R. v. Docherty, [1989] 2 SCR 941

R. v. Docherty, [1989] 2 S.C.R. 941

 

Her Majesty The Queen    Appellant

 

v.

 

Robert Frank Docherty Respondent

 

indexed as:  r. v. docherty

 

File No.:  20810.

 

1989:  March 15; 1989:  October 12.

 

Present:  Lamer, Wilson, La Forest, L'Heureux-Dubé, Sopinka, Gonthier and Cory JJ.

 

on appeal from the court of appeal for newfoundland

 

    Criminal law -- Mens rea -- Wilful non-compliance with probation order -- Failure to keep the peace and to be of good behaviour -- Charge arising because of conviction of having care and control of vehicle while impaired -- Accused believing vehicle could not be started -- Whether s. 666(1) an offence requiring its own mens rea or one automatically following conviction for any Criminal Code  offence -- Criminal Code, R.S.C. 1970, c. C-34, ss. 19, 236(1), 663(2), 666(1), 722(1).

 

    Respondent, who had been found sitting in an automobile apparently in an intoxicated state, pleaded guilty to having the care and control of a motor vehicle while legally impaired contrary to s. 236  of the Criminal Code .  An information was sworn against him alleging that he "did unlawfully and wilfully fail to comply" with a probation order which required him to "keep the peace and be of good behaviour".  The commission of the offence under s. 236  of the Criminal Code  was the basis relied on for the alleged breach of s. 666(1).

 

    At his trial for the s. 666(1) offence, respondent testified that when he committed the s. 236 offence he was unaware that he was breaking the law because he believed that the car could not be started.  The trial judge noted that there was evidence to support his belief and acquitted respondent of the s. 666(1) offence on the ground that he lacked the requisite mens rea.  An appeal by the Crown by way of stated case before the Newfoundland Court of Appeal was dismissed.  At issue here is whether s. 666(1)  of the Criminal Code  is to be interpreted as an offence requiring its own mens rea or as an offence which automatically follows upon a conviction for any Criminal Code  offence or other deliberate act which constitutes a violation of the conditions of a probation order.

 

    Held:  The appeal should be dismissed.

 

    Section 666 requires a relatively high level of mens rea.  The term "wilfully" denotes a relatively high level of mens rea requiring persons on probation to have formed the intent to breach the terms of the probation order and to have had that purpose in mind while doing so.  The requirement of "refusing" to comply with a probation order also denotes some form of guilty knowledge for it is necessary to know what is not being complied with.  The fact that imprisonment may be imposed under s. 722 of the Code for conviction under s. 666(1) too indicates a higher level of mens rea.

 

    The purpose of s. 666(1) is clearly to achieve compliance with probation orders and the Code goes to great length to ensure that the accused is fully aware of the terms of his or her probation order.  A person can hardly be deterred from wrongdoing where he or she has no awareness of doing anything wrong.  Persons who unknowingly violate the terms of their parole should not be convicted.

 

    The mens rea of s. 666(1) requires that an accused intend to breach his probation order:  the accused must have known that he was bound by the probation order and that it contained a term which would be breached by his proposed conduct.  The mens rea of the underlying offence cannot be treated as the intent required under s. 666(1).  The conviction for the underlying offence constitutes the actus reus under s. 666(1) and establishes that the accused violated the terms of his parole.  That conviction is not prima facie evidence of an intent to breach the probation order which is quite different from the intention to commit the actus reus of the underlying offence.  Because direct evidence is almost always difficult to obtain, the Crown may ask the court, absent any evidence to the contrary, to infer intent from the fact of the conduct but any doubt must resolved in favour of the accused.

 

    Section 19  of the Criminal Code  provides that ignorance of the law is not an excuse for committing an offence.  Section 666(1), however, constitutes an exception to the general rule expressed in s. 19 in a case where the commission of a criminal offence is relied on as the actus reus under the section.  Where knowledge is itself a component of the requisite mens rea, the absence of knowledge provides a good defence.

