Ford v. The Queen, [1982] 1 SCR 231

SUPREME COURT OF CANADA

Ford v. The Queen, [1982] 1 S.C.R. 231

Date: 1982-02-09

David Benjamin Ford Appellant; and

Her Majesty The Queen Respondent. File No.: 15989.

1981: March 17; 1982: February 9.

Present: Laskin C.J. and Martland, Ritchie, Dickson, Beetz, Estey, McIntyre, Chouinard and Lamer JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR PRINCE EDWARD ISLAND

Criminal law — Impaired driving — Care or control — No intention to drive — Applicability of s. 237(1)(a) in a charge under s. 236 of Criminal Code. R.S.C. 1970, c. C-34, as amended.

Appellant was found intoxicated in the driver's seat of his vehicle parked in a field at a party and was charged with having care or control contrary to s. 236 of the Criminal Code. He had earlier agreed to another person's driving his vehicle after the party. The trial court acquitted him on the ground that s. 237(1)(a) applied in that although he had the care or control of the vehicle he lacked the intention to drive. The Court of Appeal held an absence of intention to drive a vehicle did not constitute a good defence to the charge. This appeal is to determine the mens rea for the offence.

Held (Laskin C.J. and Dickson J. dissenting): The appeal should be dismissed.

Per Martland, Ritchie, Beetz, Estey, McIntyre, Chouinard and Lamer J.J.: Section 237(1)(a) does not import an element of "intent to drive" into the offence of care or control which is created by s. 236. Section 237(1)(a) is concerned exclusively with the method of proof of a charge under s. 236; its effect is purely evidentiary so that the offence created by s. 236 remains unaffected. Proof that the accused did not enter the vehicle with the intention of setting it in motion does not of itself lead to an acquittal where an accused performs some act or series of acts involving the use of the car, its fitting or equipment, which indicate that the accused had care or control of the vehicle.

The case of R. v. Young has not applicability; it was not concerned with the presumption created by s. 237(1)(a).

[page 232]

Per Laskin C.J. and Dickson J., dissenting: Although s. 237 is concerned with evidentiary matters it can be looked to as an aid to interpreting the patent ambiguity in s. 236. It creates a rebuttable presumption of having "care or control" over, not having intention to drive, a motor vehicle. An intention to set the vehicle in motion is an essential element of the offence. If an accused demonstrates that he did not have that intention the Crown has failed to prove an essential element of the offence and the accused deserves to be acquitted.

[R. v. Price (1978), 40 C.C.C. (2d) 378, applied; R. v. Appleby, [1972] S.C.R. 303; R. v. Young (1979), 21 Nfld. & P.E.I.R. 77, distinguished; R. v. McPhee; R. v. Mullen (1975), 30 C.R.N.S. 4, referred to.]

APPEAL from a judgment of the Court of Appeal of Prince Edward Island (1979), 24 Nfld. & P.E.I.R. 91 reversing a judgment of Plamondon J. on an appeal by way of stated case. Appeal dismissed, Laskin C.J. and Dickson J. dissenting.

John L. MacDougall, for the appellant.

Darrell E. Coombs, for the respondent.

The reasons of Laskin C.J. and Dickson J. were delivered by

DICKSON J. (dissenting)—The issue in this appeal is narrow but it has given rise to conflict of views at both trial and appellate level for thirty years. The question is: what is the mens rea for the offence of having the 'care or control' of a motor vehicle while intoxicated? The relevant sections of the Criminal Code are ss. 236(1) and 237(1)(a), reproduced below:

236. (1) Every one who drives a motor vehicle or has the care or control of a motor vehicle, whether it is in motion or not, having consumed alcohol in such a quantity that the proportion thereof in his blood exceeds 80 milligrams of alcohol in 100 millilitres of blood, 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

[page 233]

(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; ...

