R. v. Laba [1994] 3 S.C.R. 965: Reverse onus infringing presumption of innocence - Whether infringement justifiable as reasonable limit

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.

| Return to Topic Menu | Return to Main Menu |