 

Cases Cited

 

    Applied:  Ford v. The Queen, [1982] 1 S.C.R. 231; R. v. Toews, [1985] 2 S.C.R. 119; considered:  R. v. Stone (1985), 22 C.C.C. (3d) 249; referred to:  R. v. Piche (1976), 31 C.C.C. (2d) 150; R. v. McNamara (1982), 66 C.C.C. (2d) 24; R. v. Bara (1981), 58 C.C.C. (2d) 243; R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299; Butkans v. The Queen, [1972] 4 W.W.R. 262; R. v. Sugg (1986), 28 C.C.C. (3d) 569; Shaver v. The Queen (1977), 4 B.C.L.R. 354.

 

Statutes and Regulations Cited

 

Criminal Code, R.S.C. 1970, c. C-34, ss. 19, 236(1), 663(2), (4), 666(1), 772(1).

 

Authors Cited

 

Mewett, Alan W. and Morris Manning.  Criminal Law, 2nd ed. Toronto:  Butterworths, 1985.

 

    APPEAL from a judgment of the Newfoundland Court of Appeal (1988), 69 Nfld. & P.E.I.R. 232, dismissing an appeal from acquittal by Scott Prov. Ct. C.J.  Appeal dismissed.

 

    Robert Hyslop, Q.C., for the appellant.

 

    Evan Kipnis, for the respondent.

 

//Wilson J.//

 

    The judgment of the Court was delivered by

 

    WILSON J. -- The sole issue to be resolved in this appeal is the requisite mens rea for the offence of wilfully failing or refusing to comply with a probation order contrary to s. 666(1) of the Criminal Code, R.S.C. 1970, c. C-34 (since renumbered s. 740(1) , R.S.C., 1985, c. C-46 ).  More specifically, this Court is asked to determine whether commission of a criminal offence by a person required by his probation order to "keep the peace and be of good behaviour" is sufficient to ground a breach of s. 666(1) regardless of the mental element required to sustain a conviction for the underlying offence.

 

1.  The Facts

 

    On October 27, 1984 the respondent was found sitting in an automobile apparently in an intoxicated state.  The respondent was charged with and pleaded guilty to an offence under s. 236  of the Criminal Code  of having the care and control of a motor vehicle with a blood alcohol level of over 80 mg. of alcohol in 100 ml. of blood.  On December 6, 1984 an information was sworn against the respondent alleging that he "did unlawfully and wilfully fail to comply" with a probation order issued against him on February 23, 1983 requiring him to "keep the peace and be of good behaviour".  The commission of the offence under s. 236  of the Criminal Code  was the basis relied on for the alleged breach of s. 666(1).

 

2.  The Courts Below

 

    At his trial for the s. 666(1) offence, the respondent testified before Chief Judge Scott of the Provincial Court of Newfoundland that at the time he committed the offence under s. 236 he was unaware that he was breaking the law because he believed that the car could not be started.  The trial judge noted that there was evidence to support his belief.  He acquitted the respondent on the ground that he lacked the requisite mens rea to sustain a conviction under s. 666(1).  In the course of his oral reasons, Chief Judge Scott stated:

 

There are a great many people and you may be one who feel that because a vehicle cannot start and might have something mechanically wrong with it, that you are not breaching the law.  For this Section to apply, this Section 666 for wilfully to breach the law, you have to have a dishonest belief in your mind or acting with a wrong intention that you intend to break the law.  I think its more than just proving that the previous offence was pleaded guilty to or you were found guilty of and I am rather inclined to agree with the judgment of the County Court contrary to Crown Counsel here.  There are cases I believe where just merely proving the previous act or omission would be sufficient and some of them are pretty well some of the simpler areas of law.  Where you had an honest belief, although you may be wrong, that you are not doing anything wrong could be found wilfully guilty of a breach of probation, I think would be stretching the law a little bit.

 

    An appeal by the Crown by way of stated case before the Newfoundland Court of Appeal was dismissed:  see (1988), 69 Nfld. & P.E.I.R. 232.  Speaking for the court (Mifflin, Gushue and Mahoney JJ.A.) Mifflin J.A. concluded that the type of evidence supporting a conviction for a criminal offence would often, although not always, provide "prima facie evidence of wilfulness" but that this was not so in the case of the respondent's conviction under s. 236.  He stated at p. 233:

 

    In my view, this court cannot make a determination the effect of which would be to preclude any defence to a charge of breaching a probation order when an offence contrary to the Criminal Code  has been proved.  Section 666(1) does not have this effect.  If such were intended, s. 666(1) would have so provided.  Section 666(1) does not distinguish between provisions in the probation order, be they general or specific, or offences under the Criminal Code  or not. "Wilfully" is applicable to all charges under that section.  This court does not intend to canvass all the provisions in the Criminal Code  and determine whether or not the mens rea required for each offence would be sufficient to satisfy the provisions of "wilfully" in s. 666(1) in every case.  Moreover, it would be injudicious for this court to speculate as to what particular defences could be available to an accused in any particular case.

