COURT OF APPEAL FOR ONTARIO
DATE: 20000211
DOCKET: C31878
COURT OF APPEAL FOR ONTARIO
FINLAYSON, WEILER and SHARPE JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN ) C. Jane Arnup, for the
) respondent
(Respondent) )
)
–and– )
)
P. H. (a young person) ) James H. Silver, for the
) appellant
(Appellant) )
) Peter De Freitas, for the
) intervener, Attorney General of
) Canada
)
) Heard: January 14, 2000
On appeal from the judgment of Sheppard J. dated July 10, 1998.
FINLAYSON J.A.:
[1] The appellant was a young person at the time of the laying
of two charges of being the occupant of a motor vehicle known to
be taken without the consent of its owner contrary to s.335 of
the Criminal Code.
[2] The appellant brought an application before the trial judge,
Rogers J. of the Ontario Court (Provincial Division) Youth Court,
seeking to have this section declared unconstitutional and of no
force and effect. He was successful on this application and the
charges against him were stayed.
[3] The Crown successfully appealed from the decision of the
trial judge and Sheppard J. of the Ontario Court (General
Division) Summary Conviction Appeal Court found s.335 to be
constitutional, but he also found that this section’s interaction
with s.794(2) imposed a reverse onus and that s.794(2) should be
read so as not to apply to s.335. The stay was lifted and the
matter remitted back to the Youth Court for trial.
[4] The appellant now seeks leave to appeal and, if leave is
granted, appeals from the decision of the Summary Conviction
Appeal Court finding that s.335 is valid and constitutional
legislation.
[5] The hearing before the trial judge proceeded on the basis of
an agreed statement of facts which did not present an adequate
factual record upon which to ground a constitutional challenge to
s.335. It was silent on an essential averment of the charge,
namely the knowledge of the appellant as to whether the motor
vehicle was stolen. Further, it set out no facts that could give
rise to a defence to the appellant under s.335(1.1), a subsection
that was almost the entire basis of the appellant’s attack on the
constitutionality of s.335.
Issue
[6] The issue on this appeal is whether the Summary Conviction
Appeal Court judge erred in allowing the “occupant joyriding”
section of the Code to stand as constitutionally valid
legislation subject to the ruling that s.794(2) was inoperative
with respect to s.335(1.1).
[7] The applicable portions of s.335 of the Code are:
(1) Subject to subsection (1.1), every one
who … is an occupant of a motor vehicle or
vessel knowing that it was taken without
the consent of the owner, is guilty of an
offence punishable on summary conviction.
(1.1) Subsection (1) does not apply to
an occupant of a motor vehicle or vessel who,
on becoming aware that it was taken without
the consent of the owner, attempted to leave
the motor vehicle or vessel, to the extent
that it was feasible to do so, or actually
left the motor vehicle or vessel.
[8] Section 794 of the Code states:
(1) No exception, exemption, proviso, excuse
or qualification prescribed by law is required
to be set out or negatived, as the case may be,
in an information.
(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, excuse or qualification
does not operate in favour of the defendant,
whether or not it is set out in the information.
Analysis
[9] There is nothing constitutionally wrong with s.335. The
problem that arose in this case was that Crown counsel at trial
(who did not appear as counsel on appeal), for reasons that have
not been adequately explained in this court, made what he
regarded as a concession that s.794(2) of the Code, when applied
to s.335(1.1), created a reverse onus provision which violated
the presumption of innocence and was therefore contrary to
s.11(d) of the Canadian Charter of Rights and Freedoms
(“Charter”). He then attempted to justify the legislation under
s.1.
[10] This concession is not binding on this court: see M. v. H.
(1999), 1999 686 (SCC), 171 D.L.R. (4th) 577 (S.C.C.) at p. 611. There is no
judicial authority that supports this concession and it should
not have been made. The Crown has an obligation, in the public
interest, to defend legislation against constitutional attack
unless it is clear that the impugned statute is unsustainable as
a matter of law. In this case, the summary conviction appeal
court judge expressed his concern about the validity of the
concession but obviously felt that he was bound by it. Why both
Crown counsels on appeal accepted the concession and attempted to
defend its consequences under s.1 is less clear. If we were to
accept the interaction of s.794(2) with s.335(1.1) and justify
the result under s.1, we would be casting the burden on an
accused who was an occupant of a stolen vehicle, before this
defence would be available to him, to establish affirmatively
that after becoming aware that the vehicle was stolen he left it
or attempted to leave it to the extent that it was feasible to do
so. The result would be a re-writing of the legislation to the
advantage of the Crown in a criminal trial.
