GUELPH COURT FILE NO.: CR-22-00000715-0000 DATE: 20240205 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING - and - ADNAN REFAEH

Counsel: Peter Keen, for the Crown Robert Wulkan and Brian Starkman, for the Defence

HEARD: November 28, 2023

PETERSEN J.

Decision on Burden of Proof

OVERVIEW

[1] This decision is about which party bears the onus of proof when an accused person asserts a “reasonable excuse” for failing to stop, provide information, and render assistance after being involved in a motor vehicle accident. “Reasonable excuse” is a statutory defence found in s.320.16 of the Criminal Code, R.S.C. 1985, c. C-46:

320.16 (1) Everyone commits an offence who operates a conveyance and who at the time of operating the conveyance knows that, or is reckless as to whether, the conveyance has been involved in an accident with a person or another conveyance and who fails, without reasonable excuse, to stop the conveyance, give their name and address and, if any person has been injured or appears to require assistance, offer assistance.

(2) Everyone commits an offence who commits an offence under subsection (1) and who at the time of committing the offence knows that, or is reckless as to whether, the accident resulted in bodily harm to another person.

(3) Everyone commits an offence who commits an offence under subsection (1) and who, at the time of committing the offence, knows that, or is reckless as to whether, the accident resulted in the death of another person or in bodily harm to another person whose death ensues.

[2] Mr. Refaeh was indicted on two counts: (1) dangerous driving causing bodily harm, contrary to s.320.13(2) of the Criminal Code and (2) failure to stop after an accident that resulted in bodily harm, contrary to s.320.16(2) of the Criminal Code. A jury convicted him of both offences. The issue concerning the burden of proof arose during the preparation of my final instructions to the jury.

[3] The Crown’s theory of the case was that Mr. Refaeh participated in a street race with the driver of another vehicle, which culminated in the other vehicle being involved in a high-speed head-on collision with a third vehicle. A passenger in the third vehicle was seriously injured.

[4] Mr. Refaeh testified at his trial. He denied racing. He asserted that he was speeding because he was trying to escape the maniacal driver of the other car, who was tailgating him at a dangerously close distance, and was trying to run him off the road. There was evidence at trial that prior to the head-on collision, the driver of the other vehicle pulled up beside Mr. Refaeh’s car in the lane for oncoming traffic and side-swiped him. The Defence argued that the incident was a chase, not a race.

[5] Mr. Refaeh relied on the defence of necessity with respect to the dangerous driving charge. Necessity is a common law defence. An accused person who wishes to rely on a common law defence must show that the defence has an air of reality based on the evidence, otherwise the trial judge is not required to put it to the jurors for their consideration. To determine whether a defence has an air of reality, the trial judge must decide whether there is evidence on the record upon which a properly instructed jury, acting reasonably, could acquit if it accepted the evidence as true. The burden on the accused is therefore merely evidential, not persuasive. If an air of reality is demonstrated, then the Crown bears the onus of disproving the asserted defence beyond a reasonable doubt: R. v. Osolin, [1993] 4 S.C.R. 595, at 682; R. v. Cinous, 2002 SCC 29, at paras. 49, 52, 54, 60, 81, and 87.

[6] In this case, the Crown conceded that there was an air of reality to the defence of necessity with respect to the first count on the indictment. With respect to the second count, Mr. Refaeh admitted that, although he stopped his car a short distance from where the collision occurred, he drove away minutes later without providing his name and address to anyone at the accident scene, and without offering assistance to anyone in need. However, he testified that the reason he did not approach the accident scene was because he feared for his safety. He said he believed that the driver of the other vehicle would kill him or cause him serious bodily harm.

[7] The Defence argued that, if the jury concluded Mr. Refaeh’s vehicle was involved in the accident, he had a reasonable excuse for failing to comply with his legal obligations based on his well-founded fear of the other driver. The Defence submitted that there was an air of reality to the asserted excuse and asked me to put the statutory defence to the jury for its consideration. The Crown conceded there was an air of reality but argued that the accused had the persuasive burden of proving the existence of the asserted reasonable excuse on a balance of probabilities.

[8] I ruled that the accused had only an evidential burden to establish an air of reality to the asserted excuse, and that the Crown bore the ultimate persuasive burden of disproving the existence of a reasonable excuse beyond a reasonable doubt. This decision sets out my reasons for that ruling.

ANALYTICAL APPROACH

[9] The defence of reasonable excuse for violating the requirements of s.320.16 is a creation of statute, so the placement of the burden of proof with respect to an asserted excuse must be determined based on interpretation of the relevant legislative provision. The modern approach to statutory interpretation is well known, namely that "the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament": Rizzo and Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27 at para. 21.

[10] If, after conducting such a contextual analysis of the legislative provision, I determine that there is ambiguity with respect to the placement of the burden of proof, then other recognized principles of statutory interpretation may be employed to resolve the ambiguity. However, resort to other principles of interpretation must be restricted to circumstances where the section is reasonably capable of more than one meaning: Bell ExpressVu Ltd. v. Rex, 2002 SCC 42, at paras. 28-30.

