r. v. holmes, [1988] 1 S.C.R. 914
Murray Ross Holmes Appellant
v.
Her Majesty The Queen Respondent
and
The Attorney General of Canada, the Attorney General of Quebec and the Attorney General for Saskatchewan Interveners
indexed as: r. v. holmes
File No.: 17643.
1987: April 2; 1988: May 26.
Present: Dickson C.J. and McIntyre, Lamer, Le Dain and La Forest JJ.
on appeal from the court of appeal for ontario
Constitutional law ‑‑ Charter of Rights ‑‑ Presumption of innocence ‑‑ Possession of house‑breaking instruments ‑‑ Whether accused bearing persuasive burden of establishing lawful excuse to justify his actions where intent to use the instruments for house‑breaking purposes admitted ‑‑ Whether s. 309(1) of the Criminal Code violated s. 11(d) of the Charter ‑‑ If so, whether such violation justifiable under s. 1 of the Charter.
Criminal law ‑‑ Possession of house‑breaking instruments ‑‑ Burden of proof ‑‑ Presumption of innocence ‑‑ Whether accused bearing persuasive burden of establishing lawful excuse to justify his actions where intent to use the instruments for house‑breaking purposes admitted ‑‑ Whether s. 309(1) of the Criminal Code violated s. 11(d) of the Charter ‑‑ If so, whether such violation justifiable under s. 1 of the Charter.
Criminal law ‑‑ Elements of offence ‑‑ Burden of proof ‑‑ Possession of house‑breaking instruments ‑‑ Whether accused's intent to use the instruments for house‑breaking an essential element of the offence ‑‑ Whether accused required to prove innocent intent on a balance of probabilities ‑‑ Criminal Code, R.S.C. 1970, c. C‑34, s. 309(1).
Appellant was charged with unlawful possession of house‑breaking instruments contrary to s. 309(1) of the Criminal Code. This section provides that "Every one who, without lawful excuse, the proof of which lies upon him, has in his possession any instrument suitable for house‑breaking . . . under circumstances that give rise to a reasonable inference that the instrument has been used or is or was intended to be used for house‑breaking . . . is guilty of an indictable offence . . . ." Prior to entering a plea, appellant moved to quash the indictment. The judge granted the motion on the ground that s. 309(1) was inconsistent with the presumption of innocence in s. 11(d) of the Charter. On appeal, the Court of Appeal set aside the order quashing the indictment and directed that the indictment be prosecuted in the ordinary way. The Court held that s. 309(1) did not constitute a "reverse onus" clause and thus was not inconsistent with s. 11(d) of the Charter. This appeal is to determine whether s. 309(1) of the Code violates s. 11(d) of the Charter and, if so, whether such violation is justifiable under s. 1 of the Charter.
Held: The appeal should be dismissed.
Per McIntyre and Le Dain JJ.: Section 309(1) of the Criminal Code is not inconsistent with s. 11(d) of the Charter which guarantees the right to be presumed innocent unless proven guilty according to the law. The burden of proof under s. 309(1) must be discharged without the benefit of any presumption
against the accused.
The words "reasonable inference" (of guilt) in s. 309(1) do not enable a finding of guilt on something less than proof beyond a reasonable doubt. These words employed in a criminal enactment can mean only an inference which on the basis of the criminal standard of proof beyond a reasonable doubt would warrant a conclusion of guilt in the absence of any answer or explanation. An inference of guilt is not reasonable in the criminal context unless it overrides a reasonable doubt.
The phrase "without lawful excuse, the proof of which lies upon him" in the context of s. 309(1) does not amount to a reverse onus clause which imposed a burden on the accused to prove his innocence. These words were included in the section in order to make available the defence of innocent purpose, which would not have been open to an accused without this phrase because, in the words of the section prior to 1972, the offence was complete without consideration of purpose. When the section was amended in 1972 to make the intention to use the instrument for house‑breaking an essential element of the offence, the phrase was rendered superfluous. The purpose for which the accused intended to use the tools was effectively converted from a defence which the accused had to prove to show his innocence, to an essential element of the offence which the Crown had to prove beyond a reasonable doubt to prove his guilt. As a result, the phrase was denuded of its original content and was probably retained in the section out of an abundance of caution.
The general common law excuses, such as duress or authorization by law, are not encompassed within the phrase "without lawful excuse" and need not be proved on a balance of probabilities. These words do not encompass excuses or justifications that would exist if the words were omitted from the Code. In any event, even if s. 309(1) would require the accused to establish such defences on a balance of probabilities, this requirement would not offend s. 11(d) of the Charter. Defences or excuses of this nature can only be raised where the offence has been proved. Where, as in this case, proof of guilt beyond a reasonable doubt is required without the benefit of any presumption before any need for defence arises, s. 11(d) of the Charter is not offended.
Per La Forest J.: I am in agreement with the interpretation given s. 309(1) of the Code by McIntyre J. So interpreted, the section does not conflict with s. 11(d) of the Charter.
Per Dickson C.J. and Lamer J.: The intention to use the instruments for house‑breaking purposes is an essential component of the offence under s. 309(1) of the Code. The Crown must prove not only possession of the instruments specified in the indictment and that they were suitable for house‑breaking purposes beyond a reasonable doubt, but also "circumstances that give rise to a reasonable inference that the instrument has been used or is or was intended to be used for house‑breaking". Such an inference, in the context of a criminal charge, can only be reasonable where the jury is convinced beyond a reasonable doubt that the accused actually intended to or did use the instruments for the purpose of house‑breaking. The section therefore does not place a persuasive burden on the accused to establish a lack of intention to use the instruments for house‑breaking purposes. Any burden on the accused with respect to such a defence is purely an evidential one. But the opening words of s. 309(1) ‑‑ namely, "without lawful excuse, the proof of which lies upon him" ‑‑ place a persuasive burden on the accused to establish on a balance of probabilities an excuse in circumstances where he admits an intention to use the instruments for house‑breaking purposes but claims a justification for his actions, such as duress or authorization by law.
Section 309(1) of the Code violates s. 11(d) of the Charter. Although, strictly speaking, s. 309(1) is not a "reverse onus" provision, in that it does not presume an essential element of the offence, the provision, by requiring proof by the accused of certain defences on a balance of probabilities, makes it possible for a conviction to occur despite the existence of a reasonable doubt. Any burden on an accused which has the effect of dictating a conviction despite the presence of a reasonable doubt contravenes s. 11(d).
Section 309(1) of the Code is not justifiable under s. 1 of the Charter. The section does not meet the proportionality test enunciated in Oakes. First, section 309(1) does not impair "as little as possible" the right or freedom guaranteed by s. 11(d) of the Charter. Given the circumstances surrounding this kind of offence and the objective of curbing property‑related crimes, Parliament could have imposed simply an evidential burden on the accused to introduce some evidence raising a reasonable doubt as to his guilt. Second, the effects which result from imposing a persuasive burden on the accused in connection with a criminal offence making unlawful the possession of even the most innocuous of tools are too deleterious. Section 309(1) leaves open the possibility that innocent persons will be jailed.
Finally, the fact that s. 309(1) of the Code is not justifiable under s. 1 of the Charter does not necessarily lead to the conclusion that the whole of s. 309(1) is void. The excision of the words "the proof of which lies upon him" from the provision would eliminate the possibility of the conviction of an accused who had a lawful excuse for his actions but could not prove that excuse on a balance of probabilities.
Cases Cited
By McIntyre J.
