r. v. schwartz, [1988] 2 S.C.R. 443
Arnold Godfried Schwartz Appellant
v.
Her Majesty The Queen Respondent
and
The Attorney General of Canada Intervener
indexed as: r. v. schwartz
1987: October 14; 1988: December 8.
Present: Dickson C.J. and Beetz, Estey*, McIntyre, Lamer, La Forest and L'Heureux‑Dubé JJ.
on appeal from the court of appeal for manitoba
Constitutional law ‑‑ Charter of Rights ‑‑ Presumption of innocence ‑‑ Gun control ‑‑ Reverse onus with respect to proof of registration certificate for restricted weapon ‑‑ Whether reverse onus infringing presumption of innocence ‑‑ Canadian Charter of Rights and Freedoms, ss. 1, 11(d) ‑‑ Criminal Code, R.S.C. 1970, c. C‑34, ss. 89(1)(a), (b), 106.7(1), (2).
Criminal law ‑‑ Gun control ‑‑ Registration certificate for restricted weapon ‑‑ Owner of weapon required to prove possession of certificate ‑‑ Whether reverse onus infringing presumption of innocence guaranteed by Charter ‑‑ Canadian Charter of Rights and Freedoms, ss. 1, 11(d) ‑‑ Criminal Code, R.S.C. 1970, c. C‑34, ss. 89(1)(a), (b), 106.7(1), (2).
Courts ‑‑ Jurisdiction ‑‑ Appeal from summary conviction appeal court ‑‑ Jurisdiction of Court of Appeal.
Appellant was convicted in Provincial Court on two counts of unlawful possession of a restricted weapon. The original owner had purchased the weapons in the United States, had registered them in Canada when he moved to Winnipeg, and had given the registration papers, which were in his name, to appellant when appellant bought the weapons. Appellant's application for a firearms acquisition certificate was refused by the Winnipeg Police. The police later searched appellant's home and confiscated the restricted weapons. The convictions were quashed by the summary conviction appeal court but were restored by the Court of Appeal. The constitutional question before the Court dealt with whether s. 106.7(1) of the Criminal Code contravened s. 11(d) of the Canadian Charter of Rights and Freedoms. Also at issue was whether the Court of Appeal erred in deciding the appeal on a question of fact or, in the alternative, on a question of mixed fact and law.
Held (Dickson C.J. and Lamer J. dissenting): The appeal should be dismissed. The constitutional question should be answered in the negative.
Per McIntyre, La Forest and L'Heureux‑Dubé JJ.: A question of law involving the admissibility of evidence was raised here. To set aside an acquittal, the Crown must satisfy the Court that the result would not necessarily have been the same if the error made at trial had not occurred. The Crown met that test.
Parliament in enacting Part II.1 of the Criminal Code intended to prohibit the acquisition and use of weapons except as permitted by the strict controls it prescribed. Only a person possessing a restricted weapon for which he has no registration certificate can be convicted under s. 89(1). If a certificate of registration is not obtained, a criminal offence arises from the mere possession of the restricted firearm. Far from reversing any onus, s. 106.7 provides that a document purporting to be a valid registration certificate is evidence and proof of the statements contained therein and exempts an accused from prosecution.
Although the accused must establish that he falls within the exemption, there is no danger that he could be convicted under s. 89(1), despite the existence of a reasonable doubt as to guilt, because the production of the certificate resolves all doubts in favour of the accused and in the absence of the certificate no defence is possible once possession has been shown.
It was not necessary to consider s. 1 here. The impugned legislation, however, did meet the Oakes test. Firstly, its objective was sufficiently important to warrant overriding a constitutionally protected right. Secondly, the proportionality test was met. The provisions were rational, fair and not arbitrary; they impaired the protected right as little as possible; and, the measures adopted were carefully tailored to balance the community interest and the interest of those wanting to legally possess weapons.
Per Beetz J.: Given the dates of pre‑Charter trial and post‑Charter summary conviction appeal, it was assumed without deciding that the Charter applied; the reasons of McIntyre J. were concurred in.
Per Dickson C.J. (dissenting): Any burden on the accused that permits a conviction despite the presence of a reasonable doubt violates the presumption of innocence, regardless of the nature of the point the accused was required to prove. Otherwise, an accused, forced but unable to persuade the finder of fact of his or her innocence on a balance of probabilities, would be convicted of a criminal offence despite the existence of a reasonable doubt as to his or her guilt. The differences between defences which deny the existence of an essential element of an offence and defences that admit the existence of those elements do not affect the review of a provision under s. 11(d). When the facts give rise to the possibility of either type of defence, the Crown should be required to disprove them by proof of guilt beyond a reasonable doubt.
Lack of registration, whether or not it is an "essential element" of s. 89(1) of the Code, is essential to the verdict. Section 106.7(1) relieves the Crown of the onus of proof beyond a reasonable doubt and requires the person charged under s. 89(1) to "prove" possession of a registration certificate on a balance of probabilities. The accused, therefore, is required to raise a more than a reasonable doubt. An accused, unable to meet this persuasive burden, could be convicted of unlawful possession of a restricted weapon notwithstanding the potential existence of a reasonable doubt.
The presumption of innocence guaranteed by s. 11(d) of the Charter is not subject to statutory or common law exceptions and is infringed by any provision requiring that the accused bear a persuasive burden. In some instances, however, the accused may be required to point out some evidential basis to raise a defence which the Crown must then disprove beyond a reasonable doubt. Factors such as ease of proof and a rational connection go to the justification for an infringement and should be considered in the s. 1 analysis.
The Code contains a comprehensive `gun control' legislative scheme intended to discourage the use of firearms. The objective behind Part II.1 in general and s. 106.7(1) in particular relates to concerns which are pressing and substantial in a free and democratic society. The proportionality test in Oakes, however, was not met. There was no rational connection between the provision and the objective. The proved fact (possession of a restricted weapon) did not prove the presumed fact (lack of a registration certificate). The presumption of innocence was not impaired "as little as possible" by the challenged provision. To authenticate the certificate, the accused must testify (and so choose between his constitutionally guaranteed rights not to testify or to be presumed innocent) or call the local registrar of firearms as a defence witness. The Crown can disprove the existence of a registration certificate with information from the local registrar of firearms as to whether or not a certificate has been issued and, as a backup, from the central registry of all registration certificates.
Section 106.7(1) is not completely invalid notwithstanding the invalidity of its application here. While the nature of the registration figured highly in the s. 1 analysis here, the justification for s. 106.7(1) in connection with other documents or permits in Part II.1 could likely involve different issues and a different s. 1 analysis.
Per Lamer J. (dissenting): The disposition and the reasons of the Chief Justice, except for the objective assigned to s. 106.7 under the s. 1 scrutiny, were concurred in.
Section 106.7(1) is neither particular nor essential to weapons legislation. It is a purely evidentiary section intended to relieve the prosecution of the inconvenience of securing a certificate from the appropriate authority attesting to the absence of any record establishing registration. The objective, when the cost of this convenience is expressed in terms of a restriction on an accused's rights, was not sufficiently important to warrant overriding an accused's rights under s. 11(d).
Cases Cited
By McIntyre J.
Applied: R. v. Oakes, 1986 46 (SCC), [1986] 1 S.C.R. 103; distinguished: R. v. Appleby, 1971 4 (SCC), [1972] S.C.R. 303; R. v. Vaillancourt, 1987 2 (SCC), [1987] 2 S.C.R. 636; R. v. Whyte, 1988 47 (SCC), [1988] 2 S.C.R. 3; referred to: R. v. Conrad (1983), 1983 3545 (NS CA), 8 C.C.C. (3d) 482; R. v. Shelley, 1981 201 (SCC), [1981] 2 S.C.R. 196; R. v. Edwards Books and Art Ltd., 1986 12 (SCC), [1986] 2 S.C.R. 713; R. v. Morgentaler, 1988 90 (SCC), [1988] 1 S.C.R. 30; R. v. Lee's Poultry Ltd. (1985), 1985 166 (ON CA), 17 C.C.C. (3d) 539; Dubois v. The Queen, 1985 10 (SCC), [1985] 2 S.C.R. 350; R. v. Mannion, 1986 31 (SCC), [1986] 2 S.C.R. 272.
By Dickson C.J. (dissenting)
R. v. Oakes, 1986 46 (SCC), [1986] 1 S.C.R. 103, aff'g (1983), 1983 1850 (ON CA), 145 D.L.R. (3d) 123; R. v. Appleby, 1971 4 (SCC), [1972] S.C.R. 303; Sunbeam Corporation (Canada) Ltd. v. The Queen, 1968 33 (SCC), [1969] S.C.R. 221; Rose v. The Queen, 1959 67 (SCC), [1959] S.C.R. 441; R. v. Ponsford (1978), 1978 ALTASCAD 222, 41 C.C.C. (2d) 433; R. v. Colbeck (1978), 1978 2447 (ON CA), 42 C.C.C. (2d) 117; Vézeau v. The Queen, 1976 7 (SCC), [1977] 2 S.C.R. 277; R. v. Vaillancourt, 1987 2 (SCC), [1987] 2 S.C.R. 636; R. v. Holmes, 1988 84 (SCC), [1988] 1 S.C.R. 914; R. v. Whyte, 1988 47 (SCC), [1988] 2 S.C.R. 3; R. v. Edwards, [1974] 2 All E.R. 1085; R. v. Lee's Poultry Ltd. (1985), 1985 166 (ON CA), 17 C.C.C. (3d) 539; Latour v. The King, 1950 12 (SCC), [1951] S.C.R. 19; R. v. Proudlock, 1978 15 (SCC), [1979] 1 S.C.R. 525; R. v. Big M Drug Mart Ltd., 1985 69 (SCC), [1985] 1 S.C.R. 295; McGuigan v. The Queen, 1982 41 (SCC), [1982] 1 S.C.R. 284; R. v. Wilson (1984), 1984 1264 (AB QB), 17 C.C.C. (3d) 126; Dubois v. The Queen, 1985 10 (SCC), [1985] 2 S.C.R. 350.
By Lamer J. (dissenting)
R. v. Oakes, 1986 46 (SCC), [1986] 1 S.C.R. 103.
Statutes and Regulations Cited
Canada Evidence Act, R.S.C. 1970, c. E‑10, ss. 29(2), 30.
Canadian Charter of Rights and Freedoms, ss. 1, 11(c), (d).
Criminal Code, R.S.C. 1970, c. C‑34, ss. 83(1), 84, 88(1), 89(1), (2), (3), 90, 91(1), 94(1), 95(3), 104(1), (12), 106.1(1), (3), (6), (7), (8), 106.2(1), (10), 106.4(3), 106.6(1), 106.7(1), (2), 241(1), (6), (7), 605(1)(a), 613(1)(a), 730, 755(1), 771(1), (2).
Criminal Code, S.C. 1892, c. 29, s. 105.
Interpretation Act, R.S.C. 1970, c. I‑23, s. 24(1).
Authors Cited
Canada. Solicitor General. Evaluation of the Canadian Gun Control Legislation. First Progress Report. Project team: Elizabeth Scarff, et al. Ottawa: Solicitor General Canada, Research Division, 1981.