CONTEXT

Legislative History of s. 320.16 of the Criminal Code

[11] The evolution of s. 320.16 is an important element of the relevant legislative context: R. v. A.D.H., 2013 SCC 28, at para. 30. A review of the history of this section will shed light on Parliament’s intention and will also help to situate the provision within the broader scheme of the Criminal Code.

[12] Section 320.16 is of relatively recent origin. It came into force on December 18, 2018 by the enactment of Bill C-46, An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts, S.C. 2018, c.21. Bill C-46 overhauled the driving offence provisions in the Criminal Code. The bill was drafted in anticipation of the federal government’s plan to legalize access to recreational cannabis.

[13] Bill C-46 repealed all the pre-existing driving offences in the Criminal Code and enacted a new Part VIII.1 to the Code, entitled “Offences Relating to Conveyances.” Some driving offences were eliminated (e.g., street racing), others were amended, and penalties for offences were increased. All provisions relating to driving offences were modernized, simplified, and harmonized with the stated goal of facilitating the detection, investigation, and prosecution of drug- and alcohol-impaired driving, while respecting the Charter rights of Canadians. Secondary goals of the legislation included deterring impaired driving and reducing delays in the prosecution of driving offences: Library of Parliament, Legislative Summary of Bill C-46, publication no. 42-1-C46-E, July 24, 2018; Department of Justice Canada, Legislative Background: Reforms to the Transportation Provisions of the Criminal Code (Bill C-46), at https://www.justice.gc.ca/eng/cj-jp/sidl-rlcfa/c46/p4.html#sec44.

[14] The offence at issue in this case was one of the driving offences modified by Bill C-46. The predecessor to s.320.16 of the Criminal Code read as follows:

252(1) Every person commits an offence who has the care, charge or control of a vehicle, vessel or aircraft that is involved in an accident with

(a) another person,

(b) a vehicle, vessel or aircraft, or

(c) in the case of a vehicle, cattle in the charge of another person,

and with intent to escape civil or criminal liability fails to stop the vehicle, vessel, or, if possible, the aircraft, give his or her name and address and, where any person has been injured or appears to require assistance, offer assistance.

[15] The repeal of s.252 and enactment of s.320.16 resulted in two major changes to this offence. First, Parliament removed one of the essential elements of the offence that the Crown was previously required to prove beyond a reasonable doubt, namely that the accused acted with intent to escape civil or criminal liability. The other significant change was the introduction of the words “without reasonable excuse.”

[16] Parliament did not explicitly stipulate, either in s.320.16 or in any other provision of Bill C-46, where the onus of proof lies with respect to this new statutory defence. The placement of the onus therefore cannot be discerned from only the grammatical and ordinary meaning of the words used by the legislature. However, as set out below, the overall scheme of the Criminal Code and the legislative context in which s.320.16 was enacted assist in ascertaining Parliament’s intent with respect to the burden of proof.

Uniformity of Driving Offences in Part VIII.1 of the Criminal Code

[17] With the passage of Bill C-46, Parliament enacted the same phrase, “without reasonable excuse” in three driving offence provisions in the Criminal Code. First, s.320.15 sets out the offence of failure or refusal, without reasonable excuse, to comply with a peace officer’s demand to perform a physical coordination test, provide a sample of breath, or provide samples of a bodily substance for drug analysis. I will refer to this offence by the shorthand expression, “failure to comply with a demand.” Next, s.320.16 – the provision at issue in this case – sets out the offence of failing, without reasonable excuse, to stop and provide information and assistance after being involved in an accident (i.e., “failure to stop after an accident”). Finally, s. 320.17 sets out the offence of failure to stop a motor vehicle, without reasonable excuse, as soon as is reasonable in the circumstances, when being pursued by a peace officer (i.e., “flight from police”).

[18] None of these offences is entirely new. All have been in the Criminal Code, albeit in different incarnations, for decades. However, until the enactment of Bill C-46, “reasonable excuse” was an available statutory defence for only two of these offences, namely failure to comply with a demand (former s.254(5)) and flight from police (former s.249.1). In cases involving the prosecution of those two driving offences, prior to the enactment of Bill C-46, the accused bore the burden of proving any asserted reasonable excuse on a balance of probabilities: R. v. Moser (1992), 7 O.R. (3d) 737 (C.A.), at para. 15; R. v. Simon, 2019 NLPC 64231, at para. 32; and R. v. Ruszkowski, [1973] 11 C.C.C. (2d) 235 (SK KB), at para. 15.

[19] Parliament is presumed to have known the state of the jurisprudence with respect to the burden of proof under the predecessor ss. 254(5) and 249.1. The Crown argues that there is nothing in Bill C-46 to indicate that Parliament intended to alter the established placement of the persuasive onus on the accused with respect to an asserted reasonable excuse for those offences, which are now proscribed by ss. 320.15 and 320.17. The Crown further argues that s.320.16 should be interpreted similarly to impose the onus of proof on the accused who asserts a reasonable excuse for failing to stop after an accident. The Crown submits that this interpretation should be adopted because Parliament chose to employ the identical phrase (“without reasonable excuse”) in all three sections of the Criminal Code.

