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 CanLII 47 (SCC), [1988] 2 S.C.R. 3; R. v. Toews, 1985 CanLII 46 (SCC), [1985] 2 S.C.R. 119; Ford v. The Queen, 1982 CanLII 16 (SCC), [1982] 1 S.C.R. 231; Re B.C. Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 S.C.R. 486; R. v. Vaillancourt, 1987 CanLII 2 (SCC), [1987] 2 S.C.R. 636; R. v. Bernard, 1988 CanLII 22 (SCC), [1988] 2 S.C.R. 833; Leary v. The Queen, 1977 CanLII 2 (SCC), [1978] 1 S.C.R. 29; R. v. King, 1962 CanLII 16 (SCC), [1962] S.C.R. 746.

By Wilson J.

Considered: R. v. Bernard, 1988 CanLII 22 (SCC), [1988] 2 S.C.R. 833; referred to: R. v. Whyte, 1988 CanLII 47 (SCC), [1988] 2 S.C.R. 3; R. v. Toews, 1985 CanLII 46 (SCC), [1985] 2 S.C.R. 119.

By La Forest J.

Applied: R. v. Whyte, 1988 CanLII 47 (SCC), [1988] 2 S.C.R. 3; referred to: R. v. Toews, 1985 CanLII 46 (SCC), [1985] 2 S.C.R. 119; R. v. Lyons, 1987 CanLII 25 (SCC), [1987] 2 S.C.R. 309; R. v. Beare, 1988 CanLII 126 (SCC), [1988] 2 S.C.R. 387; R. v. Corbett, 1988 CanLII 80 (SCC), [1988] 1 S.C.R. 670; R. v. Jones, 1986 CanLII 32 (SCC), [1986] 2 S.C.R. 284; Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), 1990 CanLII 135 (SCC), [1990] 1 S.C.R. 425.

By Lamer C.J.

Considered: R. v. Bernard, 1988 CanLII 22 (SCC), [1988] 2 S.C.R. 833; referred to: R. v. George, 1960 CanLII 45 (SCC), [1960] S.C.R. 871; Ford v. The Queen, 1982 CanLII 16 (SCC), [1982] 1 S.C.R. 231; R. v. Toews, 1985 CanLII 46 (SCC), [1985] 2 S.C.R. 119; R. v. Whyte, 1988 CanLII 47 (SCC), [1988] 2 S.C.R. 3; R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103; Saunders v. The Queen, 1967 CanLII 56 (SCC), [1967] S.C.R. 284; Curr v. The Queen, 1972 CanLII 15 (SCC), [1972] S.C.R. 889; R. v. Hufsky, 1988 CanLII 72 (SCC), [1988] 1 S.C.R. 621; R. v. Thomsen, 1988 CanLII 73 (SCC), [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), 1986 CanLII 4732 (ON CA), 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), 1986 CanLII 4732 (ON CA), 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 CanLII 45 (SCC), [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 CanLII 22 (SCC), [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 CanLII 16 (SCC), [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 CanLII 46 (SCC), [1985] 2 S.C.R. 119, and R. v. Whyte, 1988 CanLII 47 (SCC), [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 CanLII 46 (SCC), [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 CanLII 56 (SCC), [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 CanLII 15 (SCC), [1972] S.C.R. 889, R. v. Hufsky, 1988 CanLII 72 (SCC), [1988] 1 S.C.R. 621, R. v. Thomsen, 1988 CanLII 73 (SCC), [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 overkill, in terms of the limit on the rights in question, especially in the light of the very serious problem caused by the "drinking and driving" family of offences. The rule does not impose a conviction on an intoxicated person found to have care and 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. On the other hand, Parliament had to respond to the serious threat that is posed by persons in care or control of a motor vehicle while their ability to drive is impaired. Such persons can reasonably be held responsible when they voluntarily consume intoxicating substances and risk putting the public safety in danger by assuming care or control of a motor vehicle, whether they intended to assume care or control or whether intoxication did not allow them to realize what they were doing. By voluntarily taking the first drink, an individual can reasonably be held to have assumed the risk that intoxication would make him or her do what he or she otherwise would not normally do with a clear mind. I therefore conclude that the unavailability of the defence of intoxication is a measure that is proportional to the ends s. 234(1)(a) is designed to attain.