Cross, Sir Rupert. The Golden Thread of the English Criminal Law. Cambridge: Cambridge University Press, 1976.
Delisle, Ronald Joseph. Evidence: Principles and Problems. Toronto: Carswells, 1984.
Ewart, J. Douglas, Michael Lomer and Jeff Casey. Documentary Evidence in Canada. Toronto: Carswells, 1984.
Finley, David. "The Presumption of Innocence and Guilt: Why Carroll Should Prevail Over Oakes" (1984), 39 C.R. (3d) 115.
Friedland, Martin L. A Century of Criminal Justice. Toronto: Carswells, 1984.
Halsbury's Laws of England, vol. 11, 4th ed. London: Butterworths, 1976.
Hawley, Donna Lea. Canadian Firearms Law. Toronto: Butterworths, 1988.
Mahoney, Richard. "The Presumption of Innocence: A New Era" (1988), 67 Can. Bar Rev. 1.
Ratushny, Edward. "The Role of the Accused in the Criminal Process," in Gérald‑A. Beaudoin and Walter Surma Tarnopolsky, eds., The Canadian Charter of Rights and Freedoms: Commentary. Toronto: Carswells, 1982.
Stuart, Donald. Canadian Criminal Law, 2nd ed. Toronto: Carswells, 1987.
Wigmore, John Henry. Wigmore on Evidence, vol. 7, 3rd ed. Boston: Little, Brown & Co., 1940.
Williams, Glanville Llewelyn. The Proof of Guilt, 3rd ed. London: Stevens & Sons, 1963.
APPEAL from a judgment of the Manitoba Court of Appeal (1983), 1983 3727 (MB CA), 25 Man. R. (2d) 295 (on a rehearing following a preliminary judgment of that Court (1983), 1983 2985 (MB CA), 25 Man. R. (2d) 164, 5 D.L.R. (4th) 524) allowing an appeal from a decision of Barkman Co. Ct. J. (1983), 1983 3740 (MB QB), 22 Man. R. (2d) 46, allowing an appeal from conviction by Allen Prov. Ct. J. Appeal dismissed, Dickson C.J. and Lamer J. dissenting. The constitutional question should be answered in the negative.
J. J. Gindin, for the appellant.
Bruce Miller, for the respondent.
Julius A. Isaac and Yvon Vanasse, for the intervener the Attorney General of Canada.
The following are the reasons delivered by
[1] The Chief Justice (dissenting)‑‑Section 106.7(1) of the Criminal Code, R.S.C. 1970, c. C‑34, requires an accused charged with a firearms offence to prove that he or she held the necessary permit or certificate for the firearm. The constitutional validity of this section is the primary question in this case. A secondary question is raised as to the jurisdiction of a provincial court of appeal on an appeal from a summary conviction appeal court. At the outset, I would like to mention that this case has been argued throughout on the basis of s. 106.7(1). Section 730 of the Code has not been in issue.
I
Facts
[2] Arnold Godfried Schwartz was charged under s. 89(1) of the Criminal Code (i) that he did unlawfully have in his possession a restricted weapon, to wit: a .44 Magnum revolver for which he did not have a registration certificate issued to him; (ii) that he did unlawfully have in his possession a restricted weapon, to wit: a .38 Special revolver for which he did not have a registration certificate issued to him. The evidence disclosed that Schwartz had bought the two handguns in 1978 from one of his employees, Horst Schimiczek, who had acquired the .38 Special in Texas and the .44 Magnum in North Dakota. Schimiczek had moved to Winnipeg, duly registered the two weapons, and then sold the guns to Schwartz. He gave Schwartz the registration papers, in Schimiczek's name. Later, an application in Schwartz's name for a firearms acquisition certificate, the necessary first step to obtain a registration certificate, was received by the Firearms Section of the City of Winnipeg Police Department. At the time, the Firearms Section was under control of Staff Sergeant Gordon Pilcher, who reviewed the application and determined that a notice of intention to refuse a firearms acquisition certificate should be sent to Schwartz. A notice to this effect was delivered to Schwartz by double registered mail.
[3] Approximately nine months after the notice was mailed, members of the Winnipeg Police Department executed a search of Schwartz's home, and located and confiscated a .44 Magnum and a .38 Special.
[4] Schwartz proceeded to trial before Allen Prov. Ct. J. and was convicted on both charges. He was fined $50 on each charge. On appeal, Barkman Co. Ct. J. allowed the appeal and quashed the convictions. The Crown then appealed to the Manitoba Court of Appeal (Hall J.A., Matas J.A. concurring, and Huband J.A. dissenting in part). The acquittals were set aside and convictions restored. Leave was granted by this Court to appeal the judgment of the Manitoba Court of Appeal.
II
Legislative and Constitutional Provisions
[5] The relevant legislative and constitutional provisions follow:
- (1) Every one who has in his possession a restricted weapon for which he does not have a registration certificate
(a) is guilty of an indictable offence and is liable to imprisonment for five years; or
(b) is guilty of an offence punishable on summary conviction.
106.7 (1) Where, in any proceedings under any of sections 83 to 106.5, any question arises as to whether a person is or was the holder of a firearms acquisition certificate, registration certificate or permit, the onus is on the accused to prove that that person is or was the holder of such firearms acquisition certificate, registration certificate or permit.
(2) In any proceedings under any of sections 83 to 106.5, a document purporting to be a firearms acquisition certificate, registration certificate or permit is evidence of the statements contained therein.
Canadian Charter of Rights and Freedoms
The 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.
Any person charged with an offence has the right
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;
III
Judgments of the Manitoba Courts
Provincial Judges Court
[6] Allen Prov. Ct. J. found the appellant guilty on both counts. He stated, in part:
The fact is there comes a situation in each case where the evidence is so overwhelming and points clearly in one direction that one would have to speculate and resort to pure conjecture to have a reasonable doubt. I do not have a reasonable doubt.
[7] Section 106.7(1) of the Code, imposing an onus on the accused, does not appear to have been raised in argument in support of the case for the Crown nor relied upon by Allen Prov. Ct. J. The constitutional validity of the section was not challenged before him.
County Court of Winnipeg
[8] There were three major grounds of appeal before Barkman Co. Ct. J. [(1983), 1983 3740 (MB QB), 22 Man. R. (2d) 46]. The first was that it was not proved beyond a reasonable doubt that the accused possessed the restricted weapons. The second was that some of the evidence concerning the lack of registration was hearsay and therefore inadmissible. The third ground was that the evidence concerning lack of registration could only be admitted if notice were given under s. 30 of the Canada Evidence Act, R.S.C. 1970, c. E‑10.
[9] Defence counsel objected to the admission of evidence of Sergeant Pilcher relating to information contained in a file compiled by staff members under his supervision. Counsel also objected to Sgt. Pilcher testifying about any documents that might have been placed in the file after he was transferred out of the Firearms Section. Barkman Co. Ct. J. held that the trial judge erred by admitting the evidence of Sgt. Pilcher which did not relate specifically to things done by Pilcher himself; Sgt. Pilcher had gone on to other duties; such evidence was hearsay and could only be admitted after giving notice pursuant to s. 30 of the Canada Evidence Act.
[10] Barkman Co. Ct. J. considered as properly admitted the evidence of Sgt. Pilcher to the effect that (1) he refused an application by the accused for a firearms acquisition certificate; (2) he wrote a refusal letter; (3) he searched the file of the city of Winnipeg Police regarding the accused in 1979 and did not find a registration certificate for a restricted weapon, and he had the file with him in court; (4) the address of the house of the accused was situated in the city of Winnipeg area for registration of firearms. According to the evidence, no one to whom a certificate had been refused could get a certificate during the five years following. The evidence of Sgt. Pilcher was the only evidence before the judge relating to the registration of the restricted weapons, except for the evidence of the previous owner, Mr. Schimiczek, who testified that he spoke to the accused about registration of the weapons in the early part of 1981 and the accused then told him that he had not yet registered them.
[11] Barkman Co. Ct. J. further held [at p. 48] that Sgt. Pilcher could give evidence as to what he did and saw personally, but "his evidence as to what he saw is not evidence of the truth of the information contained in the documents which he saw in the file in question". He held that Allen Prov. Ct. J. had improperly admitted as an exhibit the application for a firearms acquisition certificate in Schwartz's name as it had not been identified by the person receiving it as having been submitted by Schwartz. He concluded [at p. 49] that the remaining evidence, together with the testimony of Schimiczek, "falls far short of proof beyond a reasonable doubt that the accused did not have registration certificates issued to him for the restricted weapons . . . ."
[12] Counsel for the Crown, after arguing unsuccessfully against the exclusion of the so‑called hearsay evidence, then contended that even if such evidence were not admissible, this would not affect the conviction of the appellant because s. 106.7(1) of the Code placed the onus on the accused to satisfy the Court that the weapons were properly registered. Counsel for Schwartz argued in response that s. 106.7(1) of the Code was either inapplicable to his client or unconstitutional by reason of s. 11(d) of the Charter. Barkman Co. Ct. J. held that s. 106.7(1) was not ambiguous and that it applied to the appellant. He then went on to consider the judgment of the Ontario Court of Appeal in R. v. Oakes (1983), 1983 1850 (ON CA), 145 D.L.R. (3d) 123, aff'd 1986 46 (SCC), [1986] 1 S.C.R. 103. Barkman Co. Ct. J. referred to the three factors mentioned by Martin J.A. in Oakes, underlined in the passage below, at pp. 50‑51, to be taken into consideration in determining whether it is reasonable for Parliament to place the burden of proof on the accused in relation to an ingredient of the offences in question:
(a) the magnitude of the evil sought to be suppressed, it is to my mind a great evil that is sought to be suppressed by the requirement of registration of restricted weapons since registration will not be granted where a person has within the last five years (1) been convicted of an offence on indictment in which violence against another person was used, threatened or attempted; etc (see s. 194(3)(b)); (b) the difficulty of the prosecution making proof of the presumed fact. Since the advent of the computer and in accordance with the evidence of Sergeant Pilcher that records are maintained in Ottawa as to persons who are refused certificates or permits, it would not be difficult for the Crown to prove lack of registration; (c) the relative ease with which the accused may prove or disprove the presumed fact. The accused need only produce the registration certificate or permit to prove the registration (see s. 106.7(2)) in the circumstances of this case, but in other situations it may be more difficult. [Emphasis added.]
[13] Barkman Co. Ct. J. went on to point out that the circumstances of the case before him were such as to satisfy the threshold question of legitimacy of the reverse onus. However, this provision also applied to ss. 89(3), 91(1), and 94(1). Under these sections it could be very difficult for the accused to prove the fact of registration by another person. He held that (a) there was no rational connection between the proven fact (possession) and the presumed fact (lack of registration), and (b) in applying the reverse onus to all of ss. 83 to 106.5, it may be impossible for an accused to prove the fact of registration. Section 106.7(1) was therefore constitutionally invalid. He concluded that the trial judge erred by admitting hearsay evidence and that s. 106.7(1) did not apply because it offended s. 11(d) of the Charter. Barkman Co. Ct. J. allowed the appeal and quashed the conviction.