[20] I agree with the Crown’s submission that the burden of proof should be the same whenever the statutory defence of reasonable excuse is invoked by an accused person charged with one of these driving offences. It is a well-established principle of statutory interpretation that, unless a contrary intention appears or the context clearly indicates otherwise, the same words and phrases should be assigned a consistent meaning wherever they appear in the same statute: R. v. Ali, 2019 ONCA 1006, at para. 68. This is particularly so when the words appear in close proximity within the statute: R. v. Bansal, 2017 BCCA 93, at para. 41; Ruth Sullivan, Sullivan on the Construction of Statutes, 7th ed. (Markham: LexisNexis Canada, 2014) at 217-219.

[21] With the enactment of Bill C-46, Parliament created three driving-related offences within the same Part of the Criminal Code, each of which contains the identical phrase “without reasonable excuse.” There is therefore a presumption that Parliament intended that defence to be interpreted and applied in a similar fashion for all three offences, including the placement of the burden of proof. There is nothing in Bill C-46 (or elsewhere in the Criminal Code) that suggests Parliament intended the onus of proof with respect to this statutory defence to lie with a different party depending on whether an accused was charged with an offence under s. 320.16 or with an offence under one of the two provisions that bookend s. 320.16.

[22] That Parliament presumptively intended the burden of proof to be consistent across all three offences does not, however, answer the question of whether Parliament intended the onus to rest with the Crown or the accused. While it is true that the accused bore the onus of proof with respect to an asserted reasonable excuse under the predecessor provisions of the Criminal Code for the other two offences, it does not automatically follow that the onus of proof must necessarily rest with the accused for all three offences under the current regime enacted by Bill C-46. The entire legislative context must be taken into consideration in determining Parliament’s intention with respect to the burden of proof when it introduced the statutory defence of reasonable excuse in ss. 320.15, 320.16, and 320.17. That context includes the significant fact that, five days before Bill C-46 came into force, Parliament enacted Bill C-51, which repealed a provision of the Criminal Code that imposed the burden of proving any statutory excuses on accused persons charged with summary conviction offences.

Bill C-51 and the Repeal of s. 794(2) of the Criminal Code

[23] Bill C-51 effected sweeping changes to the Criminal Code that can be grouped into three broad categories: (1) it amended and clarified several provisions pertaining to the law of sexual assault to ensure that the Code conforms to Supreme Court of Canada jurisprudence and that complainants in sexual assault cases are treated with compassion, dignity and respect; (2) it removed several Criminal Code offences that were obsolete, such as challenging someone to a duel and fraudulently pretending to practice witchcraft; and (3) it repealed numerous Criminal Code provisions that had been found to be unconstitutional by the courts or that are similar to those found unconstitutional by the courts: An Act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another Act, S.C. 2018, c. 29.

[24] The latter category of amendments repealed or modified sections of the Criminal Code that contained evidentiary presumptions (allowing the Crown to establish an element of an offence by proving some other fact that is not an element of the offence) and reverse onus provisions (requiring an accused to prove or disprove something). The following are just a few examples of the reverse onuses repealed by Bill C-51:

a) Section 5 of the bill removed the words “the proof of which lies on the person” from s. 82(1) of the Criminal Code, which proscribes possession without lawful excuse of an explosive substance.

b) Section 9 of the bill removed the words “the proof of which lies on him” from ss. 145(1) to (5.1) of the Criminal Code. These subsections proscribe the offences of failure, without lawful excuse, to attend court in accordance with a release order, to comply with a condition in a release order, to comply with an undertaking, and to appear in court pursuant to a summons.

c) Section 35 of the bill removed the words “the proof of which lies on that person” from s. 349(1) of the Criminal Code, which proscribes entry without lawful excuse into a dwelling with the intend to commit an indictable offence.

[25] Bill C-41 also repealed the following subsection of the Criminal Code in its entirety:

794(2) The burden of proving that an exception, exemption, proviso, excuse or qualification prescribed by law operates in favour of the defendant is on the defendant, and the prosecutor is not required, except by way of rebuttal, to prove that the exception, exemption, proviso or qualification does not operate in favour of the defendant, whether or not it is set out in the information.

[26] Prior to its repeal, s. 794(2) appeared in Part XXVII of the Criminal Code and therefore only applied to summary conviction offences, or hybrid offences that were prosecuted summarily by the Crown. Both the driving offences of “fail to comply with a demand” (s. 254(5)) and “flight from police” (s. 249.1) were hybrid offences that were often prosecuted summarily. In the context of those prosecutions, s. 794(2) made it clear that the accused bore the onus of proving on a balance of probabilities any asserted reasonable excuse.

[27] The enactment of Bill C-51 occurred just days before Bill C-46 came into effect and overhauled the driving offence provisions in the Code. The Defence argues that the repeal of s.794(2) in Bill C-51 clearly signaled Parliament’s intention to impose on the Crown the burden of disproving any reasonable excuse asserted by an accused charged with one of the driving offences enacted by Bill C-46 (provided that the proffered excuse has an air of reality). The Crown disputes that this was Parliament’s intention. The Crown submits that the repeal of s. 794(2) had no impact on the established common law principle that an accused person bears the burden of proving any exception, exemption, or excuse prescribed by law.