 

    The word "wilfully" in s. 666(1)  of the Criminal Code  was interpreted in Shaver v. R., 4 B.C.L.R. 354.  At p. 357 Cashman, C.C.J., said:

 

    "In my respectful view, the word `wilfully' must mean that the act is done deliberately and intentionally and not by accident or inadvertence.  Furthermore, the wilful act or refusal must relate to the breach of his promise to keep the peace because the essence of the offence created by s. 666(1) is wilful, that is, deliberate, disobedience of a probation order."

 

    We do not accept the extreme proposition that there must be a deliberate intention in the mind of an accused to breach the probation order.  The intention may be inferred from the particular Criminal Code  offence which triggered the charge for a breach of s. 666(1).

 

    Speaking generally, it would appear that in many prosecutions for a breach of s. 666(1), triggered by a breach of the Criminal Code , all that would be necessary to provide proof of wilfulness would be evidence of the conviction.  The type of conduct itself which would ground a conviction for many offences would provide prima facie evidence of wilfulness and it is difficult to conceive of any defences thereto.

 

    To answer the question in the case as stated, it is not possible for this court to say that the trial judge was wrong in law when he found as a fact that the respondent had a reasonable and honest belief that he was not breaking the law when he did the illegal acts which led to his conviction on the s. 236(1) charge and, therefore did not wilfully fail to comply with the probation order.  [Emphasis added.]

 

3.  The Relevant Legislation

 

    Section 666(1)  of the Criminal Code  provides:

 

    666.  (1)  An accused who is bound by a probation order and who wilfully fails or refuses to comply with that order is guilty of an offence punishable on summary conviction.

 

    Section 663(2)  of the Criminal Code  (now s. 737(2)) sets out the mandatory terms of a probation order as well as those which may be imposed in the court's discretion:

 

    663. ...

 

    (2)  The following conditions shall be deemed to be prescribed in a probation order, namely, that the accused shall keep the peace and be of good behaviour and shall appear before the court when required to do so by the court, and, in addition, the court may prescribe as conditions in a probation order that the accused shall do any one or more of the following things as specified in the order, namely,

 

(a)  report to and be under the supervision of a probation officer or other person designated by the court;

 

(b) provide for the support of his spouse or any other dependants whom he is liable to support;

 

(c)  abstain from the consumption of alcohol either absolutely or on such terms as the court may specify;

 

(d)  abstain from owning, possessing or carrying a weapon;

 

(e)  make restitution or reparation to any person aggrieved or injured by the commission of the offence for the actual loss or damage sustained by that person as a result thereof;

 

(f)  remain within the jurisdiction of the court and notify the court or the probation officer or other person designated under paragraph (a) of any change in his address or his employment or occupation;

 

(g)  make reasonable efforts to find and maintain suitable employment; and

 

(h)  comply with such other reasonable conditions as the court considers desirable for securing the good conduct of the accused and for preventing a repetition by him of the same offence or the commission of other offences.  [Emphasis added.]

 

It should be noted that subs. 663(2)(c) permits the court to order an accused to abstain from alcohol.  No such condition was attached to the respondent's probation.

 

    Section 663 contains no penalty provision so that the general penalty provision in the Criminal Code  applies.  At the time of the offence, that provision stated:

 

    722.  (1)  Except where otherwise expressly provided by law, every one who is convicted of an offence punishable on summary conviction is liable to a fine of not more than five hundred dollars or to imprisonment for six months or to both.

