Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
on appeal from the court of appeal for ontario
Constitutional law ‑‑ Charter of Rights ‑‑ Presumption of innocence ‑‑ Reverse onus provision ‑‑ Criminal Code provision prohibiting anyone from selling or purchasing precious metal ore "unless he establishes that he is the owner or agent of the owner or is acting under lawful authority" -- Reverse onus infringing presumption of innocence ‑‑ Whether infringement justifiable as reasonable limit ‑‑ Canadian Charter of Rights and Freedoms, ss. 1 , 11(d) ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 394(1) (b).
Courts ‑‑ Supreme Court of Canada ‑‑ Jurisdiction ‑‑ Appeals ‑‑ Motions judge declaring section of Criminal Code unconstitutional and granting stay of proceedings ‑‑ Court of Appeal striking out offending words only and upholding rest of section ‑‑ Whether Supreme Court has jurisdiction to hear Crown's appeal ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, ss. 674 , 693(1) (b) ‑‑ Supreme Court Act, R.S.C., 1985, c. S‑26, s. 40(1) , (3) .
The respondents were charged under s. 394(1) (b) of the Criminal Code , which makes it an offence for anyone to sell or purchase any rock, mineral or other substance that contains precious metals "unless he establishes that he is the owner or agent of the owner or is acting under lawful authority". They brought a pre‑trial motion challenging the constitutional validity of s. 394(1)(b) under ss. 7 , 11( c ) and 11( d ) of the Canadian Charter of Rights and Freedoms . The motions judge declared that s. 394(1)(b) violated the presumption of innocence in s. 11( d ) of the Charter , was not saved by s. 1 of the Charter and so was of no force or effect. He granted the respondents' application for a stay of proceedings. On appeal to the Court of Appeal the Crown conceded that there was an infringement of s. 11(d) but sought to reverse the ruling on the ground that the provision should have been saved under s. 1 of the Charter . The Court of Appeal concluded that the Crown had not met the onus of proving that the reverse onus clause was a reasonable limit within the meaning of s. 1. In its order it stated that the appeal was allowed to the extent that, with the exception of the words `he establishes that', which were struck out, the validity of the remainder of s. 394(1)(b) was upheld. The issues raised here are (1) whether this Court has jurisdiction to hear the appeal; and (2) whether s. 394(1)(b) infringes s. 11( d ) of the Charter and, if so, whether it is a reasonable limit on the s. 11(d) right pursuant to s. 1 of the Charter .
Held: The appeal should be allowed in part.
Jurisdiction
Per Lamer C.J. and Sopinka, Cory, McLachlin, Iacobucci and Major JJ.: This Court does not have jurisdiction to hear this appeal under s. 693(1)(b) of the Code, which provides for an appeal by the Attorney General where a judgment of a court of appeal dismisses an appeal. Appeals under the Criminal Code are against orders, not reasons, and an appeal is allowed if an order is reversed even if the reasons for the reversal are not what the appellant would have liked them to be. The order in this case was a stay of proceedings. It was lifted implicitly, since in the formal order the Court of Appeal allowed the appeal. The Court of Appeal's failure to lift the stay explicitly could have been rectified by way of the Crown simply proceeding with a trial or applying to the Court of Appeal to amend its judgment.
This Court does, however, have jurisdiction to hear an appeal against the reading out of the reverse onus clause of s. 394(1)(b) of the Code under s. 40(1) of the Supreme Court Act . Section 674 of the Code does not limit the jurisdiction provided to this Court by s. 40(1) in the circumstances of this case, for the reasons given in Dagenais v. Canadian Broadcasting Corp. Nor is an appeal to this Court precluded by s. 40(3). An appeal against a ruling on the constitutionality of a law that cannot be piggybacked onto proceedings set out in the Criminal Code is a judgment of the highest court of final resort in a province in which judgment can be had in the particular case, and this Court therefore has jurisdiction under s. 40(1) to grant leave to appeal against such a ruling. To find otherwise would mean that if a finding of unconstitutionality coincides with a conviction, no appeal against the finding will be available if the accused chooses not to appeal. Such a consequence is absurd. In order to avoid such a result, a "dual proceedings, s. 40" analytical approach should be adopted to appeals against successful challenges under s. 52 of the Constitution Act, 1982 to the constitutionality of laws. When the constitutionality of a law is challenged in the context of criminal proceedings, there are effectively two proceedings ‑‑ the proceedings directed at a determination of culpability and the proceedings directed at a determination of constitutionality. They will usually proceed together but may, on occasion, proceed separately. Here the Crown's appeal against the Court of Appeal's ruling on the constitutionality of s. 394(1)(b) cannot be piggybacked onto proceedings set out in the Code. If the Crown proceeded to trial and the respondents were convicted, then there would be no order as to the constitutionality of the redrafted s. 394(1)(b) to appeal against. The adverse constitutional ruling of the Court of Appeal is thus a judgment of the highest court of final resort and the Crown can seek leave to appeal under s. 40(1) of the Supreme Court Act . While the Crown did not seek leave under s. 40(1) , this problem can be solved with a granting of leave by this Court proprio motu, nunc pro tunc, ex post facto.
Per La Forest and Gonthier JJ.: This Court has jurisdiction to hear the appeal under s. 693(1) (b) of the Criminal Code for the reasons given by L'Heureux‑Dubé J. under that heading.
Per L'Heureux‑Dubé J.: Section 40(1) of the Supreme Court Act does not provide this Court with jurisdiction to hear the present appeal as the Chief Justice's "dual proceedings, s. 40 " approach is rejected. The proceedings in this case, including the constitutional challenge, are clearly criminal proceedings, and all criminal appeals must be specifically created by statute. This appeal is from an interlocutory ruling arising out of a pre‑trial motion. While s. 40(1) has in the past been held to provide this Court with jurisdiction to hear interlocutory appeals in civil matters, it has not been so interpreted with respect to interlocutory criminal appeals. The proposed "dual proceedings, s. 40" approach is therefore inconsistent with the jurisprudence of this Court since it is well settled that there should be no interlocutory criminal appeals. There are strong policy reasons for not permitting such appeals as they would fragment the criminal trial process and cause potentially lengthy delays. Furthermore, the "dual proceedings, s. 40" approach allows the Crown to appeal a trial judge's finding that a provision is unconstitutional directly to the Supreme Court of Canada, with leave. In this respect, the "dual proceedings, s. 40" approach effectively confers upon provincial Attorneys General the ability to "refer" federal criminal legislation to the Supreme Court on a "reference"-type proceeding. Such an expansion of the "reference" jurisdiction of this Court should be left to Parliament. Moreover, the "dual proceedings, s. 40" approach may be inconsistent with s. 674 of the Criminal Code . Specifically, it is not clear that this Court's jurisdiction under s. 40(1) is in all circumstances unaffected by s. 674 of the Criminal Code , or that s. 674 does not limit that jurisdiction in the case at hand. The exact nature of the interaction between the two provisions remains an open question. Finally, even if the "dual proceedings, s. 40" approach had been accepted, this case does not satisfy the criteria under that approach for an appeal to this Court from a constitutional ruling in a criminal proceeding. Since certain proceedings, including a trial and any subsequent appeals, are still pending, the constitutionality of s. 394(1)(b) might still arrive before this Court through normal appellate procedures and it is impossible to conclude that the constitutional question at issue could not ultimately be "piggybacked" onto procedures set out in the Criminal Code .
While this Court does not have jurisdiction to hear this appeal under s. 40(1) of the Supreme Court Act , it does have jurisdiction to hear this appeal under s. 693(1)(b) of the Code. While technically the order granting a stay of proceedings was reversed by the Court of Appeal and the appeal was allowed, in substance this appeal concerned not the stay of proceedings but the decision to strike down s. 394(1)(b) of the Code. With respect to this issue, the Crown effectively lost its appeal. The Court of Appeal found the reverse onus clause in s. 394(1)(b) unconstitutional, but instead of striking down the entire provision, it struck out only the reverse onus clause. Thus, while the Crown won with respect to the remedy, it lost on every issue of substance it raised. A "substance over form" approach to the interpretation of the term "dismisses" in s. 693(1)(b) should be adopted. While overall success in the court below will preclude any further appeal under s. 693(1)(b), where the Crown suffered "overwhelming failure", as here, it should have the right to appeal to this Court under s. 693(1)(b), with leave, regardless of whether or not the appeal to the Court of Appeal was technically dismissed.
Constitutionality of s. 394(1) (b) of the Criminal Code
Per Sopinka J. for the Court: The Crown properly conceded that the reverse onus in s. 394(1)(b) of the Code violates s. 11( d ) of the Charter . The purpose of s. 394(1)(b) is clearly to criminalize trade in stolen precious metal ore. Since it permits accused persons to be convicted despite the presence of a reasonable doubt as to whether they were engaged in a legitimate transaction, it directly contravenes the presumption of innocence enshrined in s. 11(d). There is a wide range of innocent people who could be caught within the ambit of s. 394(1)(b) and could conceivably be unable to prove that their purchase or sale of ore was legitimate. The provision thus strikes at the heart of the protection afforded by s. 11(d) by increasing the likelihood that the innocent will be convicted.
The historical, social and economic context in which s. 394(1)(b) operates is useful in order to determine whether it constitutes a reasonable limit upon the right to be presumed innocent. In order to be sufficiently important to warrant overriding a constitutionally protected right or freedom the impugned provision must relate to concerns which are pressing and substantial in a free and democratic society. While the evidence tendered concerning the extent of the problem posed by the theft of precious metals is weakened by the fact that the opinions are not supported by statistics, details or facts, the objective of deterring theft of precious metal ore meets this first branch of the Oakes test. Section 394(1)(b) creates a true criminal offence involving activity bereft of social utility and is an expression of society's repugnance to the conduct proscribed. The paucity of prosecutions does not necessarily reflect on the seriousness of the problem since the statistics might be affected by a number of factors such as the priority given to enforcement by the police and the Crown.
Parliament has chosen to achieve the objective of deterring theft of ore by proscribing trade in stolen ore and placing the onus upon the accused to show that the ore is not stolen. Both these measures are rational responses to the problem posed. The situation would be different if developments in gold fingerprinting techniques were to make it easier for the Crown to prove the provenance of gold‑bearing material, but the evidence before the Court suggests that technology has not yet advanced to this point. There is no general requirement that a presumption be internally rational, in the sense that there is a logical connection between the presumed fact and the fact substituted by the presumption, in order to pass the rational connection phase of the proportionality test. The impugned provision does not, however, impair the right to be presumed innocent as little as possible and so cannot be upheld as a reasonable limit under s. 1 of the Charter . In drafting s. 394(1)(b) Parliament could have chosen merely to place an evidentiary burden rather than a full legal burden of proving ownership, agency or lawful authority upon the accused. Knowledge of the availability of this option must be imputed to Parliament since evidentiary burdens of this kind are and were commonly used to relieve the Crown of the burden of proving that an accused did not legitimately acquire possession of property. The imposition of a legal burden also fails the proportionality test because of the excessive invasion of the presumption of innocence having regard to the degree of advancement of Parliament's purpose.