[28] In support of its position, the Crown cites the decision of the British Columbia Court of Appeal in R. v. Goleski, 2014 BCCA 80, aff’d 2015 SCC 6, at paras. 32-37, and 60-70. That case includes a comprehensive review of the legislative evolution of s.794(2) in the context of the trial of a person accused of refusing to comply with a breathalyzer demand under the former s.254(5) of the Code. The accused in that case was prosecuted summarily, so s.794(2) applied with respect to his asserted reasonable excuse. The British Columbia Court of Appeal noted that the section has a long history that dates to the mid-19th century. The earliest version of s.794(2) of the Code was enacted in England in 1848, when the courts of summary jurisdiction first came into being. It was part of a statute that set out rules for hearings to be conducted by the new courts. The same provision was enacted by the Parliament of Canada in 1869 in a similar statute dealing with summary conviction proceedings.

[29] These early statutory provisions codified the common law principle that although the Crown must prove the elements of an offence beyond a reasonable doubt, the accused must establish, on a balance of probabilities, that a statutory exemption or exception applies: Goleski, 2015 SCC 6, at para. 60, citing R. v. Edwards, [1975] 1 Q.B. 27, at 36 (C.A.). Parliament likely deemed it necessary to state this rule expressly in legislation because the justices of the peace who were being appointed to hear summary conviction trials were not lawyers and therefore may not have been familiar with the applicable common law principle.

[30] The provision was eventually incorporated into the Criminal Code in 1893, in the Part of the Code dealing with summary convictions. It underwent several minor amendments over the years, but there was no question that, up until 1955, an accused person bore the onus of establishing that they were entitled to the benefit of any exception, exemption, or excuse created by statute: Goleski, 2015 SCC 6, at paras. 60, 74.

[31] In 1955, the section was amended to add the words “except by way of rebuttal”, which later gave rise to some uncertainty in the jurisprudence about whether Parliament had changed the meaning of s.794(2) to impose only an evidential burden on the accused, and impose the ultimate persuasive burden on the Crown: R. v. Lewko, 2002 SKCA 121; R. v. Sheehan [2003], N.J. No. 57 (NL PC); and R. v. Plante, 2013 ABQB 222. That uncertainty was resolved by the Supreme Court of Canada decision in R. v. Goleski, 2015 SCC 6, which held that the section continued to impose the burden of proof on an accused who professed to have a reasonable excuse for failing to comply with a roadside demand for a breath sample.

[32] The Supreme Court of Canada dismissed the appeal in Goleski, 2015 SCC 6 in a one-line judgment: “In our view, the British Columbia Court of Appeal correctly concluded that s. 794(2) of the Criminal Code, properly interpreted, imposes a persuasive burden on the accused to prove an ‘exception, exemption, proviso, excuse, or qualification prescribed by law.” In arriving at its interpretation of s.794(2), the British Columbia Court of Appeal applied the principle that statutes should not be construed so as to alter the common law unless such an interpretation is clearly required (para. 77). The Court of Appeal found that it would require much clearer language in s.794(2) to ascribe to Parliament an intention to impose on the prosecution the burden of proving that an accused did not have a reasonable excuse (para. 79). The Court of Appeal held, “when examined through a historical lens it is evident that Parliament did not intend to effect a sea change to a provision grounded in the common law and which had been in force for close to 85 years” (para. 75).

[33] The Crown argues that the same approach should be adopted in this case when evaluating the effect of the repeal of s.794(2) on the interpretation of s.320.16 of the Criminal Code. Specifically, the Crown urges the Court to rely on the presumption that a legislature does not intend to change existing common law rules in the absence of a clear and explicit provision to that effect: Lizotte v. Aviva Insurance Co. of Canada, 2016 SCC 52, at para. 56. Moreover, because the historical purpose of s.794(2) was to codify the common law principle that an accused bears the onus of proving the existence of any exception, exemption or excuse prescribed by statute, the Crown argues that the repeal of s.794(2) simply had the effect of reviving that common law principle.

[34] As set out below, there is some support in the jurisprudence for the Crown’s position, but the case law is not settled on this point.

Relevant Jurisprudence

[35] The Alberta Provincial Court has ruled, in a series of recent cases involving offences under s.320.15 of the Code, that the repeal of s.794(2) revives the common law, and that the onus is therefore on the accused to establish a reasonable excuse for failing to comply with a police officer’s demand for a breath sample: R. v. Allen, 2020 ABPC 34, at para. 11; R. v. McKinnon, 2020 ABPC 86, at paras. 29-32; and R. v. Daytec, 2021 ABPC 48, at paras. 57-58. However, in R. v. Slowinski, 2021 ABPC 160, at paras. 50, 54, and 80, Schlayer J.P. of the same Provincial Court expressed doubt about the correctness of those decisions in obiter comments (in the context of a case involving provincial offences under an animal control bylaw).

[36] In R. v. Thijs, 2022 ABKB 608, at para. 222, the Alberta Court of King’s Bench imposed the onus of proving a reasonable excuse on an accused charged with failing to remain at the scene of an accident under s.320.16 of the Code. However, no reasons were provided for this placement of the burden of proof, no authority was cited, and no mention was made of the repeal of s. 794(2) of the Code. The Yukon Territorial Court did the same thing in R. v. Holbein, 2023 YKTC 12, at para.49. It is unclear whether any consideration was given to the repeal of s.794(2) in these two cases, or whether submissions were even made on the issue of burden of proof.

