R. v. Downey [1992] 2 S.C.R. 10: Reverse onus provision -- Accused convicted of living on avails of prostitution

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

ON APPEAL FROM THE COURT OF APPEAL FOR ALBERTA

Constitutional law -- Charter of Rights -- Presumption of innocence -- Reverse onus provision -- Accused convicted of living on avails of prostitution -- Whether evidential burden placed on an accused by s. 195(2) of Criminal Code infringes s. 11(d) of Canadian Charter of Rights and Freedoms -- If so, whether infringement justifiable under s. 1 of Charter -- Criminal Code, R.S.C. 1970, c. C-34, s. 195(1)(j), (2).

Criminal law -- Prostitution -- Living on avails of prostitution -- Escort agency -- Presumption of innocence -- Accused convicted of living on avails of prostitution -- Whether evidential burden placed on an accused by s. 195(2) of Criminal Code violates his right to be presumed innocent under s. 11(d) of Canadian Charter of Rights and Freedoms -- Criminal Code, R.S.C. 1970, c. C-34, s. 195(1)(j), (2).

The accused was jointly charged with his companion, the owner of an escort agency, with two counts of living on the avails of prostitution pursuant to s. 195(1)(j) of the Criminal Code. Clients would call the agency and an escort would go on a date with them. They were charged an introduction fee which was turned over to the agency. The escorts kept any money they received for sexual services which were provided in 85 to 90 percent of the dates. The accused was aware of this sexual activity. At the agency, the accused answered the telephone, made up the receipts and did the banking. He had no other employment. On one occasion when his companion was away he ran the agency for a month. During the trial, an application was made for a declaration that s. 195(2) of the Code was of no force or effect because it violates s. 11(d) of the Canadian Charter of Rights and Freedoms. Section 195(2) provides that "[e]vidence that a person lives with or is habitually in the company of prostitutes . . . is, in the absence of evidence to the contrary, proof that the person lives on the avails of prostitution". The application was dismissed and the accused was convicted. His appeal to the Court of Appeal was dismissed. This appeal is to determine whether the evidential burden placed on an accused by s. 195(2) infringes the right to be presumed innocent set forth in s. 11(d) of the Charter and, if so, whether the infringement is justifiable under s. 1 of the Charter.

Held (La Forest, McLachlin and Iacobucci JJ. dissenting): The appeal should be dismissed. Section 195(2) of the Code infringes s. 11(d) of the Charter but is justifiable under s. 1.

Per L'Heureux-Dubé, Sopinka, Gonthier and Cory JJ.: The presumption contained in s. 195(2) of the Code infringes s. 11(d) of the Charter since the statutory presumption can result in the conviction of an accused despite the existence of a reasonable doubt in the mind of the trier of fact as to his guilt. The fact that someone lives with a prostitute does not lead inexorably to the conclusion that the person is living on avails.

Section 195(2) of the Code constitutes a reasonable limit on the presumption of innocence. When the presumption set out in s. 195(2) is reviewed in the context of s. 195(1) itself, it is apparent that the objective of the impugned provision is of sufficient importance to warrant overriding s. 11(d). The majority of offences outlined in s. 195(1) are aimed at the procurer who entices, encourages or importunes a person to engage in prostitution. Section 195(1)(j) is specifically aimed at those who have an economic stake in the earnings of a prostitute. Its target is the person who lives parasitically off a prostitute's earnings -- namely, the pimp. Pimps control street prostitution and, along with customers, are the major source of violence against prostitutes. From a review of Canadian and foreign studies and the current literature pertaining to the problem of prostitution and pimps, it is obvious that s. 195(2), in assisting in curbing the exploitive activity of pimps, is attempting to deal with a cruel and pervasive social evil.

