R. v. Penno

R. v. Penno
Collection
Supreme Court Judgments
Date
1990-10-04
Report
[1990] 2 SCR 865
Case number
20234
Judges
Lamer, Antonio; Wilson, Bertha; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; McLachlin, Beverley
On appeal from
Ontario
Subjects
Constitutional law
Criminal law
Notes
SCC Case Information: 20234
Decision Content
R. v. Penno, [1990] 2 S.C.R. 865
Stanley Penno Appellant
v.
Her Majesty The Queen Respondent
indexed as: r. v. penno
File No.: 20234.
1990: January 31; 1990: October 4.
Present: Lamer C.J.* and Wilson, La Forest, L'Heureux‑Dubé, Sopinka, Gonthier and McLachlin JJ.
on appeal from the court of appeal for ontario
Criminal law ‑‑ Defences ‑‑ Intoxication ‑‑ Care or control of motor vehicle while impaired ‑‑ Impairment element of offence ‑‑ Whether intoxication defence to charge ‑‑ Specific or general intent offence ‑‑ Criminal Code, R.S.C. 1970, c. C‑34, ss. 234(1), 237(1)(a).
Constitutional law ‑‑ Charter of Rights ‑‑ Fundamental justice ‑‑ Care or control of motor vehicle while impaired ‑‑ Impairment element of offence ‑‑ Defence of intoxication unavailable ‑‑ Whether unavailability of defence of intoxication infringes s. 7 of Canadian Charter of Rights and Freedoms ‑‑ Whether infringement justifiable under s. 1 of Charter ‑‑ Criminal Code, R.S.C. 1970, c. C‑34, s. 234(1).
Constitutional law ‑‑ Charter of Rights ‑‑ Presumption of innocence ‑‑ Care or control of motor vehicle while impaired ‑‑ Impairment element of offence ‑‑ Defence of intoxication unavailable ‑‑ Whether unavailability of defence of intoxication infringes s. 11 (d) of Canadian Charter of Rights and Freedoms ‑‑ Whether infringement justifiable under s. 1 of Charter ‑‑ Criminal Code, R.S.C. 1970, c. C‑34, s. 234(1).
The accused was charged with four offences, including having care or control of a motor vehicle while impaired contrary to s. 234(1) of the Criminal Code . At trial, the police testified that the accused was found in the driver's seat of a stolen automobile which, while under his control, backed up a short distance. In defence, the accused testified that he was so drunk he could not recall the evening's events. The trial judge acquitted the accused on the four charges on the ground that the accused was so intoxicated that he could not form the required intent to commit the offences. The Crown appealed the acquittal on the s. 234(1) charge. The Court of Appeal set aside the acquittal and entered a verdict of guilty. This appeal is to determine (1) whether intoxication is a defence to a charge of having care or control of a motor vehicle while impaired; (2) if the defence is excluded, whether such exclusion infringes ss. 7 and 11 (d) of the Canadian Charter of Rights and Freedoms ; and, if so, (3) whether the infringement is justifiable under s. 1 of the Charter .
Held: The appeal should be dismissed.
Per Sopinka, Gonthier and McLachlin JJ.: The Crown's contention that drunkenness could not serve as a defence under s. 234(1) of the Code because of the presumption created by s. 237(1)(a) must be rejected. Since the Crown chose not to assert the presumption at trial, but rather relied exclusively on evidence that the accused had exercised care or control under s. 234(1) (a), it cannot be allowed to assert that presumption on appeal. To do so would result in the accused being deprived of the opportunity to make the full answer and defence that could have been made if it had been raised at trial. Intention to set the vehicle in motion is relevant to s. 237(1)(a); it is not relevant to s. 234(1) .
The defence of intoxication is excluded under s. 234(1) of the Code. In enacting s. 234(1) , Parliament has posited impairment as an essential element of the offence and must be taken to have eliminated the availability of a defence of lack of intent based on the same impairment which it has made culpable. It is impossible to speak of a defence which also constitutes an element of the offence. The exclusion of the defence of intoxication renders irrelevant the general intent / specific intent issue.