[37] The New Brunswick Court of Queen’s Bench made a conclusory remark in R. v. Bradley, 2022 NBQB 31, at para.175, to the effect that an accused who fails to comply with a demand for a breath sample has the persuasive burden of establishing a reasonable excuse, despite the repeal of s.794(2). However, no authority was cited, and no reasons were provided for this conclusion.

[38] There is conflicting jurisprudence on this issue in the Ontario Court of Justice. There are two s.320.16 cases in which the Court imposed on the accused the onus of proving a reasonable excuse for failing to stop after an accident: R. v. Uhuangho, 2020 O.J. No. 5189, at para. 67; R. v. Webb, 2020 ONCJ 294, at para. 9. However, no reasons were provided for this finding, no authorities were cited, and no mention was made of the repeal of s.794(2). It is unclear whether the burden of proof was raised as an issue.

[39] The issue of burden of proof was argued in two other Ontario Court of Justice cases involving prosecutions under s.320.15. The trial judges reached different conclusions. In R. v. Charles (2021), 87 M.V.R. (7th) 171, at para. 27, Stone J. held that the accused had the onus of proving a reasonable excuse for failing to comply with a roadside demand for a breath sample. He considered the repeal of s.794(2), held that the common law remained in effect, and ruled that the common law imposes the onus on the accused, as set out in the historical review of the legislation in Goleski, 2015 SCC 6. Parry J. came to a different conclusion in R. v. Martin, 2023 ONCJ 219, at paras. 62-72. Noting that the common law must evolve in a manner that is consistent with Charter values, he found that absent a statutory imperative (which was removed when s.794(2) was repealed), the court cannot impose a persuasive burden on an accused to establish the existence of a reasonable excuse because that would violate the presumption of innocence. The Defence relies on the decision in Martin, 2023 ONCJ 219 to support its position that the Crown bears the onus of disproving the existence of a reasonable excuse under s.320.16 of the Code.

[40] I note that all the above cases were decided in the context of summary conviction proceedings. In this case, Mr. Refaeh was charged and prosecuted by way of an indictment. I am mindful that s.794(2) of the Code applied exclusively to summary conviction offences and therefore would not have applied in this case, even if it had not been repealed by Bill C-51. The effect of the repeal of s.794(2) is nevertheless relevant to the issue of onus of proof in this case because the offences proscribed by ss. 320.15(1)(2), 320.16(1)(2) and 320.17 are all hybrid offences: Criminal Code, ss. 320.19(1)(5), 320.2. Parliament cannot have intended that, for each of these driving offences, the burden of proof for the statutory defence of reasonable excuse depends on whether the Crown elects to proceed by way of summary conviction or by way of indictment. That would give the Crown the ability to decide who bears the onus in any given case, which would be absurd.

[41] The jurisprudence developed in summary conviction cases is therefore relevant to my analysis. However, I am not bound by any of the above-mentioned decisions of inferior courts and superior courts of other provinces. Neither party provided me with any binding authority on the issue. To the best of my knowledge, the issue has not been considered by any appellate court.

[42] For the reasons that follow, I do not find the Crown’s submissions, nor the cases relied on by the Crown to be persuasive.

ANALYSIS

[43] Where there is conflicting jurisprudence on the proper interpretation of a statutory provision, the Supreme Court of Canada has cautioned that “it would be improper for one to engage in a preliminary tallying of the number of decisions supporting competing interpretations and then apply that which receives the ‘higher score’”: Bell ExpressVu Ltd. v. Rex, 2002 SCC 42, at para. 30. Rather, the Court must undertake a contextual analysis of the provision to determine the correct interpretation, consistent with the modern approach to statutory interpretation (see paragraph 9 of this decision).

[44] In this case, Parliament’s intention in repealing s.794(2) just days prior to the enactment of s.320.16, is part of the context that must be considered. When Bill C-51 was tabled in the House of Commons, the Department of Justice published a Backgrounder, a Charter Statement, and a Questions and Answers document outlining the scope and purpose of the proposed legislation: https://www.justice.gc.ca/eng/csj-sjc/pl/cuol-mgnl/c51.html. These legislative documents shed light on Parliament’s objective when it removed multiple reverse onus provisions from the Criminal Code, including s.794(2). The documents note that, in some cases, reverse onus provisions had been found to be unconstitutional by the courts because they infringed an accused’s Charter right to be presumed innocent until proven guilty beyond a reasonable doubt. The Department of Justice Backgrounder explained that the repeal of those unconstitutional provisions was intended to “promote clarity in the law and help to avoid confusion and errors by ensuring that the laws on paper reflect the laws in force.”

[45] The Crown argues that Parliament’s expressed intention to re-align the Code with the jurisprudence does not apply to the repeal of the reverse onus in s.794(2) because that section has never been found to be unconstitutional. This argument overlooks the fact that the purpose of Bill C-51 was not simply to avoid confusion by removing unconstitutional provisions from the Code. This is clear from the preamble to Bill C-51, which states: “This enactment amends the Criminal Code to amend, remove or repeal passages and provisions that have been ruled unconstitutional or that raise risks with regard to the Canadian Charter of Rights and Freedoms” (emphasis added). In the Backgrounder published the same day that Bill C-51 was tabled in the House of Commons, the Minister of Justice explained that repealing provisions “similar to those found unconstitutional by the courts” would help to avoid expensive, time-consuming litigation and prevent court delays.

