R. v. H., P.

R. v. H., P. Collection Decisions of the Court of Appeal Date 2000-02-11 Docket numbers C31878 Judges Finlayson, George Duncan; Weiler, Karen Merle Magnuson; Sharpe, Robert J. Subject Criminal Decision Content DATE: 20000211 DOCKET: C31878 COURT OF APPEAL FOR ONTARIO FINLAYSON, WEILER and SHARPE JJ.A. BETWEEN: HER MAJESTY THE QUEEN ) C. Jane Arnup, for the ) respondent (Respondent) ) ) –and– ) ) P. H. (a young person) ) James H. Silver, for the ) appellant (Appellant) ) ) Peter De Freitas, for the ) intervener, Attorney General of ) Canada ) ) Heard: January 14, 2000 On appeal from the judgment of Sheppard J. dated July 10, 1998. FINLAYSON J.A.: [1] The appellant was a young person at the time of the laying of two charges of being the occupant of a motor vehicle known to be taken without the consent of its owner contrary to s.335 of the Criminal Code. [2] The appellant brought an application before the trial judge, Rogers J. of the Ontario Court (Provincial Division) Youth Court, seeking to have this section declared unconstitutional and of no force and effect. He was successful on this application and the charges against him were stayed. [3] The Crown successfully appealed from the decision of the trial judge and Sheppard J. of the Ontario Court (General Division) Summary Conviction Appeal Court found s.335 to be constitutional, but he also found that this section’s interaction with s.794(2) imposed a reverse onus and that s.794(2) should be read so as not to apply to s.335. The stay was lifted and the matter remitted back to the Youth Court for trial. [4] The appellant now seeks leave to appeal and, if leave is granted, appeals from the decision of the Summary Conviction Appeal Court finding that s.335 is valid and constitutional legislation. [5] The hearing before the trial judge proceeded on the basis of an agreed statement of facts which did not present an adequate factual record upon which to ground a constitutional challenge to s.335. It was silent on an essential averment of the charge, namely the knowledge of the appellant as to whether the motor vehicle was stolen. Further, it set out no facts that could give rise to a defence to the appellant under s.335(1.1), a subsection that was almost the entire basis of the appellant’s attack on the constitutionality of s.335. Issue [6] The issue on this appeal is whether the Summary Conviction Appeal Court judge erred in allowing the “occupant joyriding” section of the Code to stand as constitutionally valid legislation subject to the ruling that s.794(2) was inoperative with respect to s.335(1.1). [7] The applicable portions of s.335 of the Code are: (1) Subject to subsection (1.1), every one who … is an occupant of a motor vehicle or vessel knowing that it was taken without the consent of the owner, is guilty of an offence punishable on summary conviction. (1.1) Subsection (1) does not apply to an occupant of a motor vehicle or vessel who, on becoming aware that it was taken without the consent of the owner, attempted to leave the motor vehicle or vessel, to the extent that it was feasible to do so, or actually left the motor vehicle or vessel. [8] Section 794 of the Code states: (1) No exception, exemption, proviso, excuse or qualification prescribed by law is required to be set out or negatived, as the case may be, in an information. (2) The burden of proving that an exception, exemption, proviso, excuse or qualification prescribed by law operates in favour of the defendant is on the defendant, and the prosecutor is not required, except by way of rebuttal, to prove that the exception, exemption, proviso, excuse or qualification does not operate in favour of the defendant, whether or not it is set out in the information. Analysis [9] There is nothing constitutionally wrong with s.335. The problem that arose in this case was that Crown counsel at trial (who did not appear as counsel on appeal), for reasons that have not been adequately explained in this court, made what he regarded as a concession that s.794(2) of the Code, when applied to s.335(1.1), created a reverse onus provision which violated the presumption of innocence and was therefore contrary to s.11(d) of the Canadian Charter of Rights and Freedoms (“Charter”). He then attempted to justify the legislation under s.1. [10] This concession is not binding on this court: see M. v. H. (1999), 171 D.L.R. (4th) 577 (S.C.C.) at p. 611. There is no judicial authority that supports this concession and it should not have been made. The Crown has an obligation, in the public interest, to defend legislation against constitutional attack unless it is clear that the impugned statute is unsustainable as a matter of law. In this case, the summary conviction appeal court judge expressed his concern about the validity of the concession but obviously felt that he was bound by it. Why both Crown counsels on appeal accepted the concession and attempted to defend its consequences under s.1 is less clear. If we were to accept the interaction of s.794(2) with s.335(1.1) and justify the result under s.1, we would be casting the burden on an accused who was an occupant of a stolen vehicle, before this defence would be available to him, to establish affirmatively that after becoming aware that the vehicle was stolen he left it or attempted to leave it to the extent that it was feasible to do so. The result would be a re-writing of the