Referred to: R. v. Kozak and Moore (1975), 1975 CanLII 1232 (ON CA), 20 C.C.C. (2d) 175; Brownridge v. The Queen, 1972 CanLII 17 (SCC), [1972] S.C.R. 926; R. v. Santeramo (1976), 1976 CanLII 1456 (ON CA), 32 C.C.C. (2d) 35; Bergstrom v. The Queen, 1981 CanLII 188 (SCC), [1981] 1 S.C.R. 539; R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103.
By Dickson C.J.
Considered: Tupper v. The Queen, 1967 CanLII 14 (SCC), [1967] S.C.R. 589; referred to: R. v. Appleby, 1971 CanLII 4 (SCC), [1972] S.C.R. 303; Brownridge v. The Queen, 1972 CanLII 17 (SCC), [1972] S.C.R. 926; R. v. Proudlock, 1978 CanLII 15 (SCC), [1979] 1 S.C.R. 525; R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103; R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. 295; R. v. Kozak and Moore (1975), 1975 CanLII 1232 (ON CA), 20 C.C.C. (2d) 175; R. v. Smith (1957), 1957 CanLII 872 (NL CA), 27 C.R. 359; R. v. Haire (1958), 1958 CanLII 421 (AB SCAD), 29 C.R. 233; R. v. McRae (1967), 1967 CanLII 440 (SK CA), 50 C.R. 325; R. v. Gilson, 1965 CanLII 350 (ON CA), [1965] 2 O.R. 505; R. v. Kernychne, Ont. C.A., March 17, 1965, unreported; R. v. Singleton (1956), 1956 CanLII 497 (ON CA), 115 C.C.C. 391; R. v. Jones (1960), 1960 CanLII 464 (BC CA), 128 C.C.C. 230; R. v. Patterson (1961), 46 Cr. App. R. 106; Taraschuk v. The Queen, 1975 CanLII 37 (SCC), [1977] 1 S.C.R. 385; R. v. Cooper, 1977 CanLII 11 (SCC), [1978] 1 S.C.R. 860; Re B.C. Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 S.C.R. 486; Latour v. The King, 1950 CanLII 12 (SCC), [1951] S.C.R. 19; Linney v. The Queen, 1977 CanLII 170 (SCC), [1978] 1 S.C.R. 646; Perka v. The Queen, 1984 CanLII 23 (SCC), [1984] 2 S.C.R. 232.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 1, 11(d).
Criminal Code, S.C. 1953‑54, c. 51, s. 295.
Criminal Code, R.S.C. 1970, c. C‑34, ss. 7(3), 17 [am. 1974‑75‑76, c. 105, s. 29], 241(1), 309(1) [rep. & subs. 1972, c. 13, s. 25], (2), 577(3).
Criminal Law Amendment Act, S.C. 1985, c. 19, s. 49.
Authors Cited
Canada. Law Reform Commission. Criminal Intrusion (Working Paper No. 48). Ottawa: 1986.
Canada. Statistics Canada, Canadian Centre for Justice Statistics. Canadian Crime Statistics 1985. Ottawa: Minister of Supply and Services Canada, 1986.
Mewett, Alan W., and Morris Manning. Criminal Law, 2nd ed. Toronto: Butterworths, 1985.
APPEAL from a judgment of the Ontario Court of Appeal (1983), 1983 CanLII 1827 (ON CA), 41 O.R. (2d) 250, 145 D.L.R. (3d) 689, 4 C.C.C. (3d) 440, 4 C.C.R. 222, 32 C.R. (3d) 322, allowing an appeal from a judgment of Clements Co. Ct. J. (1982), 1982 CanLII 1755 (ON SC), 38 O.R. (2d) 290, 138 D.L.R. (3d) 657, 69 C.C.C. (2d) 122, 2 C.R.R. 275, quashing an indictment charging the accused with possession of instruments suitable for house‑breaking. Appeal dismissed.
C. Jane Arnup, for the appellant.
John Pearson, for the respondent.
G. H. McCracken, Q.C., for the intervener the Attorney General of
Canada.
Paul Monty and Gilles Laporte, for the intervener the Attorney General of Quebec.
Robert G. Richards, for the intervener the Attorney General for Saskatchewan.
The reasons of Dickson C.J. and Lamer J. were delivered by
The Chief Justice ‑‑ The appellant, Murray Ross Holmes, was charged with unlawful possession of house‑breaking instruments. Section 309(1) of the Criminal Code provides that a person who, without lawful excuse, is found in possession of an instrument suitable for house‑breaking, in circumstances which give rise to a reasonable inference that the instrument has been used or is or was intended to be used for house‑breaking, is guilty of an indictable offence. This appeal concerns the constitutionality of s. 309(1). The appellant Mr. Holmes argues that s. 309(1) violates the presumption of innocence enshrined in s. 11(d) of the Canadian Charter of Rights and Freedoms. The Crown submits that s. 309(1) at no time requires an accused to disprove guilt in a manner which violates s. 11(d) of the Charter.
I
Statutory and Constitutional Provisions
Before reviewing the factual and procedural history of this appeal, I will set out the relevant statutory and constitutional provisions.
Criminal Code, R.S.C. 1970, c. C‑34 (as amended by S.C. 1972, c. 13, s. 25):
309.(1) Every one who, without lawful excuse, the proof of which lies upon him, has in his possession any instrument suitable for house‑breaking, vault‑breaking or safe‑breaking, under circumstances that give rise to a reasonable inference that the instrument has been used or is or was intended to be used for house‑breaking, vault‑breaking or safe‑breaking, is guilty of an indictable offence and is liable to imprisonment for fourteen years.
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;
II
Facts
As stated, Murray Ross Holmes was charged that he unlawfully had in his possession instruments suitable for house‑breaking to wit: a pair of vice grips and a pair of pliers under circumstances that gave rise to a reasonable inference that the said instruments were intended to be used for house‑breaking, contrary to s. 309(1) of the Criminal Code. Prior to entering a plea, counsel for Holmes moved to quash the indictment. Clements Co. Ct. J. granted the motion: (1982), 1982 CanLII 1755 (ON SC), 38 O.R. (2d) 290.
On appeal, the Ontario Court of Appeal set aside the order of Clements Co. Ct. J., and directed that the indictment be prosecuted in the ordinary way: (1983), 1983 CanLII 1827 (ON CA), 41 O.R. (2d) 250.
III
Judgments
Clements Co. Ct. J. quashed the indictment on the ground thats. 309(1) of the Code was inconsistent with the presumption of innocence and s. 11(d) of the Charter. In his view, because it requires the Crown only to prove circumstances which give rise to "a" reasonable inference of guilty intent, s. 309(1) of the Code places an onus on the accused to adduce evidence of an alternative, and equally compelling, reasonable inference of innocent intent; that runs counter to the presumption of innocence entrenched in s. 11(d) of the Charter.
In a unanimous judgment, Lacourcière J.A. (Weatherston and Cory JJ.A. concurring), of the Ontario Court of Appeal held that s. 309(1) does not constitute a "reverse onus" clause and thus is not inconsistent with s. 11(d) of the Charter. In interpreting s. 309(1), he relied on the following statement by Martin J.A. in R. v. Kozak and Moore (1975), 1975 CanLII 1232 (ON CA), 20 C.C.C. (2d) 175 (Ont. C.A.), at pp. 179‑80:
As will be gathered from what I have already said, it was incumbent upon the Crown to prove: (a) possession by the accused of the instruments specified in the indictment; (b) that they were suitable for the purpose of housebreaking, safe‑breaking or vault‑breaking; (c) that such instruments were found under circumstances that give rise to a reasonable inference that the instruments were intended to be used for housebreaking, safe‑breaking or vault‑breaking. It was only after those elements were proved that the accused were required to discharge the burden of proving a lawful excuse for the possession of such instruments on a balance of probabilities: see Tupper v. The Queen, 1967 CanLII 14 (SCC), [1967] 1 C.C.C. 253, 63 D.L.R. (2d) 289, [1967] S.C.R. 589.