[46] Parliament intended to repeal not only reverse onus provisions that had been declared unconstitutional, but also reverse onus provisions that could be the subject of Charter challenges and would therefore contribute to protracted litigation and court delays if they remained in force. The Defence argues that s. 794(2) is such a provision. For the reasons that follow, I agree with the Defence on this issue.

[47] The Crown submits that Parliament is presumed to know the law, and that the constitutionality of s.794(2) had been upheld by courts in both the criminal law context and the regulatory context, where s.794(2) is frequently incorporated into federal and provincial legislation. The Crown cites the decision of the Nova Scotia Court of Appeal in R. v. Peck (1994), 21 C.R.R. (2d) 175 (NS CA). The accused in that case was convicted of failure to comply with a breathalyzer demand under the former s. 254(5) of the Criminal Code. At trial, the onus was placed on him to establish on a balance of probabilities that he had a reasonable excuse for his non-compliance, based on what was then s.730(2) of the Code, the precursor to s.794(2). On appeal, he challenged the constitutional validity of the reverse onus in the context of s.254(5). The Nova Scotia Court of Appeal upheld the reverse onus as a reasonable and justifiable limit on the accused’s constitutional right to be presumed innocent. A similar conclusion was reached by the British Columbia County Court in R. v. Gray (1986), C.C.C. (3d) 234.

[48] The Crown also relies on the Ontario Court of Appeal decision in R. v. Lee’s Poultry Ltd. (1985), 17 C.C.C (3d) 539 (Ont. C.A.), which upheld the constitutionality of s.48(3) of the Provincial Offences Act, R.S.O. 1980, c. 400, a provision identical to s.794(2) of the Code. Lee’s Poultry Ltd. (1985) involved the prosecution of an offence under the Meat Inspection Act Ontario, R.S.O. 1980, c. 260. I find the decision to be of no assistance to me because of the significant differences between criminal offences and provincial regulatory offences. In that regard, I adopt the reasons of Schlayer, J.P. in Slowinski, 2021 ABPC 160, at paras. 71-80.

[49] I agree with the Crown’s submission that Parliament must be presumed to have known the state of the jurisprudence when it decided to repeal s.794(2). However, when Parliament enacted Bill C-51 on December 13, 2018, Peck and Gray were not the only relevant court decisions, and the jurisprudence was not settled on the issue of the constitutionality of s.794(2).

[50] As Schlayer J.P. noted in Slowinski, 2021 ABPC 160, the Peck case was decided in 1994 and is therefore a relatively older authority in the context of the evolution of Charter jurisprudence in Canada. Similarly, the Gray case was decided in 1986 and is decidedly older by Canadian constitutional law standards, the Charter having just been enacted in 1982. Like Schlayer J.P. (Slowinski, 2021 ABPC 160, para. 49), I have not been able to find any more recent cases that followed Peck on the issue of the constitutionality of s.794(2), taking into account the development of Charter jurisprudence with respect to reverse onuses over the past 30 years. Moreover, the more recent 2013 decision of the Alberta Court of Queen’s Bench in Plante, 2013 ABQB 222 expressly questioned (at para. 74) the constitutionality of imposing a reverse onus on the accused to prove a reasonable excuse for failing to comply with a breathalyzer demand pursuant to the former s.254(5).

[51] Plante, 2013 ABQB 222 pre-dates the Supreme Court of Canada decision in Goleski, 2015 SCC 6, which settled the issue of the correct interpretation of s.794(2). Before Goleski, 2015 SCC 6, there was conflicting case law on whether s.794(2) imposed a reverse onus on the accused to establish a reasonable excuse under s.254(5) of the Code. The leading authority for the interpretation that placed only an evidential burden on the accused was the Saskatchewan Court of Appeal decision in Lewko, 2002 SKCA 121. When the Alberta Court of Queen’s Bench adopted that interpretation in its decision in Plante, 2013 ABQB 222, it did so in part because it found that to do otherwise would require ascribing an unconstitutional meaning to s.794(2) that offended the presumption of innocence and could not be saved under s.1 of the Charter.

[52] The constitutionality of s.794(2) was not raised in Goleski, 2015 SCC 6. However, the British Columbia Court of Appeal in that case was careful to note (at para. 30) that it did not hear submissions based on the Charter and was not considering the constitutionality of the section. It thereby subtly signaled to Parliament the risk that the reverse onus in s.794(2) could be subject to a Charter challenge.

[53] Finally, I further note that, at the time Bill C-51 was drafted, there was support in the academic legal literature for the argument that s.794(2) infringed the presumption of innocence and could not be saved under s.1 of the Charter: Peter Sankoff, Sarah Denholm and Brandyn Rodgerson, “An Unfair and Costly Burden: Assessing the Impact of Section 794(2) of the Criminal Code on the Criminal Justice System” (2017), 42 Queen’s L.J. (No. 2) 1, 2017Docs 39541. This legal article was discussed by Schlayer J.P. in Slowinski, 2021 ABPC 160, at para. 48.