Even if the accused is too drunk to know that he is assuming care and control of the motor vehicle, the exclusion of intoxication as a defence under s. 234(1) does not constitute a limitation on the accused's right to make full answer and defence under ss. 7 and 11 (d) of the Charter , since the mens rea of the offence lies not in the intention to assume care or control of a motor vehicle, but in voluntarily becoming intoxicated. This interpretation recognizes that intoxication is excluded as a defence to impaired driving since it is the very gravamen of the offence. This state of the law was not changed by this Court's decision in Toews.
Per Wilson and L'Heureux‑Dubé JJ.: Impairment cannot be a defence to the offence of having care or control of a motor vehicle while impaired under s. 234(1) of the Criminal Code . Impairment, as opposed to non‑impairment, cannot be at one and the same time an essential element of the offence and a defence to the offence.
The unavailability of the defence of intoxication in the context of s. 234(1) does not constitute an infringement of ss. 7 and 11 (d) of the Charter . Where intoxication to the point of impairment is an essential element of an offence of general intent, i.e. part of the actus reus, the denial of the intoxication defence in relation to that offence does not give rise to a constitutional violation. The section 234(1) offence is one of general intent requiring only a minimal mens rea ‑‑ the intent to assume care or control after the voluntary consumption of alcohol or a drug. The requirement of impairment is an element of the actus reus. No viable defence to a charge under s. 234(1) is foreclosed by the section, and no conviction can take place under the section despite a reasonable doubt as to the volitional nature of the accused's act. It is the act of having care or control of a motor vehicle while impaired, and not the simple act of having care or control, that must be volitional in order that the actus reus of this offence be established. To establish the actus reus, the Crown does not have to establish an intent to do it, but merely that the accused was aware that he was doing it. The conscious doing of an act encompasses the intention to do it and constitutes the minimal mens rea for general intent offences. When a person voluntarily consumes alcohol to the point of impairment and has care or control of a motor vehicle while in that condition, there is no doubt about the volitional nature of his act of becoming impaired. The accused's impairment is the gravamen of the offence under s. 234(1) , and it is this which must be the result of an act of volition. Under the section, the act of having care or control and the state of voluntary impairment are undoubtedly required to be contemporaneous.
Crimes in which intoxication is part of the actus reus, therefore, are in a different category from crimes in which intoxication is relevant to the mental element only. There is no unconstitutionality in the creation of the former type of offence. However, if the unavailability of the defence of intoxication should constitute an infringement of an accused's constitutional rights, it would only be in cases of extreme intoxication verging on automatism, and such an infringement would be justified under s. 1 of the Charter .
Per La Forest J.: Section 234(1) of the Code prohibits the act of having care or control of a motor vehicle while the perpetrator of that act is impaired. The mens rea of the offence is the intention to assume care or control of the vehicle. Judicial construction also requires that the impairment be voluntary. Since Parliament has made it an offence to commit an act while impaired, it would be inconsistent for Parliament to have also considered that impairment (including intoxication) could be relied on by the defence.
Section 234(1) does not violate s. 7 or s. 11 (d) of the Charter . With respect to s. 11 (d), the constitutionality of s. 234(1) , qualified as it is by s. 237(1) of the Code, has been accepted by this Court in Whyte. With respect to s. 7 , a person can only come within the ambit of s. 234(1) if his intoxication is voluntary. It follows that s. 234(1) will only be applied where the assumption of the care or control of a vehicle while impaired can truly be said to be the responsibility of the accused in an ultimate sense, even if there is a question as to whether he was capable, because of intoxication, of forming the requisite intent as of the moment when care or control was actually assumed. Further, the mens rea requirement under s. 234(1) is very low. It will seldom be the case that a person who has the care or control of the motor vehicle be found so intoxicated as to have been incapable of satisfying the very low mens rea requirement of s. 234(1) . This very low mental requirement is necessary if Parliament is to be able to create effective offences respecting impaired driving. The creation of such offences is obviously in the public interest, an interest which is encompassed in the "principles of fundamental justice" mentioned in s. 7 of the Charter .