The imposition of an evidentiary burden on the accused is justified even though it still impairs the right to be presumed innocent. It is unlikely that an innocent person will be unable to point to or present some evidence which raises a reasonable doubt as to their guilt. Although the imposition of an evidentiary burden violates the presumption of innocence, this only minimally increases the likelihood of an innocent person being convicted and represents a justifiable limitation upon the right to be presumed innocent. The words "unless he establishes that" in s. 394(1)(b) should therefore be struck down and the words "in the absence of evidence which raises a reasonable doubt that" read in. Since reducing the legal burden to an evidentiary burden will effectively further the legislative objective embodied in s. 394(1)(b), prima facie retention of this provision is less of an intrusion into the legislative sphere than striking down the offending words. Further, it is safe to assume that Parliament would have enacted the provision but restricted to an evidentiary burden, if the option of a legal burden had not been available.
Cases Cited
By Lamer C.J.
Applied: Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; referred to: R. v. Barnes, [1991] 1 S.C.R. 449; R. v. MacKenzie, [1993] 1 S.C.R. 212; R. v. Meddoui, [1991] 3 S.C.R. ix; Paper Machinery Ltd. v. J. O. Ross Engineering Corp., [1934] S.C.R. 186.
By Sopinka J.
Referred to: Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154; R. v. Keegstra, [1990] 3 S.C.R. 697; R. v. Seaboyer, [1991] 2 S.C.R. 577; R. v. Levogiannis, [1993] 4 S.C.R. 475; R. v. Oakes, [1986] 1 S.C.R. 103; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; R. v. Downey, [1992] 2 S.C.R. 10; R. v. Chaulk, [1990] 3 S.C.R. 1303; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; Schachter v. Canada, [1992] 2 S.C.R. 679; R. v. Holmes, [1988] 1 S.C.R. 914; Knodel v. British Columbia (Medical Services Commission) (1991), 58 B.C.L.R. (2d) 356.
By L'Heureux‑Dubé J.
Referred to: Mills v. The Queen, [1986] 1 S.C.R. 863; R. v. Meltzer, [1989] 1 S.C.R. 1764; Bar of the Province of Quebec v. Ste‑Marie, [1977] 2 S.C.R. 414; R. v. Morgentaler, Smoling and Scott (1984), 41 C.R. (3d) 262; R. v. Cranston (1983), 60 N.S.R. (2d) 269; Kourtessis v. M.N.R., [1993] 2 S.C.R. 53; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; R. v. Swietlinski, [1994] 3 S.C.R. 481; R. v. Vaillancourt (1990), 76 C.C.C. (3d) 384; R. v. Gardiner, [1982] 2 S.C.R. 368; Hill v. The Queen, [1977] 1 S.C.R. 827; R. v. Barnes, [1991] 1 S.C.R. 449; R. v. MacKenzie, [1993] 1 S.C.R. 212; R. v. Jewitt, [1985] 2 S.C.R. 128.
Statutes and Regulations Cited
Act respecting Larceny and other similar Offences, S.C. 1869, c. 21, ss. 31, 32.
Canadian Charter of Rights and Freedoms , ss. 1 , 7 , 11( c ) , (d).
Constitution Act , 1982 , s. 52 .
Criminal Code , R.S.C. 1927, c. 36, s. 424 [rep. & sub. 1938, c. 44, s. 22].
Criminal Code , R.S.C., 1985, c. C‑46 [am. c. 27 (1st Supp.)], ss. 256, 394(1)(b), (c), 465(1)(c), 674, 676(1)(c), 693(1)(a), (b) [rep. & sub. c. 34 (3rd Supp.), s. 12].
Criminal Code, S.C. 1953‑54, c. 51, s. 337.
Ontario Court of Appeal Criminal Appeal Rules, SI/93‑169.
Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 59.06(1).
Supreme Court Act , R.S.C., 1985, c. S‑26 , ss. 2 , 40(1) [rep. & sub. 1990, c. 8, s. 37], (3), 53.
Authors Cited
House of Commons Debates, 2nd Sess., 11th Parl., January 19, 1910, p. 2166.
Sopinka, John, and Mark A. Gelowitz. The Conduct of an Appeal. Toronto: Butterworths, 1993.
APPEAL from a judgment of the Ontario Court of Appeal (1992), 74 C.C.C. (3d) 538, 15 C.R. (4th) 198, 10 C.R.R. (2d) 321, 56 O.A.C. 97, varying a judgment of the Ontario Court (General Division) (1990), 62 C.C.C. (3d) 375, 4 C.R.R. (2d) 185, declaring s. 394(1) (b) of the Criminal Code to be of no force and effect. Appeal allowed in part.
David Butt, for the appellant.
Marc Rosenberg and Alison Wheeler, for the respondents Laba, Lebrun and Tichinoff.
James Wallbridge, for the respondent Timm.
Elaine F. Krivel, Q.C., and Robert J. Frater, for the intervener the Attorney General of Canada.
The judgment of Lamer C.J. and Sopinka, Cory, McLachlin, Iacobucci and Major JJ. was delivered by
I. Lamer C.J. -- There are really three issues in this appeal: (1) does this Court have the jurisdiction to hear the appeal? (2) does s. 394(1) (b) of the Criminal Code , R.S.C., 1985, c. C-46 , infringe s. 11( d ) of the Canadian Charter of Rights and Freedoms ? and (3) if the answer to question 2 is in the affirmative, is s. 394(1) (b) of the Criminal Code a reasonable limit on the s. 11(d) right pursuant to s. 1 of the Charter ? In these reasons, I will address only the first of these issues. Justice Sopinka will address the second and third in his reasons.
I. Relevant Statutory Provisions
II. The relevant statutory provisions are as follows:
Criminal Code , R.S.C., 1985, c. C-46
674. No proceedings other than those authorized by this Part and Part XXVI shall be taken by way of appeal in proceedings in respect of indictable offences.
693. (1) Where a judgment of a court of appeal sets aside a conviction pursuant to an appeal taken under section 675 or dismisses an appeal taken pursuant to paragraph 676(1)(a), (b) or (c) or subsection 676(3), the Attorney General may appeal to the Supreme Court of Canada
(a) on any question of law on which a judge of the court of appeal dissents; or
(b) on any question of law, if leave to appeal is granted by the Supreme Court of Canada.
Supreme Court Act , R.S.C., 1985, c. S-26
2. (1) In this Act,
. . .
"final judgment" means any judgment, rule, order or decision that determines in whole or in part any substantive right of any of the parties in controversy in any judicial proceeding;
. . .
"judgment", when used with reference to the court appealed from, includes any judgment, rule, order, decision, decree, decretal order or sentence thereof, and when used with reference to the Supreme Court, includes any judgment or order of that Court;
40. (1) Subject to subsection (3), an appeal lies to the Supreme Court from any final or other judgment of the Federal Court of Appeal or of the highest court of final resort in a province, or a judge thereof, in which judgment can be had in the particular case sought to be appealed to the Supreme Court, whether or not leave to appeal to the Supreme Court has been refused by any other court, where, with respect to the particular case sought to be appealed, the Supreme Court is of the opinion that any question involved therein is, by reason of its public importance or the importance of any issue of law or any issue of mixed law and fact involved in that question, one that ought to be decided by the Supreme Court or is, for any other reason, of such a nature or significance as to warrant decision by it, and leave to appeal from that judgment is accordingly granted by the Supreme Court.
. . .
(3) No appeal to the Court lies under this section from the judgment of any court acquitting or convicting or setting aside or affirming a conviction or acquittal of an indictable offence or, except in respect of a question of law or jurisdiction, of an offence other than an indictable offence.
II. The Procedural Background
III. On October 20, 1989, the respondents were charged with conspiracy to commit the indictable offence of selling or purchasing any stolen rock, mineral, or other substance that contains precious metals contrary to ss. 394(1) (b) and 465(1) (c) of the Criminal Code .
IV. On December 15, 1989, the respondents brought a pre-trial motion before Boissonneault J. challenging the constitutional validity of s. 394(1) (b) of the Criminal Code under ss. 7 , 11( c ) , and 11( d ) of the Charter . The parties agreed to proceed by filing written arguments followed by oral submissions. At the hearing of the motion on May 8, 1990, the Crown objected to the hearing, arguing that it was premature and that the constitutional validity of legislation should not be determined in a factual vacuum -- although the written submissions presented evidence relating to the purpose and background of s. 394(1)(b), no evidence was tendered relating to the commission of the offence.
V. On November 13, 1990, Boissonneault J. overruled the Crown's objections because: (1) all parties had agreed to proceed by way of written argument followed by oral submissions and a determination; (2) it was not necessary to have a full factual context in order to rule on the constitutionality of the section; and (3) the trial for conspiracy that would provide the full factual context would be lengthy and might prove unnecessary. He therefore ruled on the motion and declared that s. 394(1)(b) violated the presumption of innocence in s. 11( d ) of the Charter , was not saved by s. 1 of the Charter , and so was of no force or effect: (1990), 62 C.C.C. (3d) 375.
VI. In light of this ruling, on January 14, 1991, Boissonneault J. granted the respondents' application for a stay of proceedings on the ground that the substantive offence under which the respondents were charged was of no force or effect.
VII. The Crown appealed from this ruling on the grounds of error in hearing and deciding the constitutional challenge prior to the hearing of evidence on the charges and in holding that s. 394(1)(b) was not a reasonable limit, pursuant to s. 1 of the Charter , of the right to be presumed innocent in s. 11( d ) of the Charter .
VIII. In reasons released June 16, 1992, 74 C.C.C. (3d) 538, Tarnopolsky J.A. considered the argument that the trial judge erred in hearing and deciding the constitutional challenge prior to the hearing of evidence on the charges. He concluded (at p. 546) that:
Therefore, there is clear and recent jurisprudence of the Supreme Court of Canada and of this court indicating that, in certain circumstances, perhaps more particularly when the focus of a case is on s. 1, it is proper to proceed with a constitutional challenge to a criminal law provision in the absence of adjudicative facts. In light of the Crown's admission that adjudicative facts would not ameliorate the hearing of this appeal, this is a proper case in which one could proceed in their absence. Moreover, there are legislative facts before the court, which were tendered by both the Crown and the respondents and were identified as sufficient by the trial judge. Neither counsel has been able to point to anything else that the court ought to know in order to proceed. On that basis, the record here, which will be amplified in the next part, is sufficient for the appeal to be heard in its current form.
