R. v. Cembella

R. v. Cembella

Section 146(2) of the Criminal Code, read with s.139(3), creates an absolute liability offence punishable by imprisonment and thereby violates the right to liberty protected by s.1(a) of the Canadian Bill of Rights; because Parliament did not expressly declare s.146(2) to operate notwithstanding the Bill of Rights...

Source-derived case information.

Citation
2002 BCSC 1129
Parties
Crown/prosecution: Her Majesty the Queen; Accused/defendant: Allan Douglas Cembella; Complainant: V.H.S.
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
26 July 2002
Procedural Posture
Criminal / Pre Trial Application for Stay and Bill of Rights Constitutional Challenge; Hearing and Written Submissions
Outcome
Application allowed in part: s.146(2) declared inoperative and stay of proceedings ordered; charge dismissed.
Legal Topics
Absolute Liability, Bill of Rights, Reverse Onus, Presumption of Innocence, Equality Before the Law, Abuse of Process, Stay of Proceedings, Statutory Interpretation
Source Language
english
Criminal Law Constitutional Law Human Rights Law Absolute Liability Bill of Rights Reverse Onus Presumption of Innocence Equality Before the Law +3 more

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Parties

Her Majesty the Queen

Crown/prosecution

Allan Douglas Cembella

Accused/defendant

V.H.S.

Complainant

Procedural Posture

Criminal / Pre Trial Application for Stay and Bill of Rights Constitutional Challenge; Hearing and Written Submissions

Legal Issues

  1. 1 Whether s.146(2) creates an absolute liability offence and violates liberty under s.1(a) of the Canadian Bill of Rights
  2. 2 Whether s.146(2) discriminates by sex and violates equality under s.1(b) of the Bill of Rights
  3. 3 Whether the reverse onus in s.139(3) violates the presumption of innocence under s.2(f) of the Bill of Rights

Ratio Decidendi

Section 146(2) of the Criminal Code, read with s.139(3), creates an absolute liability offence punishable by imprisonment and thereby violates the right to liberty protected by s.1(a) of the Canadian Bill of Rights; because Parliament did not expressly declare s.146(2) to operate notwithstanding the Bill of Rights it is inoperative and the prosecution cannot properly proceed; alternatively, prosecution under s.146(2) would constitute an abuse of process and a stay is required. The court further held s.146(2) does not infringe equality under s.1(b) and that s.139(3) does not, in the pre-Charter context, violate s.2(f).

Court Disposition

Application allowed in part: s.146(2) declared inoperative and stay of proceedings ordered; charge dismissed.

Orders

  • Declare s.146(2) of the Criminal Code inoperative pursuant to the Canadian Bill of Rights
  • Stay proceedings on the indictment and dismiss the charge against the accused