 

    The respondent pleaded guilty to and was convicted of having the care or control of a motor vehicle while his blood alcohol level exceeded .08 contrary to s. 236(1) (now s. 253) even although he testified that he did not think he was doing anything wrong at the time because he believed that the car was not in an operating condition.  Section 236(1) provides as follows:

 

    236. (1)  Every one who drives a motor vehicle or has the care or control of a motor vehicle, whether it is in motion or not, having consumed alcohol in such a quantity that the proportion thereof in his blood exceeds 80 milligrams of alcohol in 100 millilitres of blood, is guilty of an indictable offence or an offence punishable on summary conviction and is liable

 

(a)  for a first offence, to a fine of not more than two thousand dollars and not less than fifty dollars or to imprisonment for six months or to both;

 

(b)  for a second offence, to imprisonment for not more than one year and not less than fourteen days; and

 

(c)  for each subsequent offence, to imprisonment for not more than two years and not less than three months.

 

    In Ford v. The Queen, [1982] 1 S.C.R. 231, the majority of this Court (Laskin C.J. and Dickson J. dissenting) held that an intention to drive was not a required element of the offence of having care or control.  Writing for the majority Ritchie J. stated at pp. 248-49:

 

    Nor, in my opinion, is it necessary for the Crown to prove an intent to set the vehicle in motion in order to procure a conviction on a charge under s. 236(1) of having care or control of a motor vehicle, having consumed alcohol in such a quantity that the proportion thereof in his blood exceeds 80 milligrams of alcohol in 100 millilitres of blood.  Care or control may be exercised without such intent where an accused performs some act or series of acts involving the use of the car, its fittings or equipment, such as occurred in this case, whereby the vehicle may unintentionally be set in motion creating the danger the section is designed to prevent.

 

    Ritchie J.'s view was subsequently endorsed by a unanimous decision of this Court (per McIntyre J.) in R. v. Toews, [1985] 2 S.C.R. 119.  Since the offence consists of having care or control and care or control is had by doing no more than performing certain acts by which a vehicle may unintentionally be set in motion, it is clear that the level of intent the Crown must prove to sustain a conviction for this offence is minimal indeed.

 

4.  Analysis

 

    This case raises the important question whether an accused can be convicted of the summary conviction offence of wilfully breaching or refusing to comply with a probation order when, in the words of the trial judge, the accused "had an honest belief, although you may be wrong, that you are not doing anything wrong".  In other words, is s. 666(1)  of the Criminal Code  to be interpreted as an offence requiring its own mens rea or is it to be interpreted as an offence which automatically follows upon a conviction for any Criminal Code  offence or other deliberate act which constitutes a violation of the conditions of a probation order?  The respondent's case is particularly challenging in that the underlying Criminal Code  offence, care or control of a motor vehicle "over 80 mg.", was committed without proof or admission of mens rea, at least in the traditional sense.  The respondent was simply found sitting in an intoxicated condition in a car which he thought (and the trial judge believed him) would not start.  At his trial the respondent testified that he did not think he was doing anything wrong and this seems to have been accepted as a fact by the trial judge.

 

    The issue in the case is primarily one of statutory interpretation.

 

(a)  The Literal Interpretation

 

    Section 666(1) is clearly framed so as to require guilty knowledge in order to constitute a breach.  The section prohibits an accused from wilfully failing or refusing to comply with a probation order.  The word "wilfully" is perhaps the archetypal word to denote a mens rea requirement.  It stresses intention in relation to the achievement of a purpose.  It can be contrasted with lesser forms of guilty knowledge such as "negligently" or even "recklessly".  In short, the use of the word "wilfully" denotes a legislative concern for a relatively high level of mens rea requiring those subject to the probation order to have formed the intent to breach its terms and to have had that purpose in mind while doing so.

 

    The requirement of "refusing" to comply with a probation order, although less obviously importing a mens rea element than the requirement of wilfully failing to comply, also denotes some form of guilty knowledge.  In order to "refuse" to comply with something it is necessary to know what you are not complying with.  Only in that event can your actions constitute a "refusal".  You know the strictures you are under but deliberately flout them.

 

    I would conclude therefore that on a literal construction of the section a relatively high level of mens rea is required for the offence.

 

(b)  The Contextual Interpretation

 

    Is the requirement of a relatively high level of mens rea under s. 666(1) consistent with the wider context of the legislation?