[54] Parliament is presumed to have known all the above jurisprudence when it enacted Bill C-51. I therefore infer that s.794(2) was one of the reverse onus provisions that Parliament believed was likely to attract a Charter challenge. Regardless of whether Parliament believed the provision could withstand Charter scrutiny, the evidence (including the aforementioned Department of Justice Backgrounder) demonstrates that Parliament chose to repeal it to avoid expensive and protracted litigation on the issue.

[55] I conclude that, with the enactment of Bill C-51, Parliament intended to remove the reverse onus that s.794(2) placed on an accused charged with a summary conviction offence that allows for a statutory defence of reasonable excuse. At the time of the repeal, those offences included failure to comply with a demand for a breath sample (s.254(5)), and flight from police (s.249.1). There is nothing in the legislative record to suggest that, when Parliament overhauled the driving offence provisions of the Criminal Code five days later with the enactment of Bill C-46, it intended to reintroduce the reverse onus with respect to “reasonable excuse” in ss. 320.15, 320.16 and 320.17. When the larger legislative context is taken into consideration, it becomes clear that the Crown’s interpretation of the placement of the burden of proof in s.320.16 cannot be correct because it is directly contrary to Parliament’s intent when it repealed s.794(2) days prior to enacting s.320.16.

[56] Moreover, the Crown’s interpretation of s.320.16 is not supported by the grammatical and ordinary sense of the words chosen by the legislature in drafting the provision. I agree with Defence counsel’s submission that the Crown is effectively asking the court to read the words “proof of which lies with the accused” into s.320.16 and by extension, ss. 320.15 and 320.17, when Parliament deliberately chose not to include that phrase in those provisions.

[57] The Crown argues the inverse, namely that Parliament did not explicitly impose the burden of disproving a reasonable excuse on the Crown when it drafted s.320.16. The Crown submits that s.320.16 should be interpreted in accordance with the principle that legislatures are presumed to preserve the common law absent a clear and unequivocally expressed intent to change the common law.

[58] Such principles of statutory interpretation should not be employed unless there is real ambiguity in the legislation: Bell ExpressVu Ltd. v. Rex, 2002 SCC 42, at paras. 28-30. I have concluded, after conducting a contextual analysis (required by the modern approach to statutory interpretation), that there is no ambiguity. Parliament clearly intended to remove the reverse onus.

[59] If I am wrong and there is ambiguity with respect to the placement of the onus of proving or disproving a “reasonable excuse” under s.320.16, then I must also consider other principles of statutory interpretation to resolve the ambiguity. There are four principles that apply in this case. As explained below, each of them supports an interpretation of s.320.16 that imposes the burden of proof on the Crown.

[60] The first is the principle cited by the Crown, namely that Parliament is presumed to preserve the common law absent a clearly expressed intent to change a common law rule. In the specific circumstances of this case, this principle does not support the Crown’s position, because the repeal of s.794(2) just days prior to the enactment of s.320.16 constitutes a clear expression of Parliament’s intent to abrogate the centuries-old common law principle that an accused bears the onus of establishing the existence of an exception, exemption or excuse prescribed by law. Indeed, it is difficult to imagine a clearer expression of such legislative intent. When Parliament enacted Bill C-46, it would have been redundant to legislate explicitly that the Crown bears the onus of disproving any reasonable excuse asserted by an accused charged with one of the driving offences. The entire scheme of the Criminal Code is premised on the fundamental principle that the Crown bears the burden of proving every element of every offence and every element of every defence (that has an air of reality) beyond a reasonable doubt, absent express statutory imposition of a reverse onus on the accused.

[61] The second relevant principle of statutory interpretation is the presumption that legislatures do not speak in vain: Attorney General of Quebec v. Carrières Ste-Thérèse Ltée, [1985] 1 S.C.R. 831, at para. 28. This principle is typically applied in the context of rejecting an interpretation of a statute that would render words or provisions in the statute redundant. There is a presumption that legislators do not enact meaningless statutory provisions. Conversely, it must be presumed that Parliament does not repeal statutory provisions without effect. The Crown in this case is asking me to find that the repeal of an entire section in the Criminal Code (s.794(2)) had no impact whatsoever on the prosecution of driving offences to which it applied.

[62] The third relevant principle of statutory interpretation is that, where there are two possible interpretations of a provision, the one that embodies Charter values must be preferred over the one that does not: Hills v. Canada (Attorney General), [1988] 1 S.C.R. 513, at para. 93; R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606, at pp. 60-61. In this case, the relevant Charter value is the presumption of innocence. A statutory provision that imposes on the accused the persuasive burden of proving or disproving any factor affecting verdict violates the presumption of innocence. Whether "any factor affecting verdict" is an essential element of the offence, a collateral factor, an excuse, or a defence, does not mitigate the deleterious effect that the imposition of a reverse onus has on the presumption of innocence: R. v. Whyte, [1988] 2 S.C.R. 3, at paras. 27 and 32; R. v. Keegstra, [1990] 3 S.C.R. 697, at p. 98; R. v. Fisher (1994), 17 O.R. (3d) 295 (C.A.), at p. 10, leave to appeal SCC refused, [1994] S.C.C.A. No. 176. Consequently, in this case, the Defence’s interpretation of s.320.16 must be preferred to the Crown’s interpretation, which would impose upon the accused the persuasive burden of proving a reasonable excuse in order to escape conviction.