V - Conclusion

I would therefore dismiss this appeal.

//Wilson J.//

The reasons of Wilson and L'Heureux-Dubé JJ. were delivered by

WILSON J. - I have had the benefit of the reasons of my colleague Chief Justice Lamer in this appeal and I am of the view that impairment, as opposed to non-impairment, cannot be a defence to the offence under s. 234 of the Criminal Code, R.S.C. 1970, c. C-34, of having care or control of a motor vehicle while impaired. Impairment cannot be at one and the same time an essential element of the offence and a defence to the offence.

Does the fact that Parliament has foreclosed the availability of this defence give rise to a constitutional violation? It is on this point that my reasons diverge from those of my colleague. In my view, the unavailability of the defence of intoxication in the context of s. 234 does not give rise to an infringement of an accused's ss. 7 and 11(d) rights.

In R. v. Bernard, 1988 CanLII 22 (SCC), [1988] 2 S.C.R. 833, this Court held that denying the defence of intoxication in the case of an offence of general intent does not violate the Canadian Charter of Rights and Freedoms at least in so far as cases not involving "substituted" mens rea are concerned. Accordingly, if Lamer C.J.'s reasons in this case are not confined to "substituted" mens rea cases, which they do not appear to be, it would appear that he is reopening the issue in Bernard. While this is, of course, perfectly open to him to do, I tend to the view that Bernard was correctly decided. I remain of the view that intoxication falling short of insanity or automatism is not a defence to crimes of general intent. The defence of intoxication is, of course, available in the case of crimes of specific intent.

Bernard did not deal with the question whether a constitutional infringement takes place when Parliament has made impairment an ingredient of the offence. It dealt only with the availability of the defence of intoxication to negate mens rea in the context of the common law distinction between crimes of general and crimes of specific intent. In that case, Dickson C.J. (with whom Lamer J. (as he then was) concurred) expressly exempted from his comments regarding the unconstitutionality of the denial of the intoxication defence in relation to crimes of general intent those offences in which intoxication is an element of the offence. He said at p. 842:

I wish to make clear at the outset, however, that nothing in these reasons is intended to apply with respect to the quite distinct issues raised by offences, such as driving while impaired, where intoxication or the consumption of alcohol is itself an ingredient of the offence. The mens rea of such offences can be left for consideration another day.

That other day arrived when this appeal was heard.

It seems to me that the rationale behind Bernard is not readily transferable to the situation where Parliament has made intoxication to the point of impairment an essential ingredient of the offence. I do not believe for the reasons which follow that this gives rise to a constitutional violation.

Intoxication has traditionally been viewed as relevant to mens rea. Certainly this was so in Bernard where, as already mentioned, it was held that the defence of intoxication was available only in relation to crimes of specific intent and not to crimes of general intent. The rationale in support of this finding was that intoxication could affect a person's ability to foresee the consequences of an act, which is a requirement for crimes of specific intent, but that, generally speaking, intoxication could not deprive a person of the ability to know that he or she was committing the act, which is the minimal requirement for crimes of general intent.

This traditional view stems from an appreciation of the level of intoxication required to support the defence. The same level of intoxication may operate to negate the specific intent necessary to ground conviction for some offences but be insufficient to negate the general intent required for others. This does not mean, however, that more severe levels of intoxication might not in some circumstances raise a doubt as to whether that general intent motivated an accused's acts. The common law disallowed the defence of drunkenness in such circumstances, I believe, on policy grounds, because to allow it would result in the danger of average degrees of intoxication being considered as a defence to a great many crimes.

Voluntariness is an aspect of the actus reus rather than the mens rea of an offence. It is a minimal requirement of the criminal law that acts in order to be considered criminal must be conscious acts. The same act to outward appearance may be either an act of volition or an accident or mistake. Yet the legal implications are quite different. In a sense it may seem artificial to distinguish between volition and intention and say that the former pertains to the actus reus and the latter to the mens rea of the offence. It might appear to make more sense to say that the conscious doing of an act encompasses the intention to do it and therefore constitutes the minimal mens rea for general intent offences. If the act was accidental it lacked volition and therefore the actus reus was not established. By the same token it also lacked intention so that the mens rea was not established. In either case it cannot meet the tests for criminality.