Section 237, it will be noted, does not create an irrebuttable presumption of care or control. The section permits the accused to rebut the presumption if he "establishes that he did not enter or mount the vehicle for the purpose of setting it in motion". What if the accused successfully establishes that he did not mount the vehicle with the intention of setting it in motion? Is he then to be acquitted? In plainer terms, is an intention to set the vehicle in motion an ingredient of the offence of having care or control of a motor vehicle while in a state of intoxication? If an intention to set in motion is the mens rea of the offence, elementary principles of criminal law would suggest that an accused who rebuts the presumption in s. 237 must be acquitted, since the Crown has failed to prove one of the ingredients of the offence. On the other hand, if an intention to set in motion is not an essential ingredient of the offence, the accused may or may not be guilty, depending on whether the Crown can adduce other evidence to prove care or control.

The appellant, David Benjamin Ford, was charged that he did on or about March 16, 1979 at or near Ebenezer, in the County of Queens, Province of Prince Edward Island, having consumed alcohol in such a quantity that the proportion in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood, unlawfully have care or control of a motor vehicle, contrary to s. 236 of the Criminal Code of Canada, as amended. He was found not guilty of the offence and acquitted by the Provincial Court Judge.

The Crown appealed by way of stated case from which the following facts emerge. At 11:35 p.m. on

[page 234]

March 16, 1979 a police constable on patrol observed motor vehicles in a field near the highway. He drove to the location and found Mr. Ford sitting behind the steering wheel of a vehicle in the seat ordinarily occupied by the driver. The dome light of the car was on, and there were five or six occupants. Ford, owner of the vehicle, had been in and out of it numerous times during the course of the evening, going from one car to another. He had turned the motor on and off a number of times because of the cold weather. During the course of the evening, because of his impaired condition, Mr. Ford had agreed with one Darla Simpson that she would drive his car when the party broke up and the car had to be driven out of the field.

The trial judge held that s. 237(1)(a) applied but he held also that when Mr. Ford entered the vehicle for the last time he had no intention of driving and had therefore discharged the onus under s. 237(1)(a). The judge further held that because Mr. Ford was sitting behind the steering wheel of the vehicle, which was running, and had not yet traded places with Darla Simpson, he still had the care or control of the vehicle but, because he had no intention to drive, he had a good defence to the charge.

The Crown questioned the validity of the decision. The question asked on the stated case was this: "Did I err in law in holding that the necessary mens rea for a charge under section 236 of the Criminal Code relating to the 'care or control' of a motor vehicle went to the intention of the accused to drive the motor vehicle or set it in motion, and not the intention to assume or have care or control of the motor vehicle?" Although the question was phrased in that manner in the case stated, the judge was of the view that the question should have taken the following form: "Did I err in law in holding that after finding an accused in care or control of a motor vehicle, he still has a defence to the charge by showing that he had no intention to drive the motor vehicle?", adding that his decision "did not equate the intention to drive with mens

[page 235]

rea but rather as being a defence to the charge".

The Supreme Court of Prince Edward Island, in banco, in a decision reported at (1979), 24 Nfld. & P.E.I.R. 91, held that, regardless of the manner in which the question may have been framed, the trial judge had erred in holding that an absence of intention to drive the motor vehicle constituted a good defence to a charge of care or control. The reasoning of the Court was summarized in the judgment as follows:

Put briefly and succinctly, I would hold the law to be this:

(a) Section 236 creates the offences of driving, or having the care, or having the control, of a motor vehicle while impaired;

(b) the mens rea required, in the case of driving, is either the driving itself, or the intention to drive;

(c) the mens rea required, in the cases of care or control, is the intention to assume such care or control;

(d) Section 237(1)(a) creates a rebuttable presumption of intention to drive;

(e) the successful rebuttal by the accused of that presumption negates the effect of that section, but leaves undisturbed the effect of Section 236, which then must be dealt with on its own factual merits;

(f) a conviction may then be obtained on a driving charge if the evidence establishes actual driving;

(g) a conviction may then be obtained on a care or control charge if the evidence, establishes an intention to drive, (apart from the statutory presumption), or alternatively if the evidence establishes an intention to assume some measure of active control over or with respect to the vehicle, notwithstanding the absence of any intention to drive [at pp. 95-96, emphasis added].

If the Court of Appeal is correct we are left with this somewhat curious situation: in a prosecution for having care or control of a motor vehicle while intoxicated, an intention to set the vehicle in motion is not an essential ingredient of the offence; nevertheless, the accused may be called upon to disprove such an intention or be convicted if the Crown invokes the presumption in s. 237. If an intention to set the vehicle in motion is not part of

[page 236]

the mens rea of the offence, why should the accused be concerned with disproving such intention?