IX. The appellant conceded that the reverse onus provision in s. 394(1) (b) of the Criminal Code contravened the presumption of innocence guaranteed by s. 11( d ) of the Charter and therefore Tarnopolsky J.A. examined only the question of whether the violation could be saved as a reasonable limit under s. 1 of the Charter . He concluded that the appellant had not met the onus of proving that the reverse onus clause was a reasonable limit within the meaning of s. 1 of the Charter . He concluded (at p. 552):
As mentioned earlier, the motion judge held that all of s. 394(1)(b) was of no force and effect. However, this is not necessary, as it is only the reverse onus clause in that provision that is unconstitutional. The rest of s. 394(1)(b) is not affected. It provides for the offence, the constitutional validity of which is not in question. Therefore, I would allow the appeal to the extent that all of s. 394(1)(b) was struck down, but would dismiss it with respect to the invalidity of the reverse onus clause. Thus, I would merely strike out the words "he establishes that", in that provision. [Emphasis in original.]
The Court of Appeal issued the following order:
THIS COURT DID ORDER the appeal against the Order should be and the same was thereby allowed to the extent that, with the exception of the words "he establishes that" which are struck out, the validity of the remainder of section 394(1) (b) of the Criminal Code of Canada is upheld.
III. Analysis
X. The first issue in the case at bar is whether this Court has jurisdiction to hear the Crown's appeal against the Court of Appeal decision. The appellant claimed that the appeal to the Court of Appeal was dismissed and therefore this Court has jurisdiction to hear the appeal under s. 693(1) (b) of the Criminal Code . The respondents claimed that the appeal to the Court of Appeal was allowed and therefore this Court does not have jurisdiction to hear the appeal under s. 693(1)(b). I will conclude that the appeal against the stay of proceedings to the Court of Appeal was allowed and therefore this Court does not have jurisdiction to hear the appeal under s. 693(1)(b). However, I will also conclude that this Court has jurisdiction to hear an appeal against the reading out of the reverse onus clause of s. 394(1) (b) of the Criminal Code under s. 40(1) of the Supreme Court Act .
XI. Before going any further, I should note that the specific jurisdictional issue in this case relates to the more general issue of appellate jurisdiction with regard to challenges under s. 52 of the Constitution Act, 1982 to the constitutionality of laws and to the even more general issue of the proper conduct of s. 52 proceedings. My analysis will be grounded in the following premise: when the constitutionality of a law is challenged in the context of criminal proceedings, there are effectively two proceedings -- the proceedings directed at a determination of culpability and the proceedings directed at a determination of constitutionality. They will usually proceed together but may, on occasion, proceed separately. These two proceedings will usually, but need not always, be governed by the same rules and practices. While I will confine my remarks to the issue of jurisdiction, I must acknowledge that there will be implications of this analysis for other issues (the admissibility of evidence, intervener status, etc.). However, I leave the discussion of these implications to future cases in which these other issues actually arise.
A. Section 693(1) (b) of the Criminal Code
XII. Section 693(1) (b) of the Criminal Code states that:
693. (1) Where a judgment of a court of appeal sets aside a conviction pursuant to an appeal taken under section 675 or dismisses an appeal taken pursuant to paragraph 676(1)(a), (b) or (c) or subsection 676(3), the Attorney General may appeal to the Supreme Court of Canada
. . .
(b) on any question of law, if leave to appeal is granted by the Supreme Court of Canada. [Emphasis added.]
Therefore, this Court only has jurisdiction to hear this appeal under s. 693(1)(b) if the Court of Appeal dismissed the Crown's appeal against the stay of proceedings. However, this appeal was not dismissed.
XIII. The argument here is quite simple: (1) appeals under the Criminal Code are against orders not reasons; (2) an appeal is allowed if an order is reversed even if the reasons for the reversal are not what the appellant would have liked them to be; (3) the order in the case at bar was a stay of proceedings; (4) the stay was lifted (albeit implicitly); therefore (5) the appeal was allowed. The first and third premises of this argument are uncontroversial. The conclusion follows deductively from the premises. However, the second and the fourth premises require some discussion.
XIV. The second premise of this argument is drawn from, and supported by, R. v. Barnes, [1991] 1 S.C.R. 449, R. v. MacKenzie, [1993] 1 S.C.R. 212, and R. v. Meddoui, [1991] 3 S.C.R. ix. In Barnes, I wrote at p. 466:
The Crown is not given by statute the ability to appeal to this Court a decision which allowed its appeal from an acquittal or judicial stay of proceedings, but which gave the Crown less than what had been requested. As a result, there is no statutory provision which would allow the Crown to appeal from the Court of Appeal's judgment. Absent a statutory right of appeal, there is no right of appeal. [Emphasis in original.]
In MacKenzie, La Forest J. wrote at pp. 228-29:
The problem for the Crown in this case is that the Court of Appeal allowed the Crown's appeal, albeit on a different issue than that which the Crown sought to pursue in this Court. The Crown's overall success in the court below precluded any further appeal, or cross-appeal, to this Court.
. . .
As in Barnes, a court of appeal has allowed a Crown appeal, thereby precluding any appeal, or cross-appeal, by the Crown to this Court. The subdivision of a case on appeal into discrete grounds does not assist the Crown in this regard: an unfavourable ruling by a court of appeal on one point of law is overtaken by the Crown's success on other grounds. [Emphasis in original.]
On the basis of this case law, I conclude that an appeal is allowed if an order is reversed even if the reasons for the reversal are not what the appellant would have liked them to be.
XV. The fourth premise of the argument is that the stay was lifted (albeit implicitly). At the end of his reasons, Tarnopolsky J.A. wrote (at p. 552):
. . . I would allow the appeal to the extent that all of s. 394(1)(b) was struck down, but would dismiss it with respect to the invalidity of the reverse onus clause. Thus, I would merely strike out the words "he establishes that", in that provision. [Emphasis in original.]
However, the formal order of the Court of Appeal reads:
THIS COURT DID ORDER the appeal against the Order should be and the same was thereby allowed to the extent that, with the exception of the words "he establishes that" which are struck out, the validity of the remainder of section 394(1) (b) of the Criminal Code of Canada is upheld.
Nowhere did the Court of Appeal explicitly state that the stay was lifted. However, the lifting of the stay is implicit in the formal order -- the appeal was for a lifting of the stay and, in the formal order, the Court of Appeal allowed the appeal. The omission on the part of the Court of Appeal to explicitly state that the stay was lifted could have been rectified in two ways (neither of which involved an appeal to this Court). First, the Crown could simply have proceeded to trial and, if faced with an objection from the defence, argued that the lifting of the stay could be read into the formal order. Second, the Court of Appeal could have been prevailed upon to explicitly lift the stay and give the Crown directions as to how to proceed. An appellate court has the power to amend a judgment which has been drawn up and entered. In Paper Machinery Ltd. v. J. O. Ross Engineering Corp., [1934] S.C.R. 186, this Court discussed an inherent jurisdiction in this Court to amend a judgment: "(1) Where there has been a slip in drawing it up, or (2) Where there has been error in expressing the manifest intention of the court" (p. 188). In Ontario, where the Criminal Appeal Rules, SI/93-169, adopt the rules governing appeals in civil cases, a motion might have been made pursuant to Rule 59.06(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Therefore, the Court of Appeal's failure to explicitly lift the stay should have been addressed by way of the Crown simply proceeding with a trial or making an application to the Court of Appeal rather than an appeal to this Court. Thus, although the stay was not lifted explicitly, it was lifted implicitly.
XVI. I therefore conclude that the appeal was allowed and, accordingly, this Court has no jurisdiction under s. 693(1)(b) to hear the appeal.
B. Section 40 of the Supreme Court Act
XVII. At first glance, s. 674 of the Criminal Code appears to preclude an appeal to this Court under s. 40 of the Supreme Court Act . Section 674 of the Criminal Code states that:
No proceedings other than those authorized by this Part and Part XXVI shall be taken by way of appeal in proceedings in respect of indictable offences.
However, for the reasons given in my judgment in Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835, s. 674 of the Criminal Code does not limit the jurisdiction provided to the Supreme Court of Canada by s. 40(1) of the Supreme Court Act in the circumstances of this case.
XVIII. At first glance, s. 40(3) of the Supreme Court Act also appears to preclude an appeal to this Court under s. 40 of the Supreme Court Act . Section 40(3) states that:
40. . . .
(3) No appeal to the Court lies under this section from the judgment of any court acquitting or convicting or setting aside or affirming a conviction or acquittal of an indictable offence or, except in respect of a question of law or jurisdiction, of an offence other than an indictable offence.
However, an appeal against a ruling on the constitutionality of a law is not an appeal from a judgment of any court acquitting or convicting or setting aside or affirming a conviction or acquittal of an indictable offence. Therefore, it is not precluded by s. 40(3).
XIX. Section 40(1) of the Supreme Court Act states that:
40. (1) Subject to subsection (3), an appeal lies to the Supreme Court from any final or other judgment of the Federal Court of Appeal or of the highest court of final resort in a province, or a judge thereof, in which judgment can be had in the particular case sought to be appealed to the Supreme Court, whether or not leave to appeal to the Supreme Court has been refused by any other court, where, with respect to the particular case sought to be appealed, the Supreme Court is of the opinion that any question involved therein is, by reason of its public importance or the importance of any issue of law or any issue of mixed law and fact involved in that question, one that ought to be decided by the Supreme Court or is, for any other reason, of such a nature or significance as to warrant decision by it, and leave to appeal from that judgment is accordingly granted by the Supreme Court.
XX. For an appeal under s. 40(1), the judgment appealed against must be the final or other judgment of the Federal Court of Appeal or of the highest court of final resort in a province, or a judge thereof, in which judgment can be had in the particular case. An appeal against a ruling on the constitutionality of a law that cannot be piggybacked onto proceedings set out in the Criminal Code is a judgment of the highest court of final resort in a province in which judgment can be had in the particular case for the purposes of s. 40(1). Therefore, this Court has jurisdiction under s. 40(1) to grant leave to appeal against a ruling on the constitutionality of a law that cannot be piggybacked onto proceedings set out in the Criminal Code .