Manitoba Court of Appeal
[14] The ground of appeal taken to the Manitoba Court of Appeal was in these terms:
THAT the learned County Court Judge erred in law in ruling Section 106.7(1) of the Criminal Code of Canada was unconstitutional in that the said section contravened the provisions of Section 11(d) of the Canadian Charter of Rights and Freedoms.
[15] It would appear that before the Court of Appeal of Manitoba, counsel agreed to argue only the constitutional question. This was entirely appropriate as appeals to the Court of Appeal from a summary conviction appeal court are limited to questions of law. In a preliminary judgment by the Manitoba Court of Appeal ((1983), 1983 2985 (MB CA), 25 Man. R. (2d) 164), Matas J.A. stated, at p. 166:
...the decision of Barkman, C.C.C.J., on the constitutional point is inextricably linked to the question of law arising out of the first question [the evidentiary question]. Implicit in the acquittal based on the constitutional question is the decision of the learned Chief County Court judge on the admissibility of evidence given at the trial by Sergeant Pilcher, the officer in charge of the firearms section and applications for firearms acquisitions and permits for restricted weapons in the City of Winnipeg. In my opinion, it is inappropriate for this court to consider constitutional questions in the context of a prosecution unless all the available material is properly before the court. In order to have a decision of this court, based on all the available material, I would grant leave to the Crown to argue the evidentiary point.
He therefore adjourned the disposition of the appeal pending re‑hearing.
[16] Upon the re‑hearing, the Court of Appeal ((1983), 1983 3727 (MB CA), 25 Man. R. (2d) 295), allowed the Crown's appeal (Huband J.A. dissenting in part). Hall J.A. held that Barkman Co. Ct. J. erred in law by ruling inadmissible certain evidence given by Sgt. Pilcher. He further held at p. 297 that "the evidence of Sergeant Pilcher and that of the witness Schimiczek is sufficient to support the implicit finding of the learned trial judge that no registration certificates had ever been issued to the accused for the restricted weapons and that therefore he was not the holder of such certificates . . . ." Though he was of the view that it was unnecessary to decide the issue, Hall J.A. agreed with Huband J.A.'s conclusion, discussed below, that s. 106.7(1) was a reasonable limit on the presumption of innocence. Matas J.A. concurred with Hall J.A. on the evidentiary issue but expressed no opinion on the constitutional point.
[17] Huband J.A., dissenting in part, disagreed with Hall J.A.'s conclusion on the evidence and therefore felt it incumbent to rule on the constitutionality of s. 106.7(1). In Huband J.A.'s view, there was an added reason to address the constitutional issue. The appeal to the Court of Appeal, pursuant to s. 771 of the Code, was on a question of law alone. He stated, at p. 299, that "The consideration of Staff Sergeant Pilcher's evidence involves the court in a question of sufficiency of evidence which ... is a question of fact rather than law."
[18] Relying on R. v. Appleby, 1971 4 (SCC), [1972] S.C.R. 303, and refusing to follow the Ontario Court of Appeal's approach in R. v. Oakes, supra, Huband J.A. held that s. 106.7(1) does not contravene the presumption of innocence according to law. In the alternative, he was of the view that, although it is true that mere possession of a restricted weapon does not logically lead to an inference that the weapon is unregistered, "proof of registration is so easily provided by the accused himself that it becomes reasonable to require an accused to answer an onus upon him at that point". Huband J.A. therefore would have allowed the appeal relying on s. 106.7(1) of the Code.
[19] It is difficult to find a common thread in any of the issues in any of the decisions of the Manitoba courts. The court of first instance found the accused guilty on the evidence presented, without recourse to s. 106.7(1) of the Code. On appeal, Barkman Co. Ct. J. held that the evidence of the lack of a registration certificate was inadequate in the absence of s. 106.7(1) and that that section was unconstitutional. He held that the ease of proof concerning possession of a permit was not difficult for the police but utterly impossible for an accused if one looked at all of the offences to which s. 106.7(1) applied. Moving to the Court of Appeal, the picture is less clear. Hall J.A. concluded that the Crown succeeded on the evidential point and although it was therefore unnecessary to consider s. 106.7(1), he would nonetheless have upheld it. Matas J.A. was content to leave the constitutional point to another day and resolved the case simply on the evidentiary point. Finally, Huband J.A., in dissent on this point, would appear to have shared the views of Barkman Co. Ct. J. on the evidentiary point. Although he would have resolved the evidentiary point in favour of the accused, he would uphold s. 106.7(1) and find the accused guilty.
IV
Issues
[20] Before this Court, a constitutional question was stated as follows:
Is section 106.7(1) of the Criminal Code of Canada constitutionally invalid in that it contravenes the provisions of s. 11(d) of the Canadian Charter of Rights and Freedoms?
The Attorney General of Canada and the Attorneys General of Alberta, British Columbia and Ontario served notices of intervention. All the provincial Attorneys General subsequently withdrew their interventions.
[21] In addition to the constitutional question, the appellant submits that the Court of Appeal erred in deciding the appeal on a question of fact or, in the alternative, on a question of mixed fact and law. I propose first to address this latter issue, and then turn to the constitutional issue in this appeal. I note that although the trial in the Provincial Court occurred before the Charter came into force, no issue was raised as to whether s. 11(d) should apply, all subsequent proceedings having taken place after April 17, 1982.
V
The Jurisdiction of the Court of Appeal
[22] The appellant submits that the Court of Appeal erred in deciding the appeal on a question of fact or mixed fact and law, namely, the sufficiency of evidence. The respondent Crown submits, however, that the Court of Appeal was faced with a question involving the admissibility, not sufficiency, of evidence; the question before the Court of Appeal was a question of law; as a result that court had jurisdiction to hear the case.
[23] The notice of appeal to the Court of Appeal filed by the Deputy Attorney General for Manitoba, reproduced above, alleged that Barkman Co. Ct. J. erred in law in holding s. 106.7(1) unconstitutional. In addition, the appeal was "upon any other point in law the evidence may disclose". The Crown appeal was pursuant to s. 771 of the Code, limiting the jurisdiction of the Court of Appeal to questions of law alone. As stated earlier, the Court of Appeal, per Matas J.A., granted leave to argue "the evidentiary point." It is in relation to the Court of Appeal's reasons given after the rehearing that the appellant alleges that the Court of Appeal decided the case on a question of fact or, in the alternative, mixed law and fact. Section 771(2) of the Code provides that "Sections 601 to 616 apply mutatis mutandis to an appeal under this section." It is well‑settled that the question whether a trial verdict is unreasonable or cannot be supported by the evidence is not a "question of law" under s. 605(1)(a) of the Code. Sufficiency of proof is a question of fact reserved for the trial judge. See Sunbeam Corporation (Canada) Ltd. v. The Queen, 1968 33 (SCC), [1969] S.C.R. 221, and Rose v. The Queen, 1959 67 (SCC), [1959] S.C.R. 441.
[24] It should be noted, however, that a summary conviction appeal court is not restricted to questions of law alone. Section 755(1) of the Code provides that in appeals from a summary conviction, "sections 610 to 616, with the exception of subsections 610(3) and 613(5), apply mutatis mutandis". Section 613(1)(a) permits a summary conviction appeal court to allow an appeal if the verdict is "unreasonable or cannot be supported by the evidence" or if the trial judge erred "on a question of law" (R. v. Ponsford (1978), 1978 ALTASCAD 222, 41 C.C.C. (2d) 433 (Alta. C.A.)) This is not to say that a summary conviction appeal court is entitled to retry the case (R. v. Colbeck (1978), 1978 2447 (ON CA), 42 C.C.C. (2d) 117 (Ont. C.A.))
[25] Counsel for the appellant refers to several passages of the reasons of the Court of Appeal in support of his submission that the court decided the appeal on a question of fact. Hall J.A., for example, stated the first of the two issues in the following terms:
(1) did the learned judge of appeal err in finding that the evidence fell short of providing beyond a reasonable doubt that the accused did not have registration certificates issued to him for the restricted weapons...?
Moreover, Hall J.A. stated that "the evidence of Sergeant Pilcher and that of the witness Schimiczek is sufficient to support the implicit finding of the learned trial judge that no registration certificates had ever been issued to the accused for the restricted weapons . . . ." Matas J.A. concurred with this part of Hall J.A.'s reasons, stating that "on the evidentiary issue the appeal of the Crown should be allowed and the conviction restored". The appellant also relies on Huband J.A.'s statement that "The consideration of Staff Sergeant Pilcher's evidence involves the court in a question of sufficiency of evidence which ... is a question of fact rather than law".
[26] It cannot be denied, however, that the examination of the sufficiency of evidence by Hall J.A. occurred in the context of his finding that Barkman Co. Ct. J. erred in law "by ruling inadmissible certain unspecified evidence of Sergeant Pilcher relating to information contained in a file compiled by staff members under his supervision on the ground that it did not relate specifically to things done by him and was therefore hearsay and could only be admitted under s. 30 of the Canada Evidence Act". The majority of the Court of Appeal was correct in assuming, and the Crown correct in submitting, that the absence of legal justification for admitting evidence at trial involves a question of law.
[27] Assuming the Court of Appeal to be correct on its disposition of this question of law, however, the court in my view erred by proceeding to reverse the acquittal without relying on s. 106.7(1) of the Code. Although the appeal before Barkman Co. Ct. J. was not de novo, the combined effect of s. 771(1) and (2), s. 755(1), and s. 613(1)(a) is that for purposes of review, the findings of Barkman Co. Ct. J. are to be treated as if they were the findings of a judge at first instance. Before it can set aside the decision of the summary conviction appeal court acquitting the accused, the Court of Appeal must be satisfied that Barkman Co. Ct. J. would have convicted Schwartz but for his decision that the trial judge erred in the admission of hearsay evidence: Vézeau v. The Queen, 1976 7 (SCC), [1977] 2 S.C.R. 277.
[28] Barkman Co. Ct. J. had before him the bulk of Sgt. Pilcher's evidence. His summary of the evidence which he admitted shows that the only major piece of evidence excluded was the application for a firearms acquisition certificate. Taken as a whole, the evidence is ambivalent whether a firearms acquisition certificate, and later on the registration certificate, might have been issued to the accused some time after 1979, when Sgt. Pilcher was no longer in charge of the file. To set aside the acquittals the jurisprudence of this Court requires that the Crown satisfy the Court that the verdict would not necessarily have been the same had the trial judge not erred with respect to the evidentiary issue. In my view, the Crown did not satisfy that onus and it cannot be said with any degree of certainty that Barkman Co. Ct. J. would have upheld the convictions but for his decision to exclude some of the evidence. Hall J.A. in my opinion therefore erred by entering a conviction without finding it necessary to resort to the "reverse onus" provision of s. 106.7(1). This Court must consider the application, and hence the constitutionality, of s. 106.7(1).