As for the reference in s. 309(1) to "without lawful excuse, the proof of which lies upon him", Lacourcière J.A. stated the following (at p. 258):
The burden of adducing evidence of lawful excuse is not meant to apply to any of the inside requirements if I may extend the expression of Chief Justice Laskin [in Taraschuk v. The Queen, 1975 CanLII 37 (SCC), [1977] 1 S.C.R. 385, at p. 388], i.e., the three essential ingredients previously mentioned, but only to an extraneous excuse such as "I was insane", "I was under compulsion by threats", "I was drunk", "I was under automatism", etc. These are clearly extraneous excuses. On the other hand, if the explanation is "I am a plumber" or a tradesman who uses tools suitable for house‑breaking, the excuse may not have the same extraneous quality. It is nevertheless an excuse within the meaning of the section which requires proof by a preponderance of evidence. The reason for this is that it is based on the admission that although circumstances existed that, even if objectively viewed, gave rise to the requisite reasonable inference, such inference ought not in fact to be drawn in the circumstances because of the explanation.
Lacourcière J.A. concluded by stating (at p. 256):
Section 309(1) does not raise any presumption or create any reverse onus in the true sense. The Crown must establish the three mentioned essential ingredients by proof beyond a reasonable doubt. Only then can the evidentiary onus be shifted to the accused to provide, on a balance of probabilities, a lawful excuse. The section does not require that the Crown prove an intent to use the instruments for house‑breaking. If, however, the third requirement of circumstances, etc., is said to create a presumption of house‑breaking intent, I would be prepared to say that such intent is rationally connected to the facts required to be proved and meets the test enunciated in R. v. Oakes [(1983), 1983 CanLII 1850 (ON CA), 145 D.L.R. (3d) 123 (Ont. C.A.)].
Seeing the quashing of the indictment as tantamount to an acquittal based on an error of law, Lacourcière J.A. allowed the appeal, set aside the order of Clements Co. Ct. J. and directed that the prosecution of the indictment continue.
IV
The Issues
The constitutional questions in this appeal were stated as follows:
1.Is section 309(1) of the Criminal Code of Canada inconsistent with s. 11(d) of the Canadian Charter of Rights and Freedoms?
2.If so, is s. 309(1) of the Criminal Code of Canada justified on the basis of s. 1 of the Canadian Charter of Rights and Freedoms?
The Attorneys General of Canada, Quebec and Saskatchewan intervened in the appeal in support of the Crown respondent.
The above questions call for three separate lines of inquiry. First, meaning must be given to s. 309(1) of the Criminal Code. This Court must give precise content to the provision in light of its legislative and jurisprudential history. A host of conflicting interpretations has been offered by the parties and interveners to this appeal. Secondly, the implications of s. 11(d) of the Charter in relation to the provision on its true construction must be addressed. Thirdly, assuming the answer to the first constitutional question to be in the affirmative, the effect of s. 1 of the Charter must be analyzed.
V
Section 309(1) of the Criminal Code
Counsel for the appellant submits that s. 309(1) is a "reverse onus" provision and contravenes s. 11(d) of the Charter. She argues that s. 309(1) permits the Crown to rely on evidence equally consistent with a reasonable and innocent explanation, because the section requires the Crown to prove only that one inference is that the accused intended to use the instruments for burglary purposes. This appears to follow Clements Co. Ct. J.'s line of reasoning and arguably leads to the conclusion that the section has the effect of lowering the standard of proof required of the Crown below that of a reasonable doubt, since evidence consistent with both guilty intent and innocent intent would not constitute proof beyond reasonable doubt. With respect to the phrase "without lawful excuse", counsel for the appellant submits that it reinforces the conclusion that the accused bears the burden of proving innocent intent on a balance of probabilities.
The respondent Crown's primary submission is that s. 309(1) does not create a reverse onus at all. In its view, a reverse onus exists when an accused is required to disprove on a balance of probabilities the existence of an essential element of an offence. In its supplementary factum, it submits that the purpose or intention of the accused in possessing the instruments in question is not an essential element of the offence. Adopting the submissions of the Attorney General of Quebec on this point, the Crown argues that s. 309(1) does not require an accused to disprove any of the three essential elements of the offence as outlined by Martin J.A. in R. v. Kozak and Moore, supra, on a balance of probabilities. As such, s. 309(1) does not constitute a reverse onus clause. In the alternative, the Crown submits that if the intention of an accused is an essential element of the offence, any burden placed on the accused merely is an evidential one. That is, s. 309(1)'s reference to "a reasonable inference" simply describes "the general process by which an inference of intent is to be drawn"; the question is essentially the same as in all criminal offences: did the accused actually have the intent to use the instruments for house‑breaking? The burden of proving intent, in this alternative submission, remains on the Crown throughout the trial. With respect to the phrase "without lawful excuse", the Crown submits that it is an anachronism carried forward to the present from early English legislation. It submits that the clause may be superfluous as it creates no defence that is not already available. The interveners, the Attorney General of Canada, the
Attorney General of Quebec and the Attorney General of Saskatchewan, make similar submissions.
After careful consideration, I am of the view that intention is an essential element of the offence and that the section does not require an accused to disprove guilty intent on a balance of probabilities. The burden of proving intention to use the instrument for house‑breaking rests on the Crown. The reference to "circumstances that give rise to a reasonable inference that the instrument . . . was intended to be used for house‑breaking" permits, but does not require, the jury to draw an inference of guilty intent from suspicious circumstances. If the jury is convinced beyond a reasonable doubt that the accused actually intended to engage in an unlawful act, that inference ought to be drawn. On the other hand, I am also of the view that the opening words of s. 309(1), namely, "without lawful excuse, the proof of which lies upon him", place a persuasive burden on the accused to establish on a balance of probabilities an excuse in circumstances where he or she seeks to justify his or her actions despite an intention to use an instrument for house‑breaking purposes. Such would be the case where an accused seeks an acquittal due to duress or authorization by law. I reach this conclusion in light of this Court's reasoning in Tupper v. The Queen, 1967 CanLII 14 (SCC), [1967] S.C.R. 589, and s. 309(1)'s legislative history.
In Tupper v. The Queen, this Court had occasion to address s. 295(1) of the Code, the predecessor of s. 309(1). Section 295(1) provided the following:
295.(1) Every one who without lawful excuse, the proof of which lies upon him, has in his possession any instrument for house‑breaking, vault‑breaking or safe‑breaking is guilty of an indictable offence and is liable to imprisonment for fourteen years.
The facts in Tupper were that early one morning police stopped a car in which Tupper was a passenger. Various screwdrivers, a flashlight, a crowbar, two nylon stockings and numerous items of clothing were found in the vehicle. Upon appeal to this Court, Tupper submitted that the Crown must prove some event, overt action or declaration to identify the tools with a specific unlawful purpose before the onus is cast on the accused to provide an explanation. Tupper relied on the following line of jurisprudence: R. v. Smith (1957), 1957 CanLII 872 (NL CA), 27 C.R. 359 (Nfld. C.A.); R. v. Haire (1958), 1958 CanLII 421 (AB SCAD), 29 C.R. 233 (Alta. C.A.); and R. v. McRae (1967), 1967 CanLII 440 (SK CA), 50 C.R. 325 (Sask. C.A.) A conflicting line of authority was reflected in such cases as R. v. Gilson, 1965 CanLII 350 (ON CA), [1965] 2 O.R. 505 (C.A.); R. v. Kernychne (Ont. C.A., March 17, 1965, unreported); R. v. Singleton (1956), 1956 CanLII 497 (ON CA), 115 C.C.C. 391 (Ont. C.A.); R. v. Jones (1960), 1960 CanLII 464 (BC CA), 128 C.C.C. 230 (B.C.C.A.)