XXI. To find otherwise would be to accept an absurd consequence. Consider the following example. In a trial on a charge of operating a motor vehicle while impaired, a Superior Court judge in Ontario declares s. 256 of the Criminal Code (warrants to obtain blood samples) unconstitutional and inoperative and rules that the evidence obtained as a result of a warrant under this section is inadmissible. Despite this declaration, the accused is convicted on the remaining evidence. The accused chooses not to appeal this conviction. The Crown cannot appeal against the conviction through the Criminal Code (because no such appeal is provided for by Parts XXI and XXVI of the Code). Unless the analysis I propose is accepted, s. 256 will remain inoperative in Ontario unless and until one of the following four scenarios transpires. First, a case involving s. 256 of the Criminal Code comes before another Superior Court judge in Ontario, this second judge disagrees with the first judge and declares the section constitutional, the accused is convicted, the accused appeals the conviction to the Court of Appeal, and the Court of Appeal affirms the conviction. Second, a case involving s. 256 comes before another Superior Court judge in Ontario, this second judge agrees with the first judge on the constitutionality issue and acquits the accused, the Crown appeals the acquittal to the Court of Appeal, and the Court of Appeal declares the section constitutional. Third, a case involving s. 256 comes before a Superior Court judge of another province or territory, this judge declares the section unconstitutional, the accused is acquitted, the Crown appeals the acquittal to the Court of Appeal, the Court of Appeal affirms the acquittal, and the Crown successfully appeals against the Court of Appeal decision at the Supreme Court of Canada. Fourth, a case involving s. 256 comes before a Superior Court judge in another province or territory, this second judge disagrees with the first judge and declares the section constitutional, the accused is convicted, the accused appeals the conviction to the Court of Appeal, and the Court of Appeal affirms the conviction, and the accused successfully appeals against the Court of Appeal decision to the Supreme Court of Canada. If ever a finding of unconstitutionality coincides with a conviction, no appeal against the finding of unconstitutionality will be available if the accused chooses not to appeal.
XXII. To me, such a consequence is absurd. First, the constitutionality of a law is left dependent upon the resolution of an issue completely unrelated to constitutionality, i.e., the guilt or innocence of the accused and upon his or her decision to appeal a conviction. Second, a law can be struck down by a Provincial or Superior Court judge and then left to hang there inoperative until some time in the future when another case on point happens to come before another judge and happens to result in a verdict that provides for an avenue of appeal through the Criminal Code . Just as an accused is entitled to his or her day in court, so too is the legislature. The legislature does not properly get this day in court if its ability to get to court on the issue of the constitutionality of a law is dependent upon the contingency of a particular finding of guilt or innocence coinciding with a Criminal Code avenue of appeal.
XXIII. In order to avoid such absurdities and to indicate the direction in which I believe the analysis of the proper procedures for s. 52 challenges should go, I adopt my "dual proceedings, s. 40" analytical approach to appeals against successful s. 52 challenges to the constitutionality of laws.
C. Application of the Law to the Facts of the Case
XXIV. The Crown's appeal against the Court of Appeal's ruling on the constitutionality of s. 394(1)(b) cannot be piggybacked onto proceedings set out in the Criminal Code . If the Crown proceeded to trial and the respondents were convicted, then there would be no order as to the constitutionality of the redrafted s. 394(1)(b) to appeal against. Therefore, the adverse constitutional ruling of the Court of Appeal is a judgment of the highest court of final resort and the Crown can seek leave to appeal under s. 40(1) of the Supreme Court Act . Therefore, this Court has jurisdiction to hear this appeal.
XXV. While the Crown did not seek leave under s. 40(1), this problem can be solved with a granting of leave by this Court under s. 40(1) proprio motu, nunc pro tunc, ex post facto.
XXVI. Since writing these my reasons, I have read those of my colleague Sopinka J. as regards the s. 1 issues, and I fully agree with him.
The reasons of La Forest and Gonthier JJ. were delivered by
XXVII. La Forest J. -- In my view, this Court has jurisdiction to hear the appeal under s. 693(1) (b) of the Criminal Code , R.S.C., 1985, c. C-46 , for the reasons set forth by Justice L'Heureux‑Dubé under the following heading in her reasons: 2. Section 693(1)(b) of the Criminal Code. On the substantive issues, I agree with Justice Sopinka and would dispose of the appeal and answer the constitutional questions in the manner he proposes.
The following are the reasons delivered by
XXVIII. L'Heureux-Dubé J. -- This case concerns the constitutionality of s. 394(1) (b) of the Criminal Code , R.S.C., 1985, c. C‑46 , under which the respondents were charged on October 20, 1989. As well, it raises a preliminary question concerning the jurisdiction of this Court to hear this appeal.
XXIX. I have had the opportunity to read the reasons of both the Chief Justice and Justice Sopinka. I agree with the Chief Justice that this Court has jurisdiction to hear this appeal. However, I disagree with his reasons. With respect to the substantive merits of the constitutional challenge, I agree with Sopinka J.'s reasons and with his disposition of the appeal. In these circumstances, I will deal only with the jurisdictional question.
I. The Procedural Background
XXX. As the Chief Justice has set forth the basic procedural background of this case in his reasons, it is not necessary for me to refer to it at length. For ease of reference, however, I will briefly summarize the proceedings in this case.
XXXI. On October 20, 1989, the respondents were charged under s. 394(1) (b) of the Criminal Code . On December 15, 1989, the respondents challenged the constitutionality of s. 394(1)(b) by way of a pre-trial motion before Boissonneault J. of the Ontario Court (General Division). Boissonneault J. considered the impugned provision and found that it violated s. 11( d ) of the Canadian Charter of Rights and Freedoms and was not a reasonable limit pursuant to s. 1 of the Charter : (1990), 62 C.C.C. (3d) 375, 4 C.R.R. (2d) 185. As a result, Boissonneault J. held that s. 394(1)(b) was of no force and effect and, on January 14, 1991, he issued a stay of proceedings.
XXXII. The appellant then appealed to the Ontario Court of Appeal. At the Ontario Court of Appeal, as before us, the appellant conceded that the reverse onus provision in the impugned section violated s. 11( d ) of the Charter . The Court of Appeal therefore only had to consider whether or not the reverse onus constituted a reasonable limit pursuant to s. 1 of the Charter . Tarnopolsky J.A., writing for the Court, held that the reverse onus did not constitute such a reasonable limit: (1992), 74 C.C.C. (3d) 538, 15 C.R. (4th) 198, 10 C.R.R. (2d) 321, 56 O.A.C. 97. However, unlike Boissonneault J., he did not hold that s. 394(1)(b) was of no force and effect in its entirety. Instead, he merely struck out the reverse onus clause. It is from this decision that the appellant appeals to this Court.
II. Jurisdiction of this Court to Hear this Appeal
XXXIII. The appellant submits that this Court has jurisdiction to hear this appeal by virtue of s. 693(1) (b) of the Criminal Code . The Chief Justice, on the other hand, concludes that s. 693(1)(b) does not provide this Court with jurisdiction to hear this appeal. Instead, he finds that such jurisdiction is conferred by s. 40(1) of the Supreme Court Act , R.S.C., 1985, c. S-26 . I will consider each of these jurisdictional alternatives in turn.
1. Section 40(1) of the Supreme Court Act
XXXIV. Section 40(1) of the Supreme Court Act reads as follows:
40. (1) Subject to subsection (3), an appeal lies to the Supreme Court from any final or other judgment of . . . the highest court of final resort in a province, or a judge thereof, in which judgment can be had in the particular case sought to be appealed to the Supreme Court, . . . and leave to appeal from that judgment is . . . granted by the Supreme Court.
XXXV. The Chief Justice concludes that s. 40(1) of the Supreme Court Act provides this Court with jurisdiction to hear this appeal by adopting what he terms the "dual proceedings, s. 40" analytical approach to appeals against the results of s. 52 challenges to the constitutionality of laws during criminal proceedings. Applying this analytical approach, the Chief Justice concludes, at p. 982, that:
An appeal against a ruling on the constitutionality of a law that cannot be piggybacked onto proceedings set out in the Criminal Code is a judgment of the highest court of final resort in a province in which judgment can be had in the particular case for the purposes of s. 40(1). Therefore, this Court has jurisdiction under s. 40(1) to grant leave to appeal against a ruling on the constitutionality of a law that cannot be piggybacked onto proceedings set out in the Criminal Code .
XXXVI. In other words, the Chief Justice holds that when the constitutionality of a law is challenged during a criminal proceeding, the constitutional challenge is effectively a separate proceeding. While it is usually decided in conjunction with the criminal issue, if it can no longer be piggybacked onto appellate proceedings set out in the Criminal Code , it can be appealed to the Supreme Court of Canada, with leave to appeal, by virtue of s. 40(1) of the Supreme Court Act .
XXXVII. With respect, I disagree with the Chief Justice's "dual proceedings, s. 40" approach for the following reasons.
XXXVIII. To begin, there is no doubt in my mind that the proceedings in question, including the constitutional challenge, are criminal proceedings. The proceedings arise out of a criminal trial and concern provisions of the Criminal Code . Since it is a well established principle that all criminal appeals must be specifically created by statute (Mills v. The Queen, [1986] 1 S.C.R. 863, at p. 959 (per McIntyre J.); R. v. Meltzer, [1989] 1 S.C.R. 1764, at p. 1774), for an appeal to this Court to be possible in the case at hand, it too must be specifically established by statute. The Chief Justice suggests that the statutory authority for an appeal to this Court in the case at hand is provided by virtue of s. 40(1) of the Supreme Court Act . However, this case concerns an appeal from an interlocutory ruling arising out of a pre-trial motion. While s. 40(1) has in the past been held to provide this Court with jurisdiction to hear interlocutory appeals in civil matters (Bar of the Province of Quebec v. Ste-Marie, [1977] 2 S.C.R. 414), it has not been so interpreted with respect to interlocutory criminal appeals. Furthermore, it is well settled that there should be no interlocutory criminal appeals: Mills, supra; Meltzer, supra; Sopinka and Gelowitz, The Conduct of an Appeal (1993), at pp. 78-79. Consequently, the Chief Justice's "dual proceedings, s. 40" approach, is, in my view, inconsistent with the jurisprudence of this Court concerning interlocutory criminal appeals in that it appears to open the door to such appeals, a door which, as I already mentioned, was firmly closed by this Court in Mills, supra, and Meltzer, supra. For example, at p. 959 of Mills, supra, McIntyre J., writing on behalf of himself, Beetz and Chouinard JJ., held:
The question has been raised as to whether there can be something in the nature of an interlocutory appeal in which a claimant for relief under s. 24(1) of the Charter may appeal immediately upon a refusal of his claim and before the trial is completed. It has long been a settled principle that all criminal appeals are statutory and that there should be no interlocutory appeals in criminal matters. This principle has been reinforced in our Criminal Code (s. 602 [now s. 674], supra) prohibiting procedures on appeal beyond those authorized in the Code. It will be observed that interlocutory appeals are not authorized in the Code. [Emphasis added.]
As a result, it was held in Mills (at p. 959) that:
The appeal will follow the normal, established procedure. When the trial is completed the appeal may be taken against the decision or verdict reached and the alleged error in respect of the claim for Charter relief will be a ground of appeal.