There are many authorities on the mens rea of a care or control offence under s. 236, with various views expressed. There is one decision of this Court, R. v. Appleby, [1972] S.C.R. 303, which obliquely discusses the point. This discussion is admittedly obiter dicta, since the issue in that case was the meaning of the word 'establishes' ins. 237. Ritchie J., writing for the majority of the Court, held that s. 237 required the accused to prove, on a balance of probabilities, that he did not have an intention to set the vehicle in motion. Ritchie J. also commented, however, that if an accused could succeed in disproving this intention, he should be acquitted:

In giving effect to the statutory presumption created by s. 224A(1)(a) in relation to a charge under s. 222, the position is that if it is proved that the accused was impaired by alcohol or a drug, and it is further proved that he was, at the relevant time, occuping [sic] the seat ordinarily occupied by the driver, he shall be deemed to have had the care or control of the vehicle, but the accused has the opportunity of rebutting this presumption if he "establishes" by the balance of probabilities "that he did not enter or mount the vehicle for the purpose of setting it in motion".

If the accused cannot so satisfy the court then the statutory presumption prevails and he is guilty of an offence under s. 222, but, if he is able to provide the requisite evidence he must be acquitted [at p. 316].

Mr. Justice Ritchie based his observations on the discussion of statutory presumptions by Lord Diplock in Public Prosecutor v. Yuvaraj, [1970] 2 W.L.R. 226, at p. 232:

Generally speaking, no onus lies upon a defendant in criminal proceedings to prove or disprove any fact: it is sufficient for his acquittal if any of the facts which, if they existed, would constitute the offence with which he is charged, are "not proved." But exceptionally, as in the present case, an enactment creating an offence expressly provides that if other facts are proved, a particular fact, the existence of which is a necessary factual ingredient of the offence, shall be presumed or deemed to exist

[page 237]

"unless the contrary is proved." In such a case the consequence of finding that that particular fact is "disproved" will be an acquittal, whereas the absence of such a finding will have the consequence of a conviction.

As Lord Diplock points out, the effect of a "reverse onus" clause is to force the accused either to prove or disprove the existence of a particular set of facts. This set of facts is always an essential ingredient of the offence. It would be peculiar to suppose otherwise. If the facts are not an essential ingredient of the offence, then how can 'disproving' them possibly assist the accused? A reverse onus clause makes sense only if the particular facts are understood as being essential to the commission of the offence.

Various propositions have been advanced as to the mens rea of care or control of a motor vehicle. It has been said by some to be the intention to assume care or control of the vehicle but, standing by itself, this is unsatisfactory as it does not serve to limit or define the already vague actus reus of care and control. It has been said by others to be the intention to drive the vehicle. There has been a reluctance to adopt this proposition, perhaps because of confusion with the mens rea of the driving offence. If "intention to drive" is the mens rea of the driving offence how, one might ask, can it also be the mens rea of the care or control offence? The use of the word "intention" is misleading in this context. An "intention to drive" while one is driving is not the same as the "intention to drive" demonstrated by a person putting keys in an ignition and his foot on the accelerator. The latter is more properly "intention to set the car in motion". This latter proposition has also been advanced as the mens rea required to constitute the offence, and, as it is the language used in s. 237(1)(a), it would certainly seem to be that most consonant with the legislation.

The use of intention to set in motion' as the mens rea for the offence of care or control has a number of virtues. It narrows the vague "intention

[page 238]

to assume care or control" and gives precision and focus to the offence. It is consistent with legislative intent as evidenced in s. 237(1)(a). It is more closely connected to the mischief which the legislator seeks to control and it eliminates the more extreme and absurd results which are within the realm of the imagination.

Whether or not the intention exists is, of course, a determination for the trial judge to make. An accused may deny any intention to set the vehicle in motion but the trial judge is in a position to believe or disbelieve him in the circumstances of each case.