Further, s. 195(2) meets the proportionality test. First, the section is a measure carefully designed to respond to the objective. Evidence of pimps living on avails is difficult, if not impossible, to obtain without the cooperation of the prostitutes, who are often unwilling to testify for fear of violence against them by their pimps. Section 195(2) enables a prosecution to be instituted without it being necessary for the prostitute to give evidence. With the presumption, Parliament has focussed on those circumstances in which maintaining close ties to prostitutes gives rise to a reasonable inference of living on the avails of prostitutes. There is no real danger that the section will result in innocent persons who have non parasitic legitimate living arrangements with prostitutes being inculpated. A description sufficient to constitute evidence to the contrary will generally be included in the Crown's case. If not, such evidence can easily be led. In either event, the presumption will be displaced. Second, s. 195(2) represents a minimal impairment of the presumption of innocence. All that is required of the accused is to point to evidence capable of raising a reasonable doubt. That can often be achieved as a result of cross-examination of Crown witnesses. The section does not necessarily force the accused to testify. In enacting s. 195(2), Parliament has chosen a reasonable and sensitive position. To eliminate the presumption completely would reward the accused for the intimidation of vulnerable witnesses in a situation where such intimidation is widespread. To provide a reverse onus which would cast a heavier legal burden on the accused would constitute a more serious infringement of s. 11(d) than the evidential burden imposed by s. 195(2). Third, when one balances the societal and individual interests, it is clear that the extent of the infringement is proportional to the legislative objective. In view of the social problems flowing from prostitution, the successful prosecution of pimps is very important. Pimps encourage and enforce often through violence the activities of prostitutes -- a particularly vulnerable segment of society. Section 195(2) is aimed not only at remedying a social problem but also at providing some measure of protection for prostitutes by eliminating the necessity of testifying. The infringement of the presumption of innocence by s. 195(2) is minimal.

Per La Forest J. (dissenting): For the reasons given by Cory J., s. 195(2) of the Code infringes the presumption of innocence guaranteed by s. 11(d) of the Charter. Section 195(2), however, is not justifiable under s. 1 of the Charter. While the presumption may well be rationally connected to the objective of securing the convictions of the parasites who control street prostitutes without evidence from the complainant prostitute, the basic facts contained in s. 195(2) are not intrinsically blameworthy and simply cast too wide a net. The section catches people who have legitimate non-parasitic living arrangements with prostitutes. No evidence was advanced to show that it was necessary to cast the net so wide.

Per McLachlin and Iacobucci JJ. (dissenting): The mandatory presumption contained in s. 195(2) of the Code infringes the presumption of innocence guaranteed by s. 11(d) of the Charter, in that proof of the substituted fact that the accused person lives with or is habitually in the company of a prostitute does not lead inexorably to proof of the statutorily required or essential element of living on the avails of prostitution.

Section 195(2) is not justifiable under s. 1 of the Charter. While the legislative objective is sufficiently important to warrant overriding a constitutional right, the impugned section does not meet the proportionality test. A presumption, like any other challenged legislative provision, must be externally rational, in the sense that it must evince a rational connection to the legislative purpose behind its enactment. But in the case of a presumption, it must also be "internally rational" in the sense that there must be a rational connection between the substituted fact and the presumed fact. The fact that in some cases one can infer the presumed fact from the proven fact is insufficient to establish the internal rational connection required under s. 1. At a minimum, proof of the substituted fact must make it likely that the presumed fact is true. Further, the rationality test also has a fairness aspect. An irrational presumption operates unfairly in that it unduly enmeshes the innocent in the criminal process by arbitrarily catching within its ambit those who are not guilty of the offence. In the case of s. 195(2) the required logical link is lacking, rendering it both irrational and unfair. It cannot be said that it is likely that one who lives with or is habitually in the company of a prostitute is parasitically living on the avails of prostitution. It is a possible inference, reasonable only in some cases. Spouses, lovers, friends, children, parents or room-mates may live with or be habitually in the company of a prostitute, which is not a criminal offence, without living on the avails of prostitution. Any presumption which has the potential to catch such a wide variety of innocent people in its wake can only be said to be arbitrary, unfair and based on irrational considerations.

Finally, the irrational and unfair effects of the presumption extend to the prostitutes themselves and bring into question the external rationality of the presumption. By this presumption prostitutes are put in the position of being unable to associate with friends and family, or to enter into arrangements which may alleviate some of the more pernicious aspects of their frequently dangerous and dehumanizing trade. The predictable result is to force prostitutes onto the streets or into the exploitive power of pimps, thereby undercutting the very pressing and substantial objective which the presumption was designed to address. Because it exacerbates the very exploitation it purports to prevent, s. 195(2) cannot be said to possess the degree of rationality necessary to justify the violation of a right guaranteed by our Charter.

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