 

    Since s. 666(1) creates a criminal offence it should be presumed that some mental element is required in the absence of clear words to the contrary.  In the case of s. 666(1), far from having clear words to the contrary, we have clear words denoting a mental element.  It would appear to be significant also in this connection that the general punishment provision, s. 722  of the Criminal Code , applies in the case of a conviction under s. 666(1) and under that section imprisonment is a permitted sanction.  Since s. 666(1) creates an offence under the Code for which imprisonment is a permitted sanction it makes eminent good sense, in my opinion, to construe it as requiring a mental element.

 

    Moreover, the purpose of s. 666(1) is clearly to achieve compliance with probation orders.  Section 663(4) requires not only that a copy of the probation order be given to the accused but also that it be read to him or her.  The accused must also be told that breach of it constitutes a distinct offence under s. 666(1).  Lower courts have held that the Crown must prove that this occurred before a conviction can be obtained under the section: R v. Piche (1976), 31 C.C.C. (2d) 150 (Sask. Q.B.); R. v. McNamara (1982), 66 C.C.C. (2d) 24 (Ont. C.A.); R. v. Bara (1981), 58 C.C.C. (2d) 243 (B.C.C.A.)  Indeed, the courts in R. v. Piche and R. v. Bara also ruled that an accused is not "bound by a probation order" within the meaning of s. 666(1) unless and until the court has complied with s. 663(4).  Given the pains that Parliament has taken to ensure that the accused is fully aware of the terms of his or her probation order, it would be strange if an accused could be convicted under the section without knowing that he or she was violating it.

 

    Other considerations seem to be relevant to the contextual approach to the interpretation of s. 666(1).  For example, in R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299, Dickson J. suggested that the deterrence rationale advanced in favour of absolute liability offences is in most cases overblown.  Put simply, it makes little sense to think that a person will be deterred from wrongdoing in situations where that person does not believe and has no awareness that he or she is doing anything wrong.  The appellant submitted to the Court, however, that the whole purpose of putting a person found guilty of criminal conduct on probation is to "heighten his or her awareness of the consequences of criminal activity".  I am sure that is correct.  However, in the context of this case the conviction of the accused under s. 666(1) would have little or no deterrent effect given (as was accepted by the trial judge) that the accused did not know he was doing anything wrong.  A decision requiring a distinct mens rea element for the offence under s. 666(1) would not, in my view, undermine the effectiveness of probation orders as the appellant alleges.  The requirement that persons on probation keep the peace and be of good behaviour would still apply to those wilfully breaching their parole.  It is, I think, consistent with the overall content and purpose of the probation provisions in the Criminal Code  that those who unknowingly violate the terms of their parole not be convicted but only those who wilfully breach such terms or deliberately refuse to obey them.

 

    I believe that the submissions of the appellant are directed not so much at the element of the offence under s. 666(1) but in support of a very broad reading of the provision in the probation order to keep the peace and be of good behaviour.  In R. v. Stone (1985), 22 C.C.C. (3d) 249, Steele J. of the Newfoundland Supreme Court attempted to define the terms "keep the peace" and "be of good behaviour" as found in s. 663(2).  In that case the appellant who was bound by a probation order was acquitted by the provincial court judge of the Criminal Code  offence of fraudulently obtaining food, essentially because he was too intoxicated to form the necessary specific intent when he ordered the restaurant meal for which he did not pay.  He was, however, convicted of breaching his probation order on the ground that his conduct at the restaurant constituted a wilful failure to be of good behaviour even if it did not amount to a criminal offence.  On appeal by way of stated case to the Newfoundland Supreme Court, Steele J. was asked to determine whether the trial judge had erred when he held that the phrase

 

"To Keep the Peace and Be of Good Behaviour" not only includes a violation of any penal statute, federal, provincial, or municipal, but also goes beyond them in that the words are to be given their ordinary meaning.

 

Steele J. dismissed the appeal.

 

    Steele J. proceeded from the view, expressed at p. 255, that the two terms, "keep the peace" and "be of good behaviour", impose "separate and distinct conditions though in certain circumstances may overlap".  At page 256, he draws the following distinction:

 

    When considering whether there has been a failure "to keep the peace", one is conscious of public opinion and its perception of peace and good order and what does or does not offend that nebulous standard.  If the issue is an individual's good behaviour, the emphasis shifts to a more personal analysis of his conduct.  A breach of an undertaking "to keep the peace" means a disruption or the upsetting of public order whereas a breach of a bond "to be of good behaviour" means some act or activity by an individual that fails to meet the fanciful standard of conduct expected of all law-abiding and decent citizens.  It is quite possible, as I have already said, that one can fail to be of good behaviour yet not commit a breach of the peace.  It is probably a matter of degree.  We are only concerned with the second aspect of the statutory condition, namely, "to be of good behaviour".