In the present case the Court of Appeal states that s. 237 creates a rebuttable presumption of intention to drive in proposition (d) cited above. With respect, this is simply wrong. Section 237 creates a rebuttable presumption of having 'care or control' over a motor vehicle. The presumption may be rebutted by the accused if he can establish that he did not have an intention to set the vehicle in motion.

The error in proposition (d) opens the way for the Court to conclude, in propositions (e) and (f), that the rebuttal of the presumption in s. 237 does not lead to an acquittal under s. 236. The Court treats the two sections as though they were directed towards different offences. Section 237, apparently, creates a rebuttable 'intention to drive'. This intention is, in the Court's view, irrelevant to the intention to assume care or control: therefore, rebutting the presumption in s. 237 "leaves undisturbed the effect of section 236" (proposition (e)).

Consider the following situation. Suppose that the Crown's only evidence of care or control was the fact that an accused was sitting in the driver's seat. The accused then adduces evidence to establish that he did not intend to set the vehicle in motion. In such a case, on the view of the Court of Appeal in this case, the accused would have to be acquitted. The accused could only be convicted if the Crown adduced some further evidence to establish care or control and the Crown, in the example I have given, failed to do so. Thus the accused would be acquitted.

[page 239]

Such a result would be strange indeed if an intention to set the vehicle in motion were not an essential ingredient of the offence of having care or control over a motor vehicle while intoxicated. The accused would be acquitted by proving something which, according to the Court of Appeal, was totally extraneous to the offence. How can proving an irrelevant fact rebut anything? Such a proposition offends common sense and must be wrong.

The problem with which we are faced began even in the manner in which the question was framed in the courts below and in this Court. The Court of Appeal was faced with the question of whether a lack of intention to drive was a 'defence' to a charge of impaired driving. The Court of Appeal answered this question in the negative.

In my view, it is incorrect to ask whether a lack of intention to drive is a 'defence' to a charge. The accused in this case is not asserting that lack of intention to drive is a positive defence. Rather, his argument is that an intention to set the vehicle in motion is the mental element of the offence of 'care or control' under s. 236. Thus if an accused does not have an intention to set the vehicle in motion he has not really established a 'defence'; he has demonstrated that the Crown has failed to prove an essential element of the offence and thus deserves to be acquitted.

It is obvious that simply clarifying the issue does not resolve the appeal. The question which arises is this: on what basis can it be said that an 'intention to set the vehicle in motion' forms the mental element of the offence under s. 236?

Section 236 itself does not specify the requisite mental element for the offence of care or control. The section specifies that if one has "care or control of a motor vehicle, whether it is in motion or not", and one's blood alcohol level exceeds a certain level, then an offence has been committed. The section does not specifically indicate the

[page 240]

mental element required to establish 'care or control'. Is the mental element the intention to have care or control? On this view an individual who is sitting in his living room with the keys to his car in his pocket has the mental element necessary to constitute the offence. Care or control in the Criminal Code should not be confused with the indicia of possession under the law of property. An intention simply to exclude others from control is not sufficient; in my view one must also have an intention to set the vehicle in motion before one comes within the subsection.

Surely it is legitimate for a court to look at s. 237 in order to assist it in resolving the ambiguity present in s. 236. We are expected to read the sections in their entirety in an attempt to give meaning to a part thereof.

1 do not think it helps in the resolution of the question before the Court to argue that s. 237 is concerned with evidentiary matters only and therefore the offence created by s. 236 remains unaffected by it. I do not suggest that s. 237 somehow alters s. 236 or creates a positive defence to the charge under s. 236. I agree that s. 237 is concerned with evidentiary matters. However this does not mean that we cannot look to s. 237 as an aid to interpreting the patent ambiguity in s. 236.

In my view s. 237 is available as an important interpretative aid in determining the mens rea for a charge under s. 236. Section 237 becomes absurd unless an intention to put the vehicle in motion is part of the mental element of care or control under s. 236. Otherwise, if the Crown is right, s. 237 is the only section in the Code which imputes a certain mental element to an accused even though that mental element is not the mens rea of the offence.

Assuming that an intention to set the vehicle in motion constitutes the mental element of the offence, what is the result if the accused can demonstrate that he did not have that intention? The question answers itself. If an essential element of the offence is lacking, then the accused must be

[page 241]

acquitted. The Crown has simply failed to prove its case.

