Today, I am continuing the blog conversation on the subjective/objective mens rea debate in criminal law. This continues that discourse but with a twist as we discuss the mental element of the drinking and driving offences. The recent acquittal of Peter Goldring MP on refusing to comply with a demand of a police officer to provide a breath sample raises the issue of the criminal liability of these offences and leaves one wondering if the trial judge, in that case, applied the appropriate standard of assessment.
Last posting, I introduced the debate in criminal law on the standard of liability or mens rearequired to commit a criminal offence in Canada. The debate focuses on the two liabilities or fault elements: subjective mens rea, where the trier of fact will assess the accused’s liability on the basis of what was in this particular accused’s mind when he or she committed the offence or objective liability, which removes the focus from the accused in favour of an assessment based on what the reasonable person, in the circumstances of the accused, ought to have known.
There is another form of liability, according to the Supreme Court of Canada, which should never be found in the criminal law: absolute liability. This form of liability, commonly found in the regulatory enforcement arena, requires no fault for a conviction. Once the prosecutor establishes the defendant committed the prohibited act, a conviction follows. The mens rea or intention of the defendant is irrelevant. As the intention, be it on a subjective basis or an objective basis, is a required element of a crime, absolute liability is not an option and not constitutionally permissible. However, an argument can be made that in fact, there are offences in the Criminal Code, which are essentially absolute liability offences: drinking and driving offences.
This argument, involves a two-pronged approach to the fault requirements of drinking and driving offences. The first prong harkens back to the Supreme Court of Canada and Mr. Justice Cory’s decision in Hundal. In this case, the majority of the court held that licensed activities, like driving, require the driver to meet a standard of care as delineated by the licensing provisions. This standard applies to all individuals holding the license and is not dependent on the personal characteristics of the individual person driving. This denotes a standard based on the reasonable person and therefore, driving offences, like dangerous driving, require objective liability. This decision was applied to all driving offences.
The second prong focuses on the consumption of alcohol as opposed to the driving aspect. In Bernard, the Supreme Court of Canada found the act of drinking an alcoholic beverage as a voluntary act. This reasoning was extended further to the mental requirement, as the accused, in making the choice to become inebriated, was therefore also accepting the risks of such behaviour. This case lead to the change in the intoxication defence and the amendment of theCriminal Code under s. 33.1 to exclude the use of the defence for certain offences, such as manslaughter and sexual assault. Thus, the act of voluntarily consuming intoxicants took the place of the mental element of a crime.
When viewing the decisions on intoxication and the decisions on driving offences, the objective standard appears to give way to an even lower standard of liability, which approaches absolute liability. If the fault element can be found in an act, or even an intention to drink alcohol, and not in an intention to commit the offence or even requiring a reasonable person to be aware of the risks of doing so, there is no fault element needed for conviction, merely the accused’s voluntary consumption of alcohol.
Certainly the SCC in Penno agreed, albeit in a split decision. The case centered on the application of the intoxication defence for an impaired driving charge. Although the use of the defence, as mentioned earlier, was restricted through new Code amendments, at the time of the Penno case there was no case law restricting its use for drinking and driving offences. The majority decision written by Justice McLachlin, as she then was, discussed the absurdity of impairment being both an “offence” and a “defence” if the intoxication defence applied. She stated “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.” Clearly, as in public welfare offences, the mens rea required for drinking and driving offences is greatly reduced in order to protect the public of the risks attached to drinking and driving. As Justice Cory will say later in the Hundal case, driving offences extract a huge social cost and “there is therefore a compelling need for effective legislation which strives to regulate the manner of driving vehicles and thereby lessen the carnage on our highways.” Importantly, Hundal was not a case of dangerous driving involving alcohol and yet the SCC found the application of an objective standard of liability for driving offences was “not only appropriate but essential.” I would argue that driving offences as inherently dangerous licensed activities, compounded with the voluntary use of intoxicants, requires the strictest form of mens rea, approaching the absolute liability found in public welfare cases.
Similarly, I would argue that the related charge of failing to provide a breath sample under s. 254(5) has a diminished fault element. Firstly, the words of the offence, requiring a failure in a duty, strongly suggests an objective standard as found in the SCC Naglik case on the mens reafor the offence of failing to provide the necessities of life. However, of note, is the most recent SCC case of A.D.H. wherein the court found subjective mens rea is required for an offence under s.218 of abandoning a child, even though the offence is found under the part on “duties tending to preservation of life.” This decision seems to contradict this previous SCC authority, but whether this is so and what the case means generally for the subjective/objective debate will be the essence of my next blog on the issue.
Secondly, s. 254(5) specifically sets out a defence of “reasonable excuse.” The “reasonable” tag immediately suggests a reasonable person or an objective standard of assessment. In Therens,Justice Le Dain explained the unique character of the section, which requires one to comply with a police officer’s statutory demand. Therefore a person investigated for drinking and driving is not “free” to choose not to provide a sample but must provide one, short of a “reasonable excuse.” Case law has filled in the definition by providing examples of what a “reasonable excuse” can be or cannot be for purposes of the section. Typically, the reason must be one in which the accused had no choice but to refuse, such as in a medical condition. In this respect, I would argue that such a reasonable excuse actually goes to the voluntariness of the act of refusing as opposed to the intention to refuse. Again this would suggest a no-fault approach to drinking and driving offences, including the charge of refuse to blow.
In the Goldring case, Provincial Court Assistant Chief Judge Anderson cited as a primary issue at trial whether the accused had “the necessary intent to make his failure to provide a sample of breath criminal.” Even by framing the issue thusly, the trial judge elevates the level of intent required by suggesting the assessment is a personal one to the accused and therefore subjective. Further in his discussion, the trial judge did not rely on the series of cases I referred to in this blog, preferring to emphasize the criminal nature of the charge, which, in his view, required subjective mens rea. In acquitting the accused, Chief Judge Anderson stated he was not satisfied that Goldring’s refusal was “a conscious decision or willful act.” The high level of intention required by Judge Anderson is a far cry from the wording of the offence and the weight of the SCC case law where “reasonableness” is at issue and “willfulness” is irrelevant. Certainly, the finding is contrary to the court’s emphasis on the public interest as opposed to the private interest. It remains to be seen if the Crown will appeal this decision considering Goldring has already been welcomed back into the government’s fold. What will be even more interesting is to see if anyone else will be acquitted of this offence following the same reasoning. In a government where tough on crime issues and public safety is supreme, the incongruity of this decision is palpable.