The Queen v. Proudlock, [1979] 1 SCR 525

SUPREME COURT OF CANADA

The Queen v. Proudlock, [1979] 1 S.C.R. 525

Date: 1978-10-17

Her Majesty The Queen Appellant; and

Randall Henry Proudlock Respondent.

1977: November 15; 1978: October 17.

Present: Laskin C.J. and Martland, Ritchie, Spence, Pigeon, Dickson, Beetz, Estey and Pratte JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA

Criminal law — Breaking and entering with intent — Presumptions — Evidence given by defence disbelieved by trial judge — No "evidence to the contrary" so as to prevent operation of subs. 2(a) of s. 306 of the Criminal Code, R.S.C. 1970, c. C-34 — Evidence must be such as will at least raise reasonable doubt as to guilt.

The accused was charged with breaking and entering a place with intent to commit an indictable offence therein, contrary to s. 306(1)(a) of the Criminal Code. The accused gave evidence which the trial judge did not believe. The question therefore before the Court was whether evidence given by the defence but disbelieved by the trier of fact is "any evidence to the contrary" so as to prevent the operation of subs. 2(a) of s. 306 of the Code which states: "For the purposes of proceedings under this section, evidence that the accused (a) broke and entered a place is, in the absence of any evidence to the contrary, proof that he broke and entered with intent to commit an indictable offence therein".

The trial judge considered himself bound by two decisions of the British Columbia Court of Appeal, R. v. Marshall, [1971] 1 C.C.C. (2d) 505, and R. v. Rivera, [1975] 2 W.W.R. 56, which appeared to require only testimony believed or unbelieved by the trier of fact on the issue of intent to commit an indictable offence at the place in question in order to rebut the statutory pre­sumption of proof of intent. Accordingly, the trial judge dismissed the charge and acquitted the accused. An appeal was thereupon taken to the Court of Appeal of British Columbia which by a unanimous decision expressed itself to be bound by the Marshall case, and consequently the appeal was dismissed. The Crown appealed from the judgment of the Court of Appeal to this Court.

Held: The appeal should be allowed and a conviction entered.

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Per curiam: Evidence disbelieved by the trier of fact is not "evidence to the contrary" within the meaning of s. 306(2)(a) of the Criminal Code.

Per Martland, Ritchie, Pigeon, Dickson, Beetz and Pratte JJ.: There should be no difference between the effect of a presumption of fact and of a presumption of law which is not expressed in such terms as to require the accused to "establish" or to "prove" a given fact or excuse. When a presumption of law is expressed in such terms, it is settled that the burden on the accused is to prove the fact or excuse on the preponderance of evi­dence or on a balance of probabilities.

Such is not the situation when all the presumption of law does is to establish a prima facie case. The burden of proof does not shift. The accused does not have to "establish" a defence or an excuse; all he has to do is to raise a reasonable doubt. If there is nothing in the evidence adduced by the Crown from which a reasonable doubt can arise, then the accused will necessarily have the burden of adducing evidence if he is to escape conviction. However, he will not have the burden of proving his innocence; it will be sufficient if, at the conclusion of the case on both sides, the trier of fact has a reasonable doubt.

The change effected by subs. 92(2) of the Criminal Law Amendment Act, 1968-69, including s. 306 of the Code, consisted in substituting for the words "is prima facie evidence", the words "is, in the absence of any evidence to the contrary, proof". There was no indica­tion that this change was meant to do more than replace those two Latin words by equivalent English and French phrases. The new words used are quite consistent with the preservation of the anterior meaning, bearing in mind that the basic principle is guilt "beyond a reasonable doubt", so that unless Parliament has enacted a presumption in terms which require an accused to "prove" an excuse he has to do no more than raise a "reasonable doubt" to escape conviction.

There is no substantial difference between "evidence to the contrary" and "any evidence to the contrary". Both expressions are equally the converse of "no evi­dence to the contrary" and there is no basis for a distinction depending on the presence or absence of the word "any".

There are in our criminal law only three standards of evidence: 1. Proof beyond a reasonable doubt which is the standard to be met by the Crown against the accused; 2. Proof on a preponderance of the evidence or a balance of probabilities which is the burden of proof

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on the accused when he has to meet a presumption requiring him to establish or to prove a fact or an excuse; 3. Evidence raising a reasonable doubt which is what is required to overcome any other presumption of fact or of law.

The standard of evidence required for a conviction, including the standard of the evidence required to overcome a prima facie case against the accused, is just as basic a principle as the right of the accused to remain silent. In fact, it may be considered as a qualification of this principle. The accused may remain silent but, when there is a prima facie case against him and he is, as in the instant case, the only person who can give "evidence to the contrary" his choice is to face certain conviction or to offer in testimony whatever explanation or excuse may be available to him.

If the prima facie case is made up by the proof of facts from which guilt may be inferred by presumption of fact, the law is clear on the authorities that, because the case in the end must be proved beyond a reasonable doubt, it is not necessary for the accused to establish his innocence, but only to raise a reasonable doubt. This he may do by giving evidence of an explanation that may reasonably be true, and it will be sufficient unless he is disbelieved by the trier of fact, in which case his tes­timony is no evidence. In any case, the evidence given by himself or otherwise, has to be such as will at least raise a reasonable doubt as to his guilt; if it does not meet this test the prima facie case remains and conviction will ensue.

Ungaro v. R., [1950] S.C.R. 430, applied; Tremblay v. R., [1969] S.C.R. 431; R. v. Newton, [1977] 1 S.C.R. 399; Batary v. A.G. of Saskatchewan, [1965] S.C.R. 465, referred to.

Per Laskin C.J. and Spence and Estey JJ.: The plain meaning of the phrase "any evidence" denies the validi­ty of the suggestion that the Code imposes an, onus of proof or burden of proof on the accused. Once the trial judge determines that the evidence is admissible and relevant to the issue of intent, and the trier of fact does not reject the evidence, there is evidence to the contrary within the meaning of s. 306(2). There is no further standard to be met. Section 306(2) and like sections of the Code create no onus or burden on the accused to 'rebut' a presumption of intent or to adduce evidence to show lack of intent 'beyond a reasonable doubt' or on the balance of probabilities or otherwise. The accused by the subsection has the right and is given the opportunity to introduce evidence on the issue of intent and such evidence, if believed or accepted by the trier of fact whether or not by itself such evidence is sufficient to

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determine the issue of intent, is sufficient for the limited purpose of repelling the operation of subs. (2) because it necessarily means that the accused has met the pre­sumption. The Crown must then prove the charge including the element of intent against the accused as though subs. (2) did not exist. Only in that sense of the term does the accused have a burden under the subsection.

