Hard case makes bad law

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There's an old saying beloved of lawyers and judges: "Hard cases make bad law." Last week's Supreme Court of Canada decision acquitting a Quebec man, found drunk behind the wheel of his idling truck, of the crime of having care or control of a motor vehicle while impaired is a case in point. It was a just result. But the rationale behind it is suspect.

The majority decision imported -- "read in," in legal speak -- a new factor the Crown must prove to gain a conviction, one not found in the wording of the Criminal Code offence of impaired driving. Although, based on the evidence, the court rendered a fair decision, its legal reasoning was a bit of a reach. Sticking to the basics of criminal law would better have served its object.

The facts of the case are simple.

On a cold and blustery morning in February 2009 in Jonquière, Que., Daniel Boudreault knew he was too drunk to drive his truck home from an acquaintance's apartment (his blood alcohol level later measured more than three times the legal limit of 80 milligrams per 100 millilitres of blood), so he had her call a taxi.

After approximately 25 minutes, the taxi hadn't arrived, so his host placed a second call to the cab company. Wanting to go to bed, she asked Mr. Boudreault to leave, but told him he could warm up in his truck while waiting for the taxi. Mr. Boudreault got into his truck, placed the automatic transmission in park, started the engine and turned on the heat. And promptly fell asleep.

When the taxi arrived, the driver saw Mr. Boudreault asleep in the driver's seat and called the police. The police arrived, woke the inebriated man, arrested him and charged him with having care or control of a motor vehicle while his ability was impaired by alcohol.

To acquit Mr. Boudreault, the court created an element of the crime not reflected in the language of the Criminal Code. It stipulated that for there to be a conviction there must be a realistic risk of danger to persons or property arising from the care or control of a vehicle.

The sole dissenting Supreme Court justice, Thomas Cromwell, rightly saw this as judicial re-tooling of the law, and wanted no part of it.

"Risk of danger is not an element of the offence of care or control," he wrote. "The attempt to limit by means of statutory interpretation the potentially wide ambit of the care or control offence by reading in this new essential element... is not consistent with well-settled principles of statutory interpretation."

Curiously, there was no need to add this requirement. The Court could have achieved the same result by applying fundamental principles.

Our criminal law requires the Crown prove not only that an accused physically committed a criminal act, but also had a "guilty mind" when he did it. In other words, he must have acted intentionally, or willfully. Virtually all criminal acts -- assault, theft, arson, murder -- require this mental element. As regards care or control of a vehicle while impaired, the Supreme Court has previously ruled the requisite mental element for the crime is simply an intention to assume care or control.

Mr. Boudreault was able to adduce convincing evidence he never intended to assume care or control of, let alone drive, his truck. Though found asleep behind the wheel, on the singular facts of this case, he had independent corroborative evidence rebutting the notion of his intending to assume care or control.

The Court could have simply said there wasn't any willful act to support a criminal conviction. Instead, it went off on the tangent Justice Cromwell rightly criticized as improper.

Mr. Boudreault got the right result. But the law got to that result via the wrong, and a needlessly circuitous, route.

Republished from the Winnipeg Free Press print edition October 31, 2012 A8