The criminal law does, however, distinguish between acts that are purely physical and acts that are accompanied by mental processes and it treats acts of volition as purely physical. To establish the actus reus the Crown does not have to establish an intent to do the act, merely that the accused was aware that he was doing it. In other words, the criminal law contemplates that while acts which are intentional must necessarily be volitional, acts which are volitional need not necessarily be intentional. The classic example is the woman who shoots a supposed intruder only to discover later that the intruder was her husband who had returned home earlier than expected. Her act was unquestionably an act of volition but it was prompted by mistake. She had no intention to shoot her husband.

I agree with Lamer C.J. that the offence under s. 234 of the Code is an offence of general intent requiring only a minimal mens rea. I disagree with him, however, that a conviction may 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. I agree with my colleague that if it were the simple act of having care or control that we were concerned about, such an act might be shown not to be volitional if the accused was intoxicated to a very high degree. He might then, due to the effects of alcohol, truly not know what he was doing. But when a person voluntarily consumes alcohol to the point of impairment and has care or control of a motor vehicle while in that condition, it seems to me that there can be no doubt about the volitional nature of his or her act of becoming impaired. We are talking about self-induced intoxication to the point of impairment. It cannot be open to an accused to argue that due to his impairment he was not aware of being impaired when he had care or control of the motor vehicle. The accused's impairment is the gravamen of the offence under s. 234(1). And it is this which must, in my opinion, be the result of an act of volition. Nor is there any need to resort to the dubious concept of "substituted" mens rea in such circumstances. The act of having care or control and the state of voluntary impairment are undoubtedly required to be contemporaneous under this section.

It seems to me, moreover, that if my colleague is speaking of impairment to an extent that could deprive the accused's act of its volitional character, he must be speaking of a state of extreme impairment verging on automatism and, at most, the section would violate the Charter only to the extent it deprived an accused in that condition of the defence of lack of volition. This would be consistent with the view I expressed in Bernard that intoxication to that extreme degree could also negate the required minimal mental element.

The problem at common law with denying the defence of intoxication for all crimes of general intent is that it deprives an accused of the opportunity to raise a reasonable doubt as to the presence of the mental element of the offence. According to this Court's reasons in R. v. Whyte, 1988 CanLII 47 (SCC), [1988] 2 S.C.R. 3, such a denial amounts to a violation of s. 11(d) of the Charter. In Bernard the actus reus was an assault of a sexual nature causing bodily harm. Intoxication was relevant only to the presence or absence of mens rea, i.e. the intention to commit the assault. I expressed serious reservations in that case that self-induced intoxication can be substituted for the intent required to be present at the time the offence is committed. I did not have to reach a conclusion on that question since I found that the required mens rea for sexual assault could readily be established by inference from the accused's act. In other circumstances, however, an accused may be intoxicated to such a degree that he or she is incapable of forming even the minimal intent to do the act, i.e. where he or she is in a mental state akin to insanity or automatism. I concluded that it would only be in those circumstances and not in the case of ordinary drunkenness that the denial of the defence of intoxication could result in an infringement of an accused's constitutional rights.

The question whether the requirement of impairment in s. 234 of the Code is an aspect of the actus reus of the offence or the mens rea seems to me to be relevant to any determination of the section's constitutionality. I do not find that my colleague has taken an unequivocal position on this and it may be important in light of the existing jurisprudence.

The mens rea and actus reus of the offence of having care or control of a motor vehicle while impaired were defined by this Court in R. v. Toews, 1985 CanLII 46 (SCC), [1985] 2 S.C.R. 119, as follows at p. 124:

. . . 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.

By this definition the mental element of the offence under s. 234(1) includes the voluntary consumption of alcohol but the actus reus requires the voluntary consumption of alcohol to the point of impairment. The distinction appears to make sense in that alcohol consumption to the point of impairment could well negate the intent to have care or control of the motor vehicle and result in the absence of mens rea whereas simple consumption might not. The actus reus requires impairment by alcohol and not just the prior consumption of alcohol. By making the requirement of impairment an element of the actus reus rather than the mens rea of the offence Parliament has avoided the vicious circle which would otherwise be inherent in the offence.

