R. v. Finlay, [1993] 3 S.C.R. 103

Her Majesty The Queen Appellant

v.

Orval Stuart Finlay Respondent

and

The Attorney General of Canada, the Attorney General for Ontario, the Attorney General of Quebec, the Attorney General of Manitoba, the Attorney General of British Columbia and the Attorney General for Alberta Interveners

Indexed as: R. v. Finlay

File No.: 22596.

1992: October 15; 1993: September 9.

Present: Lamer C.J. and L'Heureux‑Dubé, Sopinka, Cory and McLachlin JJ.

on appeal from the court of appeal for saskatchewan

Constitutional law ‑‑ Charter of Rights ‑‑ Fundamental justice ‑‑ Mens rea -- Criminal Code prohibiting storing of firearms or ammunition "in a careless manner" ‑‑ Whether offence satisfies minimum fault requirements under s. 7 of Canadian Charter of Rights and Freedoms ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 86(2).

Criminal law ‑‑ Mens rea ‑‑ Criminal Code prohibiting storing of firearms or ammunition "in a careless manner" ‑‑ Whether offence satisfies minimum fault requirements under s. 7 of Canadian Charter of Rights and Freedoms ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 86(2).

The accused was charged with storing firearms and ammunition in a careless manner, contrary to s. 86(2) of the Criminal Code. He was granted a stay of proceedings in Provincial Court, on the basis that s. 86(2) violated s. 7 of the Canadian Charter of Rights and Freedoms in a manner that could not be justified under s. 1 of the Charter. The Court of Queen's Bench reversed this judgment and ordered that the matter proceed to trial. It found that since the defence of due diligence was available, s. 7 of the Charter did not affect the validity of s. 86(2). The Court of Appeal allowed the accused's appeal and restored the stay of proceedings. It found that "mere negligence" did not meet the constitutional fault requirement found in s. 7 of the Charter and that the section was not saved by s. 1 of the Charter.

Held: The appeal should be allowed.

Per L'Heureux‑Dubé, Cory and McLachlin JJ.: Lamer C.J.'s reasons were agreed with, except with respect to the objective test for penal negligence discussed in R. v. Gosset.

Per Lamer C.J. and Sopinka J.: In conducting a substantive review of criminal legislation under s. 7 of the Charter, courts must ensure that an element of fault allowing at least for a defence of due diligence is contained in all offences for which an accused is liable to imprisonment. Where the offence is one which carries sufficient social stigma coupled with potentially severe penal sanctions, the principles of fundamental justice may require a higher level of mens rea. Based on the interpretation of the section in R. v. Gosset, s. 86(2) of the Code satisfies these requirements. The fault requirement of the provision is to be assessed objectively and consists of conduct that is a marked departure from the standard of care of a reasonable person in the circumstances. If a reasonable doubt exists either that the conduct in question did not constitute a marked departure from that standard of care, or that reasonable precautions were taken to discharge the duty of care in the circumstances, a verdict of acquittal must follow. The objective assessment of fault also has to consider the capacity of an accused to meet the standard of care required in the circumstances. Given the nature of the offence, the absence of any proof of advertence in the imposition of a conviction, and the range of punishment upon conviction, there is not sufficient stigma arising from a conviction under s. 86(2) to require a subjective mens rea.

Even though s. 86(2) of the Code will shortly be repealed and replaced, the accused remains in jeopardy, and the issue in this case is therefore not moot.

Cases Cited

By McLachlin J.

Followed: R. v. Gosset, [1993] 3 S.C.R. 000.

By Lamer C.J.