Judson J., for the majority of the Court in Tupper, dismissed the appellant's argument and, at p. 593, stated the following:
Once possession of an instrument capable of being used for housebreaking has been shown, the burden shifts to the accused to show on a balance of probabilities that there was lawful excuse for possession of the instrument at the time and place in question.
Hall J. wrote a separate judgment concurring in the result, but expressed concern over the breadth of the prohibition. At page 594, he stated:
Whether Parliament intended it or not, s. 295(1), as it reads, permits of no other interpretation. It puts the possessor of many necessary tools of trade, automobile accessories and tools and hundreds of similar instruments used and carried daily for routine purposes which might be capable of being used for house‑breaking in the position that merely from being in possession under the most innocent circumstances, he can be brought into court and put to the proof that he has a lawful excuse for having a screwdriver, a flashlight or some other such household tool or instrument in his car, boat, tool kit or on his person at any given time or place which includes his home. It can be argued and readily accepted that this may not happen frequently, but it can and may happen if Parliament really intended what the section says when, without any qualification as to time or circumstance, it put the burden of proof on the person in whose possession any such item may be found.
The interpretation which the wording of the section compels should, I think, be drawn to Parliament's attention.
Tupper, then, stands for the proposition that the provision, as it was then worded, did not require the Crown to prove beyond reasonable doubt that the accused actually intended to use the instruments for house‑breaking purposes. All it needed to show was possession of an instrument capable of being used for house‑breaking; once that was shown, the onus fell upon the accused to persuade the jury that he or she had a lawful excuse for possessing the instrument in question. Tupper has since been affirmed by this Court in R. v. Appleby, 1971 CanLII 4 (SCC), [1972] S.C.R. 303, and the same conclusion has been reached with respect to similar legislation in England. See R. v. Patterson (1961), 46 Cr. App. R. 106.
It should be noted that s. 295(1) did not relieve the Crown of its obligation to prove beyond a reasonable doubt the essential elements of the offence as it was then worded: namely, possession by the accused of the instruments specified in the indictment, and that those instruments were suitable for the purpose of house‑breaking. Once these elements were established beyond a reasonable doubt, however, the accused bore the burden of proving "lawful excuse" on a balance of probabilities. A "lawful excuse" thus does not refer to, or tend to disprove, an element of an offence; rather, it refers to "matters which stand outside the requirements which must be met" (Taraschuk v. The Queen, 1975 CanLII 37 (SCC), [1977] 1 S.C.R. 385, at p. 388). Since an intention to use the instruments for an unlawful purpose was not an element of the offence as it was then worded, an accused was required to disprove such an intention on a balance of probabilities. Section 295(1), however, placed a similar, persuasive burden on an accused who admitted committing the offence and an intention to use the instruments for house‑breaking purposes but who sought exculpation, for example, on grounds of duress or authorization by law. Such defences equally stood "outside the requirements which [had to be] met". As such, they had to be established on a balance of probabilities.
In 1972, perhaps in response to Hall J.'s concurring judgment, Parliament amended s. 309 (S.C. 1972, c. 13), which, for ease of reference, I repeat:
309.(1) Every one who, without lawful excuse, the proof of which lies upon him, has in his possession any instrument suitable for house‑breaking, vault‑breaking or safe‑breaking, under circumstances that give rise to a reasonable inference that the instrument has been used or is or was intended to be used for house‑breaking, vault‑breaking or safe‑breaking, is guilty of an indictable offence and is liable to imprisonment for fourteen years. [Emphasis added.]
The effect of this amendment was to make an intention to use the instruments an essential component of the offence. The Crown must prove not only possession of the instruments specified in the indictment and that they were suitable for house‑breaking purposes beyond a reasonable doubt, but also "circumstances that give rise to a reasonable inference that the instrument has been used or is or was intended to be used for house‑breaking". The jury must ask itself whether, given the circumstances, it is reasonable to conclude that the accused intended to, or did, use the instruments for house‑breaking purposes. Such an inference, in the context of a criminal charge, can only be reasonable where the jury is convinced beyond a reasonable doubt that the accused actually intended to, or did, use the instruments for the purpose of house‑breaking: R. v. Cooper, 1977 CanLII 11 (SCC), [1978] 1 S.C.R. 860.
The 1972 amendment thus had the effect of displacing Tupper to the extent that Tupper placed a persuasive burden on the accused to establish a lack of intention to use the instruments for house‑breaking purposes. Any burden on the accused with respect to such a defence is purely an evidential one: in the absence of any evidence to the contrary, the Crown's case may be sufficiently strong to support a finding that the accused possessed the requisite intent beyond a reasonable doubt. Upon the presentation of such circumstantial evidence by the Crown, the accused is placed in the position of being well‑advised to adduce evidence which would have the effect of raising a reasonable doubt that he or she intended to use the instruments for house‑breaking purposes. No longer is he or she obliged to persuade the jury of a lack of such an intention on a balance of probabilities, as was the case prior to 1972. If the jury entertains a reasonable doubt as to the accused's intention, it should not draw the inference of guilty intent from the circumstances and should enter a verdict of not guilty.
But, while the effect of the amendment was to displace the rule in Tupper with respect to defences or excuses which have the effect of negating the inference that the accused intended to use the instruments for house‑breaking purposes, s. 309(1) continues to cast a persuasive burden on the accused in circumstances where he or she admits that intention but claims a justification for his or her actions, such as duress or authorization by law. In other words, in circumstances where an accused seeks to raise a defence absolving him or her of liability despite proof of actus reus and mens rea beyond a reasonable doubt, s. 309(1), like its predecessor, still requires the accused to establish such a defence on a balance of probabilities. In such circumstances, the persuasive burden on the accused remains.
I have had the benefit of reading the reasons of my colleague, McIntyre J. With the greatest respect, I do not agree with his conclusion that the phrase "without lawful excuse, the proof of which lies upon him" is limited to the lawful excuse of innocent intention. Nor do I agree that the entire phrase was rendered superfluous by the 1972 amendment to s. 309(1).
"Lawful excuse" is a very general term. It normally includes all of the defences which the common law considers sufficient reason to excuse a person from criminal liability. It can also include excuses specific to particular offences. The word "excuse" is used in this broad meaning in s. 7(3) of the Criminal Code, which provides that all common law justifications and excuses continue to be available under the Code. This provision has been interpreted to mean that the common law defences are not frozen in time. They can be developed and tailored to fit changes in the law and new offences.
There is no doubt that Parliament can re‑define the meaning of "excuse", for example by expanding it to provide new excuses or excuses specific to a particular offence, or by narrowing it to include only certain excuses. The important point is that Parliament should give some indication, express or implied, that it has changed the meaning of "excuse" when it uses it in a statute. Otherwise, the word will be understood to have the meaning of "excuse" under the common law and as used by s. 7(3), a broad term that allows for the development of defences in relation to changes in the law and in the context of particular offences. If Parliament does not give some indication that it has assigned a particular meaning to "excuse", the word will be taken to have the same meaning as "excuse" under the common law and in s. 7(3).
With this in mind, I am unable to agree that the words "lawful excuse", which normally include a range of defences, have by their inclusion in
s. 309(1) been limited to one meaning and one meaning alone, namely, a defence of innocent purpose. There is nothing in the wording of the section to suggest that Parliament has narrowed the concept, qualified it, or given it a specific meaning. I conclude that the phrase includes all defences which are commonly considered to be lawful excuses. It may well be that the common law of excuses is flexible enough to allow for the development of the specific defence of innocent purpose in answer to a charge under s. 309(1), but I do not agree that the general term can be said to be limited to this defence alone.
