R. v. Whyte

R. v. Whyte
Collection
Supreme Court Judgments
Date
1988-07-14
Report
[1988] 2 SCR 3
Case number
18530
Judges
Dickson, Robert George Brian; Beetz, Jean; McIntyre, William Rogers; Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire
On appeal from
British Columbia
Subjects
Constitutional law
Criminal law
Notes
SCC Case Information: 18530
Decision Content
r. v. whyte, [1988] 2 S.C.R. 3
Ronald James Whyte Appellant
v.
Her Majesty The Queen Respondent
and
The Attorney General of Canada Intervener
indexed as: r. v. whyte
File No.: 18530.
1987: October 15; 1988: July 14.
Present: Dickson C.J. and Beetz, Estey*, McIntyre, Lamer, La Forest and L'Heureux‑Dubé JJ.
on appeal from the court of appeal for british columbia
Constitutional law ‑‑ Charter of Rights ‑‑ Presumption of innocence ‑‑ Care or control of a motor vehicle while impaired ‑‑ Whether presumption of care or control based upon occupancy of the driver's seat in s. 237(1) (a) of the Criminal Code violates s. 11 (d) of the Canadian Charter of Rights and Freedoms ‑‑ If so, whether such violation justifiable under s. 1 of the Charter .
Criminal law ‑‑ Care or control of a motor vehicle while impaired ‑‑ Presumption of innocence ‑‑ Whether s. 237(1)(a) of the Criminal Code contravenes the presumption of innocence in s. 11 (d) of the Canadian Charter of Rights and Freedoms .
The accused was charged with having the care or control of a motor vehicle while impaired contrary to s. 234 of the Criminal Code . He was found in the driver's seat of his car with his body slumped over the steering wheel. The car was parked along the roadside, the dashboard ignition light was on, the key was in the ignition, but the engine was not running. The defence conceded that the accused's ability to operate the vehicle was impaired by alcohol. At his trial, the accused argued that the statutory presumption contained in s. 237(1)(a) of the Code was inconsistent with s. 11 (d) of the Canadian Charter of Rights and Freedoms which guarantees the right to be presumed innocent until proven guilty. Section 237(1) (a) provided that in any proceedings under s. 234 or 236 , "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 trial judge rejected the argument. 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 should be interpreted the same way. Applying the decision of this Court in R. v. Appleby, [1972] S.C.R. 303, the trial judge convicted the accused. In supplementary reasons issued seven months after conviction, he added that in the absence of the presumption in s. 237(1) (a), he would have acquitted the accused. The conviction was affirmed by the County Court and the majority of the Court of Appeal.
Held: The appeal should be dismissed.
Despite the holding in Appleby that s. 237(1)(a) of the Code does not infringe the presumption of innocence found in s. 2(f) of the Canadian Bill of Rights, 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. 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 . Indeed, 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.
The Court's characterization in Appleby of the legal effect of the presumption contained in s. 237(1)(a) continues to be relevant under the Charter . The presumption places an onus on the accused to prove on a balance of probabilities that he did not enter the vehicle with the intention of setting it in motion. 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 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.
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. In the present case, s. 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 offence under s. 234 . 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. Other reasonable explanations for sitting in the driver's seat can readily be imagined. Since section 237(1)(a) requires the trier of fact to accept as proven that an accused had care or control of a vehicle, in spite of a reasonable doubt about the existence of that element, the section breaches the presumption of innocence guaranteed by s. 11 (d) of the Charter .
Section 237(1)(a) of the Code is justifiable under s. 1 of the Charter . The objective that s. 237(1) (a) is designed to serve‑‑the protection of the public against drunk drivers‑‑is sufficiently important to warrant overriding a constitutionally‑protected right. Viewed in the context of its overall statutory setting, the provision has a rational connection to the objective and represents a restrained parliamentary response to a pressing social problem. In enacting s. 237(1) (a), Parliament struck a compromise: 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 of "care or control"; on the other hand, where an accused can show that he had some reason for entering the vehicle and occupying the driver's seat other than to drive the vehicle, the accused will escape conviction. It was 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. Finally, there is a proportionality between the effects of the impugned measures on the protected right and the attainment of the objective. 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.
