Rebuttable Presumption of Vehicle Care and Control Justified - Tony Dempsey
The Criminal Code’s (“the Code”) provisions for the offense of care or control of a motor vehicle while impaired provide a prototypical example of a societal objective justifying the restriction of a right guaranteed under the Canadian Charter of Rights and Freedoms (“the Charter"). Drunk driving is recognized by Canadian society and Canadian courts as a social menace to be eradicated. The criminal offence of care or control of a motor vehicle while intoxicated infringes upon an accused’s right guaranteed under section 11(d) of the Charter in a manner justifiable under section 1 of the Charter by reducing the difficulty of obtaining convictions and easing the broader policy mandate of getting drunk drivers off the roads (R v Bernshaw, at para 30 [“Bernshaw"]). As part of this purpose, the offense of care or control incorporates a rebuttable presumption against the accused: if he or she is found occupying the driver’s seat of the vehicle, the accused will be presumed to have care or control of the vehicle, unless the accused establishes that he or she did not occupy that seat for the purpose of setting the vehicle in motion (R v Ganda, at para 50).
To avoid complicating matters, it must be noted that the focus of the constitutional conflict inherent in the presumption of care and control concerns section 11(d) of the Charter and not its companion, section 7. As noted in R v Oakes [“Oakes"] ,the presumption of innocence is a “hallowed principle” at the heart of criminal law. It must not be infringed upon lightly, even to the extent that it may hinder the prosecution of such behaviour as drunk driving (at para 32). This analysis demonstrates, however, that the infringing presumption of being in care or control of a motor vehicle while intoxicated is easily justifiable by means of the Oakes test. Attempts by an accused to pursue a Charter remedy for the presumption of care or control will likely be quashed. The recent case of R v Truthwaite [“Truthwaite"] demonstrates the ease with which the rebuttable presumption is justified.
An infringement of section 11(d) of the Charter
David Truthwaite may at first glance seem a sympathetic fellow. He was discovered by the arresting officer in the driver’s seat of his vehicle, stuck in snow, and was described as polite and affable (Truthwaite, at para 12). The vehicle was running, lights on, and tires spinning, although this latter fact was not described in the officer’s notes and was cross-examined extensively by defence counsel (Ibid, at para 11). The accused in Truthwaite indicated that he was stuck and that his vehicle was getting towed. He also happened to be intoxicated. When Truthwaite was charged, relevant provisions of the Code (as they then were, at section 258) established a rebuttable presumption:
258 (1) In any proceedings under subsection 255(1) in respect of an offence committed under section 253 or subsection 254(5) or in any proceedings under any of subsections 255(2) to (3.2):
(a) where it is proved that the accused occupied the seat or position ordinarily occupied by a person who operates a motor vehicle, vessel or aircraft or any railway equipment or who assists in the operation of an aircraft or of railway equipment, the accused shall be deemed to have had the care or control of the vehicle, vessel, aircraft or railway equipment, as the case may be, unless the accused establishes that the accused did not occupy that seat or position for the purpose of setting the vehicle, vessel, aircraft or railway equipment in motion or assisting in the operation of the aircraft or railway equipment, as the case may be [emphasis added].
For reference, the most recent iteration of the Code provides the identical presumption of care or control at section 320.35:
320.35 In proceedings in respect of an offence under section 320.14 or 320.15, if it is proved that the accused occupied the seat or position ordinarily occupied by a person who operates a conveyance, the accused is presumed to have been operating the conveyance unless they establish that they did not occupy that seat or position for the purpose of setting the conveyance in motion (emphasis added).
The trial judge in Truthwaite concluded that the rebuttable presumption of the accused as being in care or control of the vehicle continued to apply until his arrest, despite the apparent facts that one cannot be “in control” of a vehicle stuck in snow by any conventional understanding of that term, that the vehicle was rendered essentially immobile, and that Truthwaite might be expected to sit in the driver’s seat on a cold winter’s day while awaiting the arrival of assistance.
It may be entertained, therefore, that this presumption that an accused is in care or control of the vehicle if simply sitting or otherwise located in the driver’s seat (as opposed to being a fact that the Crown must establish) is a prima facie infringement of section 11(d) of the Charter. The presumption is not that the accused is guilty per se, but rather that he is assumed to be in a state much more conducive to the Crown obtaining a conviction, as opposed to the Crown having to establish that fact from the outset.
Section 11(d) of the Charter states that: “[a]ny person charged with an offence has the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal. Section 1 of the Charter states that “[t]he Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” The issue in Truthwaite, therefore, was whether this artificial presumption of the accused being in a position more conducive to conviction than acquittal is a reasonable limit to s.11(d) which can justified in a free and democratic society.