Normally, the rule is that the Crown must prove the elements of the offence beyond a reasonable doubt. It is obvious that the Crown may have trouble proving that an accused sitting in a car had the intention of setting the car in motion. Section 237 changes that. It alters the burden of proof in favour of the Crown. If an accused is found sitting in the driver's seat, we presume that he had an intention to set the vehicle in motion. It will then rest on him to disprove that he had any such intention. His proof will be on a balance of probabilities. If he succeeds why should he not be acquitted, as his conduct is not within the mischief aimed at?

Quite apart from authority, it seems to me that the appellant's position is the stronger one, simply on the basis of statutory construction and the nature and effect of statutory presumptions. I must say, however, that I am in agreement with the views of Jessup J.A., speaking for a unanimous Ontario Court of Appeal (Jessup, Dubin and Martin JJ.A.) in R. v. McPhee; R. v. Mullen (1975), 30 C.R.N.S. 4:

In a prosecution under s. 234 [now s. 236] if the only proof offered by the Crown of care or control is that the accused occupied the seat ordinarily occupied by the driver of a motor vehicle and the accused establishes that he did not enter or mount the vehicle for the purpose of_. setting it in motion, the accused must be acquitted. It follows therefore, in my opinion, that in a prosecution under s. 234 it is an essential element of the offence that the accused had the purpose or intention of setting the vehicle in motion, either personally or through the agency of a driver he controlled. The accused must have the intent to assume control over the operation of the car [at pp. 6-7].

Leave to appeal to this Court from this decision was dismissed on June 16, 1975.

R. v. McPhee; R. v. Mullen, supra, was applied in R. v. White (1979), 47 C.C.C. (2d) 353, (Ont. C.A.). Martin J.A. speaking for a Court consisting of himself, Howland C.J.O. and Brooke J.A. said:

[page 242]

This Court held in R. v. McPhee; R. v. Mullen (1975), 25 C.C.C. (2d) 412, 9 O.R. (2d) 687, 30 C.R.N.S. 4, that an intention to operate the motor vehicle is an essential element of "care or control". A fair reading of the appellant's evidence supports a conclusion that he had abandoned any intention of driving his motor vehicle after it had become stuck in the ditch. If the appellant did not intend to operate the vehicle after he had consumed the liquor, subsequent to the car going into the ditch, the offence was not established [at p. 354].

I would add only this. If I should be wrong and intent to set the vehicle in motion is not an ingredient of the offence of care or control I would nonetheless enter an acquittal in this case as Mr. Ford rebutted the presumption under s. 237(1)(a) and the Crown has not in my opinion adduced further evidence sufficient to warrant a finding of care or control.

I would allow the appeal, set aside the judgment of the Court of Appeal and restore the verdict of acquittal rendered at trial.

The judgment of Martland, Ritchie, Beetz, Estey, McIntyre, Chouinard and Lamer JJ. was delivered by

RITCHIE J.—This is an appeal brought with leave of this Court from a judgment of the Appeal Division of the Supreme Court of Prince Edward Island, holding that the learned trial judge had erred in holding that an absence of intention to drive a motor vehicle constituted a good defence to a charge of care or control under s. 236 of the Criminal Code, R.S.C. 1970, c. C-34, and ordering that this matter be remitted back to His Honour Provincial Judge Bertrand R. Plamondon for disposition in conformity with the judgment of the Appeal Division.

The facts of this case are not in dispute and are fully set out in the case stated by the learned provincial judge which reads as follows:

1. On the 2nd day of May, 1979, an Information was laid under oath before E. Dorothy Kitson, Justice of the Peace for the Province of Prince Edward Island, by Donald Gosse, a member of the Royal Canadian Mounted Police, for that the above-named David Benjamin

[page 243]

Ford did on or about the 16th day of March A.D. 1979, at or near Ebenezer, in the County of Queens, Province of Prince Edward Island, having consumed alcohol in such a quantity that the proportion in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood, unlawfully have care or control of a motor vehicle, contrary to Section 236 of the Criminal Code of Canada and amendments thereto. On the 9th day of May A.D. 1979, the said charge was duly read before me in the presence of the accused and after hearing the evidence adduced and submissions made on behalf of the Crown and the accused, I found the said David Benjamin Ford not guilty of the said offence and acquitted him. At the request of Darrell E. Coombs, Solicitor for Her Majesty the Queen, I state the following case for the consideration of this Honourable Court.