Cases Cited
Distinguished: R. v. Appleby, [1972] S.C.R. 303; applied: R. v. Oakes, [1986] 1 S.C.R. 103, aff'g (1983), 145 D.L.R. (3d) 123; R. v. Vaillancourt, [1987] 2 S.C.R. 636; considered: Dubois v. The Queen, [1985] 2 S.C.R. 350; R. v. Holmes, [1988] 1 S.C.R. 914; referred to: R. v. Shelley, [1981] 2 S.C.R. 196; Re Boyle and The Queen (1983), 5 C.C.C. (3d) 193; Latour v. The King, [1951] S.C.R. 19; Tupper v. The Queen, [1967] S.C.R. 589; R. v. Proudlock, [1979] 1 S.C.R. 525; Woolmington v. Director of Public Prosecutions, [1935] A.C. 462; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; Robertson and Rosetanni v. The Queen, [1963] S.C.R. 651; R. v. Therens, [1985] 1 S.C.R. 613; Chromiak v. The Queen, [1980] 1 S.C.R. 471; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; Duke v. The Queen, [1972] 2 S.C.R. 917; R. v. Smith (Edward Dewey), [1987] 1 S.C.R. 1045; Miller and Cockriell v. The Queen, [1977] 2 S.C.R. 680; Ford v. The Queen, [1982] 1 S.C.R. 231; R. v. Toews, [1985] 2 S.C.R. 119; 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; R. v. Higgins, [1929] 1 D.L.R. 269; R. v. Butler, [1939] 4 D.L.R. 592; R. v. Crowe (1941), 16 M.P.R. 101; R. v. Thomson, [1941] 1 D.L.R. 516; R. v. Forbes, [1943] O.W.N. 96; R. v. Armstrong, [1944] 1 D.L.R. 233; R. v. Hyatt, [1945] O.R. 629.
Statutes and Regulations Cited
Act to amend the Criminal Code, S.C. 1921, c. 25, s. 3.
Act to amend the Criminal Code, S.C. 1925, c. 38, s. 5.
Act to amend the Criminal Code, S.C. 1930, c. 11, s. 6.
Canadian Bill of Rights, S.C. 1960, c. 44 [reprinted in R.S.C. 1970, App. III], s. 2 (f).
Canadian Charter of Rights and Freedoms, ss. 1 , 7 , 11 (c), (d).
Criminal Code, R.S.C. 1906, c. 146, s. 285c [ad. 1921, c. 25, s. 3; rep. & subs. 1925, c. 38, s. 5].
Criminal Code, R.S.C. 1927, c. 36, s. 285(4) [rep. & subs. 1930, c. 11, s. 6].
Criminal Code, R.S.C. 1970, c. C‑34, ss. 234(1) [am. 1974‑75‑76, c. 93, s. 14], 236(1) [rep. & subs. 1974‑75‑76, c. 93, s. 17], 237(1)(a).
Criminal Law Amendment Act, 1985, S.C. 1985, c. 19, s. 36.
Authors Cited
Debates of the House of Commons, 3rd Sess., 20th Parl., 11 Geo. VI, 1947, vol. VI, p. 5048.
APPEAL from a judgment of the British Columbia 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, dismissing the accused's appeal from a judgment of Cowan Co. Ct. J. (1983), 21 M.V.R. 69, which affirmed the accused's conviction of having care or control of a motor vehicle while impaired. Appeal dismissed.
T. L. Robertson, Q.C., and Brian Shaw, for the appellant.
Dennis Murray, Q.C., and Richard Isaac, for the respondent.
Julius A. Isaac, Q.C., and D. J. Avison, for the intervener.
The judgment of the Court was delivered by
1. 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;
2. The issue in this appeal is whether this provision infringes the rights of the accused under the Canadian Charter of Rights and Freedoms .
3. 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;
4. 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 ?
5. The Attorney General of Canada intervened to support the constitutionality of the legislation.
6. 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
7. 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
8. 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.
9. 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
10. 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
11. 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.
12. 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.
13. 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.
14. 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
15. 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.
16. 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.
17. 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.
18. 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.
19. 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.]
20. 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.
21. 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.
22. 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 .
23. 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.
B. General Charter Principles
24. 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.
25. 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.]
26. 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).
27. 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.
C. Section 237(1)(a) and the Charter
28. 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.
29. 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.
30. 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.
31. 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.
32. 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.
33. 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.
34. 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.
35. 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
36. 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.
37. 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.
38. 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.
39. 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.
40. 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