XXXIX. This reasoning is equally applicable in the case at hand. While it is true that both Mills, supra, and Meltzer, supra, dealt with the possibility of appealing interlocutory criminal rulings under s. 24(1) of the Charter , the same reasoning applies, in my view, to a constitutional challenge under s. 52 of the Constitution Act, 1982 . There are strong policy reasons for not permitting such interlocutory criminal appeals. Specifically, such appeals, if permitted, would fragment the criminal trial process and cause potentially lengthy delays: R. v. Morgentaler, Smoling and Scott (1984), 41 C.R. (3d) 262 (Ont. C.A.), at pp. 273-74, and R. v. Cranston (1983), 60 N.S.R. (2d) 269 (C.A.).
XL. Admittedly, this appeal raises somewhat special circumstances in that it is from a pre-trial motion that has already been heard at both the trial level and on appeal to the Court of Appeal. The appellate proceedings at the Court of Appeal were expressly authorized by s. 676(1) (c) of the Criminal Code in light of the imposition of a stay of proceedings by the Ontario Court (General Division). Nonetheless, since the stay was lifted by the Court of Appeal, the proceedings at issue clearly are interlocutory in nature. Consequently, unless expressly authorized, no appeal should be permitted from the Court of Appeal decision. To hold otherwise would open the door to interlocutory criminal appeals from a wide assortment of pre-trial motions.
XLI. I am buttressed in this conclusion by La Forest J.'s reasoning in Kourtessis v. M.N.R., [1993] 2 S.C.R. 53. Kourtessis concerned the constitutionality of s. 231.3 of the Income Tax Act, which authorized the issuance of search warrants. However, as here, a preliminary jurisdictional question was raised regarding the jurisdiction of this Court to hear the appeal in question. Two sets of reasons, concurring in the result, were written. Each received the support of three judges. La Forest J., writing for himself, myself and Cory J., held that the constitutional challenge in question was a criminal proceeding and that if the Criminal Code did not provide an appeal route none was available. The same is true in the case at bar.
XLII. I do note, however, that in Kourtessis, supra, this Court allowed the challenge of the legislation to proceed by way of a declaration, noting (at pp. 86-87) that:
It by no means follows, however, that the declaratory judgment should be widely used as a separate collateral procedure to, in effect, create an automatic right of appeal where Parliament has, for sound policy reasons, refused to do so. It must be remembered that the inherent power of the courts to declare laws invalid is a discretionary one, and that discretion must be used on a proper basis. If the power is routinely used whenever any particular step in a criminal proceeding is thought to be unconstitutional, it would result in bringing through the back door all the problems Parliament sought to avoid by restricting appeals. [Emphasis added.]
Similarly, use of the "dual proceedings, s. 40" suggested by the Chief Justice would, in my opinion, bring through the back door all the problems sought to be avoided by limiting interlocutory criminal appeals and as a result should be rejected.
XLIII. A further difficulty with the Chief Justice's "dual proceedings, s. 40" approach arises from its similarity to the reference procedures under s. 53 of the Supreme Court Act . Consider, for example, the following scenario put forward by the Chief Justice, at pp. 982-83 of his reasons:
In a trial on a charge of operating a motor vehicle while impaired, a Superior Court judge in Ontario declares s. 256 of the Criminal Code (warrants to obtain blood samples) unconstitutional and inoperative and rules that the evidence obtained as a result of the warrant under this section is inadmissible. Despite this declaration, the accused is convicted on the remaining evidence. The accused chooses not to appeal this conviction.
Under the Chief Justice's "dual proceedings, s. 40" approach, the Crown would be permitted to appeal the constitutional finding of the trial judge regarding s. 256 of the Criminal Code directly to the Supreme Court of Canada, with leave to appeal. However, while the Crown is likely to actively participate in such an appeal, the accused is unlikely to do the same. After all, why should the accused spend money and resources to participate in proceedings that will not in any way affect his or her guilt or innocence or the length of his or her sentence. Thus, in such an appeal, the Court would hear from the appellant, but not the respondent. In addition, one or more interveners might choose to participate. In many ways, the resulting proceeding would be similar to a reference under s. 53 of the Supreme Court Act . A significant difference, however, would be that the resulting proceeding would be started by a decision of the provincial Attorney General, while a reference under s. 53 of the Supreme Court Act must be started by the Governor in Council. Thus, the Chief Justice's "dual proceedings, s. 40" approach effectively confers upon provincial Attorneys General the ability to "refer" federal criminal legislation to the Supreme Court on a "reference"-type proceeding. In my opinion, such an expansion of the "reference" jurisdiction of this Court should be left to Parliament.
XLIV. The arguments outlined above are, in my opinion, sufficient to warrant rejecting the Chief Justice's "dual proceedings, s. 40" approach. However, I also have one further concern. Specifically, the Chief Justice's "dual proceedings, s. 40" approach may be inconsistent with s. 674 of the Criminal Code , which provides that:
No proceedings other than those authorized by this Part and Part XXVI shall be taken by way of appeal in proceedings in respect of indictable offences.
To address this issue, the Chief Justice holds (at p. 981) that:
. . . s. 674 of the Criminal Code does not limit the jurisdiction provided to the Supreme Court of Canada by s. 40(1) of the Supreme Court Act in the circumstances of this case.
In support of this proposition, he relies on his reasons in Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835. In Dagenais, he refers to cases such as R. v. Swietlinski, [1994] 3 S.C.R. 481; R. v. Vaillancourt (1990), 76 C.C.C. (3d) 384 (S.C.C.); R. v. Gardiner, [1982] 2 S.C.R. 368; Hill v. The Queen, [1977] 1 S.C.R. 827; R. v. Barnes, [1991] 1 S.C.R. 449; and R. v. MacKenzie, [1993] 1 S.C.R. 212. However, while these cases all appear to implicitly hold that s. 40(1) of the Supreme Court Act is not limited by s. 674 of the Criminal Code , none of these cases explicitly refer, in this respect, to s. 674 of the Criminal Code or to its interaction with s. 40(1) of the Supreme Court Act . Consequently, it is not clear from these cases that this Court's jurisdiction under s. 40(1) of the Supreme Court Act is in all circumstances unaffected by s. 674 of the Criminal Code . In addition, it is not clear that these cases support the Chief Justice's conclusion with respect to the interaction between s. 40(1) and s. 674 in the case at hand. While I do not find it necessary on the facts of this case to rule conclusively on this question, I do find it necessary to emphasize that the exact nature of the interaction between s. 674 of the Criminal Code and s. 40(1) of the Supreme Court Act remains an open question.
XLV. Therefore, for all of the above reasons, I reject the Chief Justice's "dual proceedings, s. 40" approach and conclude that s. 40 of the Supreme Court Act does not provide this Court with jurisdiction to hear the present appeal. However, even if I had accepted the Chief Justice's "dual proceedings, s. 40 " approach, which I do not, I would have still found, on the facts of this case, that s. 40(1) of the Supreme Court Act does not provide this Court with jurisdiction to hear this appeal. Specifically, I would have found that this case does not satisfy the criteria under the "dual proceedings, s. 40 " approach for an appeal to this Court from a constitutional ruling in a criminal proceeding. This is because, in this case, certain proceedings, including a trial and any subsequent appeals, are still pending. As a result, the constitutionality of s. 394(1)(b) might still arrive before this Court through normal appellate procedures and it is impossible to conclude that the constitutional question at issue could not ultimately be "piggybacked onto proceedings set out in the Criminal Code ".
2. Section 693(1) (b) of the Criminal Code
XLVI. Section 693(1)(b) reads as follows:
693. (1) Where a judgment of a court of appeal . . . dismisses an appeal taken pursuant to paragraph 676(1)(a), (b) or (c) or subsection 676(3), the Attorney General may appeal to the Supreme Court of Canada
. . .
(b) on any question of law, if leave to appeal is granted by the Supreme Court of Canada. [Emphasis added.]
XLVII. As the Chief Justice notes, given the wording in s. 693(1)(b), the jurisdiction of this Court to hear this appeal under s. 693(1)(b) turns on the meaning of "dismisses".
XLVIII. The Chief Justice argues that the Court of Appeal did not dismiss the Crown's appeal from the decision of the Ontario Court (General Division) and that as a result no appeal lies to this Court under s. 693(1)(b). Technically speaking, this is correct. The order of the Ontario Court (General Division) that was appealed to the Court of Appeal was an order granting a stay of proceedings. This stay of proceedings was lifted, albeit implicitly, by the Court of Appeal. Thus, technically speaking, the order was reversed and the appeal was allowed. However, in my opinion, such an analysis is an overly formalistic approach to appellate jurisdiction under the Criminal Code .
XLIX. In substance, this appeal concerned not the stay of proceedings, but the decision of the Ontario Court (General Division) to strike down s. 394(1) (b) of the Criminal Code on the grounds that it violated the Charter because of its reverse onus clause. With respect to this issue, the Crown, for all intents and purposes, lost its appeal. The Court of Appeal held that the reverse onus clause in s. 394(1)(b) infringed s. 11( d ) of the Charter and was not a reasonable limit pursuant to s. 1 of the Charter . However, instead of striking down the entire provision, the Court of Appeal held that the provision could stand but that the reverse onus clause would be struck out. Thus, effectively, the Ontario Court (General Division) and the Ontario Court of Appeal agreed on everything but the remedy. The Ontario Court (General Division) struck out the whole provision; the Ontario Court of Appeal only struck out the reverse onus provision. In other words, although on appeal the Crown won with respect to the remedy, it lost on every issue of substance it raised.
L. The Chief Justice suggests that in determining whether or not an appeal was dismissed we must look only at the order of the appellate court, not its reasons. Thus he advocates putting form above substance in determining whether or not an appeal was allowed. At page 978, he holds:
. . . an appeal is allowed if an order is reversed even if the reasons for the reversal are not what the appellant would have liked them to be.
LI. In arriving at this conclusion, the Chief Justice relies on R. v. Barnes, supra, and R. v. MacKenzie, supra. Specifically, he cites the following passage from Barnes (at p. 466):
The Crown is not given by statute the ability to appeal to this Court a decision which allowed its appeal from an acquittal or judicial stay of proceedings, but which gave the Crown less than what had been requested. [Emphasis in original.]
The Chief Justice also cites the following passage from MacKenzie (at pp. 228-29):
The problem for the Crown in this case is that the Court of Appeal allowed the Crown's appeal, albeit on a different issue than that which the Crown sought to pursue in this court. The Crown's overall success in the court below precluded any further appeal, or cross-appeal, to this Court.
. . .
As in Barnes, a court of appeal has allowed a Crown appeal, thereby precluding any appeal, or cross-appeal, by the Crown to this Court. The subdivision of a case on appeal into discrete grounds does not assist the Crown in this regard: an unfavourable ruling by a court of appeal on one point of law is overtaken by the Crown's success on other grounds. [Emphasis in original.]
