven guilty.

Coultas Prov. Ct. J. rejected these arguments. He held that since s. 11(d) of the Charter used the same language as s. 2(f) of the Canadian Bill of Rights, the right to be presumed innocent guaranteed by the two documents should be interpreted in the same way. The trial judge considered himself bound by the decision of this Court in R. v. Appleby, [1972] S.C.R. 303. In that case, Ritchie J. for the majority held that the right to be presumed innocent was subject to statutory exceptions, and that the presumption of care or control based upon occupancy of the driver's seat did not violate s. 2(f) of the Canadian Bill of Rights. The trial judge also relied on the concurring reasons of Laskin J. who held that an accused can lose the initial benefit of silence once the Crown leads evidence of certain facts. He concluded that s. 237(1)(a) did not violate the presumption of innocence. The trial judge also rejected the argument that the section violated the accused's right not to testify. He then convicted the accused. In supplementary reasons for judgment delivered seven months after conviction and shortly before the hearing in the County Court, Coultas Prov. Ct. J. stated that but for the presumption in s. 237(1)(a), which was not rebutted, he would have acquitted the accused.

2. County Court

The accused appealed his conviction: (1983), 21 M.V.R. 69. The sole issue considered by Cowan Co. Ct. J. was whether s. 237(1)(a) contravened the presumption of innocence. Cowan Co. Ct. J. in dismissing the appeal said (at p. 73):

Section 2(f) of the Canadian Bill of Rights is in almost identical language to that in s. 11(d) of the Charter except for the substitution of "an offence" in the Charter for the words "a criminal offence" in s. 2(f).

That being so, I consider that the decision of the Supreme Court of Canada in R. v. Appleby applies with equal force to the Charter and is decisive of the issue before me.

3. British Columbia Court of Appeal

The accused appealed the decision of the County Court to the Court of Appeal: (1983), 6 D.L.R. (4th) 263, 10 C.C.C. (3d) 277, 10 C.R.R. 344, 38 C.R. (3d) 24, 25 M.V.R. 22. In separate reasons, Taggart and Esson JJ.A. held that there was no violation of s. 11(d) and dismissed the appeal, while Hutcheon J.A. reached the opposite conclusion. It should be pointed out that the decision of this Court in R. v. Oakes, [1986] 1 S.C.R. 103, had not been rendered prior to the disposition of the present case by the British Columbia Court of Appeal.

Taggart J.A. reviewed the two leading cases on s. 2(f) of the Canadian Bill of Rights; Appleby, supra, and R. v. Shelley, [1981] 2 S.C.R. 196, as well as Re Boyle and The Queen (1983), 5 C.C.C. (3d) 193 (Ont. C.A.), which considered s. 11(d). He concluded that the purpose of s. 2(f) and s. 11(d) is to protect an accused from statutory provisions which arbitrarily shift to the accused the ultimate burden of establishing innocence. Factors to consider in deciding if the ultimate burden has been placed on the accused included the "rational connection" test, the "impossibility of proof" test, the nature of the burden on the accused and the degree of proof required to discharge the burden. Turning to s. 237(1)(a), Taggart J.A. noted that in order to gain the benefit of the presumption created by s. 237(1)(a), the Crown must first prove that the accused occupied the driver's seat and that the accused was impaired. In Taggart J.A.'s view, the deemed fact of care or control flows rationally from the presumed fact, occupation of the driver's seat by the accused. He held that a requirement that the accused disprove the presumed fact on a balance of probabilities did not shift the ultimate burden of proof onto the accused.

Esson J.A. in a short concurring judgment emphasized that the wording of s. 11(d) of the Charter and s. 2(f) of the Canadian Bill of Rights was substantially the same. He held that the lower courts should give the same meaning to the Charter provision as was established for its counterpart in the Canadian Bill of Rights, unless the earlier decision was affected by the statutory nature of the Canadian Bill of Rights. That, in his view, was not the case in Appleby as this Court held that the phrase "according to law" in s. 2(f) permitted statutory exceptions.