A similar point arose in Brownridge v. The Queen, 1972 CanLII 17 (SCC), [1972] S.C.R. 926, which considered the meaning of a "reasonable excuse" for refusing to supply a breath sample under the impaired driving provisions. Laskin J., as he then was, writing for himself and Hall J., held that the phrase did not include defences that would otherwise be available, and concluded that a denial of the right to counsel under the Canadian Bill of Rights was not a reasonable excuse for refusing a breath sample. With respect for Laskin J., I prefer the opinion of Ritchie J., writing for himself, Fauteux C.J. and Martland and Spence JJ., who held that "reasonable excuse" included a denial of the right to counsel. Ritchie J. seems to have understood the phrase "reasonable excuse" to be a general term which could include a variety of excuses, without distinctions based on whether an excuse had been generally recognised by the law as an excuse or was specific to the offence in question. (There was no majority on this point since Ritchie and Laskin JJ. agreed in the result, while Abbott, Judson and Pigeon JJ. dissenting, would have held that the accused was not detained and thus had no right to counsel.)
Because I do not agree that the words "lawful excuse" are limited to the defence of innocent purpose, I cannot agree with McIntyre J.'s conclusion that the phrase was rendered superfluous by the 1972 amendment. Since the phrase includes lawful excuses other than that of innocent purpose, it continues to have a meaning. Nor is it simply surplusage. The phrase "the proof of which lies upon him" means that an accused who wishes to raise a defence of lawful excuse must prove it on a balance of probabilities, following the principle set out in Tupper, supra, R. v. Appleby, supra, and R. v. Proudlock, 1978 CanLII 15 (SCC), [1979] 1 S.C.R. 525.
Section 309(1) requires the accused to prove a lawful excuse on a balance of probabilities. The question to be answered, therefore, is whether s. 309(1) runs counter to the right to be presumed innocent until proven guilty enshrined in s. 11(d) of the Charter.
VI
The Presumption of Innocence and Section 11(d) of the Charter
The overarching principle of judicial review under the Charter is that the judiciary is entrusted with the duty of ensuring that legislatures do not infringe unjustifiably upon certain fundamental individual and collective interests
in the name of the broader common good. Viewed from one perspective, this profound responsibility potentially can be seen as challenging the nature of democratic institutions in Canada, to the extent that those institutions represent the collective voice of the communities and individuals which comprise Canadian society. Viewed from another perspective, however, in interpreting and giving meaning to constitutional guarantees and determining what constitute reasonable limits under s. 1 of the Charter, the courts are guided by the same principle under both lines of inquiry: namely, that Canadian society is to be free and democratic. The infusion of the spirit of individual and collective democratic aspirations into the process of defining the contours of constitutional guarantees and determining the reasonableness of state‑imposed limitations on those guarantees thus ensures that the courts are and will remain allies of Canadian democracy, strengthening any weaknesses of democracy by providing a voice and a remedy for those excluded from equal and effective democratic participation in our society.
The purposes behind the presumption of innocence enshrined in s. 11(d) of the Charter, and its relationship to a democratic and free society, have been addressed in R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103, at pp. 119‑20, as follows:
The presumption of innocence is a hallowed principle lying at the very heart of criminal law. Although protected expressly in s. 11(d) of the Charter, the presumption of innocence is referable and integral to the general protection of life, liberty and security of the person contained in s. 7 of the Charter (see Re B.C. Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 S.C.R. 486, per Lamer J.) The presumption of innocence protects the fundamental liberty and human dignity of any and every person accused by the State of criminal conduct. An individual
charged with a criminal offence faces grave social and personal consequences, including potential loss of physical liberty, subjection to social stigma and ostracism from the community, as well as other social, psychological and economic harms. In light of the gravity of these consequences, the presumption of innocence is crucial. It ensures that until the State proves an accused's guilt beyond all reasonable doubt, he or she is innocent. This is essential in a society committed to fairness and social justice. The presumption of innocence confirms our faith in humankind; it reflects our belief that individuals are decent and law‑abiding members of the community until proven otherwise.
Thus, the presumption of innocence is a value deeply embedded in the fabric of Canadian legal history and a manifestation of a social commitment to justice. The right to be presumed innocent until proven guilty when charged with a criminal offence accords the respect and concern due to individuals by virtue of their fundamental rights to life, liberty and security of the person. As such, it is simultaneously a legal articulation of the relationship between the individual and the community and a recognition of the necessity of the rule of law.
Canadian and international authorities on both the presumption of innocence and its relationship to a "reverse onus" clause were canvassed extensively in Oakes and it is sufficient to reiterate that, with respect to the former, the minimum content of the right to be presumed innocent until proven guilty is threefold. First, an individual must be proven guilty beyond a reasonable doubt. Secondly, the state bears the burden of proof. Thirdly, criminal prosecutions must be carried out in accordance with lawful procedures and fairness (R. v. Oakes, at p. 121). With respect to the relationship between the presumption of innocence and a "reverse onus" clause, it was stated at pp. 132‑33:
In general one must, I think, conclude that a provision which requires an accused to disprove on a balance of probabilities the existence of a presumed fact, which is an important element of the offence in question, violates the presumption of innocence in s. 11(d). If an accused bears the burden of disproving on a balance of probabilities an essential element of an offence, it would be possible for a conviction to occur despite the existence of a reasonable doubt. This would arise if the accused adduced sufficient evidence to raise a reasonable doubt as to his or her innocence but did not convince the jury on a balance of probabilities that the presumed fact was untrue.
At the same time, it ought to be stressed that the presumption of innocence is violated not only when an accused is required to disprove an essential element of the offence. The fact that reverse onuses which accomplish this result run counter to s. 11(d) was made clear in Oakes. To limit s. 11(d) to determinations whether an element is integral or extraneous to an offence, however, would lose sight of the fact that because of the grave social and personal consequences engendered by a finding of criminal liability, the law requires proof thereof beyond a reasonable doubt. Any burden on an accused which has the effect of dictating a conviction despite the presence of reasonable doubt, whether that burden relates to proof of an essential element of the offence or some element extraneous to the offence but nonetheless essential to verdict, contravenes s. 11(d) of the Charter. An accused must not be placed in the position of being required to do more than raise a reasonable doubt as to his or her guilt, regardless of whether that doubt arises from uncertainty as to the sufficiency of Crown evidence supporting the constituent elements of the offence or from uncertainty as to criminal culpability in general.
Again, I must respectfully disagree with McIntyre J., who argues that there is no violation of the presumption of innocence even if the accused is required to prove a lawful excuse. It is not possible to say that the Crown has proved the case beyond a reasonable doubt when it has led all its evidence, nor is it possible to say that the presumption of innocence has been overcome when the Crown finishes presenting its case. The presumption of innocence cannot be rebutted part way through the trial. It continues to apply throughout, up to the final judgment by the trier of fact. The trier of fact can never decide that guilt has been proven beyond a reasonable doubt until it has heard all the evidence in the case. Only then, when all the evidence is in, is the trier of fact permitted to decide whether the presumption of innocence has been overcome and guilt proved beyond a reasonable doubt.
The argument that the Crown can rebut the presumption of innocence simply by presenting a case has a serious consequence, that the accused could be required by law to present defence evidence or face conviction. The common law position has been that the accused is never required to lead evidence. If the Crown presents a case and the defence presents no evidence, the trier of fact may convict but is never required to do so. The fact that a case goes to the trier of fact for consideration does not mean that guilt has been proven; it means only that the Crown has presented enough evidence to require consideration. An acquittal is always possible. But that acquittal would not be available to the accused because the jury would be compelled to convict even though that jury entertained a reasonable doubt as to the use or intended use of those instruments by the accused.