LII. While I agree with the Chief Justice as to the relevance of the aforementioned cases, I disagree with his interpretation of these cases. In my view, the effect of these cases is to hold that one cannot appeal reasons when one enjoyed "overall success in the court below" (MacKenzie, supra). This does not mean that form must triumph over substance in determining whether or not such "overall success" was enjoyed. In fact, the language of La Forest J. in MacKenzie supports looking at the substance of the decision below in order to determine whether "an unfavourable ruling by a court of appeal on one point of law is overtaken by ... success on other grounds". Thus, I adopt a "substance over form" approach to the interpretation of the term "dismisses" in s. 693(1) (b) of the Criminal Code . This, of course, does not mean that an appellant can appeal under s. 693(1)(b) where it enjoyed "overwhelming success" but merely disagrees with some of the reasons offered by the appellate court. However, where the appellant suffered "overwhelming failure" at the Court of Appeal, as here, it would have the right to appeal to this Court, with leave, under s. 693(1) (b) of the Criminal Code , regardless of whether or not the appeal to the Court of Appeal was, technically speaking, dismissed.
LIII. I find support for such a "substance over form" approach to appellate jurisdiction in the decision of this Court in R. v. Jewitt, [1985] 2 S.C.R. 128. In Jewitt this Court held that a "stay of proceedings" is tantamount to an acquittal and therefore subject to appeal under the Criminal Code . This interpretation was later specifically endorsed by Parliament which amended the Criminal Code to make it clear that the Crown could appeal from such "stays of proceedings".
LIV. Such a "substance over form" interpretation is also consistent with my dissent in Barnes, supra, which rejected an interpretation of a general rule of appellate jurisdiction which "smack[ed] of formulaic justice" (p. 478).
3. Conclusion
LV. In conclusion, I find that this Court has jurisdiction to hear this appeal by virtue of s. 693(1) (b) of the Criminal Code . Even if this appeal can be classified as interlocutory in nature, it can proceed because it is authorized, in my view, by the express wording of s. 693(1) (b) of the Criminal Code .
III. Disposition
LVI. Having found that this Court has jurisdiction to hear this appeal by virtue of s. 693(1) (b) of the Criminal Code , I would dispose of the substantive merits of the constitutional challenge as does my colleague Sopinka J.
The judgment of Sopinka, Cory, McLachlin, Iacobucci and Major JJ. was delivered by
1 Sopinka J. -- I agree with the Chief Justice's conclusion that this Court has jurisdiction to hear this appeal under s. 40(1) of the Supreme Court Act , R.S.C., 1985, c. S-26 , and his reasons for arriving at that conclusion. In these reasons I will deal with the substantive issue in dispute, namely, the constitutionality of s. 394(1) (b) of the Criminal Code , R.S.C., 1985, c. C-46 . I should make it clear at the outset that the constitutionality of other subsections of s. 394 is not in issue in this appeal.
Background
2 The respondents were charged by an indictment dated October 20, 1989 with conspiracy to commit the indictable offence of selling or purchasing any stolen rock, mineral or other substance that contains precious metals, contrary to s. 394(1) (b) of the Criminal Code .
3 The Chief Justice has outlined the procedural history of these proceedings and I will content myself with mentioning only a few matters that are particularly pertinent to my reasons.
4 Boissonneault J., who struck down s. 394(1)(b) in its entirety, found that it violated s. 11( d ) of the Canadian Charter of Rights and Freedoms and was not saved by s. 1: (1990), 62 C.C.C. (3d) 375. In coming to this conclusion he was not persuaded by the affidavits filed by the Crown that the theft of precious metals is a significant problem. On appeal to the Court of Appeal the Crown conceded that there was an infringement of s. 11( d ) of the Charter but sought to reverse the judgment of Boissonneault J. on the ground that he erred in failing to save the impugned provision under s. 1 of the Charter . The Court of Appeal ((1992), 74 C.C.C. (3d) 538) concluded that the Crown had failed to discharge its burden of establishing that the reverse onus provision was a reasonable limit within the meaning of s. 1 of the Charter . It came to this conclusion on the basis that the Crown had failed to satisfy the first branch of the Oakes test, that is, that the objective of the provision was pressing and substantial. It therefore varied the judgment below by striking out the words "he establishes that" from the paragraph.
Issues
5 On August 10, 1993 I stated the following constitutional questions which set out the substantial issues in this appeal:
1.Does s. 394(1)(b) of the Criminal Code , R.S.C., 1985, c. C-46 , infringe s. 11( d ) of the Canadian Charter of Rights and Freedoms ?
2.If the answer to question 1 is in the affirmative, is s. 394(1) (b) of the Criminal Code a reasonable limit on the s. 11( d ) Charter right, pursuant to s. 1 of the Charter ?
6 The preliminary point relating to prematurity which was resolved below adversely to the Crown was not renewed in this Court. It is, therefore, not necessary to deal with it here.
Relevant Statutory Provisions
Criminal Code , R.S.C., 1985, c. C-46
394. (1) Every one is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years who
. . .
(b) sells or purchases any rock, mineral or other substance that contains precious metals or unsmelted, untreated, unmanufactured or partly smelted, partly treated or partly manufactured precious metals, unless he establishes that he is the owner or agent of the owner or is acting under lawful authority; or
Canadian Charter of Rights and Freedoms
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
11. Any person charged with an offence has the right
. . .
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;
Constitution Act, 1982
52. (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.
Analysis
1. Does s. 394(1)(b) violate s. 11(d) of the Charter ?
7 Both in this Court and in the Court of Appeal the Crown conceded that the reverse onus in s. 394(1)(b) violates s. 11( d ) of the Charter because it is open for a person to be convicted under that provision even if there is a reasonable doubt as to whether he or she was entitled to buy or sell the precious metal. There is no doubt in my mind that this concession was properly made and that the parties were correct in proceeding on the basis that the only point in issue is whether s. 394(1) (b) of the Criminal Code constitutes a reasonable limit on the s. 11( d ) Charter right pursuant to s. 1 of the Charter .
8 Nonetheless I must emphasize that s. 394(1)(b) does not constitute either a trivial or a technical impairment of the Charter right. The purpose of s. 394(1)(b) is clearly to criminalize trade in stolen precious metal ore. It does not apply to legitimate transactions, i.e., transactions performed by persons who are the owner or agent of the owner or are acting under some form of lawful authority. Since s. 394(1)(b) requires the accused to prove ownership, agency or lawful authority on the balance of probabilities it is possible for a person to be convicted under the section despite the presence of a reasonable doubt as to whether they were engaged in a legitimate transaction. In other words, s. 394(1)(b) permits accused persons to be convicted despite the presence of a reasonable doubt as to their guilt. This directly contravenes the presumption of innocence enshrined in s. 11( d ) of the Charter .
9 There is a wide range of innocent people who could be caught within the ambit of s. 394(1)(b) and could conceivably be unable to prove that their purchase or sale of ore was legitimate. For example, a tourist who purchases a souvenir containing precious metal ore from a gift shop in a city such as Timmins where such products are available might not be able to meet the burden of proof unless at the time of purchase she demanded and obtained admissible evidence from the seller establishing that he was the owner etc. or was in a position to call the seller as a witness. Section 394(1)(b) strikes at the heart of the protection afforded by s. 11(d) by increasing the likelihood that the innocent will be convicted.
2. Can s. 394(1)(b) be upheld as a reasonable limit under s. 1 of the Charter ?
(a)The context in which s. 394(1)(b) operates
10 It is now well established that the Charter is to be interpreted in light of the context in which it is being applied. The importance of the contextual approach was recognized by Wilson J. in Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326, at pp. 1355-56, and her comments have been cited with approval in numerous subsequent decisions: see, e.g., R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154, at p. 225; R. v. Keegstra, [1990] 3 S.C.R. 697, at p. 734; R. v. Seaboyer, [1991] 2 S.C.R. 577, at p. 647, and R. v. Levogiannis, [1993] 4 S.C.R. 475, at p. 483. This jurisprudence reveals that the historical, social and economic context in which a Charter claim arises will often be relevant in determining the meaning which ought to be given to Charter rights and is critical in determining whether limitations upon those rights can be justified under s. 1. Consequently, I find it useful to examine the historical, social and economic context in which s. 394(1)(b) operates in order to determine whether it constitutes a reasonable limit upon the right to be presumed innocent.
11 The offence created by s. 394(1)(b) can be traced back to s. 31 of the Act respecting Larceny and other similar Offences, S.C. 1869, c. 21. That provision made it an offence to sell or purchase gold or silver ore, except to or from an owner or agent thereof of mining claims being worked, or a person duly authorized by a mining official. Section 32 of the same Act made it an offence to purchase ore from anyone other than an owner or authorized seller without executing and filing a receipt. These two offences were eventually replaced by a single section, with the substance of s. 32 being dropped.
12 A reverse onus provision similar to the one now contained in s. 394(1)(b) was first introduced in 1938 when without debate Parliament amended s. 424 of the Criminal Code , R.S.C. 1927, c. 36. As a result, s. 424(1)(b) provided that everyone who "sells or purchases any rock, ore . . . unless such purchaser or seller is one to which this section does not apply by virtue of the provisions of subsection three . . ." was guilty of an indictable offence. Subsection 3 exempted from s. 424(1)(b) the owner or agent of the owner of mining claims then being worked, a person duly authorized by the proper officer, or any other purchaser who executed and filed an instrument recording the details of the transaction. Subsection 3 concluded by providing that in any prosecution under para. 1(b) "the burden of proof that the accused person is a person to whom the said paragraph (b) does not apply . . . shall be upon the accused".
13 I note that in this predecessor of s. 394(1)(b) the burden of proof imposed upon both the seller and the purchaser was the same. This meant that in the case of a purchaser proof was required that the person from whom he or she purchased was either an owner, agent of the owner or a person duly authorized or that the purchaser had executed and filed the necessary record of the transaction.
14 The current version of s. 394(1)(b) was enacted in the 1953-54 edition of the Code, c. 51, s. 337. It consolidated s. 424(1)(b) and subsection 3 making it an offence to sell or purchase minerals unless the seller or purchaser establishes "that he is the owner or agent of the owner or is acting under lawful authority". In view of the history of the section, it is apparent that a purchaser must establish that the person from whom he purchased is the owner etc. and not that the purchaser is the owner etc. as the literal reading of the subsection would suggest. The submissions on behalf of the Crown that discharge of the legal burden should occasion no serious difficulty in the case of a seller fail to address the plight of a purchaser who would virtually be required to obtain proof of the seller's credentials at the time of purchase. Oral assurances from the seller would not avail as these would be hearsay when offered in evidence by the purchaser.