In his dissenting reasons, Hutcheon J.A. argued that the presumption of innocence under the Charter is different from that of the Canadian Bill of Rights. He held that the phrase "according to law" in s. 11(d) of the Charter should not be read as permitting statutory exceptions, but that any such exceptions should have to be justified under s. 1 of the Charter . Hutcheon J.A. agreed with the views expressed by Martin J.A. in the decision of the Ontario Court of Appeal in R. v. Oakes (1983), 145 D.L.R. (3d) 123, that the presumption of innocence requires that the Crown must prove the accused's guilt and must do so beyond a reasonable doubt. If there is a reasonable doubt yet the trial judge is required to convict, the presumption of innocence is violated. Hutcheon J.A. concluded that s. 237(1)(a) did infringe the presumption of innocence, but since s. 1 had not been argued, he would have called for submissions on that point.

III

Presumption of Innocence

A. Canadian Bill of Rights

As I have indicated, the British Columbia courts placed heavy reliance on the decision of this Court in Appleby, supra, which held that s. 237(1)(a) (then s. 224a(1)(a)) was not inconsistent with s. 2(f) of the Canadian Bill of Rights.

The first aspect of the Appleby decision continues to be relevant under the Charter , namely, the characterization of the legal effect of the presumption contained in s. 224a(1)(a), now s. 237(1)(a). Ritchie J. concluded that the presumption places an onus on the accused to prove on a balance of probabilities that he or she did not enter the vehicle with the intention of setting it in motion. Since Laskin J. agreed with Ritchie J. on this point, this Court was unanimous on the interpretation of the provision.

Ritchie J. reached this conclusion for two reasons. The first of these was based on the word "establishes" in the section. He held that as a matter of statutory interpretation, the word "establishes" requires the accused to prove the necessary fact on the balance of probabilities, and cannot be read as equivalent to "raises a reasonable doubt." The meaning of the words "establishes" and "proves" are well‑defined in the criminal law. They require convincing proof, at least on the balance of probabilities. This meaning of the words "establishes" and "proves" had been set out earlier in Latour v. The King, [1951] S.C.R. 19, and Tupper v. The Queen, [1967] S.C.R. 589. Pigeon J. reaffirmed this meaning in the majority decision in R. v. Proudlock, [1979] 1 S.C.R. 525.

The second reason given by Ritchie J. for concluding that the provision places an onus of proof on the accused was that the section would otherwise be meaningless. The presumption was included to allow the Crown to prove care or control by proving beyond a reasonable doubt that the accused occupied the driver's seat. If the accused could rebut the presumption simply by raising a reasonable doubt, then the Crown would be required to prove the fact of care or control beyond a reasonable doubt, even though the statute deems that care or control is shown upon proof beyond a reasonable doubt that the accused occupied the driver's seat. This is exactly the same onus that the Crown would have to satisfy if the presumption were not included in the section. To interpret the section in this way would make the presumption ineffective and the section meaningless.

The second aspect of Appleby was the contention that even though s. 237(1)(a) created a reverse onus, it was not inconsistent with s. 2(f) of the Canadian Bill of Rights. Writing for the majority on this point, Ritchie J. observed that s. 2(f) gave statutory approval to the principle enunciated by Viscount Sankey L.C. in Woolmington v. Director of Public Prosecutions, [1935] A.C. 462, at p. 481:

Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception. [Emphasis added by Ritchie J.]

Ritchie J. went on to hold as follows (at p. 316):

...the words ``presumed innocent until proved guilty according to law . . ." as they appear in s. 2(f) of the Bill of Rights, must be taken to envisage a law which recognizes the existence of statutory exceptions reversing the onus of proof with respect to one or more ingredients of an offence in cases where certain specific facts have been proved by the Crown in relation to such ingredients.

In my view, the reasoning of the Court in Appleby was manifestly influenced by the limited extent to which the Court considered the Canadian Bill of Rights could override otherwise valid legislation which conflicted with its terms. The interpretation accorded to s. 2(f) effectively eliminated any need to assess the validity of legislative derogation from the guarantee of the presumption of innocence. It is clear from the case law that it is appropriate for this Court to reassess the meaning of words borrowed in the Charter from the Canadian Bill of Rights: see R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, at pp. 333‑34, overruling Robertson and Rosetanni v. The Queen, [1963] S.C.R. 651, on the meaning of "freedom of religion"; R. v. Therens, [1985] 1 S.C.R. 613, at pp. 639‑40, overruling Chromiak v. The Queen, [1980] 1 S.C.R. 471, on the meaning of "detention"; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, departing from Duke v. The Queen, [1972] 2 S.C.R. 917, on the meaning of "fundamental justice"; R. v. Smith (Edward Dewey), [1987] 1 S.C.R. 1045, adopting the minority opinion in Miller and Cockriell v. The Queen, [1977] 2 S.C.R. 680, in preference to that of the majority.