VI
Constitutional Issues: Section 11(d) and the Presumption of Innocence
[29] In R. v. Oakes, supra, R. v. Vaillancourt, 1987 2 (SCC), [1987] 2 S.C.R. 636, R. v. Holmes, 1988 84 (SCC), [1988] 1 S.C.R. 914, R. v. Whyte, 1988 47 (SCC), [1988] 2 S.C.R. 3, this Court had occasion to address in detail the scope of the s. 11(d) Charter right "to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal", and there is no need to review at length the principles contained in those cases. It suffices to say that Oakes stands for the proposition that "a provision which requires an accused to disprove on a balance of probabilities the evidence of a presumed fact, which is an important element of the offence in question, violates the presumption of innocence in s. 11(d)" (p. 132). Similarly in Vaillancourt, Lamer J. held, for the majority on this point, that the presumption of innocence requires that the trier of fact be convinced of guilt beyond a reasonable doubt (at p. 655):
Any provision creating an offence which allows for the conviction of an accused notwithstanding the existence of a reasonable doubt on any essential element infringes ss. 7 and 11(d).
Clearly, this will occur where the provision requires the accused to disprove on a balance of probabilities an essential element of the offence by requiring that he raise more that just a reasonable doubt.
[30] In Holmes, two members of the Court took the view that any burden on the accused that permitted a conviction despite the presence of a reasonable doubt violated the presumption of innocence, regardless of the nature of the point the accused was required to prove. In Whyte, this theme was repeated. In response to the argument that the presumption of innocence only requires the Crown to prove the essential elements of an offence, the Chief Justice said at p. 18:
The short answer to this argument is that the distinction between elements of the offence and other aspects of the charge is irrelevant to the s. 11(d) inquiry. The real concern is not whether the accused must disprove an element or prove an excuse, but that an accused may be convicted while a reasonable doubt exists. When the possibility exists, there is a breach of the presumption of innocence.
The exact characterization of a factor as an essential element, a collateral factor, an excuse, or a defence should not affect the analysis of the presumption of innocence. It is the final effect of a provision on the verdict that is decisive. If an accused is required to prove some fact on the balance of probabilities to avoid conviction, the provision violates the presumption of innocence because it permits a conviction in spite of a reasonable doubt in the mind of the trier of fact as to the guilt of the accused. The trial of an accused in a criminal matter cannot be divided neatly into stages, with the onus of proof on the accused at an intermediate stage and the ultimate onus on the Crown.
(See also Donald Stuart, Canadian Criminal Law (2nd ed. 1987), at pp. 388‑91; Richard Mahoney, "The Presumption of Innocence: A New Era" (1988), 67 Can. Bar Rev. 1, at pp. 4‑13). To hold otherwise would result in the unacceptable situation that an accused, forced but unable to persuade the finder of fact of his or her innocence on a balance of probabilities, will be convicted of a criminal offence despite the existence of a reasonable doubt as to his or her guilt.
[31] The cornerstone of our theory of criminal liability is that society should only sanction those people who are personally guilty of breaking the law. Only when guilt is established can society justly impose criminal penalties. This principle permeates the criminal law and is one of the basic premises of the presumption of innocence. It follows that the Crown is required to prove the guilt of the accused and bears this burden for all the issues raised by a charge. In this respect, a criminal prosecution is fundamentally different from a civil suit, which serves different ends and operates on different assumptions. Theories of proof in civil suits, under both common law and civil law, have been strongly influenced by Roman law, which requires the defendant to raise and prove exceptions to a suit. (See David Finley, "The Presumption of Innocence and Guilt" (1984), 39 C.R. (3d) 115.) Shifting the onus of proof is acceptable in civil actions, as the well‑known maxim res ipsa loquitur shows.
[32] Over the years, some evidentiary rules of private law have crept into the criminal law, notably reversals of the onus of proof. These influences from civil actions are now subject to review under the Charter, particularly the guarantee of the presumption of innocence. In the final result, if a rule of evidence results in the possibility of a conviction in spite of a reasonable doubt, the presumption of innocence is violated. The exact role that a rule of evidence plays in the prosecution does not matter. The Court in Whyte recognized that there are differences between defences which deny the existence of an essential element of an offence and defences that admit the existence of those elements, but held that that difference does not affect the review of a provision under s. 11(d). Both types of defences assert innocence; both deny guilt. When the facts give rise to the possibility of either type of defence, the Crown should be required to disprove them. Laws governing criminal liability should not be analyzed in private law terms as rules and exceptions. All substantive issues raised in a criminal prosecution are related to the fundamental issue of guilt and innocence. They should all be decided by the same standard, proof of guilt beyond a reasonable doubt.
[33] Viewed in this light, it matters little whether or not the lack of registration is an "essential element" of s. 89(1) of the Code. It is essential to the verdict. If the lack of registration is an essential element of the offence, then s. 106.7(1) relieves the Crown of the onus of proof of part of the offence charged. If a registration certificate is simply a defence to the charge, then the Crown is not required to disprove that defence beyond a reasonable doubt, which it is normally required to do. However the question of registration is characterized, s. 106.7(1) relieves the Crown of the onus of proof beyond a reasonable doubt. The section places the onus on a person charged under s. 89(1) to "prove" that he or she is or was the holder of a registration certificate. This Court in R. v. Appleby, supra, and again in R. v. Whyte, supra, held that statutory provisions requiring the accused to "prove" or "establish" some fact cannot be read as simply imposing an evidential burden on the accused. When a statute requires the accused to establish or prove something, the accused must do more than raise a reasonable doubt. The accused must establish the required fact on a balance of probabilities. Section 106.7(1) must therefore be understood as requiring an accused charged under s. 89(1) to establish on a balance of probabilities that he or she held a registration certificate for the restricted weapon. Thus, s. 106.7(1) embraces the possibility that an accused unable to meet this persuasive burden will be convicted of unlawful possession of a restricted weapon contrary to s. 89(1), despite the potential existence of a reasonable doubt that the possession was in fact lawful.
[34] The Attorney General of Canada argues that the presumption of innocence entrenched by s. 11(d) of the Charter is subject to exceptions that the common law has always recognized. One of these exceptions, it is argued, is that the common law requires an accused to prove that he or she comes within a statutory exception or proviso, especially when licences or other privileges are involved. The Attorney General argues that s. 106.7(1) is nothing more than a statutory version of this common law rule and is therefore consistent with s. 11(d) of the Charter. The Attorney General of Canada referred the court to R. v. Edwards, [1974] 2 All E.R. 1085 (C.A. Cr. Div.), R. v. Lee's Poultry Ltd. (1985), 1985 166 (ON CA), 43 C.R. (3d) 289 (Ont. C.A.), and Halsbury's Laws of England, vol. 11, 4th ed., para. 357, in support of this proposition.
[35] It is worth noting that Professor Glanville Williams has some critical words for Parliaments and courts alike that are too quick to allow exceptions to the basic principle that the Crown bears the onus of proof:
When it is said that a defendant to a criminal charge is presumed to be innocent, what is really meant is that the burden of proving his guilt is upon the prosecution. This golden thread, as Lord Sankey expressed it, runs through the web of the English criminal law. Unhappily, Parliament regards the principle with indifference‑‑one might almost say with contempt. The Statute Book contains many offences in which the burden of proving his innocence is cast on the accused. In addition, the courts have enunciated principles that have the effect of shifting the burden in particular classes of case.
The sad thing is that there has never been any reason of expediency for these departures from the cherished principle; it has been done through carelessness and lack of subtlety. What lies at the bottom of the various rules shifting the burden of proof is the idea that it is impossible for the prosecution to give wholly convincing evidence on certain issues from its own hand, and it is therefore for the accused to give evidence on them if he wishes to escape. This idea is perfectly defensible and needs to be expressed in legal rules, but it is not the same as the burden of proof.
(Glanville Williams, The Proof of Guilt (3rd ed. 1963), pp. 184‑85). The author goes on to argue that it is consistent with the presumption of innocence to expect the accused to point out evidence that puts in play a particular defence, but it is neither necessary nor desirable that the accused be required to prove anything. If the evidence suggests a defence, the Crown must disprove it beyond a reasonable doubt. The onus of proof remains on the Crown throughout. Other commentators have made the same argument: Rupert Cross, The Golden Thread of the English Criminal Law (1976), at pp. 11‑13; Mahoney, "The Presumption of Innocence", supra, at pp. 18‑21; Stuart, Canadian Criminal Law, supra, at pp. 39‑45.
[36] This Court has long recognized that there is a distinction between the degree of evidence necessary to put an issue into play, requiring the trier of fact to consider it, and the degree necessary to convince beyond a reasonable doubt. In Latour v. The King, 1950 12 (SCC), [1951] S.C.R. 19, Justice Fauteux for the Court distinguished between the requirement of establishing a case and of introducing evidence. He pointed out that the onus is on the Crown throughout to establish the case against the accused beyond a reasonable doubt, while the accused need do no more than raise a doubt. Fauteux J. noted that the accused is never required to establish a defence, but need only show that the evidence, including Crown evidence, indicates a defence may be available. The jury is then required to acquit if it finds affirmatively that the defence existed or if it is left in doubt on the point.
[37] Sunbeam Corporation (Canada) Ltd., supra, provides another illustration of the principle. The Court was faced with the question whether the sufficiency of evidence could be a question of law; Justice Ritchie for the majority held that it could not. He recognized that the accused was never required to give evidence (at p. 228):
I do not think that any authority is needed for the proposition that, when the Crown has proved a prima facie case and no evidence is given on behalf of the accused, the jury may convict, but I know of no authority to the effect that the trier of fact is required to convict under such circumstances. [Emphasis in original.]
The Crown is always required to persuade the trier of fact beyond a reasonable doubt, and the accused can rely on the Crown's own evidence to put a defence in play. This principle was reaffirmed by Justice Pigeon for the majority in R. v. Proudlock, 1978 15 (SCC), [1979] 1 S.C.R. 525, where he held that the phrase "in the absence of any evidence to the contrary" meant that the accused need only raise a reasonable doubt. Pigeon J. commented that in some cases the accused could do this by reference to the Crown's evidence while in other cases the accused would have to adduce evidence or run the risk of conviction.
[38] Judges and academics have used a variety of terms to try to capture the distinction between the two types of burdens. The burden of establishing a case has been referred to as the "major burden," the "primary burden," the "legal burden" and the "persuasive burden." The burden of putting an issue in play has been called the "minor burden," the "secondary burden," the "evidential burden," the "burden of going forward," and the "burden of adducing evidence." While any combination of phrases has its advantages and drawbacks, I prefer to use the terms "persuasive burden" to refer to the requirement of proving a case or disproving defences, and "evidential burden" to mean the requirement of putting an issue into play by reference to evidence before the court. The party who has the persuasive burden is required to persuade the trier of fact, to convince the trier of fact that a certain set of facts existed. Failure to persuade means that the party loses. The party with an evidential burden is not required to convince the trier of fact of anything, only to point out evidence which suggests that certain facts existed. The phrase "onus of proof" should be restricted to the persuasive burden, since an issue can be put into play without being proven. The phrases "burden of going forward" and "burden of adducing evidence" should not be used, as they imply that the party is required to produce his or her own evidence on an issue. As we have seen, in a criminal case the accused can rely on evidence produced by the Crown to argue for a reasonable doubt.