legislation to the advantage of the Crown in a criminal trial. [11] On my reading of the reasons of both the trial judge and the summary appeal court judge, this concession became central to their thinking. Without it, there would have been no force to the constitutional argument of the appellant. This is certainly true of Sheppard J., who stated as follows in his reasons for allowing the appeal: Before embarking on a s.1 analysis, regarding the reverse onus provision, s.335 must be examined to determine whether that section, standing alone, is constitutionally flawed. The respondent has argued that s.335 itself is flawed in that it criminalizes mere presence at the scene of the crime and has the potential to criminalize “both blameworthy and moral behaviour alike”. In support of this argument, the respondent relies upon Dunlop and Sylvester v. R. (1979), 47 C.C.C. (2d) 93 (S.C.C.) and R. v. Coney (1882), 8 Q.B.D. 534. Both of these cases are distinguishable in that they dealt with the imposition of criminal liability through the aiding and abetting provisions. In both cases the Court held that mere presence was insufficient to establish liability as a party to an offence. Such reasoning does not apply to s.335 because party liability does not arise. Parliament has chosen to create the new offence of being an occupant of a vehicle taken without the owners consent, in circumstances where the occupant knows the vehicle was taken without the owner’s consent. Furthermore, it cannot be said that there is no fault element in the “occupant offence” set out in s.335. Before a conviction can occur, the Crown must prove beyond a reasonable doubt that the occupant knew the vehicle was taken without the owner’s consent. I accept the Crown’s argument that Parliament is entitled to create offences where the basis for culpability is present, in circumstances that are per se criminal, if such circumstances are known to the defendant [citation omitted]. The imposition of knowledge of the vehicle’s status, on the accused, will avoid imposing criminal liability on “morally blameless” occupants. [Emphasis in the original.] [12] I agree with this analysis. However, Sheppard J. then engaged in an exercise wherein he applied a section of the Code which establishes a rule of criminal pleading in summary conviction proceedings to a subsection of the section that he had found “in and of itself does not offend the Charter”. Then, unable to justify the unconstitutional result under s.1 of the Charter, he declared “s.794(2) inoperative with respect to s.335”. In my opinion, this was an impermissible exercise. The court should not strain the language of legislation to produce an unconstitutional result. As McLachlin and Iacobucci JJ. wrote for the court in R. v. Mills [1999] S.C.J. No. 68 at para. 56: A posture of respect towards Parliament was endorsed| by this Court in Slaight Communications, [infra, at p. 444,] where we held that if legislation is amenable to two interpretations, a court should choose that interpretation that upholds the legislation as constitutional. Thus courts must presume that Parliament intended to enact constitutional legislation and strive, where possible, to give effect to this intention. [13] In Slaight Communications Inc. v. Davidson (1989), 59 D.L.R. (4th) 416 (S.C.C.), Lamer J. stated at p.444: As the Constitution is the supreme law of Canada and any law that is inconsistent with its provisions is, to the extent of the inconsistency, of no force or effect, it is impossible to interpret legislation conferring discretion as conferring a power to infringe the Charter, unless, of course, that power is expressly conferred or necessarily implied. Such an interpretation would require us to declare the legislation to be of no force or effect, unless it could be justified under s. 1. Although this court must not add anything to legislation or delete anything from it in order to make it consistent with the Charter, there is no doubt in my mind that it should also not interpret legislation that is open to more than one interpretation so as to make it inconsistent with the Charter and hence of no force or effect. [14] Section 794(2) of the Code simply has no application to the defence set out in s.335(1.1). It applies in narrow circumstances, usually regulatory offences, where a status in law has been conferred upon the accused who otherwise would be culpable. The purpose and effect of the section was described by this court in determining the constitutionality of a similar provincial provision in R. v. Lee’s Poultry Ltd. (1985), 17 C.C.C. (3d) 539. Brooke J.A. for the court said at p.542: It is a fundamental rule of criminal law that the accused is presumed to be innocent until his or her guilt is proved beyond a reasonable doubt, and as such, the onus is on the Crown to prove each element of the crime to the degree required. At common law an exception developed to this fundamental rule for a class of offences created by regulatory legislation. Often such legislation created offences by banning specified activities but excepted persons who had authority of the regulatory body to do the acts banned. That exception is expressed in the terms of s. 48(3) of the Provincial Offences Act. It is also found, for example, in s. 730 [now s.794] of Part XXIV of the Criminal Code which applies to summary conviction offences. Both provisions have their