On the facts and in the circumstances of this proceed­ing, the appeal must be allowed. The evidence advanced by the accused on the issue of his intent was considered and disbelieved by the trial judge in his role as the trier of fact. Therefore on the issue of intent there was no evidence to the contrary and the presumption applied not because the accused failed to prove his lack of intent to commit an indictable offence on the premises 'beyond a reasonable doubt', or to a balance of probabilities or by a prima facie case, but because the record contained no evidence on the issue of intent 'to the contrary'.

R. v. Cairns (1973), 14 C.C.C. (2d) 417; R. v. Deitz, [1978] 2 W.W.R. 38, disapproved; R. v. O'Connell (1950), 10 C.R. 367; R. v. Vitale (1969), 7 C.R.N.S. 78; Austin v. R., [1968] S.C.R. 891; R. v. Imrich (1974), 39 C.R.N.S. 75; R. v. Campbell (1970), 14 C.R.N.S. 161; R. v. Probert (1973), 13 C.C.C. (2d) 384; R. v. Whiny (1977), 12 N. & P.E.I.R. 361; R. v. Hipke, [1978] 4 W.W.R. 128; R. v. National Insurance (Industrial Inju­ries) Commissioner, [1958] 1 W.L.R. 851; R. v. Hachey (1970), 1 C.C.C. (2d) 242; R. v. Strain (1971), 2 C.C.C. (2d) 412; R. v. Watkins, [1976] 4 W.W.R. 198; R. v. Kalan (1978), 5 Alta. L.R. (2d) 312; R. v. Morse (1977), 3 B.C.L.R. 226; R. v. Noble, [1978] 1 S.C.R. 632; R. v. Bernardi (1974), 20 C.C.C. (2d) 523; R. v. Campbell (1974), 17 C.C.C. (2d) 320; R. v. Peterman, [1978] 2 W.W.R. 335; R. v. Rauckman, [1976] 4 W.W.R. 355; R. v. Beaulieu (1975), 29 C.C.C. (2d) 574; R. v. Black, [1977] 3 W.W.R. 185; R. v. Davis, [1977] 6 W.W.R. 13; R. v. Dygdala, [1977] 1 W.W.R. 104; R. v. Johnnie (1975), 30 C.R.N.S. 202; R. v. Pernfus, [1978] 2 W.W.R. 147; R. v. Sikora (1974), 22 C.C.C. (2d) 315; R. v. Tarr, [1975] 2 W.W.R. 16; R. v. Westman (1973), 11 C.C.C. (2d) 355; R. v. Gaetz (1972), 8 C.C.C. (2d) 3; R. v. Falkenham (1974), 22 C.C.C. (2d) 385; R. v. Achilles (1972), 6 C.C.C. (2d) 274; R. v. Ryckman (1975), 25 C.C.C. (2d) 294; R. v. Warnock, [1977] 1 W.W.R. 385; R. v. Oliver (1972), 9 C.C.C. (2d) 526; R. v. Di Serio (1974), 28 C.R.N.S. 256; R. v. Reeves (1978), 6 Alta. L.R. 90; R. v. Appelby, [1972] S.C.R. 303, referred to.

APPEAL from a judgment of the Court of Appeal for British Columbia dismissing the

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Crown's appeal from the acquittal of the respond­ent on a charge of breaking and entering a place with intent to commit an indictable offence there-in, contrary to s. 306(1)(a) of the Criminal Code. Appeal allowed.

M. R. V. Storrow, for the appellant.

Peter Messner, for the respondent.

The judgment of the Chief Justice and Spence and Estey JJ. was delivered by

ESTEY J.—This appeal concerns the proper meaning of the expression "in the absence of any evidence to the contrary" as it appears in s. 306(2) of the Criminal Code. The accused was charged with breaking and entering a place with intent to commit an indictable offence therein, under s. 306(1)(a) of the Criminal Code of Canada. The accused gave evidence about which the learned Provincial Court judge at trial stated, "To put the matter simply, I did not believe him". The ques­tion therefore before the Court was whether evi­dence given by the defence but disbelieved by the trier of fact is "any evidence to the contrary" so as to prevent the operation of subs. (2)(a) of s. 306 of the Code which states:

(2) For the purposes of proceedings under this section, evidence that the accused

(a) broke and entered a place is, in the absence of any evidence to the contrary, proof that he broke and entered with intent to commit an indictable offence therein; (emphasis added).

The circumstances in which the alleged offence occurred were described at trial by the trial judge as follows:

There is no dispute concerning the essential facts.

Proudlock was residing temporarily with Mark Shields, above the "Coffee House Restaurant", owned by Shields' mother. During the evening of January 14th, there was a drinking party in these premises. Later that same night Proudlock broke into the restaurant. To do this he placed a ladder by a back window, broke the window, climbed inside and pulled the ladder inside after himself.

Inside the restaurant Proudlock encountered the jani­tor and upon being asked what he was doing, Proudlock told the janitor that Mark Shields had given him the

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key, and sent him down to fetch a couple of cans of soup. The janitor took some garbage outside and upon returning, observed that Proudlock had departed. He left through the back door.

Proudlock made an accurate statement concerning these matters to Cst. Tidsbury, and the fact that he broke into the restaurant was admitted by him when he testified during his trial.

In the statement taken by Cst. Tidsbury, the following appears:

"Q. Did you steal anything from inside the restaurant?

A. No, I didn't.

Q. Why did you break into the restaurant?

A. I don't know. I don't know why I did it."

When he testified, Proudlock said that he did not have an explanation and did not know what his motives had been. He acknowledged that it was "possible" he had told the janitor he was looking for soup, but said that would not have been a true statement of his purpose. He resolutely denied any intention to steal.

The trial judge in commenting upon the facts stated:

I did not find Proudlock's evidence, when he was asked why he broke and entered the restaurant to be convincing in the least degree. To put the matter simply, I did not believe him. .. .

In my opinion, Proudlock broke and entered the res­taurant purposefully, and I do not believe that purpose has escaped his memory. .. .

and finally:

I do not believe Proudlock.

The learned trial judge, however, considered himself bound by two decisions of the British Columbia Court of Appeal, Regina v. Marshall[1] and Regina v. Rivera[2], which appear to require only testimony believed or unbelieved by the trier of fact on the issue of intent to commit an indictable offence at the place in question in order to rebut the statutory presumption of proof of intent. Accordingly, the learned trial judge dismissed the charge and acquitted the accused.

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An appeal was thereupon taken to the Court of Appeal of British Columbia which by a unanimous decision expressed itself to be bound by the Marshall case, supra. McFarlane J.A. in giving his reasons for dismissal of the appeal by the Crown stated:

For my part, I may say that my opinion is that the judgment in the Marshall case was wrong. I am, never­theless, bound by it and bound to follow it in the present case.

Maclean J.A. and McIntyre J.A. agreed with the comments of McFarlane J.A.

At trial the defence of drunkenness was advanced and rejected by the trial judge and this defence was mentioned by the Crown before the Court of Appeal apparently for the purpose of keeping the defence open in case the proceeding should go further. Before this Court the defence of drunkenness was not advanced on behalf of the respondent and therefore we are now concerned only with the issue arising under s. 306(2).

History of Section 306(2)(a)

The presumption now appearing in s. 306(2) of the Code first appeared in 1938 as s. 459(2) when it was introduced by s. 25 of the Criminal Code Amendment Act being Chapter 44 of the Statutes of Canada, 1938, which provided as follows:

(2) The breaking and entering by day of a dwelling house shall be prima facie evidence of an intent to commit an indictable offence therein.

Without the assistance of this provision, the Crown would have to prove the requisite intent by some other positive means. As Roach J.A. said in Rex v. O'Connell[3], at p. 368, in connection with a related section of the Code:

This it may do by proving such circumstances as justify the inference beyond reasonable doubt that the breaking and entering was with the intent charged.

It is to be noted that the section did not provide any guidance as to the threshold to be met by the Crown before it would have been allowed to invoke the presumption. The subsection was silent as to whether or not the breaking and entering must

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have been adjudged or found by a court to have occurred, or whether there need only have been some evidence that the defendant had broken and entered the premises. The presumption then of course only extended to the making of the fact of the occurrence of the breaking and entering, prima facie evidence of the requisite intent to commit an indictable offence in the premises. The effect of presumptions which constitute evidence of one fact as prima facie evidence of another was considered in R. v. Vitale[4], and in Austin v. The Queen[5] specifically with reference to this provision in its earlier form.

Section 459(2) was next amended by S.C. 1950, c. 11, s. 5 of which repealed all of ss. 457, 458 and 459 and substituted therefor the following provision:

457. (1) Every one is guilty of an indictable offence and liable to imprisonment for life who

(a) breaks and enters a dwelling-house with intent to commit any indictable offence therein; or

(b) breaks and enters any dwelling-house and com­mits any indictable offence therein; or

(c) breaks out of any dwelling-house either after committing any indictable offence therein, or after having entered such dwelling-house with intent to commit an indictable offence therein.

(2) Every one convicted of an offence under this section who when arrested, or when he committed such offence, had upon his person any offensive weapon, shall, in addition to the imprisonment above prescribed, be liable to be whipped.

(3) The breaking and entering of a dwelling-house or the breaking out of a dwelling-house after having entered such dwelling-house shall be prima facie evi­dence of an intent to commit an indictable offence therein.

In 1954, s. 457(3) was replaced by s. 292(2) of the Criminal Code, 1953-54 (Can.), c. 51:

(2) For the purposes of proceedings under this sec­tion, evidence that an accused

(a) broke and entered a place is prima facie evidence that he broke and entered with intent to commit an indictable offence therein; or

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(b) broke out of a place is prima facie evidence that he broke out after

(i) committing an indictable offence therein, or

(ii) entering with intent to commit an indictable offence therein.

Fourteen years later by s. 92(2) of the Criminal Law Amendment Act, 1968-69 being Chapter 38, Statutes of Canada 17-18 Eliz. II, Parliament enacted the subsection in its present form. At the same time some 15 other sections of the Criminal Code were amended to provide common terminolo­gy for the statutory presumption in similar provi­sions. In substance therefore the 1954 version pro­vided that the 'evidence' of the break and entry constituted 'prima facie' evidence of the intent to commit an indictable offence in the premises; whereas under the 1968 version of the section, 'evidence' of the break and entry is 'proof' of the secondary intent but only in the absence of evi­dence to the contrary.

There have been numerous instances where the nature of the 'contrary evidence' is discussed and an examination of some of these authorities will be helpful in determining the issue now raised. Before turning to some of these decisions, it may be helpful to consider the present version of s. 306. The offence is created in s. 306(1)(a) as follows:

(1) Every one who

(a) breaks and enters a place with intent to commit an indictable offence therein, ... is guilty of an indictable offence .. .

Subsection (2)(a) then proceeds:

For the purposes of proceedings under this section, evidence that an accused

(a) broke and entered a place is, in the absence of any evidence to the contrary, proof that he broke and entered with intent to commit an indictable offence therein;

Subsection (2)(a) may be contrasted to such provisions in the Code as s. 237(1)(a) which provides in part:

... 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;

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A further variation is found in s. 247(3) which states:

… is not a defence unless the accused proves that the failure to resist was not caused by threat ...

The proof of the offence under s. 306(1) requires proof beyond a reasonable doubt not only of the break and entry but also of the specific intent to commit an indictable offence in those premises. The latter may be proven by the statutory presumption if there is no 'evidence to the contrary'. The word 'evidence' occurs twice in subs. (2)(a) and it is trite to observe that ordinar­ily a word is assigned the same meaning where it appears in a statute particularly where the word recurs in the same sentence as is the case here. Thus it would follow that if the prosecution may lead 'evidence' which shows that a break and entry has occurred, and that same evidence is also 'proof that the person who broke and entered the premises did so with "the intent to commit an indictable offence therein", (subject to the condi­tion "in the absence of any evidence to the con­trary"), the initial evidence relating to the break and entry must constitute something in the nature of conclusive evidence which establishes the fact of the break and entry. Dubin J.A. in Regina v. Imrich[6], at p. 91 (a dissenting opinion, the majori­ty opinion being confirmed by this Court in the same report at p. 92) in dealing with a like provi­sion used the word 'concluded' with reference to the initial act (here the break and entry) in the sense that if the trier of fact, then a jury, accepted the evidence as establishing that fact, then the presumption comes into play. The majority of the Court of Appeal and this Court thereafter did not deal with this issue.

The word 'proof in the subsection adds a quality of decisiveness, finality or judgment to the mean­ing or classification of 'evidence' where the word first appears in the subsection. That is to say, evidence which amounts to 'proof' of intent, on the operation of the presumption, must when tendered on the initial issue of break and enter, have the appropriate quality, weight and decisiveness which will support a finding by the trier of fact that a

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break and entry has indeed occurred. The Oxford English Dictionary, for example, assigns several meanings to 'proof', including "evidence sufficient (or contributing) to establish a fact or produce belief. Evidence such as determines the judgment of a tribunal."

This leaves open the argument that, notwith­standing the finding of the break and entry beyond a reasonable doubt and notwithstanding the absence of any evidence negating the requisite secondary intent, the presumption in subs. (2) only operates to the extent of establishing 'prima facie evidence' of the secondary intent. As pointed out, the subsection was amended in 1968 by the replacement of 'prima facie evidence' with 'proof of intent. It is not without significance that Parlia­ment, in the 1968 omnibus Criminal Law Amendment legislation, reduced the effect of a 'certifi­cate' in five Code sections from "prima facie evidence" to "evidence" while at the same time substituting in s. 306(2) and fifteen other provi­sions the word "proof" for "prima facie evidence" with reference to the probative, secondary effect of the operation of the presumption on the primary evidence. It is difficult to conclude that Parliament was not thereby deliberately upgrading the eviden­tiary impact in s. 306(2) of the evidence of the break and entry, as applied to the issue of intent. Notwithstanding writings to the contrary such as Chapter 3 of Salhany and Carter, Studies in Canadian Criminal Evidence, (1972), and the judgments of the County Court in Nova Scotia Regina v. Campbell[7], and Regina v. Probert[8], as well as the decisions in Regina v. Whitty[9] and Regina v. Hipke[10], I must, with great respect, conclude that Parliament did indeed deliberately increase the impact of the presumption on the issue of the secondary intent.

It may well be that Parliament, in adopting this change of terminology, has sought to accommo­date the phraseology of s. 306(2) of the Code to s. 24(1) of the Interpretation Act of Canada being

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R.S.C. 1970, c. I-23, which enacts that where a statute provides that a document is evidence of a fact, such a document is admissible in evidence "and the fact shall be deemed to be established in the absence of any evidence to the contrary". The words "deemed to be established" clearly reveal a legislative intent to provide a different and strong­er evidentiary impact than would be the case if the words employed were "shall be prima facie evi­dence". In the same way, Parliament's replacement in s. 306(2) of "is prima facie evidence" by "is, in the absence of any evidence to the contrary, proof", reveals an intent to increase the impact of the presumption. The effect of the change is to increase the level of impact of the evidence on the primary issue by the upgrading of the secondary effect from "prima facie evidence" to "proof". This is but a further illustration of the intention of the legislator to give a secondary effect to the primary evidence so that the same testimony shall not only demonstrate the first element of the statutory offence, but shall in the absence of contrary evidence be taken to demonstrate the second element.

This brings one to the second use of the term 'evidence' in this subsection. The sense in which the word is employed becomes clear if the provi­sion is read in the following sequence:

Evidence that an accused broke and entered a place is proof that he broke and entered with intent to commit an indictable offence therein, in the absence of any evidence to the contrary. (Emphasis added.)

Obviously the 'contrary' evidence must relate to and be evidence of the lack of intent. It is of course important to note the influence of the word 'any' on the nature or quality of the requisite 'evidence'. It must be accepted for the purpose of this analysis that 'any' connotes the smallest item of evidence by weight or volume on the issue of intent, and that its presence in the sentence indicates that such evidence on the issue of intent will suffice to qualify as 'evidence' in the phrase "any evidence to the contrary". It must of course be admissible testimony or documentary evidence to become evi­dence at trial and this will be determined by the presiding judge be it trial by judge and jury or by judge alone. The accused in effect contends that

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evidence in the expression "evidence to the con­trary" refers to mere testimony or documentary materials which, once they are admitted as evi­dence on the record, will suffice as "evidence to the contrary" whether such evidence be ultimately believed or accepted by the trier of fact on the issue of the accused's intent to commit an indictable offence on the premises. A different result may well obtain where the Legislature employs the words "in the absence of evidence to the contrary is proof ..." as in s. 6(8) of the Code. Section 9(1) of the Narcotics Control Act similarly deletes the word "any" before the word "evidence". If mean­ing is to be accorded to all words in a statute in its interpretation, the word "any" must indicate a legislative intent to reduce the "evidence" required to amount to "evidence to the contrary".

The tendered testimony must, as the section provides, constitute evidence bearing on the issue of the secondary intent, that is the intent to commit an indictable offence on the premises, and whether it meets this threshold test of being evidence relevant to the issue of intent and which might be accepted by the trier of fact as evidence tending to prove or negate the secondary intent, will be determined by the presiding judge. In the case of a trial by a court composed of a judge and jury, it will be the function of the judge to determine if the evidence is capable, if believed by the jury, of being evidence on the issue of intent. It will be for the jury then to decide if the evidence so tendered is believed. Vide Devlin J. in Regina v. National Insurance (Industrial Injuries) Commissioner[11], at p. 856. Sometimes this is expressed as evidence "tending to show the accused did not have an intent ..." . Vide Regina v. Hachey, Rideout and Rideout[12] per Hughes J.A., as he then was, at p. 244. In the final step of the process, if the proffered testimony cannot be accepted by the trier of fact as indicating the absence of intent, it is not 'evidence to the con­trary' on the issue of intent although it will contin­ue to be evidence on the record.

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The foregoing steps of course involve the deter­mination of whether the issue as to whether there be any evidence to the contrary raises a question of law or fact. The Courts which have encountered this question to date have found a variety of answers. Davis J. in the Court of Queen's Bench of Saskatchewan in Regina v. Strain[13] decided that whether any particular evidence qualified as 'any evidence to the contrary' is a question of fact to be determined by the trier of fact when determining whether the tendered evidence is "acceptable evidence" (p. 413), (Vide R. v. Cairns[14]). McFarlane J.A. of the British Columbia Court of Appeal in Regina v. Watkins[15], at p. 199, quite properly in my view drew a distinction between determining whether evidence was capable of being 'evidence to the contrary' (which he found to be a question of law) and whether the particular evidence tendered was accepted by the trier of fact as evidence to the contrary on the issue of intent (which the Court of Appeal considered to be a question of fact). Because it was an appeal from a trial by judge alone, the Court was not called upon to assign precisely the two functions but the clear inference is that the application of the subsection and in the result, of the presumption, requires a two-stage process in the last stage of which the trier of fact must determine whether the evidence tendered is to be accepted on the issue of intent as 'evidence to the contrary'.

The Appellate Division of the Supreme Court of Alberta Regina v. Kalan[16] took a different view of a like provision in s. 233(3) of the Code. The judgment of the Court was delivered by Lieberman J.A. who said at p. 314 that:

To state that there was nothing in the evidence to discharge the onus when there was ample evidence, if accepted, to do so, is in my respectful view an error of law alone.

As observed earlier the answer to the question whether there is "any evidence to the contrary" is in some circumstances (i.e. if the issue is one of admissibility or relevancy) a question of law. On

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other occasions, where the issue raised is whether the testimony is believed, the question is one of fact. (Vide R. v. Morse[17], at p. 230.)

Returning to the interpretative issue at hand, the same conclusion is reached by attributing the same persuasive quality to the word 'evidence' in each of the two instances where it appears in subs. (2)(a). The evidence of the break and entry even without the parallel use of the word 'proof' must be such as to demonstrate the occurrence of the physical act of breaking and entering. Without the break and entry being established, there is no 'evidence' which is deemed to be 'proof' of the secondary intent. A mere suspicion that breaking and entering have occurred could not set the pre­sumption in subs. (2) in motion so as to bring about the 'proof' of the intent to commit an indictable offence on the premises. Obviously the stand­ard of evidence relating to the break and entry must be such as to produce 'proof' of that fact before qualifying as 'proof of the 'intent' as well. To read the subsection otherwise would be to convert the presumption into an amplifier which would enhance evidence of any weight, quality or probative value of the act of breaking and enter­ing, into 'proof of the intent to commit an offence once in the premises.

These same words, 'evidence to the contrary' occur in the section of the Code relating to the use of the breathalyzer evidence which was before the Court in Regina v. Noble[18]. Ritchie J. on behalf of the Court stated (at p. 638):

The effect of s. 237 both before and after the amendment is to establish the conditions under which the certificate of a qualified technician is admissible, without further evidence, as proof of the proportion of alcohol in the blood of the accused. These provisions are obviously designed to assist the Crown in proving its case, and as they serve to restrict the normal rights of the accused to cross-examination and saddle him with the burden of proving that the certificate does not accurately reflect his blood alcohol content at the time of the alleged offence, they are to be strictly construed and, where ambiguous, interpreted in favour of the accused.

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It is important to recall that in the Noble case, supra, the Court was not dealing with any eviden­tiary question let alone the meaning of 'evidence to the contrary' but rather with the interpretation of that part of the section describing the procedure for the taking of breath samples. The issue raised in this appeal takes one further into the analysis of the meaning of the term 'evidence to the contrary', as here the trier of fact has rejected as unbeliev­able the testimony of the accused offered in rebut­tal on the issue of his secondary intent. Two questions necessarily arise at this point; firstly, can rejected testimony still amount to 'evidence to the contrary', and secondly, what is the burden, if any, on the accused to rebut the presumption raised in s. 306?

The Court of Appeal of British Columbia faced this situation in Regina v. Marshall, supra. The trial judge applied s. 306(2)(a) so as to require the accused to rebut the statutory presumption "on a balance of probabilities". Branca J.A, speaking for the Court appears to have reduced the standard of testimony required to remove the presumption from the issue of secondary intent. He put it this way (p. 507):

Once the appellant had testified, there was evidence in the case "to the contrary" of the presumption contained in s. 292(2)(a) which precluded the application of that section.

In support of this conclusion, the decision of the New Brunswick Court of Appeal in Regina v. Hachey, supra, was cited. However, Hughes J.A., as he then was, applied the wording of subs. (2) somewhat differently (at pp. 243-4):

Consequently where evidence tending to show the absence of an intent to commit an indictable offence is received in evidence ss. (2) has no application.

The Court did not then have to meet the ques­tion raised here but it is interesting to note that Hughes J.A. (at p. 244) stated:

It is to be noted that the learned Judge did not say he disbelieved the evidence of Crown witnesses tending to show the absence of a criminal intent on the part of the appellants. There was, I think, evidence showing that the appellants did not have an intent to commit an

[Page 541]

indictable offence which was sufficient to displace the presumption created by s. 293(2).

The Court of Appeal of Prince Edward Island considered this problem in Regina v. Cairns, supra, and concluded that the accused by subs. 306(2) carried a burden to satisfy the Court to the point of probability that the 'contrary' on the issue of intent has been shown. In the end, the Court of Appeal dismissed an appeal from a trial judgment wherein the trial judge rejected the evidence to the contrary on the simple ground that it was disbelieved. To the same effect is the recent decision in R. v. Deitz[19], in connection with the presump­tion prescribed in s. 233(3) of the Code.

In Regina v. Bernardi[20], the Ontario Court of Appeal found that alibi evidence was not 'evidence to the contrary' on the issue of intent to defraud under s. 391 of the Code. That same Court in Regina v. Campbell[21] considered a trial judgment in which the accused's testimony on intent was rejected, the statutory presumption in consequence was applied, and the conclusion was reached that the accused intended to commit an offence on the premises. Inferentially, the Court found the trial judge to have correctly applied the subsection to the circumstances where the evidence tendered 'to the contrary' was disbelieved and thereby rejected as evidence to the contrary by the trial judge. The Court of Appeal did in the end reverse the trial judge on the ground that there was other evidence which had been accepted by the trial judge and which was evidence to the contrary on the issue of intent. The Court, speaking through Martin J.A., stated at p. 322:

In our view, when there is evidence to the contrary, in the sense of evidence tending to negative the existence of the necessary intent, the onus is then upon the prosecu­tion to prove the existence of the necessary intent beyond a reasonable doubt.

In my view, a proper reading of the section requires the recognition of a distinction between 'any evidence' in the sense of admissible testimony, and 'any evidence of the intent of the accused'.

[Page 542]

The acceptance of the testimony as evidence on the issue of secondary intent is to accept it as 'evidence to the contrary'. Conversely, rejection of admis­sible evidence as 'evidence of intent' precludes such evidence from being 'evidence to the con­trary' for the purposes of subs. (2) although such evidence will remain a part of the record.

It follows therefore that if the trier of fact does not believe the evidence so tendered, the statutory presumption operates and (there being no other evidence on the issue) the evidence of the break and entry is 'proof of the specific intent to commit an indictable offence on the premises. If on the other hand the tendered evidence is believed, then the statutory presumption does not operate and the trier of fact must then apply the ordinary onus of proof and require the Crown to prove the charge beyond a reasonable doubt including both the break and entry and the intent to commit a crime on the premises. Where the trier of fact believes the testimony on the issue of intent, the trier thereby finds that there is 'evidence to the con­trary' and then must proceed to determine the guilt or innocence of the accused on all of the evidence, and in this process, s. 306(2) has no application, and the onus of proof beyond a reasonable doubt remains upon the Crown.

We come then to the final issue in this appeal. Assuming that the trial judge has ruled the tes­timony or written material proffered by the accused as 'evidence to the contrary' to be admis­sible and relevant to the issue raised by the pre­sumption, and assuming as well that the trier of fact has not rejected the evidence as incapable of belief, is there any further onus on the accused created by the section? There are, it seems, numer­ous decisions which either expressly or by implica­tion support the view that the accused must labour under an onus or burden of raising a reasonable doubt by his contrary evidence. An examination of some of these authorities may be helpful.

In Regina v. Peterman[22], Gansner Co. Ct. J. at p. 343 held that an accused confronted by a certifi­cate under the breathalyzer provisions of the

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Criminal Code must adduce evidence which is "not only capable of raising a reasonable doubt, but ... actually does so". In R. v. Rauckman[23], McLean J.M.C. referred in connection with s. 237(1)(c) to 'possible' evidence to the contrary which would make it unwise to accept the evidence of the certificate. Similarly in Regina v. Beaulieu[24] a reference is made to the evidence to the contrary raising a reasonable doubt as to the suitability of the solution in the breathalyzer instrument. Darling Co. Ct. J. in Regina v. Black[25], at p. 189, spoke of evidence to the contrary which might reasonably be true, or which is sufficient to raise a reasonable doubt as to intent. Other cases which are to the same effect in suggesting that there is an onus on the accused to rebut the presumption by adducing evidence to the contrary raising a reasonable doubt are Regina v. Davis[26]; Regina v. Dygdala[27], where reference is made to evidence which makes doubtful the accuracy of the analysis of the accused's blood alcohol level; Regina v. Johnnie and Namox[28], where 'any evidence to the contrary' was defined by Branca J.A, as that which might have provided an effective defence that the accused was so drunk as to be unable to form the specific intent to commit an indictable offence; R. v. Pernfus[29], where Cashman Co. Ct. J. refers to the benefit of the reasonable doubt aris­ing from the evidence to the contrary; R. v. Prob­ert, supra; Regina v. Campbell, supra; Regina v. Sikora[30]; R. ex rel. Webb v. Tarr[31]; Regina v. Westman[32], at p. 357, where Culliton C.J.S. speaks of "evidence that would render it improper for the trial judge to accept the analysis as proof beyond a reasonable doubt as to the proportion of alcohol"; R. v. Whitty, supra, where Morgan J.A. speaks of evidence which "might reasonably be true" and "therefore capable of raising a reasonable

[Page 544]

doubt as to guilty intent".

Another line of cases appears to require not merely any evidence to the contrary but evidence which is definite and positive in character to rebut the presumption (vide R. v. Gaetz[33]; R. v. Falkenham[34]). Still other cases merely refer to an "onus" on the accused (vide R. v. Kalan, supra; R. v. Achilles and Kamperogianis[35]); or speak of the accused proving a fact to rebut the presumption (vide Regina v. Ryckman[36], per McDermid J.A. at p. 296); or allude to the existence of a burden on the accused (vide R. v. Noble, supra); or note that the accused must demonstrate a "reasonable possi­bility" that the fact proved by the presumption is not so (vide R. v. Warnock[37]); or refer to the "weight" of evidence which as a matter of law is capable of constituting "evidence to the contrary" (vide Regina v. Morse, supra); or compel the accused to adduce "sufficient [evidence] to displace the presumption" (vide R. v. Oliver[38]); or imply that the accused must submit "une preuve probante à l'effet contraire", (vide Regina v. Di Serio[39]); or suggest that "defence evidence in rebuttal of the statutory presumption ... must be weighed as to its effect on the presumption", (vide R. v. Reeves[40]), per Clement J.A. at p. 95.

The decisions in R. v. Cairns, supra, and R. v. Deitz, supra, in my view run contrary to the plain words of the Code. I cannot see how the phrase "any evidence to the contrary" can be construed as obliging the accused to prove on all of the evidence his lack of intent. It would be entirely different if, as in R. v. Appelby[41], the Code required the accused to establish a particular fact. Here the record need include only any evidence adduced by the prosecution or defence. The plain meaning of the words employed by Parliament in s. 306(2)

[Page 545]

leads me to reject any notion that the accused must rebut the presumption in s. 306 by adducing evidence to the contrary demonstrating beyond a reasonable doubt, or on the balance of probabili­ties his lack of intent, or that the accused must make out a prima facie case that he had no such intent. Other cases dealing with these statutory presumptions and their reversal are gathered to­gether in McWilliams, Canadian Criminal Evi­dence (1974) at pp. 401-2 where the learned author seems to conclude that the only 'burden' on the accused is to adduce 'some' evidence to the contrary.

Yet the plain meaning of the phrase "any evi­dence" denies the validity of the suggestion that the Code imposes an onus of proof or burden of proof on the accused. Once the trial judge determines that the evidence is admissible and relevant to the issue of intent, and the trier of fact does not reject the evidence, there is evidence to the con­trary within the meaning of s. 306(2). There is no further standard to be met. In my respectful view, s. 306(2) and like sections of the Code create no onus or burden on the accused to 'rebut' a pre­sumption of intent or to adduce evidence to show lack of intent 'beyond a reasonable doubt' or on the balance of probabilities or otherwise. The accused by the subsection has the right and is given the opportunity to introduce evidence on the issue of intent and such evidence, if believed or accepted by the trier of fact whether or not by itself such evidence is sufficient to determine the issue of intent, is sufficient for the limited purpose of repelling the operation of subs. (2) because it necessarily means that the accused has met the presumption. The Crown must then prove the charge including the element of intent against the accused as though subs. (2) did not exist. Only in that sense of the term does the accused have a burden under the subsection.

On the facts and in the circumstances of this proceeding, the appeal must be allowed. The evi­dence advanced by the accused on the issue of his intent was considered and disbelieved by the trial judge in his role as the trier of fact. Therefore on the issue of intent there was no evidence to the contrary and the presumption applied not because

[Page 546]

the accused failed to prove his lack of intent to commit an indictable offence on the premises 'beyond a reasonable doubt', or to a balance of probabilities or by a prima facie case, but because the record contained no evidence on the issue of intent 'to the contrary'.

The Crown before this Court asked that the "Judgment of the Court of Appeal of British Columbia be set aside". This request is ambiguous and would leave the underlying disposition of acquittal untouched. It follows that the learned trial judge unburdened by authorities which he properly interpreted as requiring him in the cir­cumstances to proceed without regard to the pre­sumption of intent, would have been required to convict the accused, all elements of the offence having been proved. In my view of the law thereon,

(a) the appeal should be allowed, the disposi­tions below set aside, and pursuant to s. 613(4)(b)(ii) of the Criminal Code, a conviction entered; and

(b) this proceeding should be remitted to the court of first instance for determination and imposition of the appropriate sentence.

The judgment of Martland, Ritchie, Pigeon, Dickson, Beetz and Pratte JJ. was delivered by

PIGEON J.—I have had the advantage of read­ing the reasons written by Estey J. in this case. He has fully stated the facts and I will not repeat them. I agree with his conclusion that evidence disbelieved by the trier of fact is not "evidence to the contrary" within the meaning of subs. (2)(a) of s. 306 of the Criminal Code, as Rinfret C.J. said in Ungaro v. The King[42], at p. 431: "If the trial judge does not believe the accused the result is that no explanation at all is left, ..." (emphasis added). However, because I do not reach this conclusion on the same view of the effect of the relevant provisions of the Criminal Code as my learned brother, I find it necessary to set down my own reasons in full.

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Prior to the enactment of the Criminal Law Amendment Act, 1968-69 (17-18 Eliz. II, c. 38) subs. (2)(a) of s. 306 of the Code (then being s. 292) read:

(2) For the purposes of proceedings under this section, evidence that an accused

(a) broke and entered a place is prima facie evidence that he broke and entered with intent to commit an indictable offence therein;

The change effected by subs. 92(2) of the Amendment Act in fifteen sections of the Code, including s. 306 (then known as s. 292), consisted in substituting for the words "is prima facie evi­dence", the words "is, in the absence of any evi­dence to the contrary, proof". Subsection 92(1) amended five other sections by substituting the single word "evidence" for the words "prima facie evidence". The five sections so amended all provide that some document is evidence. I find it clear that the words prima facie were thus deleted because they had just been made unnecessary by subs. 24(1) of the Interpretation Act of 1967 (16 Eliz. II, c. 7, now R.S.C. 1970, c. I-23):

24. (1) Where an enactment provides that a docu­ment is evidence of a fact without anything in the context to indicate that the document is conclusive evidence, then, in any judicial proceedings, the docu­ment is admissible in evidence and the fact shall be deemed to be established in the absence of any evidence to the contrary.

It will be noted that, in this provision, the concluding words are exactly the same as those which subs. 92(2) substituted for prima facie in the Criminal Code sections dealing with presump­tions arising from facts rather than with docu­ments. The only difference in the substituted word­ing is that because a noun rather than a verb was needed, the word "proof" was used instead of "established" in the Interpretation Act. This is clearly a purely verbal difference of no interpreta­tive significance. The change in wording effected by subs. 92(2) is therefore merely the substitution of an equivalent expression in the English and in the French languages for the Latin words prima facie. This equivalent expression is precisely that which was adopted in s. 24 of the Interpretation Act to describe the evidentiary value of those

[Page 548]

documents which are generally known as constitut­ing prima facie evidence.

In the Dictionary of English Law by Earl Jowitt one reads:

Prima facie evidence, that which, not being inconsist­ent with the falsity of the hypothesis, nevertheless raises such a degree of probability in its favour that it must prevail if believed by the jury unless rebutted or the contrary proved; conclusive evidence, on the other hand, is that which excludes or at least tends to exclude, the possibility of the truth of any other hypothesis than the one attempted to be established.

In Tremblay v. The Queen[43], this Court dealing with the presumption of fact arising out of the possession of recently stolen goods, adopted as a correct statement of its burden on the accused the following statement from Phipson on Evidence (10th ed. p. 53);

On charges of stealing or receiving, proof of recent possession of the stolen property by the accused, if unexplained or not reasonably explained, or if, though reasonably explained, the explanation is disbelieved, raises a presumption of fact, though not of law, that he is the thief or receiver according to the circumstances; and upon such unexplained, or not reasonably explained, possession, or disbelieved explanation, the jury may (though not must) find him guilty. It is not, however, for the accused to prove honest dealing with the property, but for the prosecution to prove the reverse; and if any explanation be given which the jury think may be true, though they are not convinced that it is, they must acquit, for the main burden of proof (i.e. that of estab­lishing guilt beyond reasonable doubt) rests throughout upon the prosecution, and in this case will not have been discharged.

In my view there should be no difference be­tween the effect of a presumption of fact and of a presumption of law which is not expressed in such terms as to require the accused to "establish" or to "prove" a given fact or excuse as in subs. 237(1)(a) or subs. 247(3). When a presumption of law is expressed in such terms, it is settled that the burden on the accused is to prove the fact or excuse on the preponderance of evidence or on a balance of probabilities.

Such is not the situation when all the presump­tion does is to establish a prima facie case. The

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burden of proof does not shift. The accused does not have to "establish" a defence or an excuse, all he has to do is to raise a reasonable doubt. If there is nothing in the evidence adduced by the Crown from which a reasonable doubt can arise, then the accused will necessarily have the burden of adduc­ing evidence if he is to escape conviction. However, he will not have the burden of proving his inno­cence, it will be sufficient if, at the conclusion of the case on both sides, the trier of fact has a reasonable doubt. In reasons endorsed by a majori­ty of the Court in The Queen v. Newton[44], at p. 411, the following passage from the judgment of the English Court of Criminal Appeal in R. v. Spurge[45], at p. 212, a dangerous driving case, was quoted with approval:

It has been argued by counsel for the Crown that even if a mechanical defect can operate as defence, yet the onus of establishing this defence is upon the accused. It is of course conceded by the Crown that this onus is discharged if the defence is made out on a balance of probabilities. In the opinion of this court, the contention made on behalf of the Crown is unsound, for in cases of dangerous driving the onus never shifts to the defence. This does not mean that if the Crown proves that a motorcar driven by the accused has endangered the public, the accused could successfully submit at the end of the case for the prosecution that he had no case to answer on the ground that the Crown had not negatived the defence of mechanical defect. The court will consid­er no such special defence unless and until it is put forward by the accused. Once, however, it has been put forward it must be considered with the rest of the evidence in the case. If the accused's explanation leaves a real doubt in the mind of the jury, then the accused is entitled to be acquitted. If the jury rejects the accused's explanation, the jury should convict.

I can see no reason for applying a different test when the presumption against the accused is enacted by Parliament instead of being some pre­sumption of fact applicable in situations which are all pretty well defined by a long series of cases, such as the presumptions arising out of possession of recently stolen goods or dangerous driving. Otherwise, it would mean that Parliament cannot make such presumptions statutory without altering them.

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In my view, there are in our criminal law only three standards of evidence:

1. Proof beyond a reasonable doubt which is the stand­ard to be met by the Crown against the accused;

2. Proof on a preponderance of the evidence or a balance of probabilities which is the burden of proof on the accused when he has to meet a presumption requiring him to establish or to prove a fact or an excuse;

3. Evidence raising a reasonable doubt which is what is required to overcome any other presumption of fact or of law.

Although I strongly believe in adhering to literal construction and in giving effect to every word of an enactment, I cannot find any substantial differ­ence between "evidence to the contrary" and "any evidence to the contrary". Both expressions are equally the converse of "no evidence to the con­trary" and there is no basis for a distinction depending on the presence or absence of the word "any". It is important to avoid unnecessary com­plexities and subtleties in the law of evidence by undue emphasis on minor differences in the word­ing of enactments. It would be especially unfortu­nate if this was the result of amendments intended to replace two technical Latin words by plain English or French words.

In Batary v. Attorney General of Saskatchewan[46], at p. 476, Cartwright J., as he then was, said speaking for the Court:

If I am right in the view, which I have already expressed, that in 1870 the accused would not have been a compellable witness at such an inquest, it would, in my opinion, require clear words to bring about so complete a change in the law.

The standard of evidence required for a convic­tion, including the standard of the evidence required to overcome a prima facie case against the accused, is just as basic a principle as the right of the accused to remain silent. In fact, it may be considered as a qualification of this principle. The accused may remain silent but, when there is a prima facie case against him and he is, as in the instant case, the only person who can give "evi­dence to the contrary" his choice really is to face certain conviction or to offer in testimony whatever

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explanation or excuse may be available to him.

If the prima facie case is made up by the proof of facts from which guilt may be inferred by presumption of fact, the law is clear on the authorities that, because the case in the end must be proved beyond a reasonable doubt, it is not necessary for the accused to establish his inno­cence, but only to raise a reasonable doubt. This he may do by giving evidence of an explanation that may reasonably be true, and it will be suffi­cient unless he is disbelieved by the trier of fact, in which case his testimony is no evidence. In any case, the evidence given by himself or otherwise, has to be such as will at least raise a reasonable doubt as to his guilt; if it does not meet this test the prima facie case remains and conviction will ensue.

I can find no indication that subs. 92(2) of the Criminal Law Amendment Act, 1968-69 was meant to do more than replace those two Latin words by equivalent English and French phrases. As there is no such thing as a perfect translation, various interpretations of the new wording are possible, but this is far from a clear indication of the intent of effecting a radical change. On the contrary, the new words used are, it appears to me, quite consistent with the preservation of the anteri­or meaning, bearing in mind that the basic princi­ple is guilt "beyond a reasonable doubt", so that unless Parliament has enacted a presumption in terms which require an accused to "prove" an excuse he has to do no more than raise a "reasonable doubt" to escape conviction.

I would dispose of the appeal as proposed by Estey J.

Appeal allowed.

Solicitors for the appellant: Davis & Co., Vancouver.

Solicitors for the respondent: Messner & Co., 100 Mile House.