Although the principles set out in the Canadian Bill of Rights are of great importance (many of them having been re‑enacted in the Charter), a constitutional document is fundamentally different from a statute. The purpose of the Charter is to entrench certain basic rights and freedoms and immunize them from legislative encroachments. Ordinary legislation must conform to the constitutional requirements. An interpretation of s. 11(d) that would make the presumption of innocence subject to legislative exceptions would run directly contrary to the overall purpose of an entrenched constitutional document. Although the same important principle is involved, it is the nature of the two documents which gives the presumption of innocence different effects under the Canadian Bill of Rights and the Charter .

I conclude, therefore, that despite the holding in Appleby that s. 237(1)(a) does not infringe the presumption of innocence, the question of the validity of s. 237(1)(a) in the face of s. 11(d) of the Charter is still an open one.

The Supreme Court has considered the presumption of innocence guaranteed by the Charter in several recent cases: Dubois v. The Queen, [1985] 2 S.C.R. 350; R. v. Oakes, supra; R. v. Vaillancourt, [1987] 2 S.C.R. 636, and R. v. Holmes, [1988] 1 S.C.R. 914. These cases set out the basic principles of the presumption of innocence and have started to explore its application to particular statutory provisions. It is not necessary to review these cases in depth; a brief summary will suffice.

In Oakes, the majority relied on the earlier decision in Dubois to conclude that the presumption of innocence has at least three components. First, an individual must be proven guilty beyond a reasonable doubt. Second, the Crown must bear the onus of proof. Third, criminal prosecutions must be carried out in accordance with lawful procedures and principles of fairness (Oakes, supra, at p. 121). As Lamer J. stated for the majority in Dubois, the Crown must make out the case against the accused before he or she need respond (Dubois, at p. 357). Applying these principles to a statutory provision that required the accused to disprove an essential element of the offence, the majority in Oakes held (at pp. 132‑33) that:

In general one must, I think, conclude that a provision which requires an accused to disprove on a balance of probabilities the existence of a presumed fact, which is an important element of the offence in question, violates the presumption of innocence in s. 11(d). If an accused bears the burden of disproving on a balance of probabilities an essential element of an offence, it would be possible for a conviction to occur despite the existence of a reasonable doubt. This would arise if the accused adduced sufficient evidence to raise a reasonable doubt as to his or her innocence but did not convince the jury on a balance of probabilities that the presumed fact was untrue. [Emphasis added.]

In Vaillancourt Lamer J., for the majority on that point, again considered s. 11(d). He confirmed that the presumption of innocence requires that the trier of fact be convinced beyond a reasonable doubt of the existence of all the essential elements of the offence. A provision that permits or requires a conviction in spite of a reasonable doubt as to the existence of one or more of the elements of the offence violates the presumption of innocence. Lamer J. recognized that Parliament can in some cases permit proof of a substituted fact to be taken as proof of an essential element of the offence, but that there are limitations on the scope of such substitutions (at p. 656):

Finally, the legislature, rather than simply eliminating any need to prove the essential element, may substitute proof of a different element. In my view, this will be constitutionally valid only if upon proof beyond reasonable doubt of the substituted element it would be unreasonable for the trier of fact not to be satisfied beyond reasonable doubt of the existence of the essential element. If the trier of fact may have a reasonable doubt as to the essential element notwithstanding proof beyond a reasonable doubt of the substituted element, the substitution infringes ss. 7 and 11(d).

The next stage in the development of these principles occurred in Holmes, which raised the question whether a requirement that the accused prove a lawful excuse, rather than disprove an essential element of the offence, violated the presumption of innocence. Two members of the Court held that a requirement of this sort would offend s. 11(d) (at p. 934):

Any burden on an accused which has the effect of dictating a conviction despite the presence of reasonable doubt, whether that burden relates to proof of an essential element of the offence or some element extraneous to the offence but nonetheless essential to verdict, contravenes s. 11(d) of the Charter . An accused must not be placed in the position of being required to do more than raise a reasonable doubt as to his or her guilt, regardless of whether that doubt arises from uncertainty as to the sufficiency of Crown evidence supporting the constituent elements of the offence or from uncertainty as to criminal culpability in general.

