R v Penno [1990] 2 S.C.R. 865: Fundamental justice - Care or control of motor vehicle while impaired - Impairment element of offence - Defence of intoxication unavailable

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.

| Return to Topic Menu | Return to Main Menu |