[39] It is important not to identify the evidential burden solely with the accused. The Crown has the evidential burden of leading evidence which, if believed, would prove each element of the offence charged. If the Crown does not even meet this evidential requirement, the case never goes to the trier of fact; the accused has a right to a directed verdict of acquittal.
[40] In Oakes, supra, the Court examined and rejected the idea that the presumption of innocence guaranteed by s. 11(d) of the Charter is subject to statutory exceptions. To read the phrase "according to law" in s. 11(d) as permitting Parliament to alter the normal rule whenever it chose to do so by statute would be completely contrary to the concept of an entrenched constitutional right. Oakes, Vaillancourt and Whyte held that statutory persuasive burdens on the accused infringe the presumption of innocence. The common law is likewise required to conform to s. 11(d). A requirement that the accused bear a persuasive burden, whether in a statute or at common law, will infringe s. 11(d).
[41] The Edwards case, supra, makes clear that the common law of England does in some cases place a persuasive burden of proof on the accused, but that case was decided in a system where both Parliament and the courts can make inroads on the presumption of innocence. It is of limited aid in interpreting the Canadian Charter of Rights and Freedoms. This Court has already rejected English authority that the presumption of innocence is subject to statutory exceptions; it is also necessary to reject English authority that the presumption of innocence is subject to common law exceptions.
[42] Having said that, I would not wish to be understood to say that the Crown must lead evidence to anticipate each and every possible defence. One of the underlying ideas of the common law principle set out in Edwards is that it is not possible for the Crown to know in advance what defence the accused will raise. It is up to the accused to point out evidence, in either the Crown's case or in the defence evidence, if any, that will support a defence. Once the accused raises a defence the Crown must disprove it beyond a reasonable doubt.
[43] The decision of the Ontario Court of Appeal in R. v. Lee's Poultry Ltd., supra, must now be read in the light of this Court's decisions in Oakes, Vaillancourt, and Whyte. In that case, a provincial statute required the accused to prove that it held the necessary permit. Brooke J.A. for the Ontario Court of Appeal followed Edwards and held that in some circumstances a statutory or common law reversal of the onus of proof will not violate s. 11(d). Brooke J.A. also relied on Martin J.A.'s decision in R. v. Oakes. He held that the provision in question did not create a presumption, but simply expressed in statutory form a well‑ recognized exception to general rules of pleading and proof. He was also influenced by the ease with which an accused could prove a licence existed and by the fact that it was rationally open to the accused to prove the existence of the licence. He therefore held that the provision did not breach s. 11(d).
[44] It is necessary, however, to distinguish the analysis under s. 11(d) from that under s. 1. What is important under s. 11(d) is whether or not a provision requires the accused to prove some fact, with a possibility of a conviction in spite of a reasonable doubt. Factors such as ease of proof and a rational connection go to the justification for an infringement and should be considered in the s. 1 analysis. Lee's Poultry Ltd. is therefore of little assistance on the meaning of s. 11(d).
[45] To sum up, the Charter's guarantee of the presumption of innocence places the onus on the Crown throughout a case to prove guilt beyond a reasonable doubt. Section 11(d) is not qualified by exceptions, whether statutory or at common law, that place the onus of proof on the accused. While the Crown need not initially disprove every possible defence or exception, it does not necessarily follow that the accused must prove a defence. In some instances, the accused must point out some evidential basis to raise a defence which the Crown must then disprove beyond a reasonable doubt, but any provision which places a persuasive burden on the accused, with the possibility of a conviction despite a reasonable doubt, will infringe s. 11(d). Section 106.7(1) is such a provision.
VII
Constitutional Issues: Section 1
[46] The respondent and the Attorney General of Canada submit in the alternative that s. 106.7(1) is demonstrably justified under s. 1 as a reasonable limit in a free and democratic society. To decide this point, it is necessary to refer to the principles of s. 1 analysis set out in this Court's decision in Oakes, supra. Two criteria must be met. First, the objective must be "of sufficient importance to warrant overriding a constitutionally protected right or freedom." Second, the limit must be reasonable and demonstrably justified, which requires it to pass "a form of proportionality test" (R. v. Big M Drug Mart Ltd., 1985 69 (SCC), [1985] 1 S.C.R. 295, at p. 352). This second criterion has three components. The measures must be carefully tailored and rationally connected to the objective. They must impair the right in question as little as possible. Finally, there must be proportionality between the effects of the measure and the objective of the legislation (Oakes, supra, at p. 139).
[47] Part II.1 of the Code, which contains s. 106.7(1), represents the latest attempt by Parliament to strike the proper balance between the interest of Canadian society in protecting its members from violent actions and the freedom of individuals to possess and use guns for legitimate purposes. It embodies wholly legitimate societal concerns for stricter regulation and control of guns and other offensive weapons. The Crown and Attorney General of Canada argue that s. 106.7(1) must be considered in the context of the statutory scheme respecting restricted weapons.
[48] The policy of Part II.1 is to limit the ownership of dangerous weapons to those people who will use them in an honest, responsible fashion. Some types of weapons are prohibited altogether. The availability of other types of weapons, notably handguns, is restricted, while long‑guns are subject to less strict control. To acquire any type of permitted firearm, a firearms acquisition certificate is required (s. 95(3)). An application for a firearms acquisition certificate will be rejected if the firearms officer has "notice of any matter that may render it desirable in the interest of the safety of the applicant or any other person that the applicant should not acquire a firearm" (s. 104(1)). To possess a restricted weapon, a registration certificate is required in addition to the firearms acquisition certificate. Registration certificates can only be issued to applicants over eighteen who need the restricted weapon to protect life, for use in their occupation, for use in target practice, or for part of a gun collection (s. 106.1(3)). A person who wishes to possess a restricted weapon must apply to the local registrar of firearms for a registration certificate (s. 106.1(1)). The local registrar must examine the weapon and check that the person is eligible for a registration certificate. If the person is eligible, the local registrar forwards the application to the Commissioner of the Royal Canadian Mounted Police (s. 106.1(3)). If the local registrar has notice of any matter suggesting that in the interests of safety it would not be advisable for the applicant to have a restricted weapon, the local registrar must inform the Commissioner (s. 106.1(6)). Upon receipt of the application from the local registrar, the Commissioner issues the registration certificate (s. 106.1(7)), unless the Commissioner has notice of any matter suggesting that in the interests of safety it is not desirable that the applicant have a restricted weapon (s. 106.4(3)). The registration certificate only entitles the owner to keep the weapon at his or her residence or place of business (s. 106.1(8)). A carrying permit is required to take the weapon off the premises mentioned in the certificate (ss. 89(2), 106.2(1)).
[49] Part II.1 creates a number of offences with respect to the acquisition, possession and use of firearms. Section 83(1) provides that the use of a firearm during the commission of an indictable offence is itself an indictable offence. Section 84 prohibits the careless use of a firearm. Section 88(1) provides that every one who has a prohibited weapon in his or her possession commits an indictable offence. Section 89(1), under which the appellant was charged, prohibits the possession of an unregistered restricted weapon. There are numerous other offences relating to the sale, delivery or acquisition of firearms and other offensive weapons (ss. 91‑97).
[50] Part II.1 thus expresses a clear legislative intention to prohibit the acquisition, possession and use of all restricted weapons except under the authority of a firearms acquisition certificate and a registration certificate, or under statutory exemptions such as those mentioned in s. 90 with respect to peace officers and police officers. The Code thus contains, as noted in McGuigan v. The Queen, 1982 41 (SCC), [1982] 1 S.C.R. 284, "a comprehensive `gun control' legislative scheme intended to discourage the use of firearms by the criminal element of our society". That the objective behind Part II.1 in general and s. 106.7(1) in particular "relate[s] to concerns which are pressing and substantial in a free and democratic society" is self‑evident. The provisions satisfy the first stage of the approach to s. 1 set out in Oakes.
[51] It may be wondered whether the specific objective of s. 106.7(1) is simply one of administrative convenience, which is rarely if ever an objective of sufficient importance to warrant overriding a constitutionally protected right. If so, that alone may be enough to decide the s. 1 analysis. Without deciding this point, I prefer to go on to the proportionality analysis, for two reasons. First, the objective of the section must be evaluated in the context of Part II.1, where it is located, and its place in the system of firearm regulation taken into account. Second, for reasons which I hope to make clear later on, the constitutionality of the application of s. 106.7(1) must be considered in relation to the particular offence in question. Because of the variety of offences created in Part II.1 the role played by s. 106.7(1) will vary with the offence. This in turn will affect the factors to be considered in deciding whether the application of the section can be upheld under s. 1. The determining factor may in some cases be found in the interplay between s. 106.7(1) and the offence provision. Consideration of the objective alone does not appear to take this interplay into account; the proportionality analysis is necessary to do so.
[52] The next part of the Oakes inquiry is the proportionality between the provision and the infringement. In evaluating the proportionality of s. 106.7(1), it is important to remember how restrictive is the overall system of registering restricted weapons. There is one person in all of Canada who can issue registration certificates, and that is the Commissioner of the R.C.M.P. (s. 106.1(7)). The Commissioner is required by statute to keep a registry of all registration certificates issued (s. 106.6(1)(a), and that centralized computer registry, the Canadian Police Information Centre Telex, is available for any police force to consult (Martin L. Friedland, "Gun Control in Canada: Politics and Impact," in A Century of Criminal Justice (1984), at pp. 120‑21; Evaluation of the Canadian Gun Control Legislation, First Progress Report (1981), at pp. 83 and 91 (hereinafter First Progress Report)). Although the certificates are issued by the Commissioner, all of the preliminary screening is done by the local registrar of firearms, who investigates applicants to be certain they meet the requirements for possession of a restricted weapon and do not pose any threat to safety (Friedland, at pp. 120‑21; First Progress Report, at pp. 91‑93; Hawley, Canadian Firearms Law (1988), at pp. 23‑37). The local registrar is almost always a member of the local police force with jurisdiction over the certain area, or occasionally a civilian employed by the police (First Progress Report, at pp. 76‑77). Finally, a person can possess a restricted weapon at only one of two places: the person's residence, or his or her ordinary place of business (s. 106.1(8)). The local registrar has no authority to issue a registration certificate authorizing the owner to keep the weapon at any other place (R. v. Wilson (1984), 1984 1264 (AB QB), 17 C.C.C. (3d) 126 (Alta. Q.B.)) It is an offence for the owner to keep the weapon at any place other than that listed on the registration certificate, or even to take it off the listed premises without a carrying permit (s. 89(2)).
[53] The combination of the strict limits contained in the registration certificate and the local administration of the application system means that it "should not be at all difficult" for the Crown to prove that the accused does not have a registration certificate for the weapon. In any area, there will be one local registrar who has jurisdiction over the location of the accused's residence and normal place of business. (In some cases where an accused lives within one police jurisdiction and works in another, there will be two local registrars who could process the application.) If that local registrar has not received an application for a registration certificate, then no one else could have received one.