Is section 237(1)(a) consistent with these principles? The basic fact which the Crown must prove to invoke the section is that the accused occupied the seat normally occupied by the driver of the motor vehicle. The presumed fact is that the accused had the care or control of the vehicle. To rebut this presumption, the accused must "establish" the absence of intention to set the vehicle in motion. As I have already indicated, Appleby, supra, and other decisions of this Court make it clear that the word "establishes" requires the accused to prove lack of intention on a balance of probabilities.

The exact relationship between s. 237(1)(a) and the mens rea requirement of s. 234 was the subject of uncertainty for some time. Is the intention to set the vehicle in motion an ingredient of the offence of having care or control of a motor vehicle while impaired, or is the absence of such intention simply a way for an accused to rebut the presumption of care or control? This Court settled the question in Ford v. The Queen, [1982] 1 S.C.R. 231, when Ritchie J. for the majority held that the intention to set the vehicle in motion is not an element of the offence. Proof of lack of intention is simply an evidentiary point that rebuts the presumption of care or control of the vehicle established by s. 237(1)(a). The Court recently reaffirmed Ford in R. v. Toews, [1985] 2 S.C.R. 119.

In the case at bar, the Attorney General of Canada argued that since the intention to set the vehicle in motion is not an element of the offence, s. 237(1)(a) does not infringe the presumption of innocence. Counsel relied on the passage from Oakes quoted above, with its reference to an "essential element", to support this argument. The accused here is required to disprove a fact collateral to the substantive offence, unlike Oakes where the accused was required to disprove an element of the offence.

The short answer to this argument is that the distinction between elements of the offence and other aspects of the charge is irrelevant to the s. 11(d) inquiry. The real concern is not whether the accused must disprove an element or prove an excuse, but that an accused may be convicted while a reasonable doubt exists. When that possibility exists, there is a breach of the presumption of innocence.

The exact characterization of a factor as an essential element, a collateral factor, an excuse, or a defence should not affect the analysis of the presumption of innocence. It is the final effect of a provision on the verdict that is decisive. If an accused is required to prove some fact on the balance of probabilities to avoid conviction, the provision violates the presumption of innocence because it permits a conviction in spite of a reasonable doubt in the mind of the trier of fact as to the guilt of the accused. The trial of an accused in a criminal matter cannot be divided neatly into stages, with the onus of proof on the accused at an intermediate stage and the ultimate onus on the Crown. Section 237(1)(a) requires the accused to prove lack of intent on a balance of probabilities. If an accused does not meet this requirement the trier of fact is required by law to accept that the accused had care or control and to convict. But of course it does not follow that the trier of fact is convinced beyond a reasonable doubt that the accused had care or control of the vehicle. Indeed, in this case, as in Appleby, the trier of fact stated that he convicted the accused despite the existence of a reasonable doubt as to care or control, an element of the offence.

In the passage from Vaillancourt quoted earlier, Lamer J. recognized that in some cases substituting proof of one element for proof of an essential element will not infringe the presumption of innocence if, upon proof of the substituted element, it would be unreasonable for the trier of fact not to be satisfied beyond a reasonable doubt of the existence of the essential element. This is another way of saying that a statutory presumption infringes the presumption of innocence if it requires the trier of fact to convict in spite of a reasonable doubt. Only if the existence of the substituted fact leads inexorably to the conclusion that the essential element exists, with no other reasonable possibilities, will the statutory presumption be constitutionally valid.

The presumption in s. 237(1)(a) does not have this inexorable character, as the section itself recognizes. A person can be seated in the driver's seat without an intention to assume care or control of the vehicle within the meaning of s. 234. Appleby provides an illustration: the accused in that case explained that he sat in the driver's seat of a taxi to use the radio to report an accident, and for no other purpose. The accused failed to convince the trial judge on a balance of probabilities, but the judge admitted that he had a reasonable doubt about the explanation. Other reasonable explanations for sitting in the driver's seat can readily be imagined. It cannot be said that proof of occupancy of the driver's seat leads inexorably to the conclusion that the essential element of care or control exists, and therefore, s. 237(1)(a) does not meet the test set out by Lamer J. in Vaillancourt.