[11] On my reading of the reasons of both the trial judge and
the summary appeal court judge, this concession became central to
their thinking. Without it, there would have been no force to
the constitutional argument of the appellant. This is certainly
true of Sheppard J., who stated as follows in his reasons for
allowing the appeal:
Before embarking on a s.1 analysis, regarding
the reverse onus provision, s.335 must be examined
to determine whether that section, standing alone,
is constitutionally flawed. The respondent has
argued that s.335 itself is flawed in that it
criminalizes mere presence at the scene of the
crime and has the potential to criminalize “both
blameworthy and moral behaviour alike”. In support
of this argument, the respondent relies upon Dunlop
and Sylvester v. R. (1979), 1979 20 (SCC), 47 C.C.C. (2d) 93 (S.C.C.)
and R. v. Coney (1882), 8 Q.B.D. 534. Both of these
cases are distinguishable in that they dealt with the
imposition of criminal liability through the aiding and
abetting provisions. In both cases the Court held that
mere presence was insufficient to establish liability
as a party to an offence. Such reasoning does not
apply to s.335 because party liability does not arise.
Parliament has chosen to create the new offence of being
an occupant of a vehicle taken without the owners consent,
in circumstances where the occupant knows the vehicle
was taken without the owner’s consent.
Furthermore, it cannot be said that there is no
fault element in the “occupant offence” set out in
s.335. Before a conviction can occur, the Crown must
prove beyond a reasonable doubt that the occupant knew
the vehicle was taken without the owner’s consent. I
accept the Crown’s argument that Parliament is entitled to
create offences where the basis for culpability is present,
in circumstances that are per se criminal, if such
circumstances are known to the defendant [citation omitted].
The imposition of knowledge of the vehicle’s status, on the
accused, will avoid imposing criminal liability on “morally
blameless” occupants. [Emphasis in the original.]
[12] I agree with this analysis. However, Sheppard J. then
engaged in an exercise wherein he applied a section of the Code
which establishes a rule of criminal pleading in summary
conviction proceedings to a subsection of the section that he had
found “in and of itself does not offend the Charter”. Then,
unable to justify the unconstitutional result under s.1 of the
Charter, he declared “s.794(2) inoperative with respect to
s.335”. In my opinion, this was an impermissible exercise. The
court should not strain the language of legislation to produce an
unconstitutional result. As McLachlin and Iacobucci JJ. wrote for
the court in R. v. Mills 1999 637 (SCC), [1999] S.C.J. No. 68 at para. 56:
A posture of respect towards Parliament was endorsed|
by this Court in Slaight Communications, [infra, at p. 444,]
where we held that if legislation is amenable to two
interpretations, a court should choose that interpretation
that upholds the legislation as constitutional. Thus courts
must presume that Parliament intended to enact constitutional
legislation and strive, where possible, to give effect to
this intention.
[13] In Slaight Communications Inc. v. Davidson (1989), 59 D.L.R.
(4th) 416 (S.C.C.), Lamer J. stated at p.444:
As the Constitution is the supreme law of Canada and any
law that is inconsistent with its provisions is, to the
extent of the inconsistency, of no force or effect, it
is impossible to interpret legislation conferring
discretion as conferring a power to infringe the Charter,
unless, of course, that power is expressly conferred or
necessarily implied. Such an interpretation would require
us to declare the legislation to be of no force or effect,
unless it could be justified under s. 1. Although this
court must not add anything to legislation or delete
anything from it in order to make it consistent with the
Charter, there is no doubt in my mind that it should also
not interpret legislation that is open to more than one
interpretation so as to make it inconsistent with the Charter
and hence of no force or effect.
[14] Section 794(2) of the Code simply has no application to the
defence set out in s.335(1.1). It applies in narrow
circumstances, usually regulatory offences, where a status in law
has been conferred upon the accused who otherwise would be
culpable. The purpose and effect of the section was described by
this court in determining the constitutionality of a similar
provincial provision in R. v. Lee’s Poultry Ltd. (1985), 17
C.C.C. (3d) 539. Brooke J.A. for the court said at p.542:
It is a fundamental rule of criminal law that the
accused is presumed to be innocent until his or her
guilt is proved beyond a reasonable doubt, and as
such, the onus is on the Crown to prove each element
of the crime to the degree required. At common law
an exception developed to this fundamental rule for
a class of offences created by regulatory legislation.
Often such legislation created offences by banning
specified activities but excepted persons who had
authority of the regulatory body to do the acts banned.
That exception is expressed in the terms of s. 48(3)
of the Provincial Offences Act. It is also found, for
example, in s. 730 [now s.794] of Part XXIV of the
Criminal Code which applies to summary conviction
offences. Both provisions have their origin in Canada
in s. 852 of the Criminal Code, 1892 (Can.), c. 29,
and the common law.