Given the way in which Parliament has framed s. 234 of the Code, it seems to me to be an open question whether or not a constitutional violation is involved in the operation of the section. Clearly the Crown, in order to obtain a conviction, must prove care or control of the motor vehicle by the accused at a time when he was impaired by alcohol or a drug. The mens rea of the offence is the intention to assume care or control of the motor vehicle after the voluntary consumption of alcohol or a drug. What then are the defences open to the accused? It seems to me that they are that he did not have care or control of the motor vehicle or that, if he did, he was not impaired at the time. The accused might also seek to defend on the basis that, while he had not consumed enough alcohol prior to assuming care or control of the motor vehicle to result in impairment, he had consumed enough to render himself incapable of forming the necessary intent to assume such care or control. However, it seems to me that, if I am correct in characterizing the offence in s. 234(1) as an offence of general intent, this defence would fail.

With all due respect to those who think differently, I am of the view that no viable defence to a charge under s. 234(1) is foreclosed by the section. To hold otherwise is to say that the legislature violates the Charter if it purports to make engaging in certain types of conduct while impaired offences under the Criminal Code and must justify the creation of such offences under s. 1. I cannot accept that result. I think that Dickson C.J. was correct in indicating in Bernard that crimes in which intoxication is made an element of the offence, i.e. part of the actus reus, are in a different category from crimes in which intoxication is relevant to the mental element only. I find no unconstitutionality in the creation of the former type of offences.

In the event, however, that I am wrong in my approach to the constitutional issue, I would find an infringement only in cases of extreme intoxication verging on automatism and would justify such infringement under s. 1 of the Charter for the reasons given by my colleague. I wish, however, to add one observation.

Some commentators have suggested that the creation of an offence of "dangerous intoxication" would resolve the constitutional problem of intoxicated offenders because the elements of that offence would be more in keeping with accepted fundamental principles of criminal liability. I am not sure that such a generalized offence would achieve the desired result. I think the courts would still have to determine whether the denial of an accused's opportunity to question the presence of an essential element of the offence in different contexts was constitutional. Parliament has, in my view, attempted to resolve the problem in s. 234 by creating the offence of care or control of a motor vehicle while impaired. It has, in other words, criminalized the act of becoming impaired in a particular circumstance, i.e. in the context of having care or control of a motor vehicle. I think it was open to Parliament to, in effect, create an offence akin to "dangerous intoxication" but contextualized to the care or control situation. This may, indeed, be the preferred route to follow. Impairment in different contexts poses different social evils. In my view it is not only open to, but perhaps incumbent upon, Parliament to take account of those differences and to fashion offences in response to specific social needs.

For the foregoing reasons, I would dismiss the appeal.

//La Forest J.//

The following are the reasons delivered by

LA FOREST J. -- I have had the advantage of reading the reasons of my colleagues, Chief Justice Lamer and Justices Wilson and McLachlin. I too would dismiss the appeal. I would do so for the following reasons.

Section 234(1) of the Criminal Code, R.S.C. 1970, c. C-34, prohibits the act of having care or control of a motor vehicle while the perpetrator of that act is impaired by alcohol or a drug. The mens rea is the intention to do that act, i.e., to assume care or control of the vehicle. Judicial construction also requires that the impairment be voluntary (R. v. Toews, 1985 CanLII 46 (SCC), [1985] 2 S.C.R. 119, at p. 124). I reach my conclusion about the mens rea of the offence as a matter of statutory interpretation, not on the basis of any generalized doctrine of general intent. Since Parliament has made it an offence to commit an act while impaired, it would be inconsistent, as McLachlin J. observes, for Parliament also to have considered that impairment (including intoxication) could be relied on by the defence.

The question, then, is whether, in light of ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms, it is open to Parliament to create a criminal offence precluding reliance on intoxication. With respect to s. 11(d), I would have thought that the constitutionality of s. 234(1), qualified as it is by s. 237(1), had been definitively accepted in this Court's decision in R. v. Whyte, 1988 CanLII 47 (SCC), [1988] 2 S.C.R. 3. This leaves the question whether s. 234(1) violates s. 7. In my view, it does not. First, I recall again that a person can only come within the ambit of s. 234(1) if his or her intoxication is voluntary; see R. v. Toews, supra, at p. 124. 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 or she was capable, because of intoxication, of forming the requisite intent as of the moment when care or control was actually assumed. This assuages much of the concern I might otherwise have had as to whether a conviction under s. 234(1) violated some principle of "fundamental justice". The offence, as my colleague McLachlin J. notes, is in a sense directed to control drunkenness in a dangerous setting.