The basic principle of the common law has been that the accused need not prove a defence. Once an accused raises the possibility that a defence exists, whether by pointing to some fact in the Crown evidence or by leading defence evidence, the Crown is required to disprove the defence beyond a reasonable doubt. The common law has not distinguished in this area between defences that challenge the existence of a necessary element of the offence and those defences that admit the mens rea and actus reus but avoid criminal liability because of circumstances that excuse or justify the conduct. With either type of defence, all that the accused need do is point to some evidence which supports the defence. The Crown is then required to disprove the defence beyond a reasonable doubt. Examples of this principle can be found in Latour v. The King, 1950 CanLII 12 (SCC), [1951] S.C.R. 19, which held that the Crown must disprove provocation and self‑defence, once those defences are raised by the accused; Linney v. The Queen, 1977 CanLII 170 (SCC), [1978] 1 S.C.R. 646, which repeated that the onus is on the Crown to disprove provocation; and Perka v. The Queen, 1984 CanLII 23 (SCC), [1984] 2 S.C.R. 232, which held that the Crown must disprove the defence of necessity beyond a reasonable doubt. In light of the common law's approach to the onus of proof in these defences, I think that a requirement that the accused prove defences that excuse his or her conduct would violate the presumption of innocence.
Section 309(1), in my view, runs counter to the presumption of innocence. If an accused has a lawful excuse, the section, by its very terms, places the onus on the accused to establish that excuse. Although, strictly speaking, s. 309(1) is not a "reverse onus" provision, in that it does not presume an essential element of the offence, the provision, by requiring proof by the accused of certain defences on a balance of probabilities, makes it "possible for a conviction to occur despite the existence of a reasonable doubt" (R. v. Oakes, at p. 132). While s. 11(d) of the Charter does not dictate that the Crown prove at the outset the absence of every conceivable defence, it does require that when the facts introduced by the Crown or the accused fairly raise the possibility of a successful defence, all that is ever required of an accused is to raise a reasonable doubt. Section 309(1) requires an accused to adduce evidence on a balance of probabilities. It follows that s. 309(1) constitutes a violation of s. 11(d) of the Charter.
VII
The respondent Crown, in the alternative, adopts the submissions of the Attorney General of Canada and the Attorney General of Quebec with respect to s. 1 of the Charter. The Attorney General of Canada argues that s. 309(1) of the Code, assuming it infringes s. 11(d) of the Charter, is justified under s. 1 as it is designed to meet a valid federal objective, impairs the right only in so far as is deemed necessary for the protection of society, and is not arbitrary or unfair in its application. In sum, it submits that the provision, when viewed in the context of the need for the protection of society, represents a proportionate response to the incidence of property‑related offences involving break‑ins. The Attorney General of Quebec and the Attorney General of Saskatchewan make similar submissions. The appellant takes issue with these submissions and argues, first, that although the objective of s. 309(1), the suppression of house‑breaking and safe‑breaking, is not a trivial objective, it is not of such grave significance as to justify the violation of so central a right as the presumption of innocence. Thus, it is submitted that the social purpose sought to be attained does not justify the violation of s. 11(d). Secondly, it is submitted by the appellant that the imposition of an evidential burden would achieve the same societal goal, and, concomitantly, avoid the conviction of an accused who raised a doubt as to his or her guilt but was unable to satisfy a standard of proof on a balance of probabilities.
In Oakes, this Court outlined the interpretive principles relevant to the inquiry into when an infringement of a constitutional right or freedom is justified under s. 1 of the Charter as a reasonable limit demonstrably justified in a free and democratic society (at pp. 138‑39):
To establish that a limit is reasonable and demonstrably justified in a free and democratic society, two central criteria must be satisfied. First, the objective, which the measures responsible for a limit on a Charter right or freedom are designed to serve, must be "of sufficient importance to warrant overriding a constitutionally protected right or freedom": R. v. Big M Drug Mart Ltd., supra, at p. 352. The standard must be high in order to ensure that objectives which are trivial or discordant with the principles integral to a free and democratic society do not gain s. 1 protection. It is necessary, at a minimum, that an objective relate to concerns which are pressing and substantial in a free and democratic society before it can be characterized as sufficiently important.
Second, once a sufficiently significant objective is recognized, then the party invoking s. 1 must show that the means chosen are reasonable and demonstrably justified. This involves "a form of proportionality test": R. v. Big M Drug Mart Ltd., supra, at p. 352. 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. There are, in my view, three important components of a proportionality test. First, the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations. In short, they must be rationally connected to the objective. Second, the means, even if rationally connected to the objective in this first sense, should impair "as little as possible" the right or freedom in question: R. v. Big M Drug Mart Ltd., supra, at p. 352. Third, there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of "sufficient importance".
As noted, the respondent and interveners all submit that the prevention of house‑breaking is a sufficiently pressing and substantial objective to warrant the infringement of the s. 11(d) right to be presumed innocent until proven guilty when charged with an offence. Specifically, the Attorney General of Canada submits that the incidence of break‑ins remains at a very high level in Canada, and that the interruption of the burglar in possession of the tools associated with his or her unlawful trade represents an important and significant social objective. Counsel for the Attorney General points to statistics demonstrating that break and enter is the most common property offence next to theft of property of a value under $200 (Statistics Canada, Canadian Centre for Justice Statistics, Canadian Crime Statistics 1985 (Ottawa: Minister of Supply and Services Canada, 1986), table 2). Those statistics also demonstrate a low clearance rate for property crimes in general and break and enter offences in particular. In 1985, the break and enter offence recorded one of the lowest clearance rates of all property crime offences, with 78.2 per cent being unsolved in 1985 (Canadian Crime Statistics 1985, at p. 46). It also relies on the Law Reform Commission's Working Paper No. 48, Criminal Intrusion (1986), which, at p. 1, captures succinctly society's interest in curbing property crimes:
It is with good reason that the paradigm of a criminal is the "burglar." Break and enter is one of those offences which seem to touch each one of us. It is rare today to find anyone who has not been a victim of a break and enter or who does not know someone who has been. Indeed, break and enter continually appears in police statistics as the most common property offence next to theft of property of a value under $200. This is serious when you consider that two‑thirds of all reported Criminal Code offences relate to property.
However, perhaps the worst thing about break and enter is how worrying it is. This is especially so when it happens to you in your home. An unwanted intrusion into our homes, our private space, gives rise to feelings of fear, outrage, insult and indignation. Somehow we feel violated. Studies confirm that "the victim seems threatened personally more by the disarrangement of his personal territory than by the evident economic loss." Insurance can compensate for the economic loss; nothing can compensate for our feelings of fear, insult, anger and loss of security resulting from an invasion of our privacy.
While not wishing to downplay the pressing and substantial interest in curbing this sort of unlawful activity, and assuming that it is sufficiently weighty to justify curbing fundamental freedoms constitutionally protected by the Charter, it is my view that s. 309(1) cannot, in any event, be justified under s. 1, by virtue of the fact that the provision does not meet the proportionality test enunciated in R. v. Oakes as it applies to infringements on the s. 11(d) right to be presumed innocent until proven guilty.
I say this for two reasons. First, even assuming there to be a rational basis for distinguishing between defences, s. 309(1) does not impair "as little as possible" the right or freedom in question (R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. 295, at p. 352). Parliament could have enacted a section which does not have the effect of resulting in the possible conviction of a person who raises a reasonable doubt at trial as to his or her guilt but is unable to prove his or her innocence on a balance of probabilities. In other words, given the circumstances surrounding this kind of offence and the objective of curbing property‑related crimes, Parliament could have imposed simply an evidential burden on the accused to introduce some evidence raising a reasonable doubt as to his or her guilt, as it did in 1972 with respect to defences which negate the inference that the accused intended to use the instruments for house‑breaking purposes.