[15] Section 794(2) speaks of exceptions, exemptions, provisos,
excuses or qualifications. If it was intended to apply to
defences, the word is not so arcane that it could not have been
included in the list. As I read s.335(1.1), it is no more than
an enlargement of the common law defence of compulsion, duress or
coercion. These three terms describe the same defence and are
referred to in s.17 of the Code: see A. Mewett and M. Manning,
Mewett and Manning on Criminal Law, 3rd ed. (1994), at 519. The
subsection may also embrace the common law defences of mistake
and necessity. No one has suggested that these defences impose a
reverse onus on the accused although they may in a given case
impose an evidentiary burden upon the accused. This evidential
burden to bring the defence of compulsion before a jury was
described in R. v. Gill, [1963] 2 All E.R. 688 (C.C.A.) at 691:
The accused, either by the cross-examination of the
prosecution witnesses or by evidence called on his
behalf, or by a combination of the two, must place
before the court such material as makes duress a
live issue fit and proper to be left to the jury.
[16] Accordingly, if there is an air of reality to a defence set
out under s.335(1.1), the trial judge would be obliged to
instruct himself, as he would a jury in the normal course, as
follows: if the evidence is accepted he must return a verdict of
not guilty; if it is not accepted but raises a reasonable doubt,
he must also return a verdict of not guilty; and even if he is
not left in a reasonable doubt by the evidence in support of the
defence, he must still go on to consider whether or not, on the
basis of all the evidence, the accused is guilty beyond a
reasonable doubt.
[17] The appellant further submits that s.335 violates ss.7 and
11(d) of the Charter of Rights and Freedoms by imposing a
criminal liability for morally blameless conduct. This argument
was accepted by the trial judge but rejected by the summary
convictions appeal court judge. In my view, the argument is
without merit. By its terms, s.335 plainly requires the Crown to
establish beyond a reasonable doubt that the occupant of the
motor vehicle knows that the vehicle was taken without the
consent of the owner. The summary convictions appeal court judge
correctly found that this was not a morally blameless state of
mind and that there was nothing in the Charter that would
preclude Parliament from criminalizing such activity.
[18] This matter must be returned to the Youth Court for a trial
on its merits. This would not have been necessary if the trial
judge had heeded this court’s admonition in R. v. Martin (1991),
1991 7340 (ON CA), 2 O.R. (3d) 16 (Ont. C.A.), aff’d. (1992), 1992 93 (SCC), 71 C.C.C. (3d) 572
(S.C.C.), where Griffiths J.A. stated at pp.29-30:
Although I have dealt with this appeal on the
merits, there is one further matter on which I
wish to comment. At the opening of this appeal,
all members of the court expressed their concern
about the propriety of the lower court judge
dealing with a challenge to the constitutionality
of s. 13 of the Act, on a pre-motion hearing, before
any plea had been entered or any evidence adduced.
In my view, the court should not, at this early
stage, entertain or dispose of an application to
enforce a remedy under the Charter, except in
those cases where it is abundantly clear that a
constitutional right has been infringed or threatened.
In my opinion, this case does not fall into that
category and it would have been preferable for
the trial judge to decline to enter into the
constitutional issue at the stage of a pre-trial
motion and to leave such issue to be raised
by the appellant by way of defence at the conclusion
of the evidence at trial. It is, of course, quite
possible that the appellant might have succeeded on
some other line of defence at trial, rendering the
Charter challenge entirely moot.
Whenever possible, the trial process should not
be fragmented with appeals being launched at the
conclusion of each stage. In my opinion, when an
appeal is taken to this court, the trial record should
be complete so that all grounds of appeal and not only
those relating to Charter challenges may be completely
and finally dealt with in one hearing.
[19] I echoed these comments in R. v. Martin (J.) (1994), 72
O.A.C. 316 (C.A.) at 319-20.
[20] This is a matter involving a young offender. The offences in
question are alleged to have taken place on June 27 and July 1,
- The trial judge dealt with the preliminary motion on
January 15, 1998 and the summary appeals court judge heard the
appeal on June 24, 1998. The appeal was heard in this court on
January 14, 2000. It looks for all the world that some three
years will have elapsed between the alleged commission of this
uncomplicated offence and a trial on the merits. There is no
excuse for this. The consequence of proceeding without findings
of fact by the trial judge meant that the constitutional argument
proceeded on a totally hypothetical basis and that, coupled with
the gratuitous concession by the Crown counsel, resulted in an
unsatisfactory presentation by all parties.
[21] For the reasons given, I would grant leave to appeal but
dismiss the appeal and remit the matter to the Youth Court for
trial.
RELEASED: FEB 11 2000 Signed: “G.D. Finlayson J.A.”
GDF “I agree K.M. Weiler J.A.”
“I agree Robert J. Sharpe J.A.”