Per Lamer C.J.: The offence of having care or control of a motor vehicle while impaired contrary to s. 234(1) of the Code is one of general intent requiring only a minimal mens rea. A general intent offence is one in which the only intent involved relates solely to the performance of the act in question with no further ulterior intent or purpose. The mental element of the s. 234(1) offence ‑‑ the intent to assume care or control after the voluntary consumption of alcohol or a drug ‑‑ is defined by referring directly to the actus reus. No further intent is required apart from the intent to do the actus reus. Since the offence is one of general intent, it follows that no defence of intoxication can negate the mens rea of the offence. The question is still open, however, as to whether intoxication giving rise to a state of insanity or automatism could negate the mens rea of this offence. There is no need to decide this issue in this case.
The unavailability of the defence of intoxication for general intent offences is a limit to the rights of an accused entrenched in ss. 7 and 11 (d) of the Charter . This defence is an important and valuable one for an accused in cases where, but for a rule preventing him from resorting to it, such a defence would have succeeded in raising a reasonable doubt as to voluntariness, an element essential to the commission of the actus reus. The limit on the accused's fundamental rights is the result of the judge‑made rule that a defence of intoxication is unavailable or that any consideration of intoxication is made irrelevant in cases of general intent offences. In the context of drinking and driving offences, such a limit is demonstrably justifiable under s. 1 of the Charter . First, the objective of taking away the defence of intoxication is of sufficient importance to justify restricting the rights contained in ss. 7 and 11 (d). The measure is part of the scheme set up by Parliament to protect the security and property of the public and is aimed at securing the conviction of the impaired persons who are in care or control of a motor vehicle. Second, the measure is proportional to the ends s. 234(1) (a) is designed to attain. There is a rational connection between the restriction on the fundamental rights and the objective. The unavailability of the defence of intoxication is logical and necessary to suppress all the effects of intoxication on the road. Further, the measure does not represent an overkill. The rule does not impose a conviction on an intoxicated person found to have care or control but who is completely blameless. Involuntary intoxication is left unpunished as is also an involuntary taking, care, or control, due to factors other than intoxication.
Cases Cited
By McLachlin J.
Referred to: R. v. Whyte, [1988] 2 S.C.R. 3; R. v. Toews, [1985] 2 S.C.R. 119; Ford v. The Queen, [1982] 1 S.C.R. 231; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; R. v. Vaillancourt, [1987] 2 S.C.R. 636; R. v. Bernard, [1988] 2 S.C.R. 833; Leary v. The Queen, [1978] 1 S.C.R. 29; R. v. King, [1962] S.C.R. 746.
By Wilson J.
Considered: R. v. Bernard, [1988] 2 S.C.R. 833; referred to: R. v. Whyte, [1988] 2 S.C.R. 3; R. v. Toews, [1985] 2 S.C.R. 119.
By La Forest J.
Applied: R. v. Whyte, [1988] 2 S.C.R. 3; referred to: R. v. Toews, [1985] 2 S.C.R. 119; R. v. Lyons, [1987] 2 S.C.R. 309; R. v. Beare, [1988] 2 S.C.R. 387; R. v. Corbett, [1988] 1 S.C.R. 670; R. v. Jones, [1986] 2 S.C.R. 284; Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425.
By Lamer C.J.
Considered: R. v. Bernard, [1988] 2 S.C.R. 833; referred to: R. v. George, [1960] S.C.R. 871; Ford v. The Queen, [1982] 1 S.C.R. 231; R. v. Toews, [1985] 2 S.C.R. 119; R. v. Whyte, [1988] 2 S.C.R. 3; R. v. Oakes, [1986] 1 S.C.R. 103; Saunders v. The Queen, [1967] S.C.R. 284; Curr v. The Queen, [1972] S.C.R. 889; R. v. Hufsky, [1988] 1 S.C.R. 621; R. v. Thomsen, [1988] 1 S.C.R. 640.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 1 , 7 , 11 (d).
Criminal Code, R.S.C. 1970, c. C‑34, ss. 234 [am. 1974‑75‑76, c. 93, s. 14], 237 [am. 1974‑75‑76, c. 93, s. 18], 294(a) [rep. & sub. 1972, c. 13, s. 23; rep. & sub. 1974‑75‑76, c. 93, s. 25], 303 [am. 1972, c. 13, s. 70], 312(1)(a) [rep. & sub. 1974‑75‑76, c. 93, s. 29].