 

    Steele J. goes on to say at p. 257 that a conviction for breach of a federal, provincial or municipal statute "may be -- perhaps usually is -- but not necessarily" a failure to be of good behaviour.  Conversely, conduct which does not violate any statute may nevertheless breach the condition to keep the peace and be of good behaviour.  The accused in that case was found not to have had the required intent for the underlying offence, i.e., the offence of fraudulently obtaining food.  Nevertheless, his behaviour at the restaurant was found to fall short of "good behaviour".  The stated case did not raise the issue of the requisite mens rea for a wilful failure to comply with the probationary condition to "be of good behaviour", and Steele J. did not deal with it.  By upholding the conviction under s. 666(1), however, he implicitly affirmed the trial judge's finding that the appellant had the requisite mens rea for that offence.

 

(c)  The Existing Jurisprudence Under s. 666(1)

 

    In Butkans v. The Queen, [1972] 4 W.W.R. 262, Hewak Co. Ct. J., as he then was, considered the significance of the word "wilful" in the context of s. 666(1) where an accused failed to pay restitution contrary to the terms of his probation order.  He stated at p. 271:

 

    Applying these principles and reasoning to the present case, the matter would have been different had s. 666 of the Code eliminated the term "wilful" making the failure to comply with the probation order an absolute liability without the necessity of proving mens rea.  By using the term "wilful" and giving that word its ordinary meaning, the proper inference, in my view, would be that Parliament intended that something more than mere failure must be proven before an accused could be convicted under that section of the Code.

 

    In R. v. Sugg (1986), 28 C.C.C. (3d) 569, the Nova Scotia Supreme Court, Appeal Division, also considered the meaning of "wilful" in s. 666(1).  The appellant in that case failed to pay the full amount of restitution required of him under the terms of his probation order.  The trial judge found as a fact that the accused was financially unable to pay the full amount although he could have paid a larger instalment than he did.  The trial judge nevertheless found him guilty of wilfully failing to pay the total amount of the restitution and convicted him of a breach of probation contrary to s. 666(1).  The Nova Scotia Supreme Court, Appeal Division, overturned the conviction.  Speaking on behalf of the Court, Macdonald J.A. at p. 572 made the following comments about the mental element in s. 666(1):

 

    Subsection (1)

of s. 666  of the Criminal Code  creates a full mens rea offence.  Judge MacDonald found as a fact that the appellant was financially unable to pay the amount of $3,500 by May 1, 1985, as directed by the probation order.  I agree with counsel for the appellant that such finding is incompatible with a wilful failure to make such payment.

 

    The learned trial judge in finding that the appellant wilfully failed to comply with the restitution provision of the probation order was obviously influenced by the fact that in his opinion the appellant did not use his best efforts to pay more than he did.  The charge however is that the appellant wilfully failed to pay $3,500 as directed by the probation order by May 1, 1985, not that he did not make a more substantial payment than he did.  Once Judge MacDonald found as he did that the appellant simply could not pay $3,500 by May 1, 1985, then, in my opinion, it could not be said that the appellant wilfully failed to pay such amount.  What is missing is the requisite criminal intent.

 

    These cases concerned breaches of specific provisions of a probation order where the actus reus of the breach was clear and was not disputed but the presence of the required mens rea was.  In the absence of the required mens rea a conviction could not be entered.  It is noted that Steele J., in discussing s. 666(1) generally in R. v. Stone, agreed that a mental element was required for an offence under the section.  He stated at pp. 254-55:

 

    The vital element for an offence under s. 666(1) is that the non-compliance, disobedience or violation of the probation order be wilful.  The term "wilful" is used in the sense that the failure or refusal to comply with the probation order was designed, intentional and not accidental or involuntary; that the non-compliance was deliberate and with bad purpose either to disobey or disregard the order; that there is no justifiable excuse; the failure or refusal to comply with a probation order must be with evil intent or bad motive or with  indifference to the consequences:  see Black's Law Dictionary, 5th ed., p. 1434.  The term "wilfully" appearing in the section means that trifling or idle neglect of a condition in a probation order and nothing more is not the crime, as there must be the additional element of wilfullness [sic] needed to constitute the offence.