Secondly, I am of the opinion that s. 309(1) does not meet the proportionality calculus articulated in R. v. Oakes because of the deleterious effects which result from imposing a persuasive burden on the accused in connection with a criminal offence making unlawful the possession of even the most innocuous of tools. The principle that innocent persons not be punished is the normative foundation of the evidentiary requirement of proof beyond a reasonable doubt. It is true that the 1972 amendments reduced the possibility that innocent persons would be convicted, but, in my opinion, Hall J.'s concerns in Tupper v. The Queen remain valid. Section 309(1) embraces and leaves open the possibility that innocent persons will be jailed. This effect, given the range of alternative legislative devices available to Parliament, is too deleterious to be justified as a reasonable limit under s. 1 of the Charter. Simply put, the provision exacts too high a price to be justified in a free and democratic society. As Lamer J. stated in Re B.C. Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 S.C.R. 486, at p. 513:
It has from time immemorial been part of our system of laws that the innocent not be punished. This principle has long been recognized as an essential element of a system for the administration of justice which is founded upon a belief in the dignity and worth of the human person and on the rule of law.
For the reasons given earlier, I am of the view that s. 309(1) of the Criminal Code affords insufficient protection to an accused faced with the potential segregation from society and deprivation of liberty which result from conviction. It follows that s. 309(1) of the Code is not justified under s. 1 of the Charter.
This does not, however, lead to the conclusion that the whole of s. 309(1) is void. Excising the words, "the proof of which lies upon him", from the provision would eliminate the possibility of the conviction of an accused who had a lawful excuse for his or her actions but could not prove that excuse on a balance of probabilities. As I stated earlier, although s. 11(d) of the Charter does not oblige the Crown to prove at the outset the absence of every conceivable defence, it does require that when the facts fairly raise the possibility of a successful defence, all that is required of an accused is to raise a reasonable doubt as to his or her guilt. I would order that the offending words be severed so that an accused bears only an evidential burden in this regard. As the appellant has yet to be prosecuted under s. 309(1), I would dismiss the appeal and direct that the indictment continue in the ordinary way under s. 309(1) without the accused bearing a persuasive burden of establishing lawful excuse.
VIII
Conclusion
Clements Co. Ct. J. was correct in holding that s. 309(1) of the Criminal Code of Canada violates s. 11(d) of the Charter. Moreover s. 309(1) cannot be justified under s. 1. Accordingly, the constitutional questions should be answered as follows:
1.Is section 309(1) of the Criminal Code of Canada inconsistent with s. 11(d) of the Canadian Charter of Rights and Freedoms?
Answer: Yes, to the extent that the words, "the proof of which lies upon him," places a persuasive burden on an accused to establish "lawful excuse" on a balance of probabilities.
2.If so, is s. 309(1) of the Criminal Code of Canada justified on the basis of s. 1 of the Canadian Charter of Rights and Freedoms?
Answer: No, to the extent that the words, "the proof of which lies upon him", places a persuasive burden on the accused to establish "lawful excuse" on a balance of probabilities.
I would dismiss the appeal.
The reasons of McIntyre and Le Dain JJ. were delivered by
McIntyre J. ‑‑ I have read the reasons for judgment of my colleague, the Chief Justice. He has set out the facts and the issues which arise in this case, as well as the positions taken by the parties before this Court. I am unable, however, to agree fully with his reasons and the answers that he has given to the constitutional questions posed. In general agreement with the Court of Appeal, I am unable to find s. 309 of the Criminal Code inconsistent with s. 11(d) of the Canadian Charter of Rights and Freedoms. I would, therefore, answer Question l in the negative, have no occasion to answer the second question, and I would dismiss the appeal.
Section 309(1) of the Criminal Code is in these terms:
- (1) Every one who, without lawful excuse, the proof of which lies upon him, has in his possession any instrument suitable for the purpose of breaking into any place, motor vehicle, vault or safe under circumstances that give rise to a reasonable inference that the instrument has been used or is or was intended to be used for any such purpose, is guilty of an indictable offence and is liable to imprisonment for a term not exceeding ten years.
The other relevant provision, s. 11(d) of the Charter, provides:
- 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;
The history of the offence charged under s. 309 extends back to a mid‑nineteenth century English statute, which was adopted in the Criminal Code of Canada of 1892 and, after amendment, appeared in the 1953‑54 Code as s. 295 in these terms:
- (1) Every one who without lawful excuse, the proof of which lies upon him, has in his possession any instrument for house‑breaking, vault‑breaking or safe‑breaking is guilty of an indictable offence and is liable to imprisonment for fourteen years.
Amendments in 1972 and 1985 gave the section, now numbered 309, its present
form by the addition of the words:
. . . under circumstances that give rise to a reasonable inference that the instrument has been used or is or was intended to be used for any such purpose. . . .
The 1972 amendment added a further element which the Crown must prove. In answer to the suggestion made by the trial judge that these words were ambiguous and, consequently, in contravention of the Charter, Lacourcière J.A., speaking for the unanimous Court of Appeal (1983), 1983 CanLII 1827 (ON CA), 41 O.R. (2d) 250 (Lacourcière, Weatherston and Cory JJ.A.), said, at p. 255:
By the addition of the impugned wording, Parliament, in effect, was delineating the legislative criteria for an indictable offence, where the circumstances of the possession of the instruments suitable for house‑breaking, which can also be used for innocent purposes, give rise to the incriminating inference. An additional onus was placed on the Crown to prove beyond a reasonable doubt that the instruments were in the accused's possession under circumstances that give rise to a reasonable inference that the instruments were intended to be used for house‑breaking, etc. I am unable to agree with the trial judge that the incriminating circumstances required to be proved by the Crown are couched in ambiguity.
I am in full agreement with these words.
The 1972 and 1985 amendments to s. 309(1) of the Criminal Code are of fundamental importance in this case and, in my view, render much of what
was said in earlier judgments dealing with their predecessors of little significance. Section 309(1) creates a complete offence; that of being in possession of any instrument suitable for the purpose of breaking into any place, motor vehicle, vault or safe under circumstances that give rise to a reasonable inference that the instrument has been used or is or was intended to be used for any such purpose. For the Crown to procure a conviction under this section all elements of the offence must be proved beyond a reasonable doubt. The Crown's burden was aptly stated by Martin J.A. in R. v. Kozak and Moore (1975), 1975 CanLII 1232 (ON CA), 20 C.C.C. (2d) 175 (Ont. C.A.), speaking for the Court (Kelly, Martin and Lacourcière JJ.A.), at pp. 179‑80:
As will be gathered from what I have already said, it was incumbent upon the Crown to prove: (a) possession by the accused of the instruments specified in the indictment; (b) that they were suitable for the purpose of housebreaking, safe‑breaking or vault‑breaking; (c) that such instruments were found under circumstances that give rise to a reasonable inference that the instruments were intended to be used for housebreaking, safe‑breaking or vault‑breaking.