Reviewing the Oakes test:
If the important question of legislative deference is considered within the analysis itself, the Oakes test incorporates five steps to determine the legitimacy of a statutory or common law provision:
1) There must be a sufficiently pressing and substantial objective to warrant infringing a Charter right;
2) the relevance of deference, which if present reduces the standard of proof for the entire Oakes test, must be considered;
3) there must be a rational connection between the law and its objective;
4) the law must minimally impair the exercise of the Charter right being infringed; and,
5) the law must not be disproportionate in the extent of its infringement of the right in relation to the benefit or value of the law (at paras 70-77).
Step 1: A sufficiently pressing and substantial objective
Does the law have a sufficiently pressing and substantial objective to warrant infringing the Charter right? Is the objective of care or control offences so pressing and substantial to infringe s.11(d)? Identifying the objective of a law is usually straightforward and similar to discerning the pith and substance of a law in a constitutional analysis. Identifying the objective of a law includes examining the relevant legislative history, Hansard, speeches, preparatory papers, presentations, law reform commission reports, the preamble to the legislation, and anything else that explains what the objective is and why the law was passed (Oakes, at para 73). The legislative importance inherent to section 258(1) of the Code and the modern section 320.35 is made explicit at section 320.12:
It is recognized and declared that:
(b) The protection of society is well served by deterring persons from operating conveyances dangerously or while their ability to operate them is impaired by alcohol or a drug, because that conduct poses a threat to the life, health and safety of Canadians.
If there is an archetypal “pressing and substantial objective” justified in warranting an infringement of a Charter right, drinking and driving and its affiliated offences is probably it. As Cory J. noted in Bernshaw:
Every year, drunk driving leaves a terrible trail of death, injury, heartbreak and destruction. From the point of view of numbers alone, it has a far greater impact on Canadian society than any other crime. In terms of the deaths and serious injuries resulting in hospitalization, drunk driving is clearly the crime which causes the most significant social loss to the country (at para 16).
Step 2: Deference
Now that the objective of the law which infringes a Charter right is known, it is appropriate to consider the question of deference. If the court finds that deference should be shown to the legislature in terms of its intentions when constructing the statute in question, it will likely lower the standard of proof for the section 1 analysis. Deference is the recognition and “leeway” given by the courts to the government, provincial or federal as the case may be, in order for social programs or remedies to be realized (Hutterian Brethren of Wilson Colony v Alberta, at para 35). Deference is provided in cases of complex social relevance, in instances where the state is attempting to mediate between two approximately equal groups, or where there is an explicit overriding social problem that the state is intending to remedy. Section 258(1) of the Code and its later iteration is clearly an example of the later type. Both the federal and provincial governments have identified drunk driving as a significant social menace to be eradicated.
Step 3: Proportionality—rational connection
The next step in a section 1 analysis is the first stage of the proportionality test: deciding whether there is a rational connection between what the law is designed to achieve (the objective described at step 1: in this case, the reduction of offenses involving motor vehicles and intoxication) and the actual effect of the law. The means must be “reasonable and demonstrably justified in a free and democratic society” (Oakes, at para 81). In a general sense, by reducing the hindrances to the state of obtaining convictions for the crime of care or control while intoxicated, the legislative goal of increasing its conviction rate for such offenses is bound to occur. In the specific example of Truthwaite, if the Crown were required to establish both that the accused was in the driver’s seat and that he was in care and control of the vehicle, the likelihood of conviction likely would have been substantially reduced. There is thus a clear rational connection between placing the rebuttable presumption on the accused to prove he was not in care or control and the state’s legislative goal of increasing convictions for such offences as part of a broader social program of suppressing drunk driving.
Step 4: Proportionality—minimal impairment
The next step in a section 1 analysis is the second stage of the proportionality test: consideration of minimal impairment., which requires that a law should infringe on the right by the least drastic means and by the minimal possible amount, while still achieving the aforementioned legislative goal (Oakes, at para 74). The question: “does the law impair the right in question no more than necessary to accomplish the objective?” should be answered with a resounding “yes” in the case of the rebuttable presumption of care or control. The infringement against an accused’s section 11(d) Charter rights by the effects of section 258 (now s.320.35) of the Code is not an irreversible or onerous declaration that they were in care and control. Instead, the presumption is rebuttable. The accused must simply demonstrate, on a balance of probabilities, that they were in fact not in care or control of the vehicle and that there was no risk of them setting the vehicle in motion while in an inebriated state. An accused can avoid the entire presumption by sitting in the passenger seat. Moreover, relatively recent jurisprudence of the Supreme Court of Canada (“the Court”) suggests that courts will fairly consider the realistic risk of danger (R v Boudreault, at paras 54-57 [“Boudreault"]).