Referred to: R. v. Gosset, [1993] 3 S.C.R. 000; R. v. Bovill (1986), 1989 4797 (SK CA), 78 Sask. R. 14; R. v. Vaillancourt, 1987 2 (SCC), [1987] 2 S.C.R. 636; R. v. Tutton, 1989 103 (SCC), [1989] 1 S.C.R. 1392; Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), 1990 135 (SCC), [1990] 1 S.C.R. 425; R. v. City of Sault Ste. Marie, [1978] 2 S.C.R. 1301; Re B.C. Motor Vehicle Act, 1985 81 (SCC), [1985] 2 S.C.R. 486; Borowski v. Canada (Attorney General), 1989 123 (SCC), [1989] 1 S.C.R. 342; R. v. Nova Scotia Pharmaceutical Society, 1992 72 (SCC), [1992] 2 S.C.R. 606; R. v. Wholesale Travel Group Inc., 1991 39 (SCC), [1991] 3 S.C.R. 154; R. v. Hundal, 1993 120 (SCC), [1993] 1 S.C.R. 867; R. v. Durham (1992), 1992 7723 (ON CA), 10 O.R. (3d) 596; R. v. Schwartz, 1988 11 (SCC), [1988] 2 S.C.R. 443.

Statutes and Regulations Cited

Act to amend the Criminal Code and the Customs Tariff in consequence thereof, S.C. 1991, c. 40, s. 3 (not in force).

Canadian Charter of Rights and Freedoms, ss. 1, 7, 24.

Constitution Act, 1982, s. 52.

Criminal Code, R.S.C. 1970, c. C‑34, s. 86.

Criminal Code, R.S.C., 1985, c. C‑46, ss. 86(2), 249.

Authors Cited

Canada. Law Reform Commission. Working Paper 53. Workplace Pollution. Ottawa: The Commission, 1986.

APPEAL from a judgment of the Saskatchewan Court of Appeal (1991), 1991 7958 (SK CA), 91 Sask. R. 228, 64 C.C.C. (3d) 557, 6 C.R. (4th) 157, 6 C.R.R. (2d) 128, [1991] 5 W.W.R. 193, reversing a decision of the Court of Queen's Bench (1990), 1990 7514 (SK QB), 83 Sask. R. 191, 55 C.C.C. (3d) 548, 50 C.R.R. 381, setting aside a stay of proceedings ordered by Finley Prov. Ct. J. (1989), 1989 5117 (SK PC), 53 C.C.C. (3d) 417. Appeal allowed.

Graeme G. Mitchell and Thomson Irvine, for the appellant.

Mark Brayford, for the respondent.

William H. Corbett, Q.C., and Peter J. Lamont, for the intervener the Attorney General of Canada.

Ian R. Smith, for the intervener the Attorney General for Ontario.

François Huot, Mario Tremblay and Gilles Laporte, for the intervener the Attorney General of Quebec.

Brian G. Wilford, for the intervener the Attorney General of Manitoba.

George H. Copley, for the intervener the Attorney General of British Columbia.

Ken Tjosvold, for the intervener the Attorney General for Alberta.

The reasons of Lamer C.J. and Sopinka J. were delivered by

Lamer C.J. -- This case concerns a challenge to the constitutionality of s. 86(2) of the Criminal Code, R.S.C., 1985, c. C-46, under s. 7 of the Canadian Charter of Rights and Freedoms.

I. Facts

The respondent was charged that on or about February 27, 1989, he did without lawful excuse store firearms and ammunition in a careless manner, contrary to s. 86(2) of the Code. Prior to trial, the respondent made an application for a stay of proceedings, on the basis that s. 86(2) of the Code violated s. 7 of the Charter in a manner that could not be justified under s. 1 of the Charter.

Finley Prov. Ct. J. allowed the respondent's application and ordered a stay of proceedings: (1989), 1989 5117 (SK PC), 53 C.C.C. (3d) 417. The appellant appealed to the Court of Queen's Bench for Saskatchewan. Kyle J. allowed the appeal, set aside Finley Prov. Ct. J.'s judgment and ordered that the matter proceed to trial: (1990), 1990 7514 (SK QB), 83 Sask. R. 191, 55 C.C.C. (3d) 548, 50 C.R.R. 381. The respondent appealed to the Court of Appeal for Saskatchewan which allowed the appeal and restored the stay of proceedings: (1991), 1991 7958 (SK CA), 91 Sask. R. 228, 64 C.C.C. (3d) 557, 6 C.R. (4th) 157, 6 C.R.R. (2d) 128, [1991] 5 W.W.R. 193.

II. Relevant Statutory Provisions

Criminal Code, R.S.C., 1985, c. C-46

86. ...

(2) Every one who, without lawful excuse, uses, carries, handles, ships or stores any firearm or ammunition in a careless manner or without reasonable precautions for the safety of other persons

(a) is guilty of an indictable offence and liable to imprisonment

(i) in the case of a first offence, for a term not exceeding two years, and

(ii) in the case of a second or subsequent offence, for a term not exceeding five years; or

(b) is guilty of an offence punishable on summary conviction.

Parliament has recently enacted amendments to the above provision. The following provision, which has been assented to, has not yet been proclaimed in force. It is reproduced here because it is referred to in the arguments of the appellant and respondent.

An Act to amend the Criminal Code and the Customs Tariff in consequence thereof, S.C. 1991, c. 40

3. Subsection 86(2) of the said Act is repealed and the following substituted therefor:

(2) Every person who uses, carries, handles, ships or stores any firearm or ammunition in a manner that shows wanton or reckless disregard for the lives or safety of other persons

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or

(b) is guilty of an offence punishable on summary conviction.

(3) Every person who stores, displays, handles or transports any firearm in a manner contrary to a regulation made under paragraph 116(1)(g)

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

III. Judgments Below

Provincial Court (1989), 1989 5117 (SK PC), 53 C.C.C. (3d) 417

Finley Prov. Ct. J., following the decision of the Court of Appeal for Saskatchewan in R. v. Bovill (1986), 1989 4797 (SK CA), 78 Sask. R. 14, stated, at p. 419, that:

It is apparent then that a conviction could occur under the present s. 86(2) despite there being a reasonable doubt as to whether the accused knew or ought to have known or intended that his carelessness might have harmful results.

Finley Prov. Ct. J. examined the decisions of the Supreme Court of Canada in R. v. Vaillancourt, 1987 2 (SCC), [1987] 2 S.C.R. 636, and R. v. Tutton, 1989 103 (SCC), [1989] 1 S.C.R. 1392, and concluded, at p. 422, that s. 86(2) of the Code violated s. 7 of the Charter:

Parliament has, through the Criminal Code, purported to create a criminal offence with penalties that may result in a deprivation of life, liberty or security of the person of the accused. Parliament must respect the principles of fundamental justice as set out in s. 7 of the Charter. The creation of a crime not requiring mens rea is prima facie a violation of s. 7 in that a person may be convicted other than in accordance with the principles of fundamental justice.

Finley Prov. Ct. J. found that s. 86(2) of the Code, which created an offence allowing for a conviction notwithstanding the existence of reasonable doubt on any essential element, could not be saved by s. 1 of the Charter since it would be necessary to convict persons who did not intend or foresee that harm would result from their behaviour or actions. Finley Prov. Ct. J. declared that s. 86(2) of the Code was inoperative and unconstitutional pursuant to s. 24 of the Charter and s. 52 of the Constitution Act, 1982.

Court of Queen's Bench (1990), 1990 7514 (SK QB), 55 C.C.C. (3d) 548

Kyle J. stated that the issue concerned the right of Parliament, in view of s. 7 of the Charter, to impose a penalty of imprisonment in respect to behaviour involving a level of negligence described as "careless". Kyle J. noted that some mental element must be present in an offence when an accused faces a risk of imprisonment. However, Kyle J. disagreed with the view that "since carelessness is the antithesis of thoughtful behaviour, no imprisonment can result from it" (at p. 550). Kyle J. reached the following conclusion (at p. 550):

Section 86(2) is enacted in response to a perceived need that owners of firearms must be encouraged and motivated to exercise the capacity to foresee hazards and in so doing to think about and control their firearms and to minimize the risks that the ownership involves.

Kyle J. stated that the defence of due diligence was available under s. 86(2) of the Code. He concluded that the failure to exercise due diligence would be evidence of the mental element, the failure to exercise control, which was what the statute sought to penalize. Since the defence of due diligence was available, Kyle J. found that s. 7 of the Charter did not affect the validity of s. 86(2) of the Code.

Court of Appeal (1991), 1991 7958 (SK CA), 64 C.C.C. (3d) 557

The court, relying on the decision of the Supreme Court of Canada in Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), 1990 135 (SCC), [1990] 1 S.C.R. 425, stated that the distinction between criminal and regulatory statutes should be kept in mind in this case.

The court reviewed the history of s. 86(2) of the Criminal Code and found that "[t]he express language of the predecessor section made it clear that fault or culpability rested on a standard higher than mere negligence" (at p. 561). The court was referring to s. 86 of the Criminal Code, R.S.C. 1970, c. C-34, which stated that an accused was guilty when, without lawful excuse, he used, carried or possessed a firearm or ammunition in a manner that was "dangerous to the safety of other persons". The court observed that the section had been amended in 1978 to read "in a careless manner or without reasonable precautions for the safety of other persons". The court believed that the expression "careless manner" suggested something of a lower order, that is of mere negligence in the civil sense rather than in the criminal sense.

Relying on its decision in R. v. Bovill, supra, the court stated (at p. 564) that:

Under the standard articulated by this court in Bovill, conduct exhibiting a want of care, regardless of the state of mind underlying the conduct or its potential consequences constitutes a crime which may result in imprisonment. A person found guilty of an offence under s. 86(2) is liable to the discretionary prohibition order prescribed by s. 100(2) for the possession of firearms, ammunition and explosives. Forfeiture of weapons under s. 491 is also a possible consequence.

The court pointed out, however, that the constitutional validity of s. 86(2) of the Code was not before the court in that case.

The court also took note of the fact that when s. 86(2) was enacted in its present form, Parliament was empowered to declare that an act was "criminal" irrespective of intent, knowledge or degree of fault, provided the prohibition served a public purpose in relation to criminal law. Furthermore, no constitutional limits existed on Parliament's power to define the elements of a "crime," although, as the court emphasized, "the notion that conduct should pass a certain threshold before it is branded as crime finds support in R. v. City of Sault Ste. Marie, 1978 11 (SCC), [1978] 2 S.C.R. 1299" (at pp. 564-65).

The court referred to the decisions of the Supreme Court of Canada in Re B.C. Motor Vehicle Act, 1985 81 (SCC), [1985] 2 S.C.R. 486, and R. v. Vaillancourt, supra, and stated that with the advent of the Charter, it was "obliged to consider the constitutional requirement of fault when passing upon the validity of a "criminal" offence (at p. 565-66).

The court proceeded to affirm that the fault element in a "crime" had to be appropriate to the stigma which was attached to it. According to the court, although the stigma attached to s. 86(2) of the Code was "at the lower end of the scale" (at p. 568), the stigma of any criminal conviction was significant. The court also noted that it was generally assumed that a person convicted of a criminal offence "has been so convicted because he possessed a degree of fault greater than mere negligence" (at p. 568), this because society had long recognized a fundamental distinction between a civil tort and a "crime". The court held that "mere negligence" did not meet the constitutional fault requirement found in s. 7 of the Charter. Therefore, considering the consequences of a conviction and the possible punishment under s. 86(2) of the Code, the court concluded that the section was inconsistent with s. 7 of the Charter.

The court then found that s. 86(2) of the Code was not saved by s. 1 of the Charter. The court summarized its finding in the following passage, at p. 572:

Is it necessary to aim the full force of the criminal law at the minimum degree of fault -- civil negligence -- enshrined in s. 86(2). We conclude that the means employed and their effects are disproportionate to the objective sought to be achieved.

IV. Issues

I stated the following constitutional questions by an order dated January 17, 1992:

1.Does s. 86(2) of the Criminal Code, R.S.C., 1985, c. C-46, infringe or deny the right to life, liberty and security of the person, and the right not to be deprived of that right, except in accordance with the principles of fundamental justice, as guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms?

2.If the answer to question 1 is yes, is the infringement of s. 7 a reasonable limit that can be demonstrably justified under s. 1 of the Charter?

V. Analysis

A. Is the Issue Moot?

Since the legislation under appeal will shortly be repealed, there is some question as to whether this case may be moot. As the word "careless" will appear nowhere in the Code after the repeal of this section, the respondent suggests that consideration of a standard of carelessness is purely academic. This approach, however, overlooks the fact that the respondent remains in jeopardy; allowing the appeal may result in his conviction and possible incarceration. Therefore, the "concrete dispute" has not disappeared and an adversarial element remains alive. In my view, this appeal meets the threshold established in Borowski v. Canada (Attorney General), 1989 123 (SCC), [1989] 1 S.C.R. 342.

B. Is s. 86 Contrary to s. 7 of the Charter?

Section 7 of the Charter mandates courts to conduct a substantive review of criminal legislation. Courts are not entitled, however, to strike down legislation merely because they disagree with the criminal law policy contained therein. The limits of constitutional scrutiny have been developed by this Court as follows:

1.The courts must ensure that an element of fault allowing at least for a defence of due diligence is contained in all offences for which an accused is liable to imprisonment.

2.Where the offence is one which carries sufficient social stigma coupled with potentially severe penal sanctions, the principles of fundamental justice may require a higher level of mens rea. The "very few" offences which merit this analysis have thus far included murder, attempted murder and theft.

I shall now consider whether s. 86(2) of the Code satisfies these requirements.

1 Minimum Fault Requirement

The present state of the law with respect to the minimum fault requirement contained in s. 7 has been recently summarized by Gonthier J. in R. v. Nova Scotia Pharmaceutical Society, 1992 72 (SCC), [1992] 2 S.C.R. 606, at p. 659:

From the reasons of this Court in R. v. Wholesale Travel Group Inc., 1991 39 (SCC), [1991] 3 S.C.R. 154, it can be seen that a minimum fault requirements with respect to every criminal or regulatory offence satisfies the requirements of s. 7. That same case indicates, at p. 238:

That fault may be demonstrated by proof of intent, whether subjective or objective, or by proof of negligent conduct, depending on the nature of the offence.

... Mens rea focuses on the mental state of the accused and requires proof of a positive state of mind such as intent, recklessness or wilful blindness. Negligence, on the other hand, measures the conduct of the accused on the basis of an objective standard, irrespective of the accused's subjective mental state.

In R. v. Wholesale Travel Group Inc., 1991 39 (SCC), [1991] 3 S.C.R. 154, I emphasized the following concerns with respect to the difference between an appropriate minimum standard of fault and a constitutionally sufficient minimum standard of fault in the context of offences where convictions may result in imprisonment (at pp. 186-87):

While an aware state of mind may well be the most appropriate minimum standard of fault for imprisonment or for any offence included in the Criminal Code, a matter up on which I refrain from expressing any view, it does not follow that this standard of fault is entrenched in the Charter. As I stated in R. v. Lippé, 1990 18 (SCC), [1991] 2 S.C.R. 114, at p. 142, "the Constitution does not always guarantee the "ideal". "As this Court stated in Vaillancourt, supra, the principles of fundamental justice dictate that negligence is the minimum fault requirement where an accused faces possible imprisonment upon conviction except for certain offences such as murder.... Whether a fault requirement higher than this constitutional minimum ought to be adopted where an accused faces possible imprisonment or conviction of any offence under the Criminal Code is a question of public policy which must be determined by Parliament, and for the courts to pronounce upon this would be contrary to what this Court has said in Re B.C. Motor Vehicle Act, supra, at pp. 498-99: that we refrain from "adjudicating up on the merits or wisdom of enactments". It is not the role of this Court to "second guess" the policy decisions made by elected officials.

The central issue before this Court is whether it is a basic tenet of the Canadian legal system that carelessness can never form the fault requirement for a criminal offence. Section 86(2) of the Code requires the Crown to establish that an accused used, carried, handled, shipped or stored a firearm, but did so "in a careless manner or without reasonable precautions for the safety of other persons". The fault requirement of this provision is, therefore, to be assessed objectively, which, following this Court's holding in R. v. Hundal, 1993 120 (SCC), [1993] 1 S.C.R. 867, at p. 883, consists of conduct that is a marked departure from the standard of care of a reasonable person in the circumstances. Appellate courts have divided on the constitutional validity of the fault requirement contained in s. 86(2) of the Code (see most recently R. v. Durham (1992), 1992 7723 (ON CA), 10 O.R. (3d) 596 (C.A.) (holding that s. 86(2) does not violate s. 7); and, the Saskatchewan Court of Appeal's decision giving rise to this appeal, (holding that s. 86(2) does violate the Charter)).

By enacting s. 86(2), Parliament has seen fit to impose on all people owning or using firearms a specific and rigorous duty of care. It is a basic tenet of the principles of fundamental justice that the state not be permitted to punish and deprive of liberty the morally innocent. Those who have the capacity to live up to a standard of care and fail to do so, in circumstances involving inherently dangerous activities, however, cannot be said to have done nothing wrong. The Law Reform Commission of Canada emphasized this point in the following passage from Workplace Pollution, Working Paper 53 (1986), at pp. 2-73:

Certain kinds of activity involve the control of technology (cars, explosives, firearms) with the inherent potential to do such serious damage to life and limb that the law is justified in paying special attention to the individuals in control. Failing to act in a way which indicates respect for the inherent potential for harm of those technologies, after having voluntarily assumed control of them (no one has to drive, use explosives, or keep guns) is legitimately regarded as criminal. [Emphasis in original.]

This Court has, in the past, acknowledged Parliament's rationale in enacting gun control offences. Writing for the majority in R. v. Schwartz, 1988 11 (SCC), [1988] 2 S.C.R. 443, at p. 483, McIntyre J. stated the following:

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.

It is evident that the strict control of handguns has been and remains an essential feature of the Canadian gun control laws.

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.

In s. 86(2), Parliament has addressed the threat posed by the use and storage of firearms by rendering those whose conduct shows a marked departure from the standard of care of a reasonably prudent person subject to criminal liability and possible imprisonment. The nature of the objective standard for the determination of fault was concisely stated by McLachlin J. in the case of R. v. Hundal, supra, in which she stated the following (at p. 872):

... the question is not what was in the accused's mind but the absence of the mental state of care. This want of due care is inferred from conduct of the accused. If that conduct evinces a want of care judged by the standard of a reasonable person in similar circumstances, the necessary fault is established. The relevant circumstances may include circumstances personal to the accused, relating to whether the accused lacked the capacities or powers necessary to attain the mental state of care required in the circumstances.

In Hundal, this Court was unanimously of the view that, in the appropriate context, negligence can be an acceptable basis of liability which meets the fault requirement of s. 7 of the Charter.

The objective test for negligence is discussed in R. v. Gosset, [1993] 3 S.C.R. 000, released this same day. In Gosset, I found that the proper interpretation of the fault element under s. 86(2) is conduct that constitutes a marked departure from the standard of care of a reasonably prudent person. If a reasonable doubt exists either that the conduct in question did not constitute a marked departure from that standard of care, or that reasonable precautions were taken to discharge the duty of care in the circumstances, a verdict of acquittal must follow. In Gosset, I found that the objective assessment of fault also had to consider the capacity of an accused to meet the standard of care required in the circumstances, and the accused's ability to control or compensate for his or her incapacities. There is, however, no "reverse onus" on an accused to establish on the balance of probabilities that he or she exercised due diligence in order to negate a finding of fault under s. 86(2).

As I indicate in Gosset, civil negligence and "penal" negligence must be distinguished from one another. In the context of penal negligence, where a finding of carelessness may result in imprisonment, the assessment of liability is no longer directed, as it is in the civil context, to the apportionment of loss; rather, that assessment has become linked to the punishment of morally blameworthy conduct, in order to avoid punishing those who could not have acted other than they did.

In order to conform with the principle of fundamental justice that the morally innocent not be deprived of liberty, the objective assessment of fault under s. 86(2) must allow for the existence of a reasonable doubt as to either the sufficiency of the precautions taken by the accused to avoid the creation of risk, or the capacity of the accused to meet the standard of care of a reasonably prudent person in the circumstances to result in an acquittal. Based on the interpretation of this section in R. v. Gosset set out above, I find s. 86(2) satisfies the minimum fault requirement under s. 7.

2 Stigma Analysis

The only remaining question, therefore, is to determine whether the social stigma which attaches to a conviction under this provision is sufficiently grave to warrant imposing a subjective fault requirement for s. 86(2) of the Code. This analysis must consider both the gravity of the offence and the moral blameworthiness of a person who engages in such conduct. As a supplemental factor, the penalties to which the offence gives rise should also be considered.

Section 86(2) renders a person convicted liable to imprisonment for up to two years for a first offence, and up to five years for a second offence. In Wholesale Travel Group Inc., supra, where the Court was considering a statute which also provided for up to five years' imprisonment, I concluded the following (at p. 185):

A conviction for false/misleading advertising will rest on a variety of facts, many of which will not reveal any dishonesty but, rather, carelessness and the conviction of same does not brand the accused as being dishonest. [Emphasis added.]

In my view, applying this same reasoning to s. 86(2) of the Code, given the nature of the offence, the absence of any proof of advertence in the imposition of a conviction, and the range of punishment upon conviction, there is not sufficient stigma arising from a conviction under s. 86(2) to require a subjective mens rea.

The stigma attaching to a conviction under s. 86(2) has been recently examined by Arbour J.A. in R. v. Durham, supra, at pp. 611-12. Arbour J.A. offered the following observations regarding the importance of the standard of fault in the analysis of social stigma, at p. 612:

A conviction for careless storage of a firearm, known to comport no subjective awareness of the risk created by the conduct, and otherwise not associated with any other form of social deviance, would not carry the same stigma as a conviction for careless use of a firearm by a person shown to have deliberately created or undertaken a substantial and unjustifiable risk, with full awareness of the danger created. Aside from the basic assertion that every criminal conviction generates a significant social stigma, which is true as far as it goes, the more precise appreciation of what distinguishes the stigma attached to a conviction for fraud, from the stigma of a conviction for sexual assault, possession of counterfeit money or careless storage of a firearm, depends on a multitude of factors, including not only the social repugnance of the conduct, but the degree of fault with which it is committed.

After taking into account these factors, Arbour J.A. concluded that s. 86(2) of the Code does not give rise to sufficient social stigma to require a subjective mens rea under s. 7 of the Charter. I agree with this conclusion.

VI. Disposition

Based on the above analysis, I would answer the constitutional questions as follows:

1.Does s. 86(2) of the Criminal Code, R.S.C., 1985, c. C-46, infringe or deny the right to life, liberty and security of the person, and the right not to be deprived of that right, except in accordance with the principles of fundamental justice, as guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms?

Answer: No.

It is, therefore, unnecessary to proceed to the second constitutional question concerning s. 1.

The appeal is allowed, the stay is lifted, and the matter should proceed to trial.

The judgment of L'Heureux-Dubé, Cory and McLachlin JJ. was delivered by

McLachlin J. -- This appeal considers a pre-trial motion challenging the constitutional status of s. 86(2) of the Criminal Code, R.S.C., 1985, c. C-46, under s. 7 of the Canadian Charter of Rights and Freedoms. Mr. Finlay was charged with storing firearms and ammunition in a careless manner, contrary to s. 86(2). The facts and judgments below are set out by the Chief Justice.

I agree with the reasons of the Chief Justice, save for his adoption of his reasons for the objective test for penal negligence discussed in R. v. Gosset, [1993] 3 S.C.R. 000, released concurrently. I refer to my reasons in R. v. Gosset in this regard, and would adopt those reasons in this appeal. I would answer the constitutional questions as does the Chief Justice. The appeal is allowed, the stay is lifted, and the matter should proceed to trial.

Appeal allowed.

Solicitor for the appellant: Darryl Bogdasavich, Regina.

Solicitors for the respondent: Brayford‑Shapiro, Saskatoon.

Solicitor for the intervener the Attorney General of Canada: John C. Tait, Ottawa.

Solicitor for the intervener the Attorney General for Ontario: Ian R. Smith, Toronto.

Solicitor for the intervener the Attorney General of Quebec: René de la Sablonnière, Québec.

Solicitor for the intervener the Attorney General of Manitoba: Brian G. Wilford, Winnipeg.

Solicitor for the intervener the Attorney General of British Columbia: George H. Copley, Victoria.

Solicitor for the intervener the Attorney General for Alberta: The Department of the Attorney General, Edmonton.