[54] The first stage of the proportionality inquiry is whether there is a rational connection between the provision and the objective. In this case, the Attorney General of Canada argued strongly that there was a rational connection between the objective of the legislation and s. 106.7(1). In Oakes, this Court held that in the case of a statute which reversed the onus of proof, in order to satisfy this branch of s. 1 analysis, there must be a rational connection between the basic or proved fact and the presumed fact. Here, the proved fact, possession of a restricted weapon, in no way tends rationally to prove the presumed fact, that the accused does not have a registration certificate.
[55] Even if a less stringent rational connection should be applied to offences prohibiting certain acts in the absence of a permit or licence, in my view the present appeal is governed by the principles set out in R. v. Holmes, supra. As in that case, I do not think that the provision here challenged impairs "as little as possible" the presumption of innocence (R. v. Big M. Drug Mart Ltd., supra, at p. 352, Oakes, supra, at p. 139). Presumably, the objective behind Part II.1 does not include convicting persons who are able to raise a reasonable doubt as to their guilt but are unable to establish their innocence on a balance of probabilities. The legislative objective behind Part II.1 can just as easily be met, in the absence of s. 106.7(1), by not requiring an accused to prove on a balance of probabilities that the firearm is or was duly registered. The most that should be necessary is that the accused be required to point to evidence suggesting that the weapon is or was registered. Since the fact of non‑registration must be proven for a conviction under s. 89(1), the Crown must be able to provide the trier of fact with sufficient evidence, be it oral or documentary, to justify concluding beyond a reasonable doubt that the firearm in fact is not or was not registered.
[56] The Attorney General of Canada argued that even if s. 106.7(1) places the onus of proof on the accused contrary to s. 11(d), the weight of that burden is greatly reduced by the addition of s. 106.7(2), which I set out again for ease of reference:
106.7 ...
(2) In any proceedings under any of sections 83 to 106.5, a document purporting to be a firearms acquisition certificate, registration certificate or permit is evidence of the statements contained therein.
The Attorney General of Canada argues that this provision, when coupled with s. 24(1) of the Interpretation Act, R.S.C. 1970, c. I‑23, provides a means for the accused to meet the burden of proof set out by s. 106.7(1) without any danger of self‑crimination.
[57] One objection to reverse onus clauses is that they may force the accused into the witness box, sacrificing the right to remain silent to the requirement that he or she prove a fact on a balance of probabilities or risk conviction. The close links between the two rights were recognized before and after the enactment of the Charter, which now guarantees them both in s. 11(c) and (d). (See R. v. Proudlock, supra, at pp. 550‑51; Dubois v. The Queen, 1985 10 (SCC), [1985] 2 S.C.R. 350, at pp. 356‑58; Ratushny, "The Role of the Accused in the Criminal Process", in Beaudoin and Tarnopolsky, eds., The Canadian Charter of Rights and Freedoms: Commentary, at pp. 358‑59). Even if the reverse onus clause only relates to one issue, as is the case with s. 106.7(1), an accused who testifies to meet the onus on that point is open to cross‑examination on the entire case. Had Parliament provided a way for the accused to enter evidence of the certificate without being required to testify, the arguments of the Attorney General of Canada would be more compelling. I am not, however, satisfied that Parliament has done so in s. 106.7(2).
[58] My reason for concluding that Parliament has not so provided is based on the common law relating to the admission of documents into evidence and the interpretation of s. 106.7(2). Before any document can be admitted into evidence there are two obstacles it must pass. First, it must be authenticated in some way by the party who wishes to rely on it. This authentication requires testimony by some witness; a document cannot simply be placed on the bench in front of the judge. Second, if the document is to be admitted as evidence of the truth of the statements it contains, it must be shown to fall within one of the exceptions to the hearsay rule (Delisle, Evidence: Principles and Problems, at pp. 103‑105; Ewart, Documentary Evidence in Canada, at pp. 12, 13, 33; Wigmore on Evidence, vol. 7, 3rd ed., paras. 2128‑2135). These are two distinct issues and in my opinion s. 106.7(2) only addresses the latter. A registration certificate, once admitted, is evidence of the statements it contains, namely that the person it names had complied with the registration requirements for a restricted weapon. How does the document get admitted into evidence?
[59] One of the hallmarks of the common law of evidence is that it relies on witnesses as the means by which evidence is produced in court. As a general rule, nothing can be admitted as evidence before the court unless it is vouched for viva voce by a witness. Even real evidence, which exists independently of any statement by any witness, cannot be considered by the court unless a witness identifies it and establishes its connection to the events under consideration. Unlike other legal systems, the common law does not usually provide for self‑authenticating documentary evidence.
[60] Parliament has provided several statutory exceptions to the hearsay rule for documents, but it less frequently makes exception to the requirement that a witness vouch for a document. For example, the Canada Evidence Act provides for the admission of financial and business records as evidence of the statements they contain, but it is still necessary for a witness to explain to the court how the records were made before the court can conclude that the documents can be admitted under the statutory provisions (see ss. 29(2) and 30(6)). Those explanations can be made by the witness by affidavit, but it is still necessary to have a witness. Exceptionally, s. 241 of the Criminal Code allows for certificates of analysis for breath and blood samples to be evidence of the facts alleged in them without proof of the authenticity of the document (s. 241(1)(e) to (i)), but the prosecution must give notice of the intention to use the certificates and the accused can require that the analyst attend at trial for cross‑examination (s. 241(6) and (7)). There are also common law exceptions to this principle, but the certificate now in issue does not fall within them.
[61] In light of the common law of evidence relating to documents, I do not think that s. 106.7(2) can be interpreted as anything more than a provision which allows a certificate to be evidence of the truth of the statements it contains, as an exception to the hearsay rule. It does not mean that a registration certificate is a self‑authenticating document that can be received as evidence without a witness. The use of the word "purporting" may indicate that if the certificate is admitted and the Crown wishes to challenge its authenticity it must do so by proof beyond a reasonable doubt, but the word "purporting" by itself is not enough to make the document self‑authenticating, contrary to the general common law approach to documentary evidence. Section 106.7(2) does not make it possible for the accused to put the certificate before the court without some witness identifying it.
[62] There will always be one other person who can testify whether the accused had a registration certificate, and that is the local registrar of firearms who processed the application. The accused could avoid testifying by calling this person instead. As soon as this suggestion is made, it undermines the argument that it is more difficult for the Crown to lead evidence on the question of a registration certificate than it would be for the accused: the local registrar of firearms will likely be a police officer, probably a member of the same force that laid the charges.
[63] Section 106.7(1) will either force the accused to testify, in effect requiring him or her to choose between the constitutionally guaranteed rights not to testify or to be presumed innocent, or will require the accused to call a police officer as a defence witness to testify about information contained in police files. In either case, it cannot be said that Parliament has impaired the presumption of innocence as little as possible.
[64] It is true of course that it would be very easy for the accused in this case to testify whether or not he had a registration certificate, but in almost every case, the accused is one of the people best able to explain what happened. Yet it is a fundamental value in our society that we not force the accused to testify, even when the accused is the only person who can answer the question. When there are other witnesses available, as in the present situation, there is even less reason to expect the accused to explain events.
[65] What is the consequence of a conclusion that s. 106.7(1) cannot be salvaged by s. 1 and that the Crown must disprove the existence of a registration certificate when that is in issue? The very comprehensiveness of the gun control scheme of Part II.1 suggests that the prosecution will be able to meet this requirement. A registration certificate for a restricted weapon is issued for a limited territory only. It will be a relatively easy matter for the Crown to determine if the person has a registration certificate, by enquiring with the local registrar for the area where the accused lives or has a place of business. The local registrar, almost always a police officer or employee of the police, will be able to say whether any application from the accused has ever been received; if not, it is reasonable to conclude the accused did not have a registration certificate, as no other official could have processed the application. As a back‑up, there is also the central registry which the Commissioner is required by statute to maintain of all registration certificates issued, revoked, or refused (s. 106.6). This information is entered on the Canadian Police Information Centre Telex, a centralised computer data bank for the entire country. While it may be the case under some regulatory schemes that it is very difficult for the prosecution to find out whether or not an accused has a required permit or licence, that is not the case here. The police have access to the information, since they are almost invariably the persons responsible for the administration of the Part II.1 registry system, and in any event can consult the computer registry.
[66] It is not unreasonable to require the Crown to consult information within the knowledge of the police and to be ready if necessary to produce that information in court. If the argument of convenience to the accused is to be available at all to justify the reversal of the onus of proof under s. 1, it can only be where it is very difficult for the Crown to meet that onus. If it is possible as a general matter for the Crown to meet the onus, then it should be required to do so, even if it would be easier for the accused to prove the matter. When the police actually have the records in question, or access to them, it is hard to argue that it is difficult for them to prove the absence of the necessary certificate. It is worth noting as well, that the Canada Evidence Act, s. 26(2), explicitly provides for proof by affidavit of an officer having charge of such records that a search has been made and that the officer has been unable to find the appropriate licence or document has been issued.
[67] That this is not an impossible task is illustrated by the facts of this case: Allen Prov. Ct. J. convicted the appellant at trial without using s. 106.7(1). The Crown led enough evidence at trial to persuade Allen Prov. Ct. J. beyond a reasonable doubt that the appellant did not have a registration certificate. It is true that Barkman Co. Ct. J. took a different view of the evidence, but that does not mean the Crown will never be able to prove its case. The Crown could have called Sgt. Pilcher's successor to establish that no certificate was issued after 1979. It could have applied under s. 30 of the Canada Evidence Act to enter the contents of the file as evidence. In this case, the Crown simply failed to establish proof beyond a reasonable doubt.
[68] I would conclude that the application of s. 106.7(1) to a person charged with an offence under s. 89(1) is constitutionally invalid. This does not mean, however, that s. 106.7(1) is completely invalid. The section 1 analysis in this case has depended heavily on the nature of registration certificates, including the strict limitations on the area of possession of the restricted weapon and the highly localised administration of the registry system. The section 1 analysis of the presumption in connection with other Part II.1 offences, concerning different certificates or permits, may have a different outcome. For example, firearms acquisition certificates are valid throughout Canada (s. 104(12)). Carrying permits and transport permits allow the owner of a restricted weapon to possess it in different areas, possibly crossing from one police jurisdiction to another (s. 106.2(10)). The justification for s. 106.7(1) in connection with these documents will likely involve different issues and a different s. 1 analysis. Since this case does not involve these types of permits or certificates, I would limit the holding in this case to the conclusion that the application of s. 106.7(1) to a person charged with an offence under s. 89(1) cannot be justified under s. 1 of the Charter.
[69] There is a final point. Parliament has provided in other cases for proof by way of documentary evidence, without the necessity for a witness in court. The certificate of a breathalyzer analyst, referred to earlier, is one such example. The Canada Evidence Act provides another way to prove matters by document. There does not seem to be any difficulty for Parliament to allow similar proof of the files of the local registrar, or possibly of the contents of the Commissioner's central registry.
