R. v. Holmes

R. v. Holmes
Collection
Supreme Court Judgments
Date
1988-05-26
Report
[1988] 1 SCR 914
Case number
17643
Judges
Dickson, Robert George Brian; McIntyre, William Rogers; Lamer, Antonio; Le Dain, Gerald Eric; La Forest, Gérard V.
On appeal from
Ontario
Subjects
Constitutional law
Criminal law
Notes
SCC Case Information: 17643
Decision Content
r. v. holmes, [1988] 1 S.C.R. 914
Murray Ross Holmes Appellant
v.
Her Majesty The Queen Respondent
and
The Attorney General of Canada, the Attorney General of Quebec and the Attorney General for Saskatchewan Interveners
indexed as: r. v. holmes
File No.: 17643.
1987: April 2; 1988: May 26.
Present: Dickson C.J. and McIntyre, Lamer, Le Dain and La Forest JJ.
on appeal from the court of appeal for ontario
Constitutional law ‑‑ Charter of Rights ‑‑ Presumption of innocence ‑‑ Possession of house‑breaking instruments ‑‑ Whether accused bearing persuasive burden of establishing lawful excuse to justify his actions where intent to use the instruments for house‑breaking purposes admitted ‑‑ Whether s. 309(1) of the Criminal Code violated s. 11 (d) of the Charter ‑‑ If so, whether such violation justifiable under s. 1 of the Charter .
Criminal law ‑‑ Possession of house‑breaking instruments ‑‑ Burden of proof ‑‑ Presumption of innocence ‑‑ Whether accused bearing persuasive burden of establishing lawful excuse to justify his actions where intent to use the instruments for house‑breaking purposes admitted ‑‑ Whether s. 309(1) of the Criminal Code violated s. 11 (d) of the Charter ‑‑ If so, whether such violation justifiable under s. 1 of the Charter .
Criminal law ‑‑ Elements of offence ‑‑ Burden of proof ‑‑ Possession of house‑breaking instruments ‑‑ Whether accused's intent to use the instruments for house‑breaking an essential element of the offence ‑‑ Whether accused required to prove innocent intent on a balance of probabilities ‑‑ Criminal Code, R.S.C. 1970, c. C‑34, s. 309(1).
Appellant was charged with unlawful possession of house‑breaking instruments contrary to s. 309(1) of the Criminal Code . This section provides that "Every one who, without lawful excuse, the proof of which lies upon him, has in his possession any instrument suitable for house‑breaking . . . under circumstances that give rise to a reasonable inference that the instrument has been used or is or was intended to be used for house‑breaking . . . is guilty of an indictable offence . . . ." Prior to entering a plea, appellant moved to quash the indictment. The judge granted the motion on the ground that s. 309(1) was inconsistent with the presumption of innocence in s. 11 (d) of the Charter . On appeal, the Court of Appeal set aside the order quashing the indictment and directed that the indictment be prosecuted in the ordinary way. The Court held that s. 309(1) did not constitute a "reverse onus" clause and thus was not inconsistent with s. 11 (d) of the Charter . This appeal is to determine whether s. 309(1) of the Code violates s. 11 (d) of the Charter and, if so, whether such violation is justifiable under s. 1 of the Charter .
Held: The appeal should be dismissed.
Per McIntyre and Le Dain JJ.: Section 309(1) of the Criminal Code is not inconsistent with s. 11 (d) of the Charter which guarantees the right to be presumed innocent unless proven guilty according to the law. The burden of proof under s. 309(1) must be discharged without the benefit of any presumption
against the accused.
The words "reasonable inference" (of guilt) in s. 309(1) do not enable a finding of guilt on something less than proof beyond a reasonable doubt. These words employed in a criminal enactment can mean only an inference which on the basis of the criminal standard of proof beyond a reasonable doubt would warrant a conclusion of guilt in the absence of any answer or explanation. An inference of guilt is not reasonable in the criminal context unless it overrides a reasonable doubt.