 

    However, as noted above, he did not expressly address the question whether the requisite mens rea for s. 666(1) was present on the facts in R. v. Stone.  It is accordingly unclear how he reached the conclusion that the appellant was wilfully breaching his parole when in his intoxicated state he ordered the meal for which he did not pay.  It seems fairly clear, however, that whether specific conduct falls short of the standard of good behaviour is one question and whether the accused intentionally fell short of that standard for purposes of s. 666(1) is another.  The two questions, in my opinion, cannot be collapsed into one so as to eliminate any mens rea requirement from the s. 666(1) offence.

 

    I believe that the judgment of Cashman Co. Ct. J. in Shaver v. The Queen (1977), 4 B.C.L.R. 354, illustrates the point.  In that case the court had to decide whether the conduct of an accused in causing a disturbance constituted a wilful breach of his undertaking to keep the peace when there was evidence indicating that he was "hysterical" and had "lost control of himself" at the time of the incident.  At page 357 the learned judge stated:

 

    In my respectful view, the word "wilfully" must mean that the act is done deliberately and intentionally and not by accident or inadvertence.  Furthermore, the wilful act or refusal must relate to the breach of his promise to keep the peace because the essence of the offence created by s. 666(1) is wilful, that is, deliberate, disobedience of a probation order.

 

In other words, the court cannot enter a conviction under s. 666(1) on proof of the actus reus alone.  The accused may by his conduct have fallen short of whatever objective standard is required to be met in order to constitute keeping the peace but this by itself is not enough.  An actual intent to breach the term of the probation order must be established if a conviction is to be entered under s. 666(1).

 

    The Newfoundland Court of Appeal seems in the present case to have rejected this approach to the interpretation of s. 666(1).  Mifflin J.A., after quoting from the decision of Cashman Co. Ct. J. in Shaver v. The Queen states at p. 234:

 

    We do not accept the extreme proposition that there must be a deliberate intention in the mind of an accused to breach the probation order.  The intention may be inferred from the particular Criminal Code  offence which triggered the charge for a breach of s. 666(1).

 

    Speaking generally, it would appear that in many prosecutions for a breach of s. 666(1), triggered by a breach of the Criminal Code , all that would be necessary to provide proof of wilfulness would be evidence of the conviction.  The type of conduct itself which would ground a conviction for many offences would provide prima facie evidence of wilfulness and it is difficult to conceive of any defences thereto.  [Emphasis added.]

 

    With respect, I must disagree with the Newfoundland Court of Appeal on this point.  The mens rea of an underlying offence cannot, in my view, be treated as the intent required under s. 666(1).  As I have stated earlier, the mens rea of s. 666(1) requires that an accused intend to breach his probation order.  This requires at a minimum proof that the accused knew that he was bound by the probation order and that there was a term in it which would be breached by his proposed conduct.  The accused must be found to have gone ahead and engaged in the conduct regardless.  The onus, of course, is on the Crown to prove that the accused had the requisite mens rea.  To the extent that direct evidence of intent is almost always difficult to obtain, the Crown may ask the court, absent any evidence to the contrary, to infer intent from the fact of the conduct.  Any doubt, however, as to whether the accused intended to do what he did must be resolved in favour of the accused.  The important point is that an intent to commit the underlying offence does not afford a basis for inferring the wholly distinct intent i.e. to breach one's probation order.

 

    What then is the significance of the conviction for the underlying offence in relation to the undertaking in the probation order to be of good behaviour?  It seems to me that it constitutes the actus reus under s. 666(1).  It establishes that the accused has violated the terms of his parole through the commission of a criminal offence.  But it is not, in my view, prima facie evidence of an intent to do so, still less a wilful intent to do so.  This is a different intention from the intention to commit the actus reus of the underlying offence.

