SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: SC 81/71
DATE: 20120215

RE: Regina v. J.G.

BEFORE: M.A. Code J.

COUNSEL:
Brad Demone , for the Appellant/Crown
No one appearing for the Respondent J.G.

HEARD: February 13, 2012

ENDORSEMENT

A. INTRODUCTION

[ 1 ] The Respondent J.G. was charged in an Information alleging that he:

… unlawfully did fail to comply with a disposition to wit: a probation order made by a youth court … by willfully failing or refusing to comply with a condition of the said order to wit: not have any contact directly or indirectly with co-accused Justin Pickering, contrary to s. 137 of the Youth Criminal Justice Act .

[ 2 ] The Crown proceeded summarily and the Respondent was acquitted after a short trial held on April 14, 2011 before Katarynych J. There was no question that the Respondent was in the company of Justin Pickering on October 26, 2010, the date of the alleged offence. However, the trial judge acquitted him because the Crown failed to prove that the Respondent did not come within one of the exceptions to the “no contact” term of his probation order. That exception allowed J.G. to have contact with the co-accused Pickering “for vocational, educational, employment programs or as may be required for counseling purposes”.

[ 3 ] The Crown appealed from the acquittal. The Respondent has been repeatedly served with notice of the appeal proceedings but has not appeared in this court, either in person or by counsel.

B. FACTS

[ 4 ] The Crown filed a certified copy of the Respondent’s probation order which was issued by Scully J. on July 29, 2010. It was in force for a period of eighteen months. It contained a number of provisions, including “not to have any contact direct or indirect with co-accused Justin Pickering”, but subject to the exception already set out above. There was no dispute that the Respondent was still bound by the probation order on October 26, 2010, the date of the alleged offence.

[ 5 ] On that date, the Respondent was observed by two police officers who knew both him and his former co-accused Justin Pickering. Both officers testified at the trial and they were found to be credible by the trial judge. They were on plainclothes patrol in an unmarked police car at approximately 1:10 p.m. on October 26, 2010. The two officers saw the Respondent and Pickering seated outside at the front of premises known as the Harm Reduction Centre on the south side of Queen Street East. They were seated side by side, on either a bench or a ledge, with no one else present. The ledge runs along the front of the building. They were talking to each other.

[ 6 ] The officers drove past the building, heading west on Queen Street, and then did a u-turn. At this point, the Respondent and Pickering got up off their seat on the ledge or bench and walked east on the south side of Queen Street. They were still together, walking side by side and talking to each other. They had been walking for fifteen or twenty seconds and had proceeded about twenty-five to thirty metres east from the Harm Reduction Centre when the plainclothes officers pulled up in the unmarked car and arrested them. The officers were aware of the probation order and arrested J.G. and Pickering for breach of probation.

[ 7 ] The officers understood that the Harm Reduction Centre is a community health centre where people receive medical treatment. The officers did not inquire at the Centre as to whether counseling services were offered there or whether the Respondent and Pickering had been receiving counseling. One of the officers was aware of the counseling exception to the “no contact” term in the probation order. At the time when he observed the Respondent and Pickering he did not see any counseling as no one else was present.

[ 8 ] No defence evidence was called.

C. LAW

[ 9 ] The only issue raised at the trial, on what were essentially uncontested facts, was whether it was the Crown or the defence who bore the burden of negativing or establishing the applicability of the counseling exception to the “no contact” term of probation. The defence submitted that “each component of that term [of probation] is an element of the offence” and that the Crown, therefore, had the burden of proving a negative, namely, that J.G. was not within the exception to the “no contact” term at the relevant time. The Crown relied on s. 794(2) of the Criminal Code and submitted that the effect of this statutory provision was that it placed the burden on the defence to prove a positive, namely, that J.G. was within the counseling exception at the relevant time. However, the Crown also made an alternative submission to the effect that, “they’re speaking, sitting outside a building, and walking down the street together does not fall within an exception in any event … And even if they had been in that building for counseling purposes, even if they had been, they subsequently breached their probation order by continuing to, to speak outside of the building and walk down the street together.”

[ 10 ] The learned trial judge never addressed the Crown’s alternative argument or its application to the particular facts of this case. Instead, she decided the case solely on the first argument, concerning the legal burden, stating:

The Crown does bear the burden of proof that the contact did not fall within one of the exceptions listed in the probation order. It is not too onerous, in my view and contrary to the Crown’s submission, within the fundamental values embedded in criminal justice to expect the investigating officers to at least enter the Harm Reduction Centre and make some inquiries as to whether these two young men had any business within that centre.

The Crown led no evidence in relation to the investigation that yielded anything about the reason that this youth and his co-accused were seated on the ledge of the Harm Reduction Centre. This was not sitting somewhere about in the community at random. This was a Harm Reduction Centre. Both officers – and I found both officers credible – testified that they didn’t make any inquiries. They didn’t know what went on in the Centre. They don’t know what programs are offered within the centre. And essentially they simply focused on the fact that they saw these two sitting together and made an arrest.

The arrest was made within metres of the Harm Reduction Centre and as the two got up to walk away. What registered with me in relation to that arrest was that on the officer’s own evidence it was 15 to 20 second after they got up off their bottoms and started to walk.

So this accused bears no burden to raise any lawful excuse in this case. I don’t find Section 794 operative at all, I’m not satisfied that all of the elements of the offence have been proved.

[ 11 ] In my view, the trial judge erred in law in deciding the case on the basis of the above legal issue and in failing to consider the Crown’s alternative argument. On the facts of this case, there was simply no “air of reality” to the suggestion that J.G. was within the counseling exception to the “no contact” term of his probation order. Whether he had been inside the Harm Reduction Centre at some earlier point in time and whether he and his co-accused had been jointly involved in a required counseling program, at that earlier time, was simply irrelevant. The Crown alleged a breach of the probation order at the time when the officers observed J.G. and Pickering seated outside the Centre, talking to each other with no one else present, and then walking down the street together and continuing their conversation. There could be no possible suggestion that this conduct came within the counseling exception and the issue should never have been raised. See: R. v. Kelsey (1953), 1953 5 (SCC) , 105 C.C.C. 97 at 102 (S.C.C.); R. v. Squire (1976), 1976 26 (SCC) , 29 C.C.C. (2d) 497 at 501-4 (S.C.C.); R. v. Laybourn et al (1987), 1987 56 (SCC) , 33 C.C.C. (3d) 385 at 390-392 (S.C.C.); R. v. Osolin (1993), 1993 54 (SCC) , 86 C.C.C. (3d) 481 at 510-511 and 526-531 (S.C.C.).

[ 12 ] In other words, even if the burden was on the Crown to prove a negative, namely, that J.G. was not within the counseling exception, the evidence of the officers satisfied this burden. The trial judge accepted their evidence as credible and their evidence was to the effect that there was no counseling going on at the relevant time when J.G. and Pickering were observed, talking and walking together on the Queen Street East sidewalk.

[ 13 ] In light of the above conclusion, it is not strictly necessary to decide the legal issue on which the trial judge relied as the basis for acquittal. However, I am told that it has considerable practical importance and that some guidance would be of assistance. I am tentatively of the view that the Crown bore the legal burden of negativing the counseling exception, had there been a proper factual basis for raising it as a defence.

[ 14 ] Section 794(2) of the Criminal Code provides as follows:

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

[ 15 ] This provision codifies a common law exception to the normal burden of proof placed on the Crown in criminal cases, although it is limited to summary conviction offences and it is unclear whether it only imposes an evidentiary burden on the defence, as opposed to the persuasive burden that was and is imposed by the common law exception. Section 794(2) is a difficult provision as it requires the court to distinguish between an element of the offence or of a defence (where the burden is on the Crown) and an “exception, exemption, proviso, excuse or qualification” (where the burden is on the defence).

[ 16 ] The case law has interpreted s. 794(2) restrictively in Ontario, holding that it applies mainly to regulatory offences and only “where a status in law has been conferred upon the accused who otherwise would be culpable”. The clearest example of statutory powers that confer “a status in law” which exempts from culpability are licensing provisions. Dickson J., as he then was, described this apparently limited reach of a Narcotic Control Act provision, identical to s. 794(2), in R. v. Perka et al , infra at 405, speaking for a unanimous Court on this point:

One who wishes to plead the possession of a license or other lawful authority in response to a charge … bears … the burden of persuading the trier of fact that such license exists.

In non-licensing situations, for example, in the case of offences that require some Ministerial or managerial consent in order to exempt from liability, it has been held that s. 794(2) has no application as these consent provisions are said to enact an element of the offence that the Crown must negative. See: R. v. Perka et al (1984), 1984 23 (SCC) , 14 C.C.C. (3d) 385 at 404-5 (S.C.C.); R. v. Williams (2008), 228 (C.C.C. (3d) 414 (Ont. C.A.); R. v. H. (P.) (2000), 2000 5063 (ON CA) , 143 C.C.C. (3d) 223 (Ont. C.A.); R. v. Fisher (1994), 1994 367 (ON CA) , 88 C.C.C. (3d) 103 (Ont. C.A.); R. v. Lee’s Poultry Ltd. (1985), 1985 166 (ON CA) , 17 C.C.C. (3d) 539 (Ont. C.A.); R. v. Daniels (1990), 1990 797 (BC CA) , 60 C.C.C. (3d) 392 (B.C.C.A.); R. v. Edwards , [1974] 2 All E.R. 1085 (C.A.) ; Sopinka et al, The Law of Evidence in Canada , 2 nd Ed. 1999, Butterworths Canada Ltd. at 80-86. Contra: R. v. Thompson (1992), 1992 ABCA 259 () , 76 C.C.C. (3d) 142 (Alta. C.A.); R. v. Dumais (2009), 2009 SKQB 481 () , 348 Sask. R. 147 (Sask. Q.B.).

[ 17 ] Resolution of this issue is not easy. Terms of probation orders and bail orders often contain what are plainly “exemptions” or “exceptions”, within the literal meaning of these terms used in s. 794(2). Furthermore, prosecutions for breaches of bail and probation orders generally proceed summarily under Part 27 of the Criminal Code . However, these are true criminal offences and not regulatory offences. Furthermore, the “exemptions” or “exceptions” do not create “a status in law” that can readily be proved by the accused simply producing a license. Without expressing a definitive position on the issue, I am inclined to the view that where the facts elicited in evidence at trial give an “air of reality” to some “exception” or “exemption”, then the issue is properly raised and the Crown must negative that “exception” or “exemption” by proof beyond reasonable doubt. In other words, where the “exemption” or “exception” has become a viable defence on the facts of a particular case, the Crown must negative that defence, just like duress, necessity, self-defence, provocation, mistake of fact and most other defences.

[ 18 ] The error in law committed by the trial judge in the case at bar was in treating the counseling exception as an element of the offence that had to be negatived by the Crown, even when the exception had never been properly raised on the facts of the case. Indeed, the evidence adduced by the Crown established that the exception had no possible application at the time of the offence. The general law applicable to this point, which the learned trial judge should have applied, was succinctly stated by McIntyre J. in R. v. Laybourn et al , supra at 390, speaking for a unanimous Court on this point:

It is well-settled law that in his charge the trial judge must put to the jury all defences that may arise upon the evidence, whether they have been raised by counsel for the defence or not. In doing so, he is obliged to explain the law respecting the defence and to refer the jury to the evidence which may be relevant on that issue. Before putting the defence, however, the trial judge must decide whether in the facts before him the defence arises on the evidence . It is only when he decides this question in favour of the defence that he must leave it to the jury, for a trial judge is not bound to put every defence suggested by counsel in the absence of some evidentiary base . Indeed, he should not do so, for to put a wholly unsupported defence would only cause confusion. [Emphasis added].

D. CONCLUSION

[ 19 ] The appeal is allowed and the acquittal is set aside. As there were no live issues in dispute on the facts of this case, other than the irrelevant issue concerning s. 794(2) and the burden of proof in relation to the counseling exception, I am satisfied that the trial judge would have entered a conviction but for the error in law set out in my reasons above. Accordingly, the proper remedy is to enter a conviction and remit the matter to the trial judge for sentencing. See: R. v. Labadie , 2011 ONCA 227 ; R. v. Cassidy (1989), 1989 25 (SCC) , 50 C.C.C. (3d) 193 (S.C.C.).

Code M.A.
Date: February 15, 2012