Authors Cited
Herrmann, Joachim. "Causing the Conditions of One's Own Defense: The Multifaceted Approach of German Law," [1986] B.Y.U. L. Rev. 747.
Mitchell, Chester N. "The Intoxicated Offender ‑‑ Refuting the Legal and Medical Myths" (1988), 11 Int. J.L. Psychiatry 77.
Paizes, Andrew. "Intoxication Through the Looking‑Glass" (1988), 105 S.A.L.J. 776.
Quigley, Tim. "Reform of the Intoxication Defence" (1987), 33 McGill L.J. 1.
Schabas, Paul B. "Intoxication and Culpability: Towards an Offence of Criminal Intoxication" (1984), 42 U.T. Fac. L. Rev. 147.
Skeen, A. St. Q. "Intoxication is No Longer a Complete Defence in Bophuthatswana: Will South Africa Follow Suit" (1984), 101 S.A.L.J. 707.
United Kingdom. Criminal Law Revision Committee. Fourteenth Report: Offences against the Person, Cmnd 7844. London: H.M.S.O., 1980.
United Kingdom. Home Office. Department of Health and Social Security. Report of the Committee on Mentally Abnormal Offenders, Cmnd 6244. London: H.M.S.O., 1975.
APPEAL from a judgment of the Ontario Court of Appeal (1986), 30 C.C.C. (3d) 553, 45 M.V.R. 28, 18 O.A.C. 31, allowing the Crown's appeal from the accused's acquittal on a charge of having care or control of a motor vehicle while impaired contrary to s. 234 of the Criminal Code . Appeal dismissed.
Melvyn Green, for the appellant.
Jeff Casey and Susan Chapman, for the respondent.
//Lamer C.J.//
The following are the reasons delivered by
CHIEF JUSTICE LAMER -- This case raises the issue of whether someone accused pursuant to s. 234 (now s. 253) of the Criminal Code, R.S.C. 1970, c. C-34, of having care or control of a motor vehicle while impaired, and to whom s. 237 (now s. 258) of the Criminal Code applies, can raise a defence of intoxication.
I - The Facts
In the early hours of April 27, 1985, in the Township of Michipicoten, Ontario, an automobile was stolen by two unidentified persons. About twenty minutes later, the police located the vehicle and found the appellant sitting in the driver's seat and another person sitting beside him. The investigating officer was not sure whether the vehicle was in motion when he located it. However, he testified that while he got out of the police car and approached the vehicle, he saw the appellant gesturing as if putting it in reverse and, in effect, the vehicle moved back about one foot. The key was in the ignition and the ignition was on. The passenger was found in possession of an additional set of keys in his pocket. The appellant and the passenger were immediately arrested by the police.
It is common ground that the accused had been drinking heavily in the hours which preceded his arrest. He testified that he had no recollection of any of the events that took place between midnight and the moment he was awakened in his cell, late that morning.
The appellant was acquitted of the four counts of which he was charged: robbery contrary to s. 303 of the Code, theft of the car contrary to s. 294(a) of the Code, possession of the car contrary to s. 312(1)(a) of the Code and care or control of a motor vehicle while impaired contrary to s. 234 of the Code. The Crown has only appealed the acquittal on the s. 234 charge, that is, having care or control of a motor vehicle while impaired.
II - Judgments in the Courts Below
The trial judge found that the appellant was very intoxicated. He acquitted the appellant on the four counts as he was of the opinion that his degree of intoxication prevented him from forming the required mental element in respect of the offences with which he was charged. The trial judge did not however proceed to an analysis of the elements of the offence of having care or control of a vehicle while impaired and did not consequently relate the effect of the defence of intoxication to any of these elements.