In discharging this burden of proof, the Crown must put before the court a prima facie case, that is, evidence covering every element of the offence of such nature that, if believed by the trier of fact and not answered, would warrant a conviction. It was argued by the appellant that by providing that the possession must be in circumstances which would give rise to a reasonable inference, the section was enabling a finding of guilt on something less than proof beyond a reasonable doubt. I would reject that argument. The words "reasonable inference" (of guilt) employed in a criminal enactment can mean only an inference which, on the basis of the criminal standard of proof beyond a reasonable doubt, would warrant a conclusion of guilt in the absence of any answer or explanation. An inference of guilt is not reasonable in the criminal context unless it overrides a reasonable doubt. The burden of proof under this section must be discharged without the benefit of any presumption against the accused. The accused is required to prove nothing, though depending on the strength of the Crown's evidence he might be in grave danger of conviction if he does not call evidence in his defence or make answer to the Crown's case. In this regard the accused, under s. 309 of the Criminal Code, is in no different position than an accused in any other offence.
It was also argued that the inclusion of the words "without lawful excuse, the proof of which lies upon him" in s. 309(1) of the Criminal Code, amounted to a reverse onus clause which imposed a burden on the accused to prove his innocence, contrary to the provisions of s. 11(d) of the Charter. In other words, they denied him the benefit of a presumption of innocence. In my view, these words create no such reverse onus. These words, while apt in certain circumstances to do so, cannot be said to have any such effect in the context of s. 309(1) of the Criminal Code, where before they can have any effect the Crown must place before the Court a complete case for conviction. They may be said to be little more than a recognition of the accused's statutory right under s. 577(3) of the Criminal Code to make full answer and defence. There is no provision here, similar to s. 241(1)(a) of the Criminal Code, which deems that an accused found occupying the seat ordinarily occupied by the driver had care and control of the vehicle. This is not a case such as that of s. 8 of the Narcotic Control Act, R.S.C. 1970, c. N‑1 (struck down by this Court in R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103), which permitted upon a conviction for one offence (possession of a narcotic) conviction for a completely different offence (possession for the purpose of trafficking) unless the accused disproved the intent to traffic. It may well be asked, then, why are the words included in the statute, what purpose do they have?
In my view, before the 1972 Tupper amendment, this question would have been answered by stating that the words "without lawful excuse, the proof of which lies upon him," were included in the section in order to make available the defence of innocent purpose, which would not have been open to an accused without this phrase because, in the words of the former section, the offence was complete without consideration of purpose. On this point, I would refer to the words of Laskin J. (as he then was) in Brownridge v. The Queen, 1972 CanLII 17 (SCC), [1972] S.C.R. 926, at p. 950, in a concurring judgment on this point, where he said on the subject of the construction of the words "without reasonable excuse" in what is now s. 238(5) of the Criminal Code:
. . . the trial judge ruled as a matter of law that denial of an accused's request to consult a lawyer before he would agree to give a breath sample did not provide a reasonable excuse to an accused for refusing to give such a sample.
I agree with this ruling of the trial judge because I regard the phrase "without reasonable excuse" as adding a defence or a bar to successful prosecution which would not be available without those words, but not as encompassing defences or bars that would exist without them. For example, a right of diplomatic immunity from the domestic criminal law would exist regardless of the absence of the words "without reasonable excuse"; and similarly, in my view, if s. 2(c)(ii) of the Canadian Bill of Rights sets up a bar, it is one which is independent of the presence of the words in question. It would be strange, indeed, if the effect of the immunity above‑mentioned or of the Canadian Bill of Rights was vitiated by repeal of the words "without reasonable excuse". [Emphasis added.]
The emphasized words in the above passage were relied upon in the Ontario Court of Appeal in construing the words "without lawful justification or excuse", in s. 408 of the Criminal Code, in R. v. Santeramo (1976), 1976 CanLII 1456 (ON CA), 32 C.C.C. (2d) 35, at p. 44, per Brooke J.A. (leave to appeal to this Court was granted but the appeal was discontinued before hearing). When, however, the section was amended in 1972 to make the intention to use the instrument for house‑breaking an essential element of the offence, the phrase "without lawful excuse, the proof of which lies upon him" was rendered superfluous. The purpose for which the accused intended to use the tools was effectively converted from a defence which the accused had to prove to show his innocence, to an essential element of the offence which the Crown had to prove beyond a reasonable doubt to prove his guilt. As a result, then, the phrase was denuded of its original content. It was probably retained in the section out of an abundance of caution.
The Chief Justice has adopted the view that the phrase has not been so robbed of its content but that it encompasses general common law excuses, such as duress and authorization by law, which he considers must continue to be established by the accused on a balance of probabilities. I cannot, with the utmost deference, share that view. I would adopt the words of Laskin J. in Brownridge, supra. The words "without lawful excuse" do not encompass excuses or justifications that would exist if those words were omitted from the section, and thus require proof by the accused. Manifestly, if the words were omitted from the Code, general common law excuses, such as duress or authorization by law, would continue to be available to the accused. The conclusion that these general common law excuses are not encompassed within the phrase "without lawful excuse", entails the further conclusion that these excuses need not be proved on a balance of probabilities since they are not affected by the words "the proof of which lies upon him". Consequently, these excuses are, and have always been, with respect to this offence, available to an accused on exactly the same basis as they are in any other criminal offence: as long as the accused can raise a reasonable doubt, he is entitled to an acquittal.
In any event, even accepting the proposition stated by the Chief Justice that "where an accused seeks to raise a defence absolving him or her of liability despite proof of actus reus and mens rea beyond a reasonable doubt, [such as duress, or authorization by law], s. 309(1), like its predecessor, still requires the accused to establish such a defence on a balance of probabilities", this requirement would involve no infringement of s. 11(d) of the Charter guaranteeing the right to be presumed innocent unless proven guilty according to law. Defences or excuses of this nature can only be raised where the offence has been proved: see Bergstrom v. The Queen, 1981 CanLII 188 (SCC), [1981] 1 S.C.R. 539, at p. 544, and see, as well, Mewett and Manning, Criminal Law (2nd ed. 1985), at p. 194. Indeed, as has been observed above, the Chief Justice has limited his concerns specifically to such cases.
Where, then, as in the case at bar, proof of guilt beyond a reasonable doubt is required without the benefit of any presumption before any need for defence arises, s. 11(d) of the Charter has not been offended. There has been no denial of the presumption of innocence. It has been overcome by proof according to law or by admissions of the accused, and the defence or excuse which is sought to be raised depends upon that fact. If he is convicted in the face of such a defence, it is not because he has been presumed guilty or because the commission of the crime has not been shown, but because his excuse was rejected after proof of the commission of the offence. An accused raising such a defence or excuse is not seeking relief because of an absence of guilt. He seeks relief despite his commission of the offence. It may be of interest to note that s. 17 of the Criminal Code, in defining the defence of compulsion, provides that the accused is "excused for committing the offence" (emphasis added). Where the offence is proved beyond a reasonable doubt, according to law, without the aid of any presumption, I cannot conclude that the accused has been denied the benefit of the presumption of innocence only because his excuse for his commission of the offence is not accepted. I would, accordingly, dismiss the appeal and I would answer the first constitutional question in the negative and not answer the second.
The following are the reasons delivered by
La Forest J. ‑‑ I have had the advantage of reading the judgments of the Chief Justice and McIntyre J. I am in agreement with the interpretation given s. 309(1) of the Criminal Code by McIntyre J. So interpreted, the section does not conflict with s. 11(d) of the Canadian Charter of Rights and Freedoms. Accordingly, I would dismiss the appeal, answer the first constitutional question
in the negative and not answer the second constitutional question.
Appeal dismissed.
Solicitor for the appellant: C. Jane Arnup, Toronto.
Solicitor for the respondent: The Attorney General for Ontario, Toronto.
Solicitor for the intervener the Attorney General of Canada: Frank Iacobucci, Ottawa.
Solicitors for the intervener the Attorney General of Quebec: Paul Monty and Gilles Laporte, Ste‑Foy.
Solicitor for the intervener the Attorney General for Saskatchewan: The Department of Justice, Regina.