In the Truthwaite example, if the Manitoba Court of Queen’s Bench (“the MBQB”) had been satisfied that no tow truck was on the way to assist the accused and thus that he would not be likely to attempt to drive again, it is quite possible he would have been acquitted based on the decision in Boudreault. Without the arrival of a tow truck, the accused’s vehicle was immobile and thus there was no chance of the vehicle being driven or otherwise causing harm. The accused in Truthwaite thus attempted to establish that the presumption of care or control had been rebutted. He argued that the officer’s evidence that the vehicle’s tires were spinning should be rejected and that, once the accused called for a tow truck, he had abandoned his intention to drive (at para 21). This possibility demonstrates that the statutory presumption is therefore a relatively minor impairment against an accused’s right to be presumed innocent under section 11(d) of the Charter given the myriad ways, even in the Truthwaite decision, in which it might be rebutted.
Step 5: Proportionality—disproportionate effect
The final step in a section 1 analysis is the third stage of the proportionality test, an analysis of proportionate effect. The question at this stage is whether the actual rights-impairing effect of the law is proportionate to either the substantial objective or to the actual benefit or value of the law? To avoid conflicting with the Charter, there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right and the objective which has been identified as of sufficient importance at step 1 (Oakes, at para 74) Generally, if a Charter infringement passes stage two of the proportionality test, it will also pass this stage. Again, in Truthwaite it was quite clear that there was proportionality between the law’s imposition of a rebuttable presumption of care or control on the one hand and the legislatively defined importance of reducing drunk driving and its affiliated activities on the other. The rights-impairing effect of the reverse presumption of care or control is minor. The potential benefit from its inclusion in terms of ease of convicting impaired operators of motor vehicles was manifest in Truthwaite.
Some final words on Charter jurisprudence and rebuttable presumptions:
An explicit application of the Oakes test to the rebuttable presumption of care or control of a motor vehicle to illustrate whether that presumption violates section 11(d) is rarely provided in jurisprudence. The reason for this rarity is likely threefold:
1) any infringement of Charter rights is seen as so obviously justified that no judge has ever bothered going through the entire process in a systematic fashion;
2) the fact that the presumption of being in care or control is rebuttable likely precludes or stifles any continued insistence of unconstitutionality; and,
3) the elements of the Oakes test are constantly being applied on a case-by-case basis without an overt display being made of the type pursued by law students.
Respective responses include:
1) even “obvious” instances of justifiable infringements of an accused rights must be explainable;
2) any time the criminal code and especially the possibility of punishment and incarceration is present, the Charter is engaged, and rebuttable infringement of rights are just as susceptible to Charter challenges as non-rebuttable i nfringements; and,
3) even if the Oakes test is constantly being applied to care or control charges in a non-systematic fashion, a systematic application here can only aid to clarify the subject, both in terms of this specific offense, and with regard to all offenses involving reverse onus provisions.
In the early history of Charter jurisprudence, there was debate regarding whether a statutory rebuttable presumption against an accused should trigger section 11(d) at all. As part of the inheritance of thought from the Canadian Bill of Rights (in particular from the opinion of Laskin CJC in R v Appleby [“Appleby”]) some argued that the presumption of innocence is not violated by “any statutory or non-statutory burden upon an accused to adduce evidence to neutralize, or counter on a balance of probabilities, the effect of evidence presented by the Crown” (Appleby, at para 318). This line of thought is now extinct. As described by MacDonald J in R v Carroll, and emphasized in Oakes (at para 44):
Unless a provision falls within s.1 of the Charter, there cannot be a requirement that an accused must prove an essential positive element of the Crown’s case other than by raising a reasonable doubt. The presumption of innocence cannot be said to exist if by shifting the persuasive burden the court is required to convict even if a reasonable doubt may be said to exist (R v Carrol,  147 DLR (3d) 92 at p. 105).
In the modern Charter era, an arbitrary presumption against an accused, such as the presumption that the accused in in care and control of a motor vehicle, is an infringement of section 11(d). However, as described above, in the specific case of the presumption of care and control of a motor vehicle, section 1 of the Charter will almost certainly justify such a statutorily decreed infringement.
Provisions of the Code which create the offense of care or control of a motor vehicle while intoxicated provide a quintessential example of a social objective justifying the restriction of a Charter right. Drunk driving is rightly recognized by Canadian society and Canadian courts as a social menace to be eradicated. To this end, the criminal offence of care or control of a motor vehicle while intoxicated infringes upon an accused’s 11(d) Charter right in a manner justifiable under section 1 of the Charter by reducing the difficulty of obtaining convictions and easing the broader policy mandate of getting drunk drivers off the roads. The presumption of innocence is a “hallowed principle” at the heart of criminal law. It must not be infringed upon lightly, even to the extent that it may hinder the prosecution of such abhorrent behaviour as drunk driving. However, as demonstrated here, the section 11(d) infringing presumption of being in care or control of a motor vehicle while intoxicated is easily justifiable by means of the Oakes test. Any attempt by an accused to pursue a Charter remedy for the presumption of care and control’s infringement of an individual’s Charter rights under section 11(d) will likely be quickly quashed. The recent MBQB case of Truthwaite bolsters this point.