VIII
Conclusion
[70] In sum, it is my opinion that s. 106.7(1) of the Criminal Code violates s. 11(d) of the Charter. The application of s. 106.7(1) to a person charged under s. 89(1) cannot be justified under s. 1. I would therefore answer the constitutional question in the affirmative.
[71] I would allow the appeal, set aside the judgment of the Court of Appeal of Manitoba and restore the verdict of acquittal on each of the two charges.
The following are the reasons delivered by
[72] Beetz J.‑‑Given the dates of the pre‑Charter trial and the post‑Charter summary conviction appeal, I assume without deciding that the Canadian Charter of Rights and Freedoms applies to this case, and I agree with Justice McIntyre.
The judgment of McIntyre, La Forest and L'Heureux‑Dubé was delivered by
[73] McIntyre J.‑‑I have read the reasons of the Chief Justice which have been prepared for delivery in this appeal. With deference, I am unable to agree with the result he has reached and with the reasons which have led to his conclusion. I will accordingly express my views on this appeal. The Chief Justice has set out the facts, outlined the dispositions made in the courts below and the essence of the reasons given by the judges in those courts.
[74] The issues raised in the appeal were stated by the appellant in these terms. He submitted that the majority of the Court of Appeal erred in deciding the appeal on a question of fact, or in the alternative, on a question of mixed law and fact; also, that the majority of the Court of Appeal erred in deciding that s. 106.7(1) of the Criminal Code of Canada is constitutionally valid and does not contravene the provisions of s. 11(d) of the Canadian Charter of Rights and Freedoms. As to the first ground, I agree with the Chief Justice that a question of law was raised in this appeal before the Court of Appeal. It involved a question of the admissibility of evidence which, as the Chief Justice said, is a clear question of law.
[75] I would agree with the Chief Justice that in order to set aside an acquittal, in this case that recorded by Barkman Co. Ct. J. on the first appeal [(1983), 1983 3740 (MB QB), 22 Man. R. (2d) 46] the Crown must satisfy the Court that the result would not necessarily have been the same if the error made at trial had not occurred. I do not accept, however, considering the evidence adduced and the nature of the evidence excluded, that the Crown failed to meet that test. This disagreement does not assume great significance here, however, because it is evident from the reasons of Barkman Co. Ct. J. that his acquittal of the appellant depended upon his finding that s. 106.7(1) of the Criminal Code offended s. 11(d) of the Charter. After stating that the evidence called by the Crown (the appellant gave no evidence) was insufficient to establish guilt, he said:
I am therefore of the opinion that the accused should not have been convicted unless the provisions of s. 106.7(1) are applicable.
Then, after considering the section and the provisions of s. 11(d) of the Charter, he concluded by saying:
I therefore find the learned provincial court judge erred in admitting hearsay evidence and I find that s. 106.7(1) does not apply because it offends s. 11(d) of the Canadian Charter of Rights and Freedoms.
He had already found that the appellant had possession of the weapons and his acquittal then depended on his finding that s. 106.7(1) was unconstitutional. In other words, he rejected the section on the basis that it reversed the onus of proof. The issue of the constitutionality of the section is therefore vital to a decision in this case.
[76] I turn to the constitutional point. Section 89(1) and s. 106.7 of the Criminal Code, the sections with which we are primarily concerned in this appeal, form part of Part II.1 of the Code which deals with firearms and other offensive weapons. The Code has included provisions for the control, use and possession of firearms since the enactment of the 1892 Criminal Code, S.C. 1892, c. 29, s. 105. That section prohibited the possession of pistols and air guns at other than specific places and, as well, provided for exemptions from the operation of the section. Since that time, there have been successive amendments which without exception have strengthened the controls upon possession and use of firearms. The history of this process is summarized by Martin L. Friedland, A Century of Criminal Justice (1984), commencing at p. 125. He concludes, at p. 128, with what may be considered a sober warning:
Canada has been fortunate in having had a gradual development of control over firearms for the past 100 years. We have never had to face a situation as in the United States today, which appears to many observers to be almost out of control.
This is a consideration which may well be significant in any judicial approach to the construction of Part II.1 of the Code. It is evident that the strict control of handguns has been and remains an essential feature of the Canadian gun control laws.
[77] It is clear that the overall intent of Parliament in enacting Part II.1 of the Criminal Code was to prohibit the acquisition and use of weapons save in accordance with the strict controls it prescribed. Section 89(1) under which the appellant was charged gives effect to this intention by providing that:
- (1) Every one who has in his possession a restricted weapon for which he does not have a registration certificate
(a) is guilty of an indictable offence and is liable to imprisonment for five years; or
(b) is guilty of an offence punishable on summary conviction.
It is evident then that only one possessing a restricted weapon for which he has no registration certificate can be convicted under the section. If a certificate of registration is not obtained, a criminal offence arises from the mere possession of the restricted firearm. Section 89(1) does not apply to anyone who has a valid certificate which is a condition precedent to the lawful possession of the weapons.
[78] The argument is made that s. 106.7(1) imposes a reverse onus of proof upon the accused in a prosecution under s. 89(1). Section 106.7(1) reads:
106.7 (1) Where, in any proceedings under any of sections 83 to 106.5, any question arises as to whether a person is or was the holder of a firearms acquisition certificate, registration certificate or permit, the onus is on the accused to prove that that person is or was the holder of such firearms acquisition certificate, registration certificate or permit.
[79] In pre‑Charter cases the imposition of a reverse onus upon an accused was frequently recognized and accepted as an exception to the general rule requiring proof by the Crown of all elements of an offence beyond a reasonable doubt. It was settled, as well, that where the accused was required to discharge an onus relating to an element of a criminal offence, he had to do so according to the civil standard of proof, that is, he had to establish the matter on a balance of probabilities. A statement of the rule, as then accepted, is to be found in R. v. Appleby, 1971 4 (SCC), [1972] S.C.R. 303. It must be recognized now, however, that a statutory provision which imposes a burden of proof or disproof of an element of an offence on an accused creates an impermissible reverse onus under the Charter: see R. v. Vaillancourt, 1987 2 (SCC), [1987] 2 S.C.R. 636, at p. 655; R. v. Oakes, 1986 46 (SCC), [1986] 1 S.C.R. 103; and R. v. Whyte, 1988 47 (SCC), [1988] 2 S.C.R. 3. It has been held that any statutory provision which could have the effect of permitting a conviction, notwithstanding the existence of a reasonable doubt as to guilt, would contravene s. 11(d) of the Charter which guarantees the right to be presumed innocent until proven guilty according to law.
[80] In my view, however, these principles cannot be of assistance to the appellant here. There is no reverse onus imposed upon the accused by s. 106.7(1), despite the words which are employed in the section. The holder of a registration certificate cannot be made subject to a conviction under s. 89(1). He is not required to prove or disprove any element of the offence or for that matter anything related to the offence. At most, he may be required to show by the production of the certificate that s. 89(1) does not apply to him and he is exempt from its provisions. Far from reversing any onus, s. 106.7 provides in subs. (2) that a document purporting to be a valid registration certificate is evidence and, therefore, prima facie proof of the statements contained therein and in the case at bar conclusive proof, as provided in s. 24(1) of the Interpretation Act, R.S.C. 1970, c. I‑23, set out hereunder:
- (1) Where an enactment provides that a document is evidence of a fact without anything in the context to indicate that the document is conclusive evidence, then, in any judicial proceedings, the document is admissible in evidence and the fact shall be deemed to be established in the absence of any evidence to the contrary.
As Hart J.A. stated in R. v. Conrad (1983), 1983 3545 (NS CA), 8 C.C.C. (3d) 482 (N.S.C.A.), at p. 487, dealing with a charge under s. 87 of the Criminal Code:
The crime is to carry a weapon concealed, and all persons who do so are guilty of the offence. Certain persons are, however, exempted from this prohibition provided they establish their right to exemption before the court. The requirement that they affirmatively establish their privilege of possessing and carrying a restricted weapon does not, in my opinion, interfere with or impede their right to be presumed innocent. The existence of their privilege is not a fact which must be negatived [sic] by the Crown beyond a reasonable doubt in proving the offence charged. No presumption of guilt arises from the combination of ss. 87 and 106.7(1) of the Criminal Code. This is not a situation where a person is deemed to be guilty of an offence unless he establishes his innocence. He is in fact deemed to be not guilty of an offence under s. 87 if he holds a permit of exemption, but the burden is cast upon him to establish that he falls within the exemption given to him. [Emphasis added.]
Although the accused must establish that he falls within the exemption, there is no danger that he could be convicted under s. 89(1), despite the existence of a reasonable doubt as to guilt, because the production of the certificate resolves all doubts in favour of the accused and in the absence of the certificate no defence is possible once possession has been shown. In such a case, where the only relevant evidence is the certificate itself, it cannot be said that the accused could adduce evidence sufficient to raise doubt without at the same time establishing conclusively that the certificate had been issued. The theory behind any licensing system is that when an issue arises as to the possession of the licence, it is the accused who is in the best position to resolve the issue. Otherwise, the issuance of the certificate or licence would serve no useful purpose. Not only is it rationally open to the accused to prove he holds a licence (see R. v. Shelley, 1981 201 (SCC), [1981] 2 S.C.R. 196, at p. 200, per Laskin C.J.), it is the expectation inherent in the system.
[81] Therefore, in my view, s. 106.7(1) does not violate s. 11(d) of the Charter. On that basis, I would dismiss the appeal and uphold the conviction.
Section 1 Analysis
[82] In view of the conclusion that I have reached on the constitutional question, it is not necessary for me to consider the application of s. 1 of the Charter. However, since the question has been raised and argued, I will deal with s. 1 for the purposes of this discussion on the assumption that s. 106.7(1) does infringe the s. 11(d) right. In my view, s. 106.7(1) is clearly sustainable as a reasonable limit prescribed by law which can be demonstrably justified in a free and democratic society. The Chief Justice by reference to R. v. Oakes, supra, has set out the general approach to s. 1 which that case dictates. On the basis of the Oakes test, the impugned section is clearly sustainable. The purpose of Part II.1 and its component sections, including s. 89(1), most assuredly aims at an objective "of sufficient importance to warrant overriding a constitutionally protected right or freedom" (see Oakes, p. 138). The private possession of weapons and their frequent misuse has become a grave problem for the law enforcement authorities and a growing threat to the community. The rational control of the possession and use of firearms for the general social benefit is too important an objective to require a defence. Therefore, I agree with the Chief Justice in his conclusion that the provisions of Part II.1, in general, and s. 106.7(1), in particular, satisfy the first test, that is, that they serve an important social objective.
[83] The second test in Oakes involves a consideration of proportionality. In my view, s. 106.7(1) meets that test as well. This Court has repeatedly observed that the proportionality test must be flexible to avoid a rigid confinement of the Court's consideration to fixed and unchanging standards. The Chief Justice has said in Oakes, at p. 139:
Although the nature of the proportionality test will vary depending on the circumstances, in each case courts will be required to balance the interests of society with those of individuals and groups.
A certain element of common sense must dictate: the Chief Justice observed in Oakes, at p. 138, that:
...there may be cases where certain elements of the s. 1 analysis are obvious or self‑evident.