The sole ground of appeal raised by the Crown before the Ontario Court of Appeal was that a defence of self-induced intoxication on a charge of care or control of a motor vehicle while impaired is not available to an accused. The Court of Appeal held that intention to drive is not an essential element of the offence under s. 234 . The Crown need only prove that the accused had care or control of a motor vehicle while impaired. The offence was regarded as a general intent offence, for which the Crown need not prove that the assumption of care or control was motivated by any particular purpose. It further held not only that voluntary intoxication is not a defence to a crime of general intent but also that it can form the mens rea of such an offence. The Court of Appeal accordingly allowed the appeal, set aside the acquittal and entered a verdict of guilty: (1986), 30 C.C.C. (3d) 533, 45 M.V.R. 28, 18 O.A.C. 31.
III - The Relevant Legislation
This appeal involves s. 234 of the Code which creates the offence of having care or control of a motor vehicle while impaired and the presumption created under s. 237 of the Code. These sections read as follows:
234. (1) Every one who, while his ability to drive a motor vehicle is impaired by alcohol or a drug, drives a motor vehicle or has the care or control of a motor vehicle, whether it is in motion or not, is guilty of an indictable offence or an offence punishable on summary conviction and is liable
(a) for a first offence, to a fine of not more than two thousand dollars and not less than fifty dollars or to imprisonment for six months or to both;
(b) for a second offence, to imprisonment for not more than one year and not less than fourteen days; and
(c) for each subsequent offence, to imprisonment for not more than two years and not less than three months.
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;
IV - Analysis
The appellant submits that the crime of having care or control of a motor vehicle while impaired is a crime of specific intent in the sense that s. 234(1) (a) requires a further purpose to the mere intent to "use ... the car, its fittings or equipment". He argues that this specific intent is the intent to use the car, its fittings or equipment for the purpose of operating the car as a motor vehicle, as opposed to the intent to use the car as a bedroom, for example. The importance of classifying a crime as one of specific rather than general intent resides in the availability of the defence of intoxication for specific intent crimes.
General or Specific Intent Crimes and the Availability of a Defence of Intoxication
The difficult task of formulating a meaningful distinction between specific intent and general intent crimes was addressed by this Court in R. v. George, [1960] S.C.R. 871, where Fauteux J. explained at p. 877:
In considering the question of mens rea, a distinction is to be made between (i) intention as applied to acts considered in relation to their purposes and (ii) intention as applied to acts considered apart from their purposes. A general intent attending the commission of an act is, in some cases, the only intent required to constitute the crime while, in others, there must be, in addition to that general intent, a specific intent attending the purpose for the commission of the act.
Recently, in R. v. Bernard, [1988] 2 S.C.R. 833, a majority of this Court reaffirmed the desirability of keeping the distinction between specific intent crimes and general intent crimes as well as the consequences that flow from it with regards to the availability of a defence of intoxication to negate the mens rea. McIntyre J. gave the following explanation of the distinction at p. 863:
The general intent offence is one in which the only intent involved relates solely to the performance of the act in question with no further ulterior intent or purpose.... A specific intent offence is one which involves the performance of the actus reus, coupled with an intent or purpose going beyond the mere performance of the questioned act.
In the same decision, Wilson J. was of the view that only a minimal intent was involved in proving the mens rea of general intent crimes and that in these cases, "intentional and voluntary" had to be opposed to "accidental or involuntary" (p. 883).
It is of no use here to repeat the thorough analysis made by some of the members of this Court in Bernard as regards the desirability of the distinction, the fact being that Bernard reaffirms it as it reaffirms the consequences that flow from it. The question, therefore, simply becomes whether s. 234(1) (a) is an offence of specific intent or general intent.
That the intention to set a vehicle in motion is not an element of the offence of having care or control of a motor vehicle while one's ability to drive is impaired has been affirmed in Ford v. The Queen, [1982] 1 S.C.R. 231. Proof of lack of intent to set the motor vehicle in motion is only relevant to prevent the Crown from benefiting from the presumption of s. 237(1)(a). This Court has recently reaffirmed these findings in R. v. Toews, [1985] 2 S.C.R. 119, and R. v. Whyte, [1988] 2 S.C.R. 3.
The mens rea and the actus reus of the offence of care or control of a motor vehicle while one's ability to drive was impaired were examined in Toews and the following conclusion was reached at p. 124:
Similarly, the mens rea for having care or control of a motor vehicle is the intent to assume care or control after the voluntary consumption of alcohol or a drug. The actus reus is the act of assumption of care or control when the voluntary consumption of alcohol or a drug has impaired the ability to drive. [Emphasis added.]