15 The appellant and the intervener the Attorney General of Canada have tendered a great deal of evidence concerning whether the theft of and illegal trade in precious metal ore continues to be a pressing social problem requiring the continued existence of the offence created by s. 394(1)(b). The appellant has filed affidavits sworn by several gold mine managers from the Timmins area and an official with the Ontario Mining Association. Pursuant to an order of the Chief Justice the intervener was granted leave to file fresh evidence concerning the scope of the problem presented by theft of gold in the Yukon and Quebec. The parties have also filed fresh scientific evidence concerning the efficacy of a technique known as "gold fingerprinting" which allegedly permits scientists to match samples of gold with samples taken from the mines at which they originated. This scientific evidence was not available at the time of the hearing before the Court of Appeal.
16 The thrust of the evidence filed by the appellant and the intervener is that, as far as the gold mining industry in Ontario and Quebec is concerned, theft of raw gold is a serious problem. To the extent that it reduces the profitability of mining operations theft of raw gold threatens the viability of those operations and thus jeopardizes the economic benefits associated with the mining industry. Estimates of the losses due to theft of raw ore ranged from a low of $500,000 per year at one mine to a possible high of $2,250,000 at another mine. The theft of high-grade ore (sometimes known simply as high-grading) is easy because it is not difficult for an unscrupulous person to chip off or even crush and clean the ore while underground without being detected. Once the ore has been crushed and cleaned it is difficult if not impossible to trace to its source using currently available technology.
17 The situation in the Yukon is slightly different because of the prevalence of placer mines (as opposed to the "hard-rock" mines found in Ontario and Quebec). Placer mining is the process by which gold is recovered from stream and river valley gravels by passing it through sluice boxes. The nature of placer mining operations makes them extremely vulnerable to theft. The fact that most are small with modest profit margins means that they cannot afford security personnel or systems. Employees have access to gold during sluicing operations, as well as during clean-ups and processing. Much of the gold recovered in sluicing operations is in the form of small nuggets which can easily be secreted in an employee's clothing. Although theft is regarded as a significant problem for the placer mining industry, it is impossible to document the extent of theft from placer mines because no mine operator can know exactly how much gold was in the area mined.
18 The opinions with respect to the extent of the problem are weakened by the fact that they are not supported by either statistics, details or facts. In this regard the trial judge stated (at p. 381):
I accept mine managers as experts in their field. I question however the facts upon which they relied to arrive at their conclusion that theft of precious metals is a significant problem in their respective operations. The estimates of actual losses are not supported by any evidence. Anticipated losses are not supported by fact. There are no specific details or record keeping. This is not surprising in view of the nature of the property in question. Nevertheless I am left with presumptions.
19 This evidence has been supplemented by evidence admitted as fresh evidence on this appeal. The additional evidence, while somewhat more ample, suffers from the same frailty. Nevertheless, in light of the view that I take with respect to the proper approach to the first branch of the Oakes test, this evidence is of marginal importance and I am prepared to assume that it establishes that a serious problem exists with respect to theft of precious metals.
20 The evidence is equally inconclusive as to whether s. 394(1)(b) is an effective response to the problem posed by the theft of precious metal ore. On the one hand there is evidence that very few if any charges are laid under s. 394(1)(b) in any given year. On the other hand, members of the mining community claim that s. 394(1)(b) has deterred theft and that knowledge of its existence makes potential buyers reluctant to purchase gold from anyone not clearly in lawful possession of it. Several of the Ontario mine managers expressed the opinion that if the burden of proving ownership of gold was on the prosecution no convictions for high-grading would occur because it would be virtually impossible to prove ownership of stolen gold. This opinion evidence does not distinguish between different kinds of burdens.
21 On the other hand, the respondents rely on the development of a new technique which allows gold to be identified as coming from a particular source by a form of fingerprinting. The scientists whose evidence was tendered by the parties seem to agree that although gold fingerprinting permits stolen gold to be linked to a particular mine in certain circumstances there are a number of important limitations upon the effectiveness of the technique. The scientists explain that gold fingerprinting relies upon modern analytical techniques which permit mineralogists to identify and quantitatively measure concentrations of trace elements in mineral particles. These techniques can be used to link stolen gold to a particular mine by determining whether the trace elements in the sample of the gold whose origin is in dispute match the trace elements in samples taken from a particular mine or mineral deposit. However, it appears that given the current state of technical knowledge it may be difficult to make such a link if the known source has mineral deposits which are highly variable in terms of the trace elements which they contain or if the unknown sample has been refined (thus potentially altering the trace elements which it contains).
22 It is particularly difficult to identify gold obtained from a placer mining operation because the gold particles found in placer mines may be derived from more than one deposit (and thus have different fingerprints) and because trace elements may be leached from or otherwise redistributed within placer gold grains. Another limitation on the effectiveness of the fingerprinting technique is that it depends on the existence of a known sample. At present no database of samples exists in Canada. The cost of establishing such a database is stated to be about $3.3 million and could be set up within one year.
(b) Does s. 394(1)(b) pass the Oakes test?
23 In the context of this background, I turn to the question whether s. 394(1)(b) can be upheld under s. 1 of the Charter . The test for determining whether this is the case was set out in R. v. Oakes, [1986] 1 S.C.R. 103, at pp. 138-39. Taking into account the modification suggested by the Chief Justice in his reasons in Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835, released concurrently herewith, the test can be stated as follows:
1) In order to be sufficiently important to warrant overriding a constitutionally protected right or freedom the impugned provision must relate to concerns which are pressing and substantial in a free and democratic society;
2) The means chosen to achieve the legislative objective must pass a three-part proportionality test which requires that they (a) be rationally connected to the objective, (b) impair the right or freedom in question as little as possible and (c) have deleterious effects which are proportional to both their salutary effects and the importance of the objective which has been identified as being of "sufficient importance".
(i)Pressing and Substantial Objective
24 I agree with the Attorney General of Canada that the objective of s. 394(1)(b) is the deterrence of theft of precious metal ore. In furtherance of this general objective, the specific objective of the reverse onus clause is to facilitate the prosecution of offenders given the special problem of proof to which I have referred above. I also agree that s. 394(1)(b) creates a "true criminal offence" and that like other true criminal offences involving activity bereft of social utility, it is an expression of society's repugnance to the conduct proscribed. In these circumstances, the Court can conclude, in the absence of extrinsic evidence as to the importance of the objective, that the subsection meets the first branch of the Oakes test.
25 With respect, I am of the opinion that the Court of Appeal erred in coming to a contrary conclusion. Given the nature of the enactment, I question the use of statistics as to the number of prosecutions. The paucity of prosecutions does not necessarily reflect on the seriousness of the problem. The statistics might be affected by a number of factors such as the priority which is given to enforcement by the police and the Crown.
26 Furthermore, the lack of evidence as to the role played by the reverse onus clause in furtherance of the objective appears to me to be relevant to the second branch of the Oakes test, that is, whether the means employed to achieve the objective are justifiable. The Court of Appeal, however, treated the absence of such evidence in combination with the paucity of prosecutions to deny the existence of a pressing and substantial objective.
(ii) Rational Connection
27 Parliament has chosen to achieve the objective of deterring theft of ore by proscribing trade in stolen ore and placing the onus upon the accused to show that the ore is not stolen. Both these measures strike me as rational responses to the problem posed by theft of precious metal ore. The criminalization of trade in stolen goods is a common and eminently sensible method of deterring theft. Where there is good reason to believe that it would be difficult for the Crown to prove that goods have been stolen it is rational to place some kind of burden of proving that they have not been stolen upon the accused. The situation would be different if developments in gold fingerprinting techniques were to make it easier for the Crown to prove the provenance of gold-bearing material. If this were the case it would not be so clear that the reverse onus was a rational means of achieving the legislative objective. However, the evidence before the Court suggests that technology has not yet advanced to this point.
28 Before moving on to consider the next step in the Oakes test I would like to address the respondents' argument that s. 394(1)(b) fails the rational connection test because it creates an unreasonable presumption that any ore which has been purchased or sold was stolen. This argument is premised upon the notion that in order for a legislatively created presumption to pass this portion of the Oakes test it must be internally rational in the sense that there is a logical connection between the presumed fact and the fact substituted by the presumption. This argument was made by the appellant in R. v. Downey, [1992] 2 S.C.R. 10. It was contended that a presumption which is not internally rational unduly enmeshes the innocent in the criminal process. This argument was not accepted by the majority. Consequently, I regard it as settled that there is no general requirement that a presumption be internally rational in order to pass the rational connection phase of the proportionality test. The only relevant consideration at this stage of the analysis is whether the presumption is a logical method of accomplishing the legislative objective. Later in these reasons, I will consider the relevance of this factor in connection with the final phase of the proportionality test.
(iii) Minimal Impairment
29 The second step in the inquiry into whether an impugned provision is a proportional means of achieving a given end is to determine whether the government has demonstrated that the provision impairs constitutionally protected rights or freedoms as little as possible. This usually involves determining whether alternative means of achieving the objective were available to Parliament.
30 The legislature is entitled to some deference in choosing the means of attaining a given objective. As Lamer C.J. stated in R. v. Chaulk, [1990] 3 S.C.R. 1303, at p. 1341, "Parliament is not required to search out and to adopt the absolutely least intrusive means of attaining its objective" (emphasis in original). However, it is also important to remember that this is not a case in which the legislature has attempted to strike a balance between the interests of competing individuals or groups. Rather it is a case in which the government (as opposed to other individuals or groups) can be characterized as the singular antagonist of an individual attempting to assert a legal right which is fundamental to our system of criminal justice. As the majority wrote in Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927 (at p. 994), in such circumstances the courts are in as good a position as the legislature to assess whether the least drastic means of achieving the governmental purpose have been chosen, especially given the inherently legal nature of the rights in question and the courts' accumulated experience in dealing with such matters.
31 In drafting s. 394(1)(b) Parliament could have chosen merely to place an evidentiary burden rather than a full legal burden of proving ownership, agency or lawful authority upon the accused. Under such a provision the accused would simply be required to adduce or point to evidence which, if accepted, would be capable of raising a reasonable doubt as to whether he was the owner or agent of the owner or was acting under lawful authority. If he or she succeeded in raising such a doubt the burden would shift to the Crown to prove the contrary beyond a reasonable doubt. If the Crown failed to dispel a reasonable doubt, the accused would be acquitted. Knowledge of the availability of this option must be imputed to Parliament since evidentiary burdens of this kind are and were commonly used to relieve the Crown of the burden of proving that an accused did not legitimately acquire possession of property.