Secondly, it will seldom be the case that a person who has the care or control of a motor vehicle will be found to be so intoxicated as to have been incapable of satisfying the very low mens rea requirement of s. 234(1) (see R. v. Whyte, supra, at pp. 22-27). A very low mental element requirement is necessary if Parliament is to be able to create any effective offences in respect of driving while under the influence of alcohol or drugs. And since, as my colleagues have demonstrated, it is obviously in the public interest that Parliament does create such offences, I find little difficulty in concluding that s. 234(1) is consistent with the "principles of fundamental justice". I would in this regard refer to what has been said in other cases respecting the need to recognize that the "principles of fundamental justice" encompass the public's interest, as represented by the state, as well as the interests of the accused; see R. v. Lyons, 1987 CanLII 25 (SCC), [1987] 2 S.C.R. 309, at pp. 327 and 329; R. v. Beare, 1988 CanLII 126 (SCC), [1988] 2 S.C.R. 387, at pp. 403-5; my reasons in R. v. Corbett, 1988 CanLII 80 (SCC), [1988] 1 S.C.R. 670, at p. 745 (dissenting on another point); see also R. v. Jones, 1986 CanLII 32 (SCC), [1986] 2 S.C.R. 284, at p. 304, per La Forest J. (Dickson C.J. and Lamer J. concurring), and my reasons in Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), 1990 CanLII 135 (SCC), [1990] 1 S.C.R. 425, at p. 539.

Interpreting the provision as I do, I am of the view that s. 234(1) does not violate s. 7 or s. 11(d) of the Charter. It thus becomes unnecessary to consider s. 1 of the Charter.

//Sopinka J.//

The reasons of Sopinka, Gonthier and McLachlin JJ. were delivered by

MCLACHLIN J. -- This case raises the question of the constitutionality of s. 234 of the Criminal Code, R.S.C. 1970, c. C-34. Unlike my colleague, Lamer C.J., whose reasons I have had the opportunity of reading, I am of the view that s. 234 of the Code does not violate ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms.

The Issues

The police testified that the accused was observed at the wheel of a motor vehicle which, while apparently under his control, backed up a short distance. The accused was inebriated at the time. The accused testified that he was so drunk he could recall nothing of the evening's events. The question is whether his drunkenness can serve as a defence to a charge under s. 234(1) of the Criminal Code that he had "care or control" of a motor vehicle while impaired.

Crown counsel argued that drunkenness could not serve as a defence because of the presumption created by s. 237(1)(a) of the Code. I cannot accept this submission in view of the fact that the Crown chose not to assert this presumption at trial, but rather chose to rely exclusively on evidence that the accused had exercised care or control under s. 234(1)(a) of the Code. To allow the Crown to assert the presumption on appeal 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): R. v. Whyte, 1988 CanLII 47 (SCC), [1988] 2 S.C.R. 3; R. v. Toews, 1985 CanLII 46 (SCC), [1985] 2 S.C.R. 119; and Ford v. The Queen, 1982 CanLII 16 (SCC), [1982] 1 S.C.R. 231. Had s. 237(1)(a) been raised at trial by the Crown, the accused might have chosen to adduce evidence on the absence of intention to set the vehicle in motion. It follows that to allow the Crown to assert the applicability of s. 237(1)(a) for the first time during an appeal would violate the accused's s. 7 right to a fair trial and to make a full answer and defence.

This leaves the argument on s. 234(l). The appellant's argument has two prongs. First, it is suggested that the offence of having care or control of a motor vehicle while in an inebriated condition is a specific intent offence, to which the defence of drunkenness would be available. Alternatively, the appellant submits that if the offence is one of general intent, to which the defence of drunkenness is not available, this violates ss. 7 and 11(d) of the Charter and is not saved by s. 1.