The mental element of this offence is therefore defined by referring directly to the actus reus. No further intent is required apart from the intent to do the actus reus which strongly indicates that this offence falls within the category of general intent offences. It has also been stated by Dickson C.J., speaking for the Court in Whyte, that the intent required under this offence is a minimal one. That case was dealing with the constitutionality of the presumption of care or control contained in s. 237(1)(a) considered in the light of s. 11 (d) in the Canadian Charter of Rights and Freedoms . The Chief Justice stated at p. 22:
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 . [Emphasis added.]
Furthermore, the submission of the appellant whereby the intent of the offence should be defined as the intent to use the car, its fittings or equipment for the purpose of operating the car as a motor vehicle runs counter to the clear pronouncement of this Court to the effect that the intention to set it in motion is not an element of this offence. Using a motor vehicle as a motor vehicle is another way of saying using a motor vehicle to set it in motion, since the main characteristic that distinguishes a motor vehicle from other objects or places is the ability to use it for transportation, that is, to set it in motion. Such a proposition would be the equivalent of accepting that the appellant must have had the intention to set the motor vehicle in motion in order to contravene to s. 234(1) (a), a proposition that was rejected in Ford.
The law, however, is not deprived of any flexibility and does not go so far as to punish the mere presence of an individual whose ability to drive is impaired in a motor vehicle. In fact, Toews stands for the proposition that when a person uses a vehicle in a way that involves no risk of putting it in motion so that it could become dangerous, the courts should find that the actus reus was not present. In that case, the accused was acquitted because he was sleeping on the front seat, in a sleeping bag with his head near the passenger's door. The Court did not base its decision on the absence of mens rea that would derive from the accused's intent to use the vehicle for another purpose than to use it as a motor vehicle, that is to use it as a bedroom. Rather, it held at p. 127:
It has not been shown ... that the respondent performed any acts of care or control and he has therefore not performed the actus reus.
For these reasons, I am of the view that the offence of having care or control of a motor vehicle while one's ability to drive is impaired is a general intent offence. It follows, as was decided by a majority of this Court in Bernard, that no defence of intoxication can negate the mens rea of this offence, although the question is still open as to whether intoxication giving rise to a state of insanity or automatism could achieve such a result.
The trial judge found that the appellant was very intoxicated. However, the appellant did not prove, on a balance of probabilities, that his intoxication was so great as to constitute insanity or automatism, nor was a state of insanity or automatism found by any of the judges in the courts below. On the facts of this case, I see no need to address the issue concerning the relevance of intoxication to negate the mens rea where such intoxication verges on insanity or automatism. I would therefore conclude that the first submission of the appellant must fail.
The Charter Issues
This leaves us with the question as to whether the principle that a person accused of having breached s. 234(1) (a) cannot raise intoxication either as a defence or as a factor to be considered in deciding if all the elements constituting the offence are present, is contrary to the Charter . More particularly, the appellant argues that this rule infringes ss. 7 and 11 (d) of the Charter . In all fairness to the judge and justices of the courts below who did not address this issue, I must point out that it seems to have been argued, as an afterthought and for the first time, only before this Court. As a result, we have not had the benefit of hearing full argument on the point, nor have we had the benefit of the views of the judge and justices in the courts below. In my view, however, the constitutional validity of denying a defence of intoxication, or denying any relevance to intoxication, in considering the commission of the offence defined in s. 234(1) (a) is an important question that this Court should address now.
The legal implication of classifying an offence as a general intent offence combined with the removal of the defence of intoxication when intoxication is self-induced will, in certain circumstances, leave the trier of fact with no choice but to convict the accused even though there was a reasonable doubt whether, due to intoxication, the accused's act was voluntary. By the same token, the Crown would be relieved from proving beyond a reasonable doubt the actus reus of a general intent offence since a reasonable doubt as to voluntariness arising from intoxication would be discarded from consideration from the outset. I am of the view that the fact that a conviction may follow notwithstanding the existence of a reasonable doubt as to voluntariness, an element essential to the commission of the actus reus, is a limit to the rights guaranteed to the accused by ss. 7 and 11 (d) of the Charter .