32 The appellant has not demonstrated to my satisfaction that Parliament has chosen the alternative which impairs s. 11(d) as little as is reasonably possible. I, of course, take into account that Parliament should be accorded some leeway and need not choose the least restrictive alternative that can be imagined. Imposing a legal or persuasive burden on the accused in respect of an offence characterized as a true criminal offence is a serious impairment of s. 11(d). In my opinion, Parliament's purpose will be effectively served by the imposition of an evidential burden. A seller will have to testify or produce documents tending to show that he or she was either the owner or agent of the owner, or is duly authorized. A purchaser may be required to adduce viva voce evidence or produce a document tending to show that the person from whom he or she purchased the material was the owner, agent of the owner or duly authorized. In either case, the matter will have been narrowed to identify the basis of the seller's claim in the one case and the identity of the seller in the other. This will in most cases enable the Crown to produce testimony or documents disproving the claim that the seller or alleged seller is the owner or agent or is duly authorized.
33 Accordingly, I conclude that the Crown has not discharged its burden to establish that s. 394(1)(b) impairs the right to be presumed innocent embodied in s. 11( d ) of the Charter to the minimum extent reasonably necessary to achieve its objective. Having regard to the foregoing, however, the imposition of an evidentiary burden is justified in order to achieve Parliament's purpose.
(iv) Proportionality
34 In light of my conclusion that s. 394(1)(b) does not pass the minimal impairment stage of the Oakes test it is not essential for me to consider whether it passes the final stage of the test, namely the proportionality requirement. Therefore, as far as this portion of the test is concerned I will only reiterate my concern that s. 394(1)(b) permits the conviction of a wide range of innocent people and thus constitutes a serious violation of s. 11(d). This flows from the facts that the presumption contained in s. 394(1)(b) lacks any sort of internal rationality (i.e., it is not rational to presume from the fact that one has purchased or sold precious metal ore that the transaction was illegitimate) and that the burden of proof on the balance of probabilities is an onerous one which many innocent people may be unable to meet. I question whether the deterrence sought by s. 394(1)(b) justifies such a significant infringement of the right to be presumed innocent. Even if I were persuaded that the imposition of a legal burden was clearly more effective in achieving Parliament's objective, I would find that it fails the proportionality test because of the excessive invasion of the presumption of innocence having regard to the degree of advancement of Parliament's purpose.
35 On the other hand, I believe that the imposition of an evidentiary burden upon the accused is justified even though it still impairs the right to be presumed innocent. I find it unlikely that an innocent person will be unable to point to or present some evidence which raises a reasonable doubt as to their guilt. Although the imposition of an evidentiary burden violates the presumption of innocence I find that this only minimally increases the likelihood of an innocent person being convicted and represents a justifiable limitation upon the right to be presumed innocent.
Remedy
36 As pointed out above, Boissonneault J. struck out all of s. 394(1)(b) and stayed the proceedings. The Court of Appeal struck out the words "he establishes that" which create the reverse onus. It found that it was not necessary to strike the whole subsection because "only the reverse onus clause . . . is unconstitutional". They, however, found it unnecessary to consider the issue of minimal impairment, having concluded that the subsection failed the first branch of the Oakes test. In the circumstances, the Court of Appeal did not consider whether Parliament could achieve its objective by less invasive means. It follows that the Court of Appeal did not consider whether reducing the onus provision to an evidentiary burden was an appropriate remedy.
37 In view of the conclusion that I have reached on the s. 1 issue, the available alternative remedies are: (i) striking down the offending words, a remedy adopted by the Court of Appeal and supported in this Court by the respondents; and (ii) striking down the offending words coupled with reading in appropriate words to substitute an evidentiary burden. The latter remedy was supported by the Crown in the event that it failed in having the subsection saved under s. 1. The remedy adopted by the trial judge was not requested by the respondents and leave to cross-appeal was neither requested nor granted. Assuming that, in these circumstances this remedy were available, it would clearly be inappropriate having regard to the principles expressed hereafter.
38 In fashioning a remedy pursuant to s. 52 consequent on a Charter breach, the court must apply the measures which will best vindicate the values expressed in the Charter while refraining from intrusion into the legislative sphere beyond what is necessary. See Schachter v. Canada, [1992] 2 S.C.R. 679, at p. 707. With respect to the range of remedies the Chief Justice stated in Schachter, at p. 695:
A court has flexibility in determining what course of action to take following a violation of the Charter which does not survive s. 1 scrutiny. Section 52 of the Constitution Act, 1982 mandates the striking down of any law that is inconsistent with the provisions of the Constitution, but only "to the extent of the inconsistency". Depending upon the circumstances, a court may simply strike down, it may strike down and temporarily suspend the declaration of invalidity, or it may resort to the techniques of reading down or reading in.
39 Applying these criteria to this case I observe that Charter values are fully vindicated by removing from the subsection the words that impose a legal burden. Section 52 requires nothing more than removal of the words that create a legal burden. Substitution of words that reduce the legal burden to an evidentiary burden furthers the legislative objective while fully vindicating Charter values. Whether such substitution is more intrusive into the legislative sphere than simply striking down all reference to any obligation of the accused leaving the full legal and evidentiary burden on the Crown is the issue I must now address.
40 I have found that reducing the legal burden to an evidentiary burden will effectively further the legislative objective embodied in s. 394(1)(b). It follows that, prima facie, retention of this provision is less of an intrusion into the legislative sphere than striking it. As stated by Lamer C.J. in Schachter, at p. 697:
Where the offending portion of a statute can be defined in a limited manner it is consistent with legal principles to declare inoperative only that limited portion. In that way, as much of the legislative purpose as possible may be realized.
The case for retention is only prima facie because it may appear from all of the circumstances that it would not be safe to conclude that the legislature would have passed the provision in its altered form. The legislature may have preferred some alternative means to achieve its objective. Thus in Schachter the Chief Justice stated that it is relevant to ask the question whether it is safe to assume that the legislature would have enacted the legislation in its altered form. I propose to examine this question as it relates to the proposed revision of s. 394(1)(b).
41 There is nothing in the Parliamentary debates which would shed any light on whether there was any reason why Parliament would not have chosen words creating an evidentiary burden had it known at the time that adoption of a legal burden was not valid. As stated above the reverse onus was introduced without debate. There was, however, debate preceding the enactment of the predecessor of the companion subsection, which now is s. 394(1)(c), making it an offence to have possession of precious metals reasonably believed to have been stolen or dealt with contrary to the section. It too contains a reverse onus provision in identical language to s. 394(1)(b). The wording of the reverse onus provision (s. 424a) which was the subject of debate was slightly different and the subsection made it an offence if the accused "is unable to prove that he came lawfully by the same". The Minister of Justice, in explaining that reverse onus provisions had not caused problems in the past, referred to s. 988 of the Code which was the predecessor of s. 656 of the present Code. Then and now the section places an evidentiary burden on the accused. The Minister stated:
That [s. 988] has been our law for ten years or more. I do not know that any one has ever found any difficulty from it or been wrongfully prosecuted under it. This legislation [s. 424a] is on the same lines....
(House of Commons Debates, 2nd Sess., 11th Parl., January 19, 1910, p. 2166.)
When the predecessor of s. 394(1)(b) was enacted in 1938, it provided that the "burden of proof" was on the accused. In view of the fact that no clear distinction was being made between the legal burden and the evidentiary burden it is certainly arguable that Parliament in enacting these provisions intended no more than an evidentiary burden. The wording used is capable of this interpretation. In R. v. Holmes, [1988] 1 S.C.R. 914, this Court acknowledged that the words "without lawful excuse, the proof of which lies upon him" were capable of creating a legal burden but interpreted them to require the accused to raise a reasonable doubt. This is an interpretation which could be adopted in this case but I would hesitate to do so in view of the many provisions in the Criminal Code and other statutes employing the same wording, some of which may validly create a legal burden. I do, however, conclude from the foregoing and the fact that there are many provisions in the Criminal Code and other federal statutes that place an evidentiary burden on the accused, that it is safe to assume that Parliament would have enacted the subsection in question in this appeal but restricted to an evidentiary burden, if the option of a legal burden had not been available.
42 Nor do I consider that coupling the remedy of striking down and reading in is an undue intrusion on the legislative domain. Once the criteria to which I have referred above are satisfied, the technique employed to reach the result of the application of those criteria is more in the nature of mechanics than substance. Although the remedy which I consider appropriate on one view of the matter involves striking down and reading in, the same end result could be achieved by other techniques. As pointed out above, the reverse onus provision could be interpreted or read down to restrict it to an evidentiary burden. Indeed the net effect could also be considered as striking down only. While I have interpreted the words "he establishes" to amount to a legal burden, they include the evidentiary burden as well. Under the subsection as drafted the accused would not only be required to go forward with evidence but as well bears the burden of non-persuasion. The remedy I have adopted merely removes the latter from the subsection. In this regard it is useful to consider the following statement of Rowles J. in Knodel v. British Columbia (Medical Services Commission) (1991), 58 B.C.L.R. (2d) 356, at p. 388, which was quoted with approval by the Chief Justice in Schachter, at p. 699:
Accordingly, whether a court "reads in" or "strikes out" words from a challenged law, the focus of the court should be on the appropriate remedy in the circumstances and not on the label used to arrive at the result.
43 The Chief Justice went on to observe that the extent of the inconsistency can be defined conceptually rather than focusing on a verbal formula. When the inconsistency between s. 394(1)(b) and the Charter is defined in conceptual terms rather than purely in reference to the wording used by Parliament, it is manifest that the proposed remedy only involves striking down a portion of the subsection.
Disposition
44 I would answer the constitutional questions as follows:
1.Does s. 394(1)(b) of the Criminal Code , R.S.C., 1985, c. C-46 , infringe s. 11( d ) of the Canadian Charter of Rights and Freedoms ?
Yes.
2.If the answer to question 1 is in the affirmative, is s. 394(1) (b) of the Criminal Code a reasonable limit on the s. 11( d ) Charter right, pursuant to s. 1 of the Charter ?
No.
45 As a consequence, pursuant to s. 52 of the Constitution Act, 1982 , I would strike down the portion of s. 394(1)(b) which is unconstitutional by removing the portion which imposes the legal burden of proving ownership, agency or lawful authority upon the accused. I do not find it necessary to strike down the aspect of s. 394(1)(b) which imposes an evidentiary burden upon the accused.
46 In the result I would allow the appeal in part by affirming the lifting of the stay but varying the Court of Appeal's order to state that, pursuant to s. 52 of the Constitution Act, 1982 , s. 394(1)(b) should be read as follows:
394. (1) Every one is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years who
. . .
(b) sells or purchases any rock, mineral or other substance that contains precious metals or unsmelted, untreated, unmanufactured or partly smelted, partly treated or partly manufactured precious metals, in the absence of evidence which raises a reasonable doubt that he is the owner or agent of the owner or is acting under lawful authority; or [Emphasis added.]
Appeal allowed in part.
Solicitor for the appellant: David Butt, Toronto.
Solicitors for the respondents Laba, Lebrun and Tichinoff: Greenspan, Rosenberg & Buhr, Toronto.
Solicitors for the respondent Timm: Wallbridge, Wallbridge, Timmins, Ontario.
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