In view of my conclusion on the second issue, it is unnecessary to consider the first, although if it were, I would agree with Lamer C.J. that the offence would be one of general intent.

Short Answer

It is my conclusion that Parliament has stipulated that intoxication cannot be a defence to a charge under s. 234(1) of the Code, rendering irrelevant the general intent - specific intent issue. This exclusion of intoxication as a defence does not, however, constitute a limitation on the right of the accused 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.

Analysis

Whether the Exclusion of Consideration of Intoxication on the Issue of the Mental Element of a Crime Offends ss. 7 or 11(d) of the Charter?

(a) The Relevant Charter Provisions

This case raises the question of the relationship of ss. 7 and 11(d) of the Charter. Section 7 provides that a person shall not be deprived of life, liberty or security of the person except in accordance with the "principles of fundamental justice". These "principles" include the requirement that a guilty mind be proven as an essential element of the offence: Re B.C. Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 S.C.R. 486. Section 11(d) presumes an accused to be innocent "until proven guilty according to law", thereby requiring the trier of fact to be satisfied as to the existence of all of the essential elements of the offence. These essential elements include not only those set out by the Legislature in the provision creating the offence but also those required by s. 7 of the Charter: R. v. Vaillancourt, 1987 CanLII 2 (SCC), [1987] 2 S.C.R. 636. The argument that convictions should not be possible where there is doubt as to the mental element of an offence can be cast under both ss. 7 and 11(d). This conjunction is not remarkable, given the close relationship between the broad guarantees in s. 7 and the more specific guarantees which follow it: Re B.C. Motor Vehicle Act, supra.

There is no doubt that the charge puts in question the accused's liberty and security of person. The real question is whether the unavailability of the defence of drunkenness deprives the accused of "liberty and security of the person" in a way which violates "the principles of fundamental justice", and hence violates the presumption of innocence.

(b) Definition of the Problem

The fundamental principle raised by my colleague, Lamer C.J., is the right of a person not to be convicted for a crime unless he or she intended to commit the crime. This principle is one of long‑standing; it has long been recognized that it would be contrary to justice to convict an individual of a criminal offence in the absence of proof of the element of mens rea. Recognition of this principle was the basis of this Court's decision in Vaillancourt, supra.

Lamer C.J. sees the issue in this case as a conflict between the fundamental principle that one cannot be convicted of a crime without a guilty mind, and the judge‑made rule that voluntary intoxication which may

in fact affect that guilty mind, can be considered only in crimes of "specific intent".

I view the issue differently. As I see it, this case does not raise the constitutionality of the judge‑made rule making evidence of impairment irrelevant on offences of "general intent". Rather, the only question before the Court is the constitutionality of s. 234(1) of the Criminal Code ‑‑ the offence commonly referred to as impaired driving. I read this section as excluding the defence of impairment. The judge‑made "general intent" rule never comes into play because Parliament has enacted its own specific rule on the availability of the defence of impairment ‑‑ a rule limited to impaired driving. Therefore, as I view the case, the only question is whether Parliament's legislative exclusion of impairment as a defence in the case of impaired driving violates the Charter.

My conclusion that Parliament has specified that impairment cannot be raised as a defence in the case of impaired driving is based on my understanding of the offence defined by s. 234(1) of the Criminal Code.

The argument can be summarized as follows: s. 234(1) makes it an offence to drive or to assume care or control of a motor vehicle while impaired by alcohol or a drug. Impairment being an essential element of the crime, it is illogical and contradictory to suppose that Parliament intended that its express aim of making such impairment criminal should be

defeated by an unexpressed implication of law that the same impairment may provide an effective defence.

Our criminal law is founded on the concept that the Crown must prove all elements of an offence beyond a reasonable doubt. The accused, while he or she need prove nothing, may raise defences ‑‑ circumstances which whether proved by the Crown or by the accused, cast a reasonable doubt on whether the offence is established. The essence of a defence such as that raised in this case is that it negatives an element of the offence. It says that what is required to prove the offence has not been established. Because a defence is the obverse or negative of an aspect of the offence, it is impossible to speak of a defence which also constitutes an element of the offence. To do so is to posit an inherently contradictory offence and to grossly distort what is meant by "offence" and "defence" in criminal law.