McIntyre J. examined in Bernard whether the unavailability of the defence of intoxication infringes ss. 7 and 11 (d) of the Charter . He was of the opinion that excluding the defence of intoxication for all general intent offences did not offend either section. With respect, I cannot agree.
Wilson J., in the same case, also addressed the Charter issues involved by stating that no defence of intoxication is available for general intent offences. She was of the opinion that evidence of intoxication should go to the trier of fact only in cases where there is evidence of extreme intoxication involving an absence of awareness akin to a state of insanity or automatism because only in such cases would such evidence of intoxication be capable of raising a reasonable doubt as to the existence of the minimal intent required for general intent offences.
With respect for the contrary view, I find it difficult to deny generally a defence of intoxication on the grounds that, in fact, only in very rare situations will it succeed in actually raising a reasonable doubt in the mind of the trier of fact. Denying the availability of a defence of intoxication in the cases where such a defence would have failed anyway in raising a reasonable doubt as to an element of the offence is of no real and practical importance to an accused. However, it is an important and valuable defence for the accused in cases where, but for a rule preventing the accused from resorting to the defence of intoxication, such a defence would have succeeded in raising a reasonable doubt as to the existence of an element of the offence.
In cases where a reasonable doubt would have been raised as to the existence of the mental element particular to the offence in question, McIntyre J. in Bernard would have substituted for it the blameworthy mental state that springs from voluntary self-intoxication. However, in cases where resort to the substituted mens rea was necessary for blameworthiness to be proven, Wilson J. decided to leave the question open as to the constitutional validity of denying a defence of intoxication. Indeed, she stated at p. 889:
It is, in my view, not strictly necessary in this case to address the constitutionality of substituting self-induced intoxication as the mens rea for the minimal mens rea requirements of general intent offences. This issue would, in my view, only arise in those rare cases in which the intoxication is extreme enough to raise doubts as to the existence of the minimal intent which characterizes conscious and volitional conduct.
My colleague, in obiter, adds the following comment as regards whether by using a substituted form of mens rea s. 11 (d) of the Charter would be infringed (at p. 890):
In my tentative view, it is unlikely that in those cases in which it is necessary to resort to self-induced intoxication as the substituted element for the minimal intent, proof of the substituted element will "inexorably" lead to the conclusion that the essential element of the minimal intent existed at the time the criminal act was committed. But I prefer to leave this question open as it is unnecessary to decide it in order to dispose of this appeal.
I conclude, therefore, that only a minority in Bernard expressed a conclusive opinion as to the constitutionality of the rule denying a defence of intoxication for all general intent offences. In cases where the intoxication would succeed in raising a reasonable doubt as to an element of a general intent offence, the question is, in my opinion, still open for this Court to decide.
I am of the view, as indicated above, that the unavailability of the defence of intoxication for general intent offences as interpreted by the courts is a limit on the rights of an accused entrenched in ss. 7 and 11 (d), and that such a restriction can only stand if it survives a s. 1 analysis.
We are not in a position to, nor should we in any event, proceed to a s. 1 analysis of the restriction for all general intent offences. Of course, if this were done and the restriction were found to be "demonstrably justified", this would end the matter. But I think it preferable to proceed on a section by section approach, this case putting in issue the restriction as regards s. 234 .
Therefore, for the purpose of this analysis I will assume, without deciding that, as a general rule, s. 1 would not save the limit on fundamental rights that is the result of the judge-made rule that a defence of intoxication is unavailable or that any consideration of intoxication is made irrelevant in cases of general intent offences. That being deemed, I am nonetheless of the opinion that, in the context of drinking and driving offences, such a limit can be demonstrably justified in a free and democratic society.
Any analysis as to whether a restriction to rights guaranteed by ss. 7 and 11 (d) is salvaged by s. 1 of the Charter involves the application of the decision of this Court in R. v. Oakes, [1986] 1 S.C.R. 103. Unfortunately, the parties did not adduce any evidence nor did they address s. 1 . However, I think that we can take judicial notice of the danger and disastrous results when drinking and driving are combined.