Section 237(1)(a) requires the trier of fact to accept as proven that an accused had care or control of a vehicle, an essential element of the offence, in spite of a reasonable doubt about the existence of that element. The section therefore breaches the presumption of innocence guaranteed by s. 11(d) of the Charter .

IV

Section 1 of the Charter

The respondent and the Attorney General of Canada argue that even if s. 237(1)(a) infringes the presumption of innocence, the infringement is salvaged by s. 1 of the Charter , which reads:

1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

To decide this point, it is necessary to apply the s. 1 analysis set out by the majority in Oakes. There are two major criteria. First, the objective which the measure responsible for the limit on a right or freedom is designed to serve must be sufficiently important to permit overriding the constitutionally‑protected right or freedom (Oakes, supra, at p. 138). Second, to show that the measures are reasonable and demonstrably justified requires an analysis of the proportionality of the measures (Oakes, supra, at p. 139). There are three components to the proportionality test: the measures must be carefully designed to achieve the objective of the legislation, with a rational connection to the objective. The second component is that the measure should impair the right or freedom as little as possible. Finally, there must be proportionality between the effects of the impugned measures on the protected right and the attainment of the objective.

The respondent Crown and the Attorney General of Canada argued strongly that the objective of s. 237(1)(a) is sufficiently important to warrant overriding a Charter right. The section, along with the related sections concerning the use, care or control of a motor vehicle while the ability to drive is impaired by alcohol or while the proportion of alcohol in the blood exceeds certain limits, is a response to a major social problem. Counsel for the respondent submitted affidavit evidence outlining the number of people charged annually with these offences, the number of fatalities and injuries caused by impaired drivers, the number of accidents where alcohol is a factor, and the cost to the public through insurance, hospital care, and the operation of the justice system. Counsel for the Attorney General referred the Court to the debates in the House of Commons when the predecessor of s. 237(1)(a) was first introduced in 1947, and also to the debates on the 1985 amendments. The Court was also referred to its own past decisions in Saunders v. The Queen, [1967] S.C.R. 284, and Curr v. The Queen, [1972] S.C.R. 889, where the severity of the problems caused by impaired drivers was recognized. Reference should also be made to the recent decisions of this Court in R. v. Hufsky, [1988] 1 S.C.R. 621, and R. v. Thomsen, [1988] 1 S.C.R. 640.

It is not necessary to go into these submissions in detail, since the appellant conceded that the objective of s. 237(1)(a) was sufficiently important to warrant overriding a constitutionally‑protected right. He did note, however, that s. 237(1)(a) is intended to assist the Crown to prove the offence of care or control of a motor vehicle while impaired, where the risk is that the occupant will put the vehicle in motion. The presumption does not address the more prevalent problem of those who actually operate the vehicle while their ability to do so is impaired.

In light of the submissions by the respondent and the Attorney General and the concession by the appellant, I accept that there is a valid objective for s. 237(1)(a) and that the first criterion of the Oakes test is met.

The first component of the proportionality inquiry is the requirement that the provision be carefully drawn and have a rational connection to the objective. Section 237(1)(a) creates a presumption that a person in the driver's seat of a vehicle has the care or control of the vehicle, one of the elements of the offences under ss. 234 and 236. In my view, there is plainly a rational connection between the proved fact and the fact to be presumed. There is every reason to believe the person in the driver's seat has the care or control of the vehicle. The driver's seat is designed to give the occupant access to all the controls of the car, to be able to operate it. It is true that a vehicle can be occupied by one who does not assume care or control, but a person in this state of mind is likely to assume a position in the vehicle intended for a passenger rather than the driver. In my view, the relationship between the proved fact and the presumed fact under s. 237(1)(a) is direct and self‑evident, quite unlike that which confronted the Court in Oakes. Since section 237(1)(a) is intended to achieve the objective identified and is not arbitrary, unfair, or based on irrational considerations, it passes this stage of the proportionality test.