 

    A full mens rea offence under the Criminal Code  demands that the accused have an intent to perform the acts that constitute the actus reus of the offence.  Section 666(1) is no different.  In the circumstances of the present case the actus reus of the offence under s. 666(1) is the commission of the criminal offence under s. 236.  Proof of the mens rea would therefore require that the respondent intended to commit the criminal offence under s. 236 when he sat behind the wheel in an intoxicated condition.  The respondent testified that he thought the automobile was not in an operating condition and for that reason he honestly believed he was not committing an offence by sitting behind the wheel while intoxicated.  This testimony was accepted by the trial judge.  In my view, where the actus reus of s. 666(1) consists of the commission of a criminal offence, an honest belief on the part of the accused that he is not committing that offence means that the accused cannot be said to have wilfully failed or refused to comply with the probation order.  He did not in these circumstances have the necessary mens rea for the offence under s. 666(1).

 

    Having concluded that the conviction for the underlying offence will constitute the actus reus of the offence under s. 666(1), I emphasize that the elements comprising the actus reus and mens rea of the underlying offence are not open to dispute by the accused in defence of the charge under s. 666(1).  For example, if an accused is convicted of sexual assault under s. 265  of the Criminal Code , a judge presiding over his trial for breach of probation must take it as given that the accused had the requisite mens rea when he committed the actus reus of the s. 265 offence.  This would include an intent to commit the assault without the consent of the victim.  Where the defence of honest but mistaken belief in consent has been rejected either explicitly or impliedly at the trial for the offence of sexual assault (as it must have been if the accused was convicted), the accused cannot argue at his trial for breach of probation that he did not intend to commit the offence under s. 265 because he honestly believed that the victim was consenting.

 

    Does s. 19  of the Criminal Code  prevent the respondent from relying on his honest belief to negate the mens rea requirement in s. 666(1)?  The section provides:

 

    19. Ignorance of the law by a person who commits an offence is not an excuse for committing that offence.

 

    The respondent testified that he did not believe he was doing anything wrong when he got behind the wheel of the car while in an intoxicated condition.  The trial judge accepted that the respondent's belief was honestly held and noted the existence of objective evidence in support of his contention.

 

    It is beyond dispute that the respondent could not escape conviction for a violation of s. 236  of the Criminal Code  on the ground that he did not know that having care and control of a motor vehicle with a blood alcohol level over .08 was against the law.  That knowledge is not a component of the mens rea of s. 236.  Neither could the respondent claim that he did not know that a wilful failure to be of good behaviour was a breach of probation, especially since s. 663(4) (now s. 737(3)) of the Criminal Code  requires a court when it issues a probation order to ensure that the accused knows the terms and conditions of the order, the conduct that would constitute a breach and the consequences of such a breach and the respondent has not alleged that this was not done.

 

    Mewett and Manning in their text, Criminal Law (2nd ed. 1985) discuss at p. 320 what is meant by the maxim ignorance of the law is no excuse:

 

    It is often said that ignorance of the law is no excuse and as a general maxim -- now incorporated in s. 19 of the Code -- it is a harmless cliché.  It is more accurate, however, to say that knowledge that one's act is contrary to the law is not one of the elements of the requisite mens rea and hence a mistake as to what the law is does not operate as a defence.  That is to say, this belief that an act is lawful, however much it might affect sentence, does not affect liability.

 

    While I agree with the authors' general proposition I believe that where the commission of a criminal offence is relied on as the actus reus of the offence under s. 666(1) (as in this case), knowledge that one's act is contrary to law (in this case, the law contained in s. 236  of the Criminal Code ) is an element of the requisite mens rea of wilfully failing to comply with a probation order.  I believe, in other words, that s. 666(1) constitutes an exception to the general rule expressed in s. 19 in a case where the commission of a criminal offence is relied on as the actus reus under the section.  An accused cannot have wilfully breached his probation order through the commission of a criminal offence unless he knew that what he did constituted a criminal offence.  However, the conviction is evidence of the mens rea under s. 666(1) only to the extent that wilfulness can be inferred from the actus reus as indicated above.  Such mens rea must be proved and s. 19  of the Criminal Code  does not preclude the respondent from relying on his honest belief that he was not doing anything wrong to negate its presence.  Where knowledge is itself a component of the requisite mens rea, the absence of knowledge provides a good defence.

 

    I would dismiss the appeal.

 

    Appeal dismissed.

 

    Solicitor for the appellant:  The Attorney General of Newfoundland, St. John's.

 

    Solicitors for the respondent:  Chalker, Green & Rowe, St. John's.