origin in Canada in s. 852 of the Criminal Code, 1892 (Can.), c. 29, and the common law. [15] Section 794(2) speaks of exceptions, exemptions, provisos, excuses or qualifications. If it was intended to apply to defences, the word is not so arcane that it could not have been included in the list. As I read s.335(1.1), it is no more than an enlargement of the common law defence of compulsion, duress or coercion. These three terms describe the same defence and are referred to in s.17 of the Code: see A. Mewett and M. Manning, Mewett and Manning on Criminal Law, 3rd ed. (1994), at 519. The subsection may also embrace the common law defences of mistake and necessity. No one has suggested that these defences impose a reverse onus on the accused although they may in a given case impose an evidentiary burden upon the accused. This evidential burden to bring the defence of compulsion before a jury was described in R. v. Gill, [1963] 2 All E.R. 688 (C.C.A.) at 691: The accused, either by the cross-examination of the prosecution witnesses or by evidence called on his behalf, or by a combination of the two, must place before the court such material as makes duress a live issue fit and proper to be left to the jury. [16] Accordingly, if there is an air of reality to a defence set out under s.335(1.1), the trial judge would be obliged to instruct himself, as he would a jury in the normal course, as follows: if the evidence is accepted he must return a verdict of not guilty; if it is not accepted but raises a reasonable doubt, he must also return a verdict of not guilty; and even if he is not left in a reasonable doubt by the evidence in support of the defence, he must still go on to consider whether or not, on the basis of all the evidence, the accused is guilty beyond a reasonable doubt. [17] The appellant further submits that s.335 violates ss.7 and 11(d) of the Charter of Rights and Freedoms by imposing a criminal liability for morally blameless conduct. This argument was accepted by the trial judge but rejected by the summary convictions appeal court judge. In my view, the argument is without merit. By its terms, s.335 plainly requires the Crown to establish beyond a reasonable doubt that the occupant of the motor vehicle knows that the vehicle was taken without the consent of the owner. The summary convictions appeal court judge correctly found that this was not a morally blameless state of mind and that there was nothing in the Charter that would preclude Parliament from criminalizing such activity. [18] This matter must be returned to the Youth Court for a trial on its merits. This would not have been necessary if the trial judge had heeded this court’s admonition in R. v. Martin (1991), 2 O.R. (3d) 16 (Ont. C.A.), aff’d. (1992), 71 C.C.C. (3d) 572 (S.C.C.), where Griffiths J.A. stated at pp.29-30: Although I have dealt with this appeal on the merits, there is one further matter on which I wish to comment. At the opening of this appeal, all members of the court expressed their concern about the propriety of the lower court judge dealing with a challenge to the constitutionality of s. 13 of the Act, on a pre-motion hearing, before any plea had been entered or any evidence adduced. In my view, the court should not, at this early stage, entertain or dispose of an application to enforce a remedy under the Charter, except in those cases where it is abundantly clear that a constitutional right has been infringed or threatened. In my opinion, this case does not fall into that category and it would have been preferable for the trial judge to decline to enter into the constitutional issue at the stage of a pre-trial motion and to leave such issue to be raised by the appellant by way of defence at the conclusion of the evidence at trial. It is, of course, quite possible that the appellant might have succeeded on some other line of defence at trial, rendering the Charter challenge entirely moot. Whenever possible, the trial process should not be fragmented with appeals being launched at the conclusion of each stage. In my opinion, when an appeal is taken to this court, the trial record should be complete so that all grounds of appeal and not only those relating to Charter challenges may be completely and finally dealt with in one hearing. [19] I echoed these comments in R. v. Martin (J.) (1994), 72 O.A.C. 316 (C.A.) at 319-20. [20] This is a matter involving a young offender. The offences in question are alleged to have taken place on June 27 and July 1, 1997. The trial judge dealt with the preliminary motion on January 15, 1998 and the summary appeals court judge heard the appeal on June 24, 1998. The appeal was heard in this court on January 14, 2000. It looks for all the world that some three years will have elapsed between the alleged commission of this uncomplicated offence and a trial on the merits. There is no excuse for this. The consequence of proceeding without findings of fact by the trial judge meant that the constitutional argument proceeded on a totally hypothetical basis and that, coupled with the gratuitous concession by the Crown counsel, resulted in an unsatisfactory presentation by all parties. [21] For the reasons given, I would grant leave to appeal but dismiss the appeal and remit the matter to the Youth Court for trial. RELEASED: FEB 11 2000 Signed: “G.D. Finlayson J.A.” GDF “I agree K.M. Weiler J.A.” “I agree Robert J. Sharpe J.A.”