The next stage of the proportionality inquiry is to ask whether the impugned measure impairs the right or freedom as little as possible. With respect to s. 237(1)(a), this is the most crucial and difficult aspect of s. 1 analysis. In my view, we must recognize that Parliament was faced with a difficult task in defining drinking and driving offences. The very fact that consumption of alcohol is an element of these offences renders problematic the element of intention. Justice precludes undue reliance upon strict or absolute liability. Social protection precludes undue emphasis upon the mental element to these offences. Parliament has decided to define the offence in terms of "care or control". As I have already noted, this Court has held that the Crown need not prove that the accused had an intention to drive or to set the vehicle in motion in order to secure a conviction for "care or control". The mens rea requirement for the offence of care or control is a minimal one and it has not been argued here that this constitutes a departure from the requirements of s. 7 or s. 11(d) of the Charter .

Criminal legislation relating to the use of a motor vehicle while impaired dates back some sixty‑seven years to An Act to amend the Criminal Code, S.C. 1921, c. 25, s. 3, which added s. 285c to the Criminal Code, R.S.C. 1906, c. 146. The new provision made it an offence to drive a motor vehicle while intoxicated. Four years later, Parliament amended s. 285c to make it an offence to have care or control of a motor vehicle while intoxicated, whether or not the vehicle was set in motion (An Act to amend the Criminal Code, S.C. 1925, c. 38, s. 5). This provision was carried forward in the Criminal Code , R.S.C. 1927, c. 36, as s. 285(4). It was repealed and re‑enacted in substantially the same form by An Act to amend the Criminal Code, S.C. 1930, c. 11, s. 6.

The addition of the care or control offence to the Code in 1925 caused some uncertainty. Several judges commented that the phrase was unusually broad and if taken literally could amount to criminal liability for the owner of a vehicle who was intoxicated in his or her home with the car keys in his or her pocket. The courts eventually concluded that the phrase had to be interpreted more restrictively to mean a person who was in a position to be able to set the vehicle in motion immediately. See R. v. Higgins, [1929] 1 D.L.R. 269 (Ont. S.C.); R. v. Butler, [1939] 4 D.L.R. 592 (Alta. S.C. App. Div.); R. v. Crowe (1941), 16 M.P.R. 101 (N.S.S.C. in banco); R. v. Thomson, [1941] 1 D.L.R. 516 (N.B.S.C. App. Div.); R. v. Forbes, [1943] O.W.N. 96 (Ont. Co. Ct.); R. v. Armstrong, [1944] 1 D.L.R. 233 (Ont. Co. Ct.), and R. v. Hyatt, [1945] O.R. 629 (Ont. H.C.)

The fact that the accused was often highly intoxicated caused problems. In Butler, supra, the accused was also found asleep and intoxicated behind the steering wheel of a car. Harvey C.J.A. for the court held that intoxication affects the ability of a person to have the care or control of a vehicle. Since the accused was unconscious when found, he was incapable of exercising care or control and was acquitted. Ford J.A. concurred in the result, but argued that in some cases a person would be in care or control notwithstanding his helpless position. In Forbes, supra, the accused was found slumped over the steering wheel with the keys in the ignition. He testified that he had had no intention of starting the car. The Ontario County Court allowed his appeal on the grounds that since the accused did not have the physical or mental capacity to put the car in motion, he did not have care or control. The judge recognized that the result placed a premium on drunkenness, but felt compelled to acquit as the evidence showed the accused was incapable of putting the car in motion. Similarly, in Armstrong, supra, the Ontario County Court held that the accused must be aware that he had the care or control of the vehicle. Since the accused was in a drunken stupor in the driver's seat, the judge held that there was a reasonable doubt whether the accused knew he had the care or control of the vehicle. The accused was acquitted.

Crowe and Hyatt, supra, go to the opposite extreme. In both cases, the accused were found slumped over the steering wheel, intoxicated, with the keys in the ignition. The Ontario High Court and the Nova Scotia Supreme Court in banco both found that the offence of care or control of a motor vehicle while intoxicated was an absolute liability offence, designed to protect the public from conduct that posed grave risks. Both courts relied on the absence of the words "wilfully" or "with intent" in the wording of the then s. 285(4) to conclude that there was no mental element at all. Guilt followed on proof that the person was intoxicated and in a position to set the vehicle in motion.

In 1947, Parliament enacted the presumption now found as s. 237(1)(a), as a proviso to s. 285(4). The purpose of the proviso was said at the time of its introduction to be to clarify the content of the offence and to make it difficult for an accused to avoid conviction for the care or control offence on the ground that he or she was too impaired to assume control of the vehicle. Our attention has been drawn to the exchange which took place between the Minister of Justice and two members of the House of Commons during the debate on second reading (Debates of the House of Commons, 3rd Sess., 20th Parl., 1947, vol. VI, at p. 5048):

Mr. McMaster: Those words were not in the old act. If he was in it, whether it was in motion or not, he was supposed to be guilty of the offence.