The phrase "without lawful excuse, the proof of which lies upon him" in the context of s. 309(1) does not amount to a reverse onus clause which imposed a burden on the accused to prove his innocence. These words were included in the section in order to make available the defence of innocent purpose, which would not have been open to an accused without this phrase because, in the words of the section prior to 1972, the offence was complete without consideration of purpose. When the section was amended in 1972 to make the intention to use the instrument for house‑breaking an essential element of the offence, the phrase was rendered superfluous. The purpose for which the accused intended to use the tools was effectively converted from a defence which the accused had to prove to show his innocence, to an essential element of the offence which the Crown had to prove beyond a reasonable doubt to prove his guilt. As a result, the phrase was denuded of its original content and was probably retained in the section out of an abundance of caution.
The general common law excuses, such as duress or authorization by law, are not encompassed within the phrase "without lawful excuse" and need not be proved on a balance of probabilities. These words do not encompass excuses or justifications that would exist if the words were omitted from the Code. In any event, even if s. 309(1) would require the accused to establish such defences on a balance of probabilities, this requirement would not offend s. 11 (d) of the Charter . Defences or excuses of this nature can only be raised where the offence has been proved. Where, as in this case, proof of guilt beyond a reasonable doubt is required without the benefit of any presumption before any need for defence arises, s. 11 (d) of the Charter is not offended.
Per La Forest J.: I am in agreement with the interpretation given s. 309(1) of the Code by McIntyre J. So interpreted, the section does not conflict with s. 11 (d) of the Charter .
Per Dickson C.J. and Lamer J.: The intention to use the instruments for house‑breaking purposes is an essential component of the offence under s. 309(1) of the Code. The Crown must prove not only possession of the instruments specified in the indictment and that they were suitable for house‑breaking purposes beyond a reasonable doubt, but also "circumstances that give rise to a reasonable inference that the instrument has been used or is or was intended to be used for house‑breaking". Such an inference, in the context of a criminal charge, can only be reasonable where the jury is convinced beyond a reasonable doubt that the accused actually intended to or did use the instruments for the purpose of house‑breaking. The section therefore does not place a persuasive burden on the accused to establish a lack of intention to use the instruments for house‑breaking purposes. Any burden on the accused with respect to such a defence is purely an evidential one. But the opening words of s. 309(1) ‑‑ namely, "without lawful excuse, the proof of which lies upon him" ‑‑ place a persuasive burden on the accused to establish on a balance of probabilities an excuse in circumstances where he admits an intention to use the instruments for house‑breaking purposes but claims a justification for his actions, such as duress or authorization by law.
Section 309(1) of the Code violates s. 11 (d) of the Charter . Although, strictly speaking, s. 309(1) is not a "reverse onus" provision, in that it does not presume an essential element of the offence, the provision, by requiring proof by the accused of certain defences on a balance of probabilities, makes it possible for a conviction to occur despite the existence of a reasonable doubt. Any burden on an accused which has the effect of dictating a conviction despite the presence of a reasonable doubt contravenes s. 11 (d).
Section 309(1) of the Code is not justifiable under s. 1 of the Charter . The section does not meet the proportionality test enunciated in Oakes. First, section 309(1) does not impair "as little as possible" the right or freedom guaranteed by s. 11 (d) of the Charter . Given the circumstances surrounding this kind of offence and the objective of curbing property‑related crimes, Parliament could have imposed simply an evidential burden on the accused to introduce some evidence raising a reasonable doubt as to his guilt. Second, the effects which result from imposing a persuasive burden on the accused in connection with a criminal offence making unlawful the possession of even the most innocuous of tools are too deleterious. Section 309(1) leaves open the possibility that innocent persons will be jailed.
Finally, the fact that s. 309(1) of the Code is not justifiable under s. 1 of the Charter does not necessarily lead to the conclusion that the whole of s. 309(1) is void. The excision of the words "the proof of which lies upon him" from the provision would eliminate the possibility of the conviction of an accused who had a lawful excuse for his actions but could not prove that excuse on a balance of probabilities.
Cases Cited
By McIntyre J.
Referred to: R. v. Kozak and Moore (1975), 20 C.C.C. (2d) 175; Brownridge v. The Queen, [1972] S.C.R. 926; R. v. Santeramo (1976), 32 C.C.C. (2d) 35; Bergstrom v. The Queen, [1981] 1 S.C.R. 539; R. v. Oakes, [1986] 1 S.C.R. 103.
By Dickson