R. v. Shelley, [1981] 2 SCR 196

Supreme Court of Canada

R. v. Shelley, [1981] 2 S.C.R. 196

Date: 1981-06-22

Her Majesty The Queen Appellant;

and

Gene Shelley Respondent.

1981: January 29 and 30; 1981: June 22.

Present: Laskin C.J. and Martland, Ritchie, Dickson, Estey, McIntyre and Chouinard JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR SASKATCHEWAN

Customs and excise—Charge of possession without lawful excuse of imported goods valued over $200—Crown proved possession and value—Foreign origin of goods and their purchase undervalue—Inference of unlawful importation—Crown reliance on s. 248(1) of the Customs Act.

Civil rights—Presumption of innocence—Accused required to prove identity, origin or importation of goods of foreign origin—Impossible burden of proof tantamount to irrebuttable presumption of guilt contrary to s. 2(f) of the Canadian Bill of Rights—Customs Act, R.S.C. 1970, c. C-40, ss. 205(1),(3), 248(1)—Canadian Bill of Rights, R.S.C. 1970, App. III, s. 2(f).

Accused was charged under s. 205 of the Customs Act with having in his possession, without lawful excuse, goods unlawfully imported into Canada having a dutiable value of $200 or more. Under s. 205, proof of lawful excuse lay with the accused. The Crown proved possession of the goods in the accused and established the dutiable value of $200 or more. For proof that the goods were unlawfully imported into Canada, however, reliance was placed on s. 248(1) of the Customs Act, which provided, inter alia, that where any question arose as to identity, origin or importation of the goods, the burden of proof lay upon the person possessing them. The goods had their origin outside Canada and the accused maintained that he had purchased them in Canada—at an undervalue according to an expert’s appraisal. As the foreign origin and the purchase at undervalue would not support the inference of unlawful importation, the Crown relied on s. 248(1). The Saskatchewan Court of Appeal allowed respondent’s appeal from his conviction at trial. This appeal was from that judgment.

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Held (Martland, Ritchie and Chouinard JJ. dissenting): The appeal should be dismissed.

Per Laskin C.J. and Dickson, Estey and McIntyre JJ.: Section 248(1) applied to a charge under s. 205 and accused could not escape his obligation with respect to reverse onus on lawful importation. If accused had been able to satisfy that onus, it would have been unnecessary for him, in order to secure acquittal, to show lawful excuse in the absence of any countering evidence from the Crown on unlawful exportation.

The critical question, however, was the effect of s. 2(f) of the Canadian Bill of Rights on a charge under s. 205 and on s. 248 as applicable to such charge. The presumption of innocence under s. 2(f) of the Canadian Bill of Rights was not necessarily violated by the reverse onus if the onus required no more than accused prove an essential fact on a balance of probabilities, provided the fact to be proved was one rationally open to proof or disproof. The onus would be impossible to meet if it required the accused to prove a fact that he could not reasonably be expected to prove, such as a fact beyond his knowledge or beyond what he could reasonably be expected to know. Further, the onus concerning unlawful importation did not differ from that as to origin and was not increased merely because the Crown proved the foreign origin of goods with a dutiable value exceeding $200 and the accused’s being in possession of those goods.

The accused could not reasonably be expected to prove the facts in the case. No rational or necessary connection existed on the record between the fact proved, i.e. possession of goods of foreign origin, and the conclusion of unlawful importation which the accused had to disprove under s. 248(1) in order to avoid conviction. At what remove the goods were imported was unknown. If the Crown were to have the benefit of the reverse onus provisions in s. 248(1), it had to at least, in addition to proving foreign origin and possession of the goods, show some knowledge or means of knowledge of the circumstances of importation on the part of the accused which would enable him to show, if that were the fact, that they were lawfully imported. To require less could leave the accused with an impossible burden of proof and would amount to an irrebuttable presumption of guilt against him, depriving him of the right to be presumed innocent under s. 2(f) of the Canadian Bill of Rights.

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Per Martland, Ritchie and Chouinard JJ., dissenting: There was a statutory presumption requiring an accused person in possession of goods of foreign origin with a dutiable value exceeding $200 to prove that they were not unlawfully imported into Canada. As respondent did not establish or attempt to establish lawful importation, the presumption was not rebutted.

Parliament did not intend that the provision for reverse onus in s. 248(1) should not apply until the Crown had established “unlawful importation” as well as possession and dutiable value over $200. Such an interpretation would mean that the section could only be effective if the Crown had proved all the necessary elements of the offence. Reverse onus, therefore, would be unnecessary in order to shift the burden for the accused for there would be no purpose for it.

Section 248(1) did not contravene s. 2(f) of the Canadian Bill of Rights. The Crown proved possession, dutiable value over $200, and the foreign origin of the goods; the burden of proof as to lawful importation lay with the accused. The clear language of s. 248(1) did not sustain a distinction between a case predicated on proof of the existence of fact which the accused was in a position to controvert and the present case in which the importation of foreign goods might be something of which the accused had no knowledge.

[R. v. Appleby, [1972] S.C.R. 303, distinguished; R.v. Hammell (1971), 6 C.C.C. (2d) 173; R. v. Nudelman (1958), 124 C.C.C. 306, referred to.]

APPEAL from a judgment of the Court of Appeal for Saskatchewan[1], allowing respondent’s appeal from his conviction at trial. Appeal dismissed, Martland, Ritchie and Chouinard JJ. dissenting.

Ron Fainstein, for the appellant.

R. Pollack and Ron J. Wilinofsky, for the respondent.

The judgment of Laskin C.J. and Dickson, Estey and McIntyre JJ. was delivered by

THE CHIEF JUSTICE—The relevant facts and the applicable legislation governing this appeal have been set out in the reasons prepared by my

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brother Ritchie, which I have had the advantage of reading. The accused respondent was charged under s. 205 of the Customs Act, R.S.C. 1970, c. C-40, with having in possession, without lawful excuse, goods unlawfully imported into Canada having a dutiable value of $200 or more. Under s. 205(1), proof of lawful excuse “shall be on the person accused”.

It is not disputed that the Crown proved the possession of the goods in the accused and that they had a dutiable value of $200 or more. For proof that the goods were unlawfully imported into Canada reliance was placed upon s. 248(1) of the Customs Act providing, inter alia, that where any question arises as to the identity, origin or importation of goods, the burden of proof lies upon the person in whose possession they are found. The evidence showed that most of the goods, consisting of rings and gems, had their origin outside of Canada. Evidence of the accused was that he had purchased the goods in Canada, clearly at a considerable undervalue in respect of some of them according to the testimony of an expert appraiser. Their foreign origin and their purchase at an undervalue would not, of course, support an inference of unlawful importation, hence the reliance on s. 248(1).

The Saskatchewan Court of Appeal, in setting aside the conviction of the accused, appeared to rest its judgment on the charge as framed under s. 205(3), there being no reference in it to s. 248(1). In my opinion, no such reference was necessary. Unlawful importation was alleged in the charge as was possession without lawful excuse, and unless s. 248(1) does not apply to a charge under s. 205, I do not see how the accused can escape the obligation upon him with respect to the reverse onus on lawful importation as well as that on lawful excuse. However, s. 248(1) clearly applies. If the accused had been able to satisfy it, being properly required to do so, it would be unnecessary for him, in order to secure an acquittal, to show lawful excuse, absent any accepted countering evidence from the Crown on unlawful importation.

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The critical question in this appeal is, in my opinion, the effect upon a charge under s. 205, and upon s. 248 as applicable to such a charge, of s. 2(f) of the Canadian Bill of Rights which, relevant to this case, provides that no law of Canada shall be construed or applied so as to

deprive a person charged with a criminal offence of the right to be presumed innocent until proved guilty according to law…

This Court held in R. v. Appleby[2] that a reverse onus provision, which goes no farther than to require an accused to offer proof on a balance of probabilities, does not necessarily violate the presumption of innocence under s. 2(f). It would, of course, be clearly incompatible with s. 2(f) for a statute to put upon an accused a reverse onus of proving a fact in issue beyond a reasonable doubt: In so far as the onus goes no farther than to require an accused to prove as essential fact upon a balance of probabilities, the essential fact must be one which is rationally open to the accused to prove or disprove, as the case may be. If it is one which an accused cannot reasonably be expected to prove, being beyond his knowledge or beyond what he may reasonably be expected to know, it amounts to a requirement that is impossible to meet.

I would not distinguish in this respect between the burden placed upon an accused under s. 248(1) of the Customs Act in respect of origin and in respect of importation. Merely because the Crown proves the foreign origin of goods with a dutiable value of more than $200, and that they are in the possession of the accused, does not increase the burden on the accused in respect of lawful importation. The question still remains in respect of that burden, whether it is one which, on the facts in the case, the accused can reasonably be expected to prove. I find support for this position in what Ritchie J. said in R. v. Appleby at p. 316, as follows:

…the words “presumed innocent until proved guilty according to law…” as they appear in s. 2(f) of the Bill of Rights, must be taken to envisage a law which recognizes the existence of statutory exceptions revers-

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ing the onus of proof with respect to one or more ingredients of an offence in cases where certain specific facts have been proved by the Crown in relation to such ingredients. [The underlining is mine]

The Appleby case illustrates the point that I have made. The accused in that case was charged with impaired driving. An applicable statutory provision stated that “where it is proved that the accused occupied the seat ordinarily occupied by the driver… he shall be deemed to have had the care or control of the vehicle unless he establishes that he did not enter or mount the vehicle for the purpose of setting it in motion”. The Crown having proved the fact giving rise to the reverse onus, namely that the accused was sitting in the driver’s seat, the accused was obliged to reply to satisfy the reverse onus and it was clearly within his knowledge and power to make the required reply. His failure to do so could not be excused on the ground of a violation of the presumption of innocence.

The present case is entirely different. As was said by Rutherford Dist. Ct. J. in R. v. Hammell[3], at p. 175:

If all citizens were called upon to account for all foreign made goods they possessed, they would, with the passage of time, be extremely hard pressed to do so. In many cases establishing their lawful importation, or even their immediate source, could be a virtual impossibility. Such a sweeping onus approaches a presumption of guilt and, if it existed, might be expected to run foul of s. 2(f) of the Canadian Bill of Rights… requiring a basic presumption of innocence.

This point is further illustrated by reference to R. v. Nudelman[4]. In that case, s. 203 of the Customs Act, R.S.C. 1952, c. 58, was under consideration concerning a charge of unlawful possession of some watches unlawfully imported into Canada. The section provided that it was an offence for a person to have possession without lawful excuse, the proof of which was on the person accused, of goods unlawfully imported into Canada. On the issue of burden of proof of unlawful importation, Judge Roche, of the Court of Sessions of the

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Peace, said at pp. 308-09:

On the basis of the evidence before the Court, the prosecution has requested a conviction against the accused and the Court must accordingly conclude that the prosecution under the terms of s. 203 of the Customs Act would expect any accused person to carry alone the burden and prove that goods in his possession have been at one time lawfully imported, that the duties lawfully payable at any one time, have been paid, and if the contention of the prosecution was acceptable, customs officers could seize any goods and charge any person in possession of the goods with a violation of the Customs Act, and the person finding himself in this unfortunate predicament would then be compelled to trace back, a perhaps long history of the goods seized, this would create an impossible situation. This is surely not the spirit of the law in our free and democratic country and the Court cannot in equity and in law be expected to convict defendant in this case where there is a total absence of evidence to show that the watches were unlawfully imported into Canada or that a duty, if a duty was payable, had not been paid.

The Court further considers that this case under the Customs Act may have some similarity with those cases of unlawful possession of stolen goods where the burden of proof falls on the accused—but only after the possession and recent theft have been established by the Crown. In this particular case, the Crown was bound to establish the unlawful importation into Canada before the burden of proof would shift to the accused.

It is evident to me in this case that there is on the record no rational or necessary connection between the fact proved, i.e. possession of goods of foreign origin, and the conclusion of unlawful importation which the accused under s. 248(1) must, to avoid conviction, disprove. At what remove the particular goods were imported is unknown. If the Crown is to have the benefit of the reverse onus provisions of s. 248(1) it must at least, in addition to proving foreign origin and possession of the goods, show some knowledge or means of knowledge of the circumstances of importation on the part of the accused which would enable him to show, if that be the fact, that they were lawfully imported. To require less could leave the accused with an impossible burden of proof and would amount to an irrebuttable presumption of guilt against him, depriving him of the

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right to be presumed innocent under s. 2(f) of the Canadian Bill of Rights.

I go back to what I quoted earlier from reasons of Justice Ritchie in the Appleby case, namely that a reverse onus upon the accused arises where certain specific facts have been proved by the Crown. In the present case we are not concerned with “lawful excuse” as that term is used in s. 205(1) of the Customs Act. The ingredients of the offence as specified in the section involve (a) possession of the goods, (b) the goods are imported, (c) the importation was unlawful and (d) the goods have a dutiable value in excess of $200. At the risk of repetition, it seems to me that the Crown must put in evidence facts upon which the accused may reasonably be required to discharge the reverse onus upon him, in this case to show on a balance of probabilities the lawfulness of the importation.

The simple statement in the indictment of the possession of goods of foreign origin is not sufficient to support the discharge of the evidential burden upon the Crown so as to require the accused to meet it by an answer on a balance of probabilities. As I have said, the reverse onus under s. 248 would be impossible to discharge if it were sufficient simply to state possession and foreign origin in the indictment.

In the circumstances of the present case, the Crown not having met the minimum requirement of proof above stated, the reverse onus provisions of s. 248(1) do not apply, and it remains obliged therefore to show unlawful importation beyond a reasonable doubt. Since admittedly, it has not adduced evidence to support such a finding, its appeal fails and must be dismissed.

The reasons of Martland, Ritchie and Chouinard JJ. were delivered by

RITCHIE J. (dissenting)—This is an appeal brought with leave of this Court, from a judgment of the Court of Appeal for Saskatchewan allowing

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an appeal by the respondent from his conviction at trial before Kindred J. in the Saskatchewan District Court on a charge

…that he the said Gene Shelly of the city of Winnipeg, in the Province of Manitoba, did on or about the 3rd day of April, A.D. 1978 at the City of Yorkton, in the Province of Saskatchewan, without lawful excuse, have in possession certain goods unlawfully imported into Canada, namely one Lady’s Opal and Sapphire Ring, two Gent’s Diamond Rings and one Yellow Diamond, the value for duty of the said goods being two hundred dollars or over, contrary to the provisions of Section 205 (3) of The Customs Act R.S.C.

The relevant subsections of the Customs Act, R.S.C. 1970, c. C-40, read as follows:

205. (1) If any person, whether the owner or not, without lawful excuse, the proof of which shall be on the person accused, has in possession, harbours, keeps, conceals, purchases, sells or exchanges any goods unlawfully imported into Canada, whether such goods are dutiable or not, or whereon the duties lawfully payable have not been paid, such goods, if found, shall be seized and forfeited without power of remission, and, if such goods are not found, the person so offending shall forfeit the value thereof without power of remission. [The italics are my own]

…

(3) Where the goods so had in possession, harboured, kept, concealed, purchased, sold or exchanged, are of the value for duty of two hundred dollars or over, such person is guilty of an indictable offence and liable on conviction to a penalty not exceeding one thousand dollars and not less than two hundred dollars, or to imprisonment for a term not exceeding four years and not less than one year, or to both fine and imprisonment. [The italics are my own]

The words “goods so had in possession” as they occur in s. 205(3) must in my view be construed as referring to the “goods” described in s. 205(1) which are goods unlawfully imported into Canada and had in possession “without lawful excuse the proof of which shall be upon the person accused”. Express provision as to the burden of proving any question relating to the legality of the importation of such goods is contained in s. 248(1) of the same statute which reads as follows:

248. (1) In any proceedings instituted for any penalty, punishment or forfeiture or for the recovery of any

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duty under this Act, or any other law relating to the customs or to trade and navigation, in case of any question of, or relating to the identity, origin, importation, lading or exportation of any goods or the payment of duties on any goods, or the compliance with the requirements of this Act with regard to the entry of any goods, or the doing or omission of anything by which such penalty, punishment, forfeiture or liability for duty would be incurred or avoided, the burden of proof lies upon the owner or claimant of the goods or the person whose duty it was to comply with this Act or in whose possession the goods were found, and not upon Her Majesty or upon the person representing Her Majesty. [Emphasis added.]

The learned trial judge, after a careful review of the evidence, concluded that the respondent in the present case had not discharged the statutory burden resting upon him but Chief Justice Culliton, speaking on behalf of the Saskatchewan Court of Appeal took the view that in such a case no such burden rested on the accused unless and until the Crown had discharged the burden of proving possession, dutiable value and unlawful importation. In so finding the learned Chief Justice held that:

Under the Charge in this case the onus was on the Crown to establish:

(1) that the Appellant had possession of the goods;

(2) that the goods had a dutiable value in excess of $200;

(3) that the goods were unlawfully imported into Canada.

The evidence establishes that the Appellant had the goods and that the dutiable value exceeded $200.00. There is no evidence whatever that the said goods were unlawfully imported into Canada. The only evidence is that the ring originated in England and that some of the gems had their origin outside of Canada. In the Court’s opinion the reverse onus clause does not arise until the three elements have been established and the learned trial judge erred in holding that it did. The Appeal is allowed and the conviction quashed. There will be an Order that the goods be returned to the Appellant after the time for application for leave to appeal has expired.

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The judgment of the Court of Appeal is obviously based on the assumption that the burden of proof as to the goods being “unlawfully imported into Canada” rested upon “Her Majesty” and not upon the person “in whose possession the goods were found”. The Crown on the other hand contends that the last words of s. 248(1) of the Customs Act make it plain that it was the intention of Parliament to provide for a reverse onus of proof so that the burden lies upon the person in possession of the goods.

In the present case the respondent was found to be in possession of jewellery of a total value of $14,650 and the evidence as to the origin of the items specified in the charge is as follows:

(1) Exhibit P-1 is a gent’s ring with one diamond of fifteen points in size and eight more stones for one carat with imprints of ten carat to fourteen carat on a yellow gold mounting. The origin of this diamond is not Canadian.

(2) Exhibit P-3 consists of a lady’s opal and sapphire ring, which is of English origin, and of a value of approximately two hundred dollars.

(3) Exhibit P-4 is a loose diamond of an approximate weight of three carats. As diamonds are not mined in Canada, it obviously came here from outside this country. This diamond is valued at ten thousand dollars.

(4) Exhibit P-5 represents a gent’s diamond ring with one diamond approximately one carat with sixty points in size in a yellow gold mount. Its origin is outside Canada and has a value of four thousand, two hundred and fifty dollars.

The above statements as to the value and origin of the goods specified in the indictment are taken from the reasons for judgment of the learned trial judge and are based on the evidence of an expert whose testimony was not disputed and whose valuation was accepted by the customs inspector who “equated the appraised value with the fair market value of the goods, which is the value used for duty purposes”.

I am accordingly satisfied that the Crown has established that the respondent had possession of goods having a dutiable value in excess of $200 and an origin outside of Canada without proving whether or not these goods had been lawfully

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imported into this country, but the judgment of the Court of Appeal in placing the onus of proof upon the Crown concluded that the failure to prove unlawful importation of the goods was fatal to the Crown’s case as it left one essential element of the offence unproven. The questions accepted by both the appellant and the respondent as being the points in issue on this appeal are as follows:

1. Did the Saskatchewan Court of Appeal err in law in ruling that in prosecution for possession without lawful excuse of goods unlawfully imported into Canada, contrary to Section 205 of the Customs Act, R.S.C. 1970, c. C-40, the Crown is required to establish, inter alia, unlawful importation of those goods, before the reverse onus provision of Section 248(1) is operative?

The Respondent contends that the Saskatchewan Court of Appeal committed no such error in law.

2. Did the Saskatchewan Court of Appeal err in law in ordering the return of goods under seizure?

As to the first question it appears to me that if the Court of Appeal were correct in holding that Parliament intended that the provision for reverse onus contained in s. 248(1) should not apply until the Crown has established “unlawful importation” as well as possession and dutiable value of over $200, it would then mean that the section could only be effective if the Crown had proved all the necessary elements of the offence in which event no reverse onus provision would be necessary in order to shift the burden to the accused. There would thus be no purpose in enacting the provisions of s. 248(1) in relation to onus of proof and it appears to me to be inherently unlikely that Parliament intended any such interpretation to be placed on the express language contained in the section.

This is a proceeding instituted under the Customs Act for the imposition of a penalty which raises a “question relating to the importation of goods” in that the Crown alleges that they were “unlawfully imported into Canada”. In any proceeding which raises such a question it is provided by s. 248(1) of the Act that the “burden of proof lies upon… the person… in whose possession the

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goods were found, and not upon Her Majesty or upon the person representing Her Majesty”.

Unlike the Court of Appeal, I am unable to escape from what appears to me to constitute a statutory presumption requiring an accused person who is found in possession of goods of foreign origin with a dutiable value in excess of $200 to prove that they were not unlawfully imported into Canada and as the respondent has not established or attempted to establish lawful importation, it appears to me that the presumption has not been rebutted.

It was however contended on behalf of the respondent that the provisions of s. 248(1) and the reverse onus which that section establishes were inoperative as being tantamount to a denial of the right of the accused to be presumed innocent until proved guilty in contravention of s. 2(f) of the Canadian Bill of Rights, 1960 (Can.), c. 44 (now R.S.C. 1970, App. III) which provides:

2. Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or applied so as to

…

(f) deprive a person charged with a criminal offence of the right to be presumed innocent until proved guilty according to law in a fair and public hearing by an independent and impartial tribunal, or of the right to reasonable bail without just cause; or

…

In my view this section is to be read in light of what was said in this Court in R. v. Appleby[5], where it was contended that the reverse onus created by s. 224A(1)(a) of the Criminal Code was inoperative as running contrary to the provi-

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sions of s. 2(f) of the Canadian Bill of Rights. Section 224A(1)(a) as it then read provided:

224A. (1) In any proceedings under section 222 or 224,

(a) where it is proved that the accused occupied the seat ordinarily occupied by the driver of a motor vehicle, he shall be deemed to have had the care or control of the vehicle unless he establishes that he did not enter or mount the vehicle for the purpose of setting it in motion;…

In considering the contention that this section had the effect of depriving the accused of the presumption of innocence, this Court considered, amongst other cases, the judgment of Lord Diplock in the Public Prosecutor v. Yuvaraj[6] at p. 232, where he said:

Generally speaking, no onus lies upon a defendant in criminal proceedings to prove or disprove any fact: it is sufficient for his acquittal if any of the facts which, if they existed, would constitute the offence with which he is charged, are “not proved.” But exceptionally, as in the present case, an enactment creating an offence expressly provides that if other facts are proved, a particular fact, the existence of which is a necessary factual ingredient of the offence, shall be presumed or deemend to exist “unless the contrary is proved.” In such a case the consequence of finding that that particular fact is “disproved” will be an acquittal, whereas the absence of such a finding will have the consequence of a conviction. Where this is the consequence of a fact’s being “disproved” there can be no grounds in public policy for requiring that exceptional degree of certainty as excludes all reasonable doubt that that fact does not exist. In their Lordships’ opinion the general rule applies in such a case and it is sufficient if the court considers that upon the evidence before it it is more likely than not that the fact does not exist. The text is the same as that applied in civil proceedings: the balance of probabilities.

In the Appleby case consideration was also given to the famous dictum of Lord Sankey in Woolmington v. Director of Public Prosecutions[7], where he said:

Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt subject to

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what I have already said as to the defence of insanity and subject also to any statutory exception.

In relating this passage to the language of s. 2(f) of the Bill of Rights, the majority of this Court had this to say:

It seems to me, therefore, that if Woolmington’s case is to be accepted, the words “presumed innocent until proved guilty according to law…” as they appear in s. 2(f) of the Bill of Rights, must be taken to envisage a law which recognizes the existence of statutory exceptions reversing the onus of proof with respect to one or more ingredients of an offence in cases where certain specific facts have been proved by the Grown in relation to such ingredients.

In the present case, as has been said, the Crown has proved possession, dutiable value of over $200 and the foreign origin of the goods. As to the remaining ingredient, i.e. unlawful importation, in my opinion the burden of proof rests on the accused under s. 248(1). It was, however, contended on behalf of the respondent that the case of Appleby was distinguishable as the reverse onus created by s. 224A(1)(a) under consideration in that case was predicated on proof of the existence of facts which the accused was in a position to controvert, whereas whether or not the importation of foreign goods in the present case was unlawful might well be something of which the accused had no knowledge. I do not think this to be a distinction which can be sustained in view of the clear language of s. 248(1), and the requirement that all the provisions of the Customs Act be construed in accordance with s. 2(3) which reads:

(3) All the expressions and provisions of this Act, or of any law relating to the customs, shall receive such fair and liberal construction and interpretation as will best ensure the protection of the revenue and the attainment of the purpose for which this Act or such law was made, according to its true intent, meaning and spirit.

The effect of the opening words of s. 205(1) was considered by Chief Justice Porter speaking on behalf of the Court of Appeal of Ontario in R. v. Guertin[8], at pp. 346-47.

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Section 205(1) contains the provision that:

205. (1) If any person, whether the owner or not, without lawful excuse, the proof of which shall be on the person accused, has in possession… any goods unlawfully imported into Canada…

whereas Porter C.J.O. was considering the contention that the reverse onus contained in s. 80 of the Criminal Code was inconsistent with s. 2(f) of the Canadian Bill of Rights and accordingly inoperative. Section 80 of the Criminal Code reads as follows:

80. Every one without lawful excuse, the proof of which lies upon him,

(a) makes or has in his possession or under his care or control an explosive substance that he does not make or does not have in his possession or under his care or control for a lawful purpose, or

(b) has in his possession a bomb, grenade or other explosive weapon,

is guilty of an indictable offence…

In disposing of the argument presented as to conflict between this section and s. 2(f) of the Canadian Bill of Rights, Chief Justice Porter said:

Counsel for the accused argued that s. 80 of the Code, by putting the proof of lawful excuse upon the accused, abrogates or infringes the right of the accused “to be presumed innocent until proved guilty according to law.”

I do not agree with this contention. Under s. 80 of the Code the accused is not deprived of the right to be presumed innocent until proved guilty “according to law.” The law, it is true, stipulates that upon proof that the accused has the explosive substance in his possession, he shall be liable to conviction unless his possession can be justified by lawful excuse. Nevertheless, it is only after conclusion of the evidence, if any, for the defence as well as the evidence for the Crown that the trial tribunal is in a position to find his guilt or innocence. The presumption of innocence remains until the whole evidence is before the Court. If the accused elects to adduce no evidence or if the evidence he adduces fails to support the defence of lawful excuse, then in either case he may be convicted “according to law.”

For these reasons, I am of the opinion that s. 80 does not abrogate or infringe upon the right to be presumed

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innocent recognized and declared by s. 2(f) of the Bill of Rights.

In my opinion this statement is consistent with the views expressed by Lord Diplock in the Yuvaraj case, supra, and also with the reasoning adopted by the majority of this Court in the Appleby case.

The respondent testified in his own behalf in this case in explaining how the goods came into his possession and in this regard I only find it necessary to refer to his evidence concerning the yellow diamond Exhibit P-4 and Exhibit P-5. As to the former he said: “I quite frankly didn’t think it was a diamond when I first saw it.” and he continued that he had “bought it along with two wedding bands from a gentleman reading one of his ads and paid a total of eight hundred dollars for the three”. As to Exhibit P-5 the learned trial judge comments:

The fifth ring, the gent’s diamond, Exhibit P-5, he said he purchased it from a client at the Red River Exhibition some four or five years ago for four hundred dollars. The circumstances of this purchase he said were that he was involved in the management of a legally licensed casino raising funds for agricultural purposes, and the client approached him saying he was broke and offered to sell him his diamond ring.

When the evidence with respect to these exhibits is considered against the background of alleged gemological expertise said to have been obtained by the accused in the taking of a course from the Gemological Institute of America, it is to be remembered that the two stones P-4 and P-5 which he said he acquired for $800 and $400 respectively were valued by the expert called at the trial at $10,000 and $4,250. It was contended with some justice that these discrepancies affect any assessment of the reliability of the evidence given by the respondent, and in any event there was nothing in his evidence which constituted a “lawful excuse” for the respondent having more than $14,000 worth of imported jewellery in his possession contrary to s. 205(1) of the Customs Act.

For all these reasons I would allow this appeal, set aside the judgment of the Court of Appeal for Saskatchewan and restore the conviction entered

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at trial by the learned trial judge. It follows from this conclusion that I would answer the first question in the affirmative, and as I would restore the conviction, the question of whether the goods under seizure should be returned to the respondent does not arise.

Appeal dismissed, MARTLAND, RITCHIE and CHOUINARD JJ. dissenting.

Solicitor for the appellant: Roger Tassé, Ottawa.

Solicitor for the respondent: R.G. Carbert, Winnipeg.