Mr. Ilsley [Minister]: No, with deference, I think the hon. member is wrong. Before this amendment, if his state of intoxication were sufficiently advanced the courts in many of the provinces held he did not have control of the motor vehicle. It is no longer open to an accused person to defend himself on those grounds. The early words in this proviso take that defence away from him. But they leave a defence to a person who, having got into the car for the purpose of setting it in motion, goes to sleep.

...

Mr. Miller: I return to the point I tried to make a moment ago. It seems to me that a man who is drunk and stops his car on the side of the road for the same purpose, namely to sleep it off, should be in just as strong a position as the drunken man who got into the care, not intending to start off with it. The other man got into the car with the intention of driving it. He does drive it for a distance and finds he is incapable of doing so. Therefore he wisely drives off to the side of the road. I say he should be protected just as much as the drunken man who gets in but does not start the car at all.

Mr. Ilsley: The hon. member's argument leads to this conclusion, that we should not change the section at all. Perhaps we should not. But certainly we have been severely criticized by the courts for not changing it. There is a recent judgment of a judge in the supreme court of New Brunswick which is most caustic in its reference to the lawmakers. The reason is obvious.

If persons accused of driving a car while intoxicated can go into a court and say, "I was too drunk to be guilty," it shocks the public; indeed it shocks us all, I believe.

This history shows that there is a serious problem with the mental element of this offence, because the fact of intoxication itself raises doubts about the accused's mental state and ability to form an intention. The presumption was created by Parliament in response to that history. On the one hand, it was repugnant to theories of criminal liability that a person could be convicted of an absolute liability crime, with no possibility of a defence based on the mental state of the accused. On the other hand, as the Minister of Justice commented, it is shocking to hear that an accused could be acquitted of an offence for which consumption of alcohol is a required element, because he was too intoxicated to be guilty. The presumption was added to resolve the problems caused by both of these alternatives. Parliament wished to discourage intoxicated people from even placing themselves in a position where they could set a vehicle in motion, while at the same time providing a way for a person to avoid liability when there was a reason for entering the vehicle other than to set it in motion. The position adopted is admittedly a compromise. It is an attempt to balance the dangers posed by a person whose abilities to reason are impaired by alcohol with the desire to avoid absolute liability offences. It is an attempt by Parliament to recognize that alcohol, because of its effects on the reasoning process, may in some cases require a special treatment, while avoiding absolute liability offences.

The facts of the present case indicate that the problem identified by the Minister of Justice in 1947 could well recur today, absent s. 237(1)(a). Although the accused was found slumped over the steering wheel in a vehicle with the lights on, keys in the ignition and engine warm, the trial judge found that in the absence of the presumption, there would be a reasonable doubt as to guilt.

In my view, viewed in this context, s. 237(1)(a) represents a restrained parliamentary response to a pressing social problem. It is important for the purposes of the s. 1 analysis to view s. 237(1)(a) in the context of its overall statutory setting. Parliament has attempted to strike a balance. On the one hand, the Crown need only prove a minimal level of intent on account of the fact that consumption of alcohol is itself an ingredient of the offence. On the other hand, where an accused can show that he or she had some reason for entering the vehicle and occupying the driver's seat other than to drive the vehicle, the accused will escape conviction. Viewed in this light, s. 237(1)(a) constitutes a minimal interference with the presumption of innocence guaranteed by s. 11(d) of the Charter .

The final stage of the Oakes test is to ask whether there is proportionality between the effects of the impugned measure and the objective being advanced. In my view, s. 237(1)(a) satisfies this final element in s. 1 analysis. The threat to public safety posed by drinking and driving has been established by evidence in this case and recognized by this Court in others. While section 237(1)(a) does infringe the right guaranteed by s. 11(d) of the Charter , it does so in the context of a statutory setting which makes it impracticable to require the Crown to prove an intention to drive. The reverse onus provision, in effect, affords a defence to an accused which could not otherwise be made available.

V

Conclusion

It follows, in my view, that the appeal should be dismissed and the constitutional questions answered as follows: