R. v. Roche, [1983] 1 SCR 491

Supreme Court of Canada

R. v. Roche, [1983] 1 S.C.R. 491

Date: 1983-04-26

Her Majesty The Queen Appellant;

and

Douglas John Roche Respondent.

File No.: 16925.

1982: November 17; 1983: April 26.

Present: Laskin C.J. and Ritchie, Dickson, Estey, Chouinard, Lamer and Wilson JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA

Criminal law—Presumption of intent to escape civil and criminal liability—Three elements enumerated in subsection creating presumption—Whether or not presumption arises on proof of one element or only on proof of all three—Criminal Code, R.S.C 1970, c. C-34, s. 233(2), (3).

Respondent backed his vehicle into complainant’s vehicle, causing considerable damage, made threatening gestures, and then drove into complainant’s vehicle pushing it some thirty to forty feet. He finally drove away, without leaving his name and address with anyone. At issue was whether all three elements in s. 233(3)—(1) failure to stop, (2) failure to give name and address, and (3) failure to offer assistance in event of injury—had to be proven to give rise to the presumption of intent to escape civil and criminal liability, or only one of the three elements.

Held: The appeal should be allowed.

The presumption in s. 233(3), which was to faciliate proof of intent to escape civil or criminal liability, applies on proof of any one of the elements. The Crown, otherwise, would have to rely on the failure to do one of the three things mentioned to establish the intent beyond a reasonable doubt, and if all three elements were proved, the inference of intent would probably be irresistible. Therefore, if Parliament intended that the accused could commit the offence by failing to do any one of the things specified in subs. 2, Parliament also intended that the presumption would apply in any case where the accused failed to do any of the elements specified.

R. v. Steere (1972), 6 C.C.C. (2d) 403; R. v. Simard (1980), 55 C.C.C. (2d) 306; R. v. Kipling (1957), 119 C.C.C. 171; R. v. Chitty (1958), 124 C.C.C. 45; R. v. Laing (1945), 85 C.C.C. 249; R. v. Parks (1979), 50

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C.C.C. (2d) 172; R. v. Adler, [1981] 4 W.W.R. 379; R. v. Wills (1977), 35 C.C.C. (2d) 520, referred to.

APPEAL from a judgment of the British Columbia Court of Appeal (1981), 64 C.C.C. (2d) 6, 24 C.R. (3d) 392, 32 B.C.L.R. 265, [1982] 2 W.W.R. 1, dismissing an appeal from a judgment of Low Co. Ct. J. overturning respondent’s conviction and ordering a new trial. Appeal allowed.

Catherine Ryan, for the appellant.

Brian Coleman, for the respondent.

The judgment of the Court was delivered by

LAMER J.—Douglas John Roche was charged in Vancouver in the Provincial Court and was found guilty of the following charge:

That at the City of Vancouver, Province of British Columbia, on the 15th day of April, A.D. 1979, having the care, charge or control of a vehicle that was involved in an accident with a vehicle to wit, British Columbia license number 7102GC, unlawfully with intent to escape civil or criminal liability, did fail to give his name and address, contrary to the form of the statute in such case made and provided.

He appealed his conviction to the County Court and a new trial was ordered.

The Crown appealed to the Court of Appeal of British Columbia. That appeal was dismissed. The Crown is now appealing to this Court.

THE FACTS

On April 15, 1979, at approximately 1:45 a.m., Roche was involved in an automobile accident with a vehicle in a laneway in Vancouver. The accused had backed his vehicle into that of the complainant while attempting to park his vehicle, causing considerable damage.

The complainant’s vehicle was carrying two passengers.

After the accident, the accused took a pool cue from his vehicle and approached the complainant.

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As the two passengers left the complainant’s vehicle, the accused returned to his vehicle, made a U-turn, then drove into the complainant’s vehicle and pushed it thirty to forty feet down the lane. The accused then drove away without leaving his name and address with anyone who had witnessed the accident.

The sole issue raised and considered throughout the appeals in the courts below and to be determined in this Court is a narrow one and is the following:

Does the presumption created by section 233(3) of the Criminal Code apply on proof of any one of the events:

(1) failure to stop;

(2) failure to give name and address;

(3) failure to offer assistance (where any person has been injured);

or does that presumption apply only on proof of all of those events (or on the first two of them where there is no personal injury)?

Section 233(3) should be read with s. 233(2)

233. …

(2) Every one who, having the care, charge or control of a vehicle that is involved in an accident with a person, vehicle or cattle in the charge of a person, with intent to escape civil or criminal liability fails to stop his vehicle, give his name and address and, where any person has been injured, offer assitance, is guilty of

(a) an indictable offence and is liable to imprisonment for two years, or

(b) an offence punishable on summary conviction.

(3) In proceedings under subsection (2), evidence that an accused failed to stop his vehicle, offer assistance where any person has been injured and give his name and address is, in the absence of any evidence to the contrary, proof of an intent to escape civil and criminal liability.

Of importance is the fact that most if not all courts in the land have held (and I agree rightly so) the enumeration of s. 233(2) to be disjunctive (R. v. Steere (1972), 6 C.C.C. (2d) 403 (B.C.C.A.); R. v. Simard (1980), 55 C.C.C. (2d) 306 (N.S.C.A.); R. v. Kipling (1957), 119 C.C.C.

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171 (Ont. C.A.); R. v. Chitty (1958), 124 C.C.C. 45 (N.B.C.A); R. v. Laing (1945), 85 C.C.C. 249 (Ont. H.C.); R. v. Parks (1979), 50 C.C.C. (2d) 172 (Alta. C.A.); R. v. Adler, [1981] 4 W.W.R. 379 (Sask. C.A.)).

In answering this question regarding the application of subs. 3, the courts throughout Canada are divided, as was the Court of Appeal in this case. McFarlane and Carrothers JJ.A. would require proof of all the events. Craig J.A., dissenting, was of the view that the presumption would arise upon proof of any one of the events.

The views of the majority of the British Columbia Court of Appeal are shared by the Court of Appeal of Ontario (see R. v. Wills (1977), 35 C.C.C. (2d) 520), whilst those of Craig J.A. are shared by the Courts of Appeal of Alberta (see R. v. Parks, supra) and of Saskatchewan (see R. v. Adler, supra).

In Wills, supra, Arnup J.A., writing for the Court, did not give any reasons for the position he took and merely stated, at p. 521:

In our view the presumption of s-s.(3) of s. 233 does not apply in the circumstances of this case, in that the appellant did not both fail to stop his vehicle and failed to give his name and address. Accordingly, the prima facie proof of intent to escape civil or criminal liability was not brought into play through that subsection.

As for the Parks and Adler decisions, they were both predicated upon R. v. Steere, supra, a decision of the Court of Appeal of British Columbia. In that case, the issue was whether a case is made out under s. 233(2) if it be proved that the accused failed to perform any one of the three duties imposed, namely: (1) to stop his vehicle; (2) to give his name and address; and (3) where any person has been injured, to offer assistance.

McFarlane J.A., writing for the Court, had found in the affirmative.

The Alberta and Saskatchewan Courts of Appeal, apart from alluding to the Steere decision, gave little or no reasons, (as did the Ontario Court of Appeal to find conversely) in support of their findings.

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Such is not the case here. Both McFarlane J.A. for the Court and Craig J.A. gave thorough reasons, and I must admit, both very convincing reasons supporting their views.

The essence of McFarlane J.A.’s reasons is found in the following passage of his judgment:

It may seem, prima facie, inconsistent and illogical to apply the word “and” disjunctively in subsection (2) but conjunctively in subsection (3). This prima facie inconsistency disappears, however, in my opinion, on a comparison of the syntax of the two subsections. I think the correct meaning of subsection (2) is that Parliament intended an accused should be guilty of an offence unless all of the described statutory duties be performed, provided, of course, intent to escape liability be proved. On the other hand, I find no absurd, unintelligible or meaningless result when the word “and” in subsection (3) is read conjunctively as prima facie it should be in accord with its usual normal meaning.

It would appear from this passage that McFarlane J.A. was of the view that, since a literal reading of s. 233(3) does not lead to an “absurd, unintelligible or meaningless result”, the enumeration contained therein should be construed as being conjunctive and the word “and” given its primary meaning.

This, in my view, is the proper approach when a section is not open to more than one interpretation. Indeed, when such is the case, the courts need not interpret the section and should not seek out the object of the section in order to ascertain whether it has been frustrated by the draftsmen and then give the words of the section an unusual meaning. But when the section is capable of more than one interpretation, then the approach taken by Craig J.A. is, in my view, the correct one.

It might be said that s. 233(3) read in isolation is clear. But this is not the type of section that should be treated in that way, as it is ancillary to s. 233(2). It is when one reads s. 233(2) that one sees that the enumeration in s. 233(3) may be conjunctive or disjunctive and therefore open to interpreta-

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tion. I fail to see why the courts may find s. 233(3) any less open to interpretation as to whether it was disjunctive or conjunctive than s. 233(2), a fact as regards the latter all courts, including the British Columbia and Ontario Courts of Appeal, have acknowledged (see R. v. Kipling, supra, R. v. Steere, supra).

There is no peremptory argument, as the courts seem to have found in Parks and Adler, to be drawn from the fact that the enumeration in s. 233(2) is disjunctive. Section 233(2) can be disjunctive whilst its supportive s. 233(3) still be conjunctive, one creating the offence, the other determining when a presumption will be triggered. Indeed, it is not because the purpose sought by s. 233(2) is best served by a disjunctive reading of that section that the purpose will of necessity be best furthered through a disjunctive reading of s. 233(3). But, if given a choice of interpretation, and if such is the case, the disjunctive reading is the one the Court should choose.

Let us then look to the purpose sought to be served by both sections.

With respect, I am of the view that the interpretation that will best serve the object of the Act is the disjunctive one. On this point, I cannot express my views any better than by quoting Craig J.A. in his reasons where he said:

Should subsection (3) be interpreted conjunctively, or disjunctively? The answer to this question depends on the intention of the Legislature. While the question is a vexing one, I tend to the view that s-s. (3) should be interpreted to mean that presumption arises if the accused fails to do any one of the three things mentioned. Obviously, the purpose of the presumption is to facilitate proof of the gravamen of the offence, namely, the intent to escape civil or criminal liability. Without a presumption provision, the Crown would in most cases have to rely solely on the failure to do one of the three things mentioned to prove the intent. A judge might, or might not, infer that the intent had been established beyond reasonable doubt. On the other hand, if an accused failed to do all of these three things, the inference of intent would, probably, be irresistible. In those circumstances, the Crown would not have to rely on any

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presumption of intent. The need to rely on a presumption would appear to be necessary only in a case where the inference of intent is not irresistible. I think, therefore, that if Parliament intended that the accused could commit the offence by failing to do any one of the three things specified in s-s. (2), Parliament intended, also, that the presumption provision would be applicable in any case where the accused failed to do any of the things specified. The presumption provision does not place any onus on the accused to establish his lack of intent. The onus remains on the Crown to prove the case beyond a reasonable doubt. The presumption provision simply assists the Crown in achieving that standard of proof and is applicable only in the absence of any evidence to the contrary.

I would allow the appeal and restore the conviction entered by the trial judge.

Appeal allowed.

Solicitor for the appellant: Ministry of Attorney General for the Province of British Columbia, Vancouver.

Solicitors for the respondent: Hogan, Ritchie & Co., Vancouver.