[63] The fourth and final principle of statutory interpretation is that ambiguity in a penal provision should be resolved in the manner most favourable to the accused: United States of America v. Dynar, [1997] 2 S.C.R. 462, at para. 58. All the above principles of statutory interpretation support the position of the Defence in this case.

[64] Finally, I am not persuaded by the Crown’s argument that Parliament must have intended to impose the burden of proving a reasonable excuse on the accused because the reasons why a person fails to stop after an accident or fails to provide their information and offer assistance, are within the exclusive knowledge of that person. The Crown argues that, since any excuse is something that exists within the mind of the accused, its existence is not something that the Crown can easily disprove. The Crown submits that Parliament intended to simplify prosecutions when it overhauled the driving offences in the Criminal Code, so it makes more sense to impose the onus of proving a reasonable excuse on the accused because it would be extremely difficult for the Crown to disprove it beyond a reasonable doubt.

[65] I do not find this argument to be compelling for two reasons. First, the Crown is not required to disprove every conceivable reasonable excuse that could exist. Rather, the Crown is only required to disprove any reasonable excuse that has an air of reality based on the evidence adduced. This is not an overly heavy burden. Second, although mental states can be challenging to prove or disprove, the Crown is required to do so routinely in other contexts by arguing for reasonable inferences to be drawn from circumstantial evidence. For example, when an accused relies on the defence of self-defence in s.34 of the Criminal Code, the onus is on the Crown to disprove that the accused believed on reasonable grounds that force or the threat of force was being used against them, and to disprove that the criminal act committed by the accused was committed for the purpose of defending themselves from the use or threat of force. The onus on the Crown in this case is no more difficult.

[66] For all these reasons, I conclude that the correct interpretation of s.320.16 is that advanced by the Defence, namely that the Crown bears the burden of disproving any asserted reasonable excuse that has an air of reality to it.

Evolution of the Common Law

[67] Had I adopted the Crown’s position that the repeal of s.794(2) of the Criminal Code effectively revived the common law, I would nevertheless have arrived at the same conclusion that the Crown bears the onus of disproving any asserted reasonable excuse under s.320.16. The outcome would be same because the common law must evolve in a manner that is consistent with Charter values. The Court cannot enforce a centuries-old common law rule that would infringe upon the presumption of innocence by imposing a reverse onus on the accused.

[68] The Crown argues that reverse onus provisions have been upheld as constitutional in some criminal cases (i.e., Whyte, [1988] 2 S.C.R. 3; R. v. Chaulk, [1990] 3 S.C.R. 1303). I note, however, that the provisions in those cases were found to violate the right to be presumed innocent, guaranteed by s.11(d) of the Charter. Their constitutionality was upheld because they were found to constitute a reasonable and demonstrably justifiable limit on this right. As Parry J. noted in Martin, 2023 ONCJ 219 (at para. 70):

I make reference to section 1 of the Charter to draw attention to the distinction between the options available to parliament and the options available to the court in determining what burden of proof may apply in respect of any common law defence. Parliament possesses the inherent prerogative to enact laws that infringe or place limits on constitutional rights, like the presumption of innocence. In doing so, Parliament can seek to rely upon section 1 of the Charter to save an otherwise unconstitutional enactment. On the other hand, the courts, in developing the common law, do not possess such a prerogative. The common law must evolve in a manner that is consistent with Charter values. Where a common law rule is inconsistent with the Charter, the courts must modify it, if possible, to make it Charter compliant: see, for example, R. v. Swain, [1991] 1 S.C.R. 933; R. v. Salituro, [1991] 3 S.C.R. 654.

[69] This Court has an obligation to ensure that the common law evolves in compliance with Charter rights. The contemporary common law rule with respect to the onus of proving a statutory excuse is therefore not determined simply by examining the state of the common law in 1893, when it was codified by Parliament in a section of the Criminal Code that later became s.794(2).

[70] Notably, in R. v. H.A. (2005), 206 C.C.C. (3d) 233 (Ont. C.A.), in the context of a prosecution for extortion under s.346(1) of the Code, the Court of Appeal for Ontario held (at para. 74) that the Crown bears the ultimate persuasive burden of demonstrating the absence of any reasonable excuse beyond a reasonable doubt. Extortion is an indictable offence, so s.794(2) did not apply in H.A. (2005). Extortion is defined in the Criminal Code as using threats to induce, “without reasonable justification or excuse” another person to do something, with the intent of obtaining something. In that respect, the drafting of s.346(1) is similar to s.320.16, the provision at issue in the case before me. Parliament did not specify, in either section, the placement of the burden of proof with respect to any asserted reasonable excuse. The Court of Appeal for Ontario held that the onus rests with the Crown. On this point, I find no basis upon which to distinguish this case from the decision of the Court of Appeal in H.A. (2005).

[71] I conclude that, in the absence of a statutory imperative, the Court cannot impose a reverse onus on the accused because to do so would render the common law inconsistent with the presumption of innocence, a fundamental Charter value.

Released: February 5, 2024 Petersen J.