The offence of impaired driving or impaired care or control of a motor vehicle postulates impairment as one of its essential elements. The Crown must prove impairment beyond a reasonable doubt. It is illogical to suppose that the same impairment which constitutes an essential element of the offence can serve as a defence. Parliament has said that it is a crime to be impaired and drive or assume care or control of a motor vehicle. How can Parliament be taken to have said in the same metaphorical breath that it may not be a crime (the effect of the defence) to drive or assume care or control of a motor vehicle, by reason of the fact that one is impaired? Where impairment is not an essential element of an offence, there is no contradiction involved in saying that the intent necessary for criminal culpability may not have been established beyond a reasonable doubt because of impairment. Where, on the other hand, Parliament has posited impairment as an essential element of the offence, it 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.

Failure to recognize the inherent contradiction involved in the proposition that an essential element of an offence may also be a defence leads to absurdity. It leads, for example, to the conclusion that the more impaired a person is, the more likely he or she is to be acquitted of the offence of impaired driving. That a person should be too impaired to be convicted of impaired driving strikes most people as ridiculous. It represents, in short, a contradiction in terms.

Failure to recognize the inherent contradiction involved in saying that a central element of an offence may also serve as a defence also contradicts our fundamental notions of the nature of a criminal trial. It puts the Crown in the position of proving both the offence and the defence. On the other side of the contest, it involves contradictory defences. Lack of impairment is clearly a defence, but so too is impairment.

I conclude that to posit a defence of impairment to a charge under s. 234(l) of the Criminal Code is to posit an internally and impossibly inconsistent offence of a sort not known to criminal law. Parliament not having indicated such a defence is available, it must be taken as having ruled it out since it cannot logically co‑exist with the offence. As Dickson C.J. stated in R. v. Whyte, supra, at p. 22: "The very fact that consumption of alcohol is an element of these offences renders problematic the element of intention." In view of this observation, it is not surprising that in R. v. Bernard, 1988 CanLII 22 (SCC), [1988] 2 S.C.R. 833, Dickson C.J. (dissenting) explicitly excluded offences of which intoxication was an element from his reasons holding unconstitutional the common law rule prohibiting consideration of impairment except on offences of specific intent.

My aim to this point has been to define the offence of impaired driving or care or control of a motor vehicle as I think Parliament must have intended it to be defined, to the end of showing that the issue in this case is not the general one of the constitutionality of the elimination of the defence of impairment from all crimes save those of specific intent, but rather the constitutionality of Parliament legislatively precluding a defence of impairment in the case of a crime which posits impairment as one of its essential elements. The question is whether the creation of such an offence violates the Charter because, by its very nature, it precludes the defence of impairment and thus may permit conviction where there is a reasonable doubt as to an accused's intention to drive or assume care or control.

The problem of the intoxicated offender, viewed generally, involves two opposing values, both of which have been recognized by our system of justice ‑‑ the right not to be convicted absent proof of intention to commit the crime, and the public interest in not excusing persons who commit crimes by reason of voluntary drunkenness from the criminal consequences of their acts. In enacting s. 234(1) of the Code, Parliament has made impairment itself an element of the offence notwithstanding the possible absence of criminal intent, thus giving paramountcy to the public interest.

There are three possible legal solutions to the problem of the intoxicated offender: see C. N. Mitchell, "The Intoxicated Offender ‑‑ Refuting the Legal and Medical Myths" (1988), 11 Int. J.L. Psychiatry 77, at pp. 77‑78. The first is the approach presently employed in Canada, England and the United States under which the law denies, in whole or in part, a mitigating role to intoxication even if the mental element of an offence may be absent because of voluntary alcohol or drug use.

The second avenue is to permit evidence of intoxication to be weighed with other evidence in determining whether the intoxication actually eliminated or compromised the required mental element. This is the approach which has been adopted in Australia and New Zealand and advocated in this Court in dissent by Dickson J. in Leary v. The Queen, 1977 CanLII 2 (SCC), [1978] 1 S.C.R. 29, and by Dickson C.J., Lamer J. and La Forest J. in Bernard, supra.