In R. v. Edwards Books and Art Ltd., 1986 12 (SCC), [1986] 2 S.C.R. 713, he stated at pp. 768‑69:
The Court stated that the nature of the proportionality test would vary depending on the circumstances. Both in articulating the standard of proof and in describing the criteria comprising the proportionality requirement the Court has been careful to avoid rigid and inflexible standards.
Again, at pp. 781‑82:
A "reasonable limit" is one which, having regard to the principles enunciated in Oakes, it was reasonable for the legislature to impose. The courts are not called upon to substitute judicial opinions for legislative ones as to the place at which to draw a precise line. [Emphasis added.]
La Forest J. (concurring in the result in Edwards Books, supra) made the following comment, at pp. 794‑95:
Let me first underline what is mentioned in the Chief Justice's judgment, that in describing the criteria comprising the proportionality requirement, the Court has been careful to avoid rigid and inflexible standards. That seems to me to be essential. Given that the objective is of pressing and substantial concern, the Legislature must be allowed adequate scope to achieve that objective. It must be remembered that the business of government is a practical one. The Constitution must be applied on a realistic basis having regard to the nature of the particular area sought to be regulated and not on an abstract theoretical plane . . . .
By the foregoing, I do not mean to suggest that this Court should, as a general rule, defer to legislative judgments when those judgments trench upon rights considered fundamental in a free and democratic society. Quite the contrary, I would have thought the Charter established the opposite regime. On the other hand, having accepted the importance of the legislative objective, one must in the present context recognize that if the legislative goal is to be achieved, it will inevitably be achieved to the detriment of some. Moreover, attempts to protect the rights of one group will also inevitably impose burdens on the rights of other groups. There is no perfect scenario in which the rights of all can be equally protected.
In seeking to achieve a goal that is demonstrably justified in a free and democratic society, therefore, a legislature must be given reasonable room to manoeuvre to meet these conflicting pressures. Of course, what is reasonable will vary with the context. Regard must be had to the nature of the interest infringed and to the legislative scheme sought to be implemented.
And, in R. v. Morgentaler, 1988 90 (SCC), [1988] 1 S.C.R. 30, the Chief Justice said, at pp. 73‑74:
In Oakes, at p. 139, the Court referred to three considerations which are typically useful in assessing the proportionality of means to ends. First, the means chosen to achieve an important objective should be rational, fair and not arbitrary. Second, the legislative means should impair as little as possible the right or freedom under consideration. Third, the effects of the limitation upon the relevant right or freedom should not be out of proportion to the objective sought to be achieved.
[84] In my view, the proportionality test in Oakes is easily satisfied in this case. Before going further, it will be helpful to state in simple terms just what is required of persons who wish to possess and use restricted weapons. They are required to register the weapons. Having done so, they are provided with a certificate which excludes them from the provisions of Part II.1 within the terms of their certificate. If a question arises as to the existence of a permit or certificate, they are required to produce it. That is the burden imposed upon a person lawfully in possession of a restricted weapon. In this way, the legislative purpose implicit in s. 89(1) of the Criminal Code is recognized and given effect. A condition precedent to the lawful possession of a restricted weapon is the obtaining of a valid registration certificate by the possessor. If the certificate is not held, a criminal offence has been committed by the mere fact of possession. Thus, a balance has been struck between the interest of the community in the control of possession and use of firearms and the interest of those who desire to possess and make lawful use of firearms. Considering then the first branch of the proportionality test, it is completely "rational, fair and not arbitrary" that where any question arises as to whether the proper certificate has been issued the accused be expected to produce it. This is particularly true where, as here, the impugned legislative provisions provide to the lawful weapon holder an absolute defence or immunity from prosecution. It is, in my view, irrelevant that possession of a restricted weapon "in no way tends rationally to prove" any lack of registration certificate, for the possession of the weapon in the absence of the certificate is an offence complete in itself. In addition, as has been pointed out earlier, there is no possibility that a person could be convicted despite the existence of a reasonable doubt as to his guilt. This could not occur. In my view, therefore, it is totally unreasonable to require the Crown to prove the non‑occurrence of an event (registration) for which the Criminal Code itself provides the only relevant evidence directly to the affected party. As Brooke J.A. said in R. v. Lee's Poultry Ltd. (1985), 1985 166 (ON CA), 17 C.C.C. (3d) 539 (Ont. C.A.), at p. 544 regarding the comment by Dubin J.A. during the argument on that case:
"How could it be unfair to ask a person to produce his licence or evidence that he has one? Surely, it is the sensible thing to do".
[85] Secondly, s. 106.7(1) should impair as little as possible the right to be presumed innocent. The Chief Justice objects to an obligation on an accused to produce a licence on the basis that it may force the accused into the witness box. Reference was made to a passage from pp. 184‑85, Glanville Williams, The Proof of Guilt (3rd ed. 1963), in support of the argument against making exceptions to the principle that the Crown bear the onus of proof. The words which follow the excerpt referred to by the Chief Justice, however, cast light upon the question of requiring the accused to enter the witness box. The learned author continued his discussion, at p. 185, with the following:
There is a clear if subtle difference between shifting the burden of proof, or risk of non‑persuasion of the jury, and shifting the evidential burden, or burden of introducing evidence in proof of one's case. It is not a grave departure from traditional principles to shift the evidential burden, though such a shifting does take away from the accused the right to make a submission that there is no case to go to the jury on the issue in question, and it may in effect force him to go into the witness‑box.
In any event, the risk of cross‑examination upon going into the witness box would be relatively small, given that the only relevant issue to which it would ordinarily be addressed is as to whether a registration certificate had been properly acquired and, in any event, under s. 13 of the Charter and the judgments of this Court in Dubois v. The Queen, 1985 10 (SCC), [1985] 2 S.C.R. 350, and R. v. Mannion, 1986 31 (SCC), [1986] 2 S.C.R. 272, which applied its provisions, the cross‑examination could not be used against the accused in any other case and an accused would be exposed to no danger in that respect. Of more importance, however, is the fact that the concern is more academic than real because the mere existence of a valid certificate would ordinarily forestall any criminal proceedings. It becomes improbable, to say the least, that an accused will ever be forced to testify merely to produce his licence. In my view, the fact that an accused might be required to enter the witness box to tender his certificate would not be a matter of great significance and certainly not one which would justify a finding of unconstitutionality of s. 106.7(1). Therefore, in my view, Parliament has impaired very minimally the presumption of innocence by requiring an accused to show his licence as proof of lawful possession.
[86] Finally, there is no doubt that the third test of proportionality, as between the limitation of the Charter right and the objectives sought to be achieved, is also amply demonstrated. It has been suggested that it "should not be at all difficult" for the Crown to prove a negative, namely, that no certificate had been issued. This, however, is to deny the many problems of proof which the licensing system was itself designed to avoid. First is the problem of the number of registrars who could deal with the application for registration. The local registrar can issue a certificate based on the normal place of business even though the accused lives in another city or province. If an accused carries on several businesses in diverse areas or resides at varying locations, is it reasonable to expect that several local registrars be called to testify that after a search of their records they could find no certificate issued? I am unable to agree with the Chief Justice in his conclusion that:
If that local registrar had not received an application for a registration certificate, then no one else could have received one.
It is not necessarily an easy matter for the Crown to prove non‑registration. The existence of a central computerized registry system offers no complete answer to the problems facing the Crown in meeting the burden the Chief Justice would impose. To authenticate the accuracy of a computer file could involve extensive evidentiary procedures and much would need to be proven in order to verify the completeness of the computer record and the absence of a certificate for an accused. This would be an inordinate burden on the Crown in criminal enforcement when Parliament itself adopted the reasonable alternative of providing the accused with a certificate which would establish his innocence by its mere production.
[87] The measures adopted in Part II.1 of the Criminal Code are carefully tailored to effect a balance between the community interest and that of those who desire to possess weapons lawfully and they are clearly appropriate to the objectives sought. Only minimal interference is made with the right of the individual weapon possessor. His rights from a practical point of view are limited to the least extent possible. Even if there is merit in the suggestion that the Crown, using computers and modern technology, could easily negate the fact of the existence of a permit, Parliament has made a reasonable choice in the matter and, in my view, it is not for the Court, in circumstances where the impugned statutory provision clearly involves, at most, minimal ‑‑ or even trivial‑‑interference with the right guaranteed in the Charter, to postulate some alternative which in its view would offer a better solution to the problem, for to do so is to enter the legislative field, so far at least not entirely removed from Parliament. I would therefore hold that any limits imposed by s. 106.7(1) of the Criminal Code are sustainable under s. 1 of the Charter.
[88] A constitutional question was posed in these terms:
Is section 106.7(1) of the Criminal Code of Canada constitutionally invalid in that it contravenes the provisions of s. 11(d) of the Canadian Charter of Rights and Freedoms?
[89] I would answer the question in the negative, dismiss the appeal and restore the conviction.
The following are the reasons delivered by
[90] Lamer J. (dissenting)‑‑I agree with the Chief Justice in all regards except for the objective he assigns to s. 106.7(1) when under the s. 1 scrutiny he takes the section through the Oakes test. While I certainly do agree with him that "to discourage the use of firearms by the criminal element of our society" is an objective which "relate(s) to concerns which are pressing and substantial in a free and democratic society", and that such an objective "satisfi[es] the first stage of the approach to s. 1 set out in Oakes", I am, with respect, of the view that is the object the attainment of which is sought through making it an offence to possess unregistered restricted weapons, under s. 89(1) and the various other sections restricting or prohibiting possession or use of different types of weapons.
[91] Section 106.7(1) is not particular nor essential to weapons legislation. It is a purely evidentiary section which could be appended or directed to any number of laws requiring the licensing of persons or the registration of certain things, such as in this case guns, but also automobiles under provincial legislation, dogs under municipal by‑laws, to name but a few. The objective of a section such as s. 106.7(1) is to relieve the prosecution of the inconvenience‑‑a slight one in these days of computers and of instant communication facilities‑‑of securing a certificate from the appropriate authority attesting to the absence of any record establishing registration. It is in no way part of the arsenal in the war against crime involving weapons. Its sole purpose is administrative convenience. When the cost of this convenience is the restriction of an accused's rights under s. 11(d) in the context of the prosecution of a Criminal Code offence, it is clearly not an objective of sufficient importance to warrant overriding such a right. This to me ends the s. 1 enquiry.
[92] Before concluding, I should add that this is not to say that, in a setting where imprisonment is not available as a penalty and where conviction does not carry the stigma of a criminal record, administrative convenience could not prevail over the rights of the citizen. But this is not the case here.
[93] Subject to these remarks, I concur in the reasons of the Chief Justice and in his disposition of this appeal.
Appeal dismissed, Dickson C.J. and Lamer J. dissenting. The constitutional question should be answered in the negative.
Solicitors for the appellant: Gindin, Soronow, Malamud & Gutkin, Winnipeg.
Solicitor for the respondent: The Attorney General of Manitoba, Winnipeg.
Solicitor for the intervener the Attorney General of Canada: Frank Iacobucci, Ottawa.
- Estey J. took no part in the judgment.