The first criterion stated in Oakes is that the objective of the measure that restricts a guaranteed right or freedom must be "of sufficient importance to warrant overriding a constitutionally protected right or freedom" (p. 138). It is important, in a s. 1 analysis, to identify with precision the measure which is the object of scrutiny and to focus on that measure to determine if it is justified "in a free and democratic society". The measure that is under consideration here is the taking away of the defence of intoxication and the irrelevancy of intoxication as a factor to be considered in determining whether all the elements of s. 234(1) (a) are present. We are not concerned in the present case with the testing of s. 234(1) (a) under s. 1 of the Charter .
We must therefore start by identifying the objective of this measure. Taking away the defence of intoxication is designed to secure the conviction of those individuals who would be so intoxicated as to be able to raise a reasonable doubt as to the voluntariness of having care or control. In other words, this measure aims at ensuring that the most drunk will be convicted. The object of the unavailability of the defence of intoxication is that of ensuring that no one will escape conviction who is found impaired and who has taken care or control of a motor vehicle as long as impairment was the result of voluntary intoxication.
The next step is to assess whether such objective is of sufficient importance to warrant overriding the rights protected in ss. 7 and 11 (d). The measure is part of the scheme set up by Parliament to protect the security and property of the public that are put to risk by persons whose ability to drive is impaired but who are, in any event, in care or control of a motor vehicle. In Saunders v. The Queen, [1967] S.C.R. 284, this Court held (at p. 289):
Obviously, every one agrees that the true object of the provisions of ss. 222 and 223 [a prior version of the drinking and driving or care or control offences] is to cope with and protect the person and the property from the danger which is inherent in the driving, care or control of a motor vehicle by anyone who is intoxicated or under the influence of a drug or whose ability to drive is impaired by alcohol or a drug.
The social concern, common to the "drinking and driving" family of offences, is the severe risk to life, security or property of the public that is posed by persons whose ability to drive is impaired, but who are nevertheless in control of a motor vehicle. This concern was recognised by this Court to be of great importance in Curr v. The Queen, [1972] S.C.R. 889, R. v. Hufsky, [1988] 1 S.C.R. 621, R. v. Thomsen, [1988] 1 S.C.R. 640, and in Whyte, supra, at p. 27. No one will dispute the importance of the objective of the offences themselves that will secure conviction of the impaired persons who are in care or control, even in cases where impairment is not all that great. A fortiori, a measure ensuring that the most drunk, and by implication the ones representing the greatest threat to public safety, be convicted is of sufficient importance to justify restricting the rights contained in ss. 7 and 11 (d). In my view, the first criterion of the Oakes test is therefore met.
The second criterion stated in Oakes requires that the means chosen to attain this objective be proportional or appropriate to these ends. A measure will be said to satisfy this criterion when it is rationally connected with the objective it is designed to achieve, when it impairs the fundamental right or freedom which it limits as little as possible, and when there is a proportionality between the effects of the measure limiting such right or freedom and the objective identified as having sufficient importance.
A rational connection must therefore be found between the restriction on the fundamental right, namely the removal of the defence of intoxication, and the objective set out above. Obviously, convicting all drivers whose ability to drive is impaired, whether they voluntarily took care or control of the motor vehicle or not, is rationally connected with the objective of ensuring that impaired drivers are off the road whatever their degree of intoxication. As part of the more general scheme put in place by Parliament to deal with the problem of drinking and driving, the availability of the defence of intoxication would defeat its purpose. Intoxication, the source of danger s. 234 is designed to address, must be proved beyond a reasonable doubt by the Crown. By the same token, however, it could defeat the Crown's case by establishing beyond a reasonable doubt a valid defence. In cases of serious intoxication, the Crown would be confronted with an unbearable burden. The unavailability of the defence of intoxication is a logical and necessary feature to the achievement of suppressing all the effects of intoxication on the road. I therefore conclude that the removal of the defence of intoxication satisfies the first aspect of the proportionality criterion.
I am also of the view that the unavailability of the defence of intoxication does not represent an ove