The third alternative referred to in the literature is legislative. It is often seen as involving enactment of legislation to permit consideration of intoxication on the issue of criminal intent, while creating a new offence in the nature of "dangerous intoxication". In England this approach was recommended in the Butler Report, the Report of the Committee on Mentally Abnormal Offenders (Cmnd 6244 (1975)), and by Professors Glanville Williams and J. C. Smith in their minority recommendations of the Criminal Law Revision Committee Fourteenth Report: Offences against the Person (Cmnd 7844 (1980)). An offence of this type has been in force for many years in s. 323(a)(i) of the German Criminal Code (Strafgesetzbuch): see J. Herrmann, "Causing the Conditions of One's Own Defense: The Multifaceted Approach of German Law," [1986] B.Y.U. L. Rev. 747. In the common law jurisdiction of Bophuthatswana the Criminal Law Amendment Act 14 of 1984 in s. 1, discussed in A. St. Q. Skeen, "Intoxication is No Longer a Complete Defence in Bophuthatswana: Will South Africa Follow Suit" (1984), 101 S.A.L.J. 707, followed the German provision fairly closely and by enacting the Criminal Law Amendment Act 1 of 1988 the South African legislature followed suit four years later: see A. Paizes, "Intoxication Through the Looking-Glass" (1988), 105 S.A.L.J. 776.

A number of proposals for reform have suggested that Canada should employ a dangerous intoxication offence to resolve the anomalies which exist in the present approach to the use of drunkenness as a defence: see P. B. Schabas, "Intoxication and Culpability: Towards an Offence of Criminal Intoxication" (1984), 42 U.T. Fac. L. Rev. 147, T. Quigley, "Reform of the Intoxication Defence" (1987), 33 McGill L.J. 1.

In the case at bar, we are concerned with a legislative attempt to deal with a specific form of dangerous impairment. Because Parliament has acted, options one and two are not available. The legislative treatment is confined to the offence of impaired driving, and it does not posit recklessness as an element. Nevertheless, within the limited scope of the provision, s. 234 may be viewed as an attempt by Parliament to create a type of "drunk and dangerous" offence somewhat akin to that proposed by the third option. The next question is whether this attempt runs afoul of ss. 7 and 11(d) of the Charter.

(c) Are ss. 7 and 11(d) of the Charter Violated?

If the mental element of an offence is compatible with the unavailability of the defence of impairment, then the absence of that defence constitutes no violation of the Charter. On the other hand, if the mental element of the offence is one to which the defence of impairment might be relevant, the absence of that defence will constitute a violation of the Charter. The question is which of these two categories s. 234(1) falls into.

In R. v. King, 1962 CanLII 16 (SCC), [1962] S.C.R. 746, it was held that the mental element involved in the offence of impaired driving was voluntary intoxication. It was this that provided the guilty mind fundamental to the offence. On this view, the unavailability of drunkenness as a defence cannot constitute a violation of the accused's right to make full answer and defence. Even if the accused is too drunk to know that he or she is assuming care and control of the motor vehicle, that does not matter, since the mental element of the offence lies 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.

It is argued, however, that this state of the law was changed by this Court's decision in Toews, supra. I cannot accept that submission. Toews did not hold that voluntary intoxication might serve as a defence to the offence of impaired driving. Toews held only that in circumstances where an accused was found sleeping in a sleeping bag on the front seat of the vehicle with his head on the passenger side of the vehicle, "[i]t has not been shown ... that the [accused] performed any acts of care or control and he has therefore not performed the actus reus" (p. 127). The facts of Toews require no broader interpretation than this and logic, in my view, precludes it, given that impairment is a specific element of the offence of s. 234 of the Criminal Code. I cannot conclude that the Court in Toews intended to alter the long-standing principle that the mental element of the offence of s. 234 of the Code lies in voluntarily becoming intoxicated -- not in the knowing assumption of care and control of a motor vehicle which is capable of being negated by the very impairment which is the gravamen of the offence.

For these reasons I conclude that the accused's rights under ss. 7 and 11(d) of the Charter were not infringed.

Conclusion

I would dismiss the appeal.

Appeal dismissed.

Solicitors for the appellant: Ruby & Edwardh, Toronto.

Solicitor for the respondent: The Attorney General for Ontario, Toronto.

• Chief Justice at the time of judgment.