(i) It was shown before me that Cst. W. Gairns was patrolling in the Ebenezer area in Queens County, Province of Prince Edward Island, on Highway No. 224 at the hour of 11.35 p.m., on the 16th day of March, 1979.

(ii) Some motor vehicles attracted his attention in a field nearby the highway and he drove the police car to the location.

(iii) The officer found the accused sitting behind the steering wheel in the seat ordinarily occupied by the driver, the dome light of one vehicle was on and there were five or six occupants in this particular vehicle.

(iv) As a result of his observation of the accused, (the usual signs of impairment), the said officer made forthwith at 11.45 p.m. a demand on the accused to provide samples of his breath, which demand the accused understood and agreed to provide.

(v) The officer and the accused proceeded to Charlottetown detachment, where breathalyzer tests were performed on the accused and a copy of the certificate together with a notice of intention to produce the certificate was served on the accused on the 17th day of March, 1979, the said certificate showing that at the hour of 12.42 a.m. on the 17th day of March, 1979, the result of the chemical analysis shows a reading of 190 milligrams of alcohol in 100 millilitres of blood, and at the hour of 1.06 a.m. on the 17th day of March, 1979, the result of the chemical analysis was 170 milligrams of alcohol in 100 millilitres of blood.

(vi) The accused, who owns the car, had been in and out of the motor vehicle numerous times during the course of the evening, going from one car to the other, and had also turned the motor of his motor vehicle on and off a number of times because of the cold weather.

(vii) During the course of the evening, because of his impaired condition, the accused had agreed with one Darla Simpson for her to drive the accused's motor

[page 244]

vehicle when the party was going to break up and the car had to be driven out of the field.

2. I held that Section 237(1)(a) applied to the case at bar and when the accused entered the motor vehicle the last time, he had no intention to drive, therefore, he had discharged the onus under Section 237(1)(a). However, because the accused was still sitting behind the steering wheel of his own motor vehicle which was running and had not yet traded places with Darla Simpson, I held that he still had the care and control of the motor vehicle, but because he had no intention to drive, I held that he had a good defence to the charge of having the care and control of a motor vehicle. [The italics are my own.]

3. The Appellant, Her Majesty the Queen, desires to question the validity of the decision on the ground that it is erroneous in point of law, the grounds of appeal as stated by the Appellant being,

"Did I err in law in holding that the necessary mens rea for a charge under Section 236 of the Criminal Code relating to the care and control of a motor vehicle went to the intention of the accused to drive the motor vehicle or set it in motion and not the intention to assume or have care and control of the motor vehicle?"

4. It is humbly submitted that the question as framed is not supported by my decision but should take the following form,

"Did I err in law in holding that after finding an accused in care or control of a motor vehicle, he still has a defence to the charge by showing that he had no intention to drive the motor vehicle?"

It is submitted that my decision did not equate the intention to drive with means rea [sic] but rather as being a defence to the charge.

In the course of the reasons for judgment which he delivered on behalf of the Appeal Division of the Supreme Court of Prince Edward Island, Mr. Justice McQuaid answered the question so posed in the following terms:

Regardless of the manner in which the question put to this Court may have been framed, I am of opinion, and hold, that the learned trial judge did err in holding that an absence of intention to drive a motor vehicle constituted a good defence to a charge of care or control.

[page 245]

The notice of appeal to this Court raises the following two grounds of appeal:

1. Whether the Supreme Court of Prince Edward Island, in Banco erred in holding that an absence of intention to drive a motor vehicle does not constitute a valid defence to a charge under section 236 of the Criminal Code, R.S.C. 1970 — Cap. C-34;

2. Whether the Supreme Court of Prince Edward Island, in Banco erred in reversing the position it had adopted with respect to the above-noted defence in R. v. Young (1979), 21 Nfld. Sc P.E.I.R. 77 (P.E.I. S.C. In Banco).

The disposition of this appeal turns in great measure upon the answer to the first question and is dependant upon whether or not s. 237 of the Code is to be construed as importing an element of "intent to drive" into the offence of "care or control" which is created by s. 236. The relevant provisions of s. 236 read as follows:

236. (1) Every one who drives a motor vehicle or has the care or control of a motor vehicle, whether it is in motion or not, having consumed alcohol in such a quantity that the proportion thereof in his blood exceeds 80 milligrams of alcohol in 100 millilitres of blood, is guilty of an indictable offence or an offence punishable on summary conviction and is liable .. .

It is to be noted that the offence of "care or control" created by this section is not dependant upon the motor vehicle being in motion, but it is nevertheless contended that s. 237(1)(a) is to be construed as meaning that the question of whether or not at the time when the accused entered or mounted the vehicle it was "for the purpose of setting it in motion" is central to a determination of his guilt or innocence under s. 236. Section 237 (1)(a) provides:

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; . . .

I should say at the outset that I am in agreement with the Appeal Division, for the reasons

[page 246]

stated by Mr. Justice McQuaid, that s. 237(1)(a) is concerned exclusively with the method of proof of a charge under s. 236 and that its effect is purely evidentiary so that the offence created by the latter section remains unaffected by it. There can be no doubt that if the case for the Crown rests solely upon proof that the accused occupied the seat ordinarily occupied by the driver, he is not deemed to have had care or control of the vehicle if he can establish that he did not enter or mount it for the purpose of setting it in motion. In the latter event the presumption is rebutted and the Crown is deprived of the advantage of the deeming provision of s. 237(1)(a). In practical terms the only result of the accused having established that he did not mount the vehicle for the purpose of setting it in motion, is that the Crown is seized with the burden of proof without the aid of the presumption. The latter words of s. 237(1)(a) are in my view definitive of the evidence required of the accused in order to shift the burden of proof back to the Crown, but I cannot see that they purport to create or define a defence to the charge or to alter the nature of the offence created by s. 236 so as to import "an intention to drive" as an essential element which the Crown is required to prove in order to secure a conviction under s. 236.

In this regard it is to be recalled that s. 236 creating the offence of "care or control of a motor vehicle while intoxicated" was enacted as part of the Criminal Code by 1925 (Can.), c. 38, s. 5, whereas it was not until 1947 (by c. 55, s. 10) that the presumption which is now s. 237(1)(a) was created. I adopt what was said by Limerick J.A. in the course of his reasons for judgment in the Appellate Division of the New Brunswick Supreme Court in R. v. Price (1978), 40 C.C.C. (2d) 378, at p. 383, where he said:

This section is enabling legislation of evidentiary value to the Crown. It creates, under certain specific circumstances, a burden on the accused to rebut a prima facie case or a presumption created by statute. The section has no application (1) unless the accused is found occupying the driver's seat and (2) unless the Crown elects to invoke the section. The Crown may rely on other evidence to prove care or control, in which case the section has no applicability. The section does not purport

[page 247]

to change the law as to the meaning of "care or control" as it existed prior to its enactment.

Indeed s. 37(3) of the Interpretation Act, R.S.C. 1970, c. I-23, provides:

37. (3) The repeal or amendment of an enactment in whole or in part shall not be deemed to be or to involve any declaration as to the previous state of the law.

The amendment being enabling and directed to a specific purpose should not, therefore, be interpreted as being restrictive or as amending or defining the meaning of the words 'care or control', as interpreted by the Courts prior to the amendment, nor should it be considered as indicative of the intention of 'a previous Parliament. If Parliament in 1947 intended to define "care or control" as necessarily including an intention to drive the motor vehicle involved, it could and should have so stated.

I have also had the benefit of reading the reasons for judgment delivered by Jessup J.A. on behalf of the Ontario Court of Appeal in R. v. McPhee; R v. Mullen (1975), 30 C.R.N.S. 4 and I note his conclusion that:

... if the only proof offered by the Crown of care or control is that the accused occupied the seat ordinarily occupied by the driver of a motor vehicle and the accused establishes that he did not enter or mount the vehicle for the purpose of setting it in motion, the accused must be acquitted.

With all respect this amounts to nothing more than saying that where the Crown is relying exclusively on the presumption and the presumption is rebutted, there is then no evidence left for the prosecution and the accused must be acquitted. There can in my view be no denying the force of this reasoning. I am, however, unable to agree with the next sentence of Mr. Justice Jessup's reasons for judgment in which he says: "It follows therefore, in my opinion, that in a prosecution under s. 234 it is an essential element of the offence that the accused had the purpose or intention of setting the vehicle in motion ...

In the present case the appellant's counsel placed great reliance on the judgment of this Court in R. v. Appleby, [1972] S.C.R. 303 which he treated as affording authority for the proposition that "an acquittal is automatic where the accused is able to rebut the presumption of care or

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control under s. 237(1) (a) with evidence carrying proof on the balance of probabilities". This would mean that wherever an accused establishes "that he did not enter or mount the vehicle for the purpose of setting it in motion . . . " he must be acquitted.

It will be found, however, that the effect of the Appleby case is in fact limited to cases where the Crown is relying on the presumption standing alone and gives no consideration to the offence being established by other means. The Appleby case is concerned exclusively with the question of the nature of the burden of proof called for by s. 237(1)(a). In that case it was decided that the measure of proof requisite to discharge the burden was the balance of probabilities and the mere raising of a reasonable doubt was not sufficient. The case is not, however, any authority to support the contention that evidence rebutting the presumption necessarily gives rise to an acquittal notwithstanding other evidence which may be called by the Crown to establish the offence. There is a wide difference between rebutting a statutory presumption and establishing innocence. The statutory presumption affords an aid to the Crown in the proof of its case, but this is far from saying that the evidence which rebuts such a presumption necessarily carries with it an acquittal.

In the present case the appellant was found to be the owner of the motor vehicle in question and to have been in and out of it numerous times during the course of the evening, and there was also evidence that he turned the engine on and off a number of times in order to use the heater. These are all additional factors tending to establish care or control so that under the particular circumstances of this case rebuttal of the presumption created by s. 237(1)(a) is far from conclusive on the issue of the guilt or innocence of the appellant.

Nor, in my opinion, is it necessary for the Crown to prove an intent to set the vehicle in motion in order to procure a conviction on a charge under s. 236(1) of having care or control of a motor vehicle, having consumed alcohol in such a quantity that the proportion thereof in his blood exceeds 80 milligrams of alcohol in 100 millilitres

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of blood. Care or control may be exercised without such intent where an accused performs some act or series of acts involving the use of the car, its fittings or equipment, such as occurred in this case, whereby the vehicle may unintentionally be set in motion creating the danger the section is designed to prevent.

For all these reasons I am of the opinion that the Appeal Division of the Supreme Court of Prince Edward Island did not err in holding that an absence of intention to drive a motor vehicle does not constitute a valid defence to a charge under s. 236 of the Criminal Code, and I would answer the first question raised by the notice of appeal accordingly.

The second question raised by the notice of appeal is predicated on the assumption that the Appeal Division of the Supreme Court of Prince Edward Island reversed the position it had adopted in the case of R. v. Young (1979), 21 Nfld. & P.E.I.R. 77. I am on the contrary of opinion that the case of R. v. Young has no application to the present appeal and that it was not concerned with the statutory presumption created by s. 237(1)(a). In this regard the following excerpt from the reasons for judgment of Mr. Justice McQuaid in that case is significant and in my view conclusive of the distinction between the two cases. The learned judge there said of Young at p. 81:

Since he was not found in the seat of the vehicle ordinarily occupied by the driver, he does not come within the presumption set forth in Section 237(1)(a) and can not be "deemed" to have care and control. The onus therefore rested on the Crown to establish the care and control.

Having regard to all the above, I would dismiss this appeal and affirm the direction of the Court of Appeal that the matter be remitted "back to the trial court for disposition by it having regard to the above ruling".

Appeal dismissed, LASKIN C.J. and DICKSON J. dissenting.

Solicitor for the appellant: John L. MacDougall, Charlottetown.

Solicitor for the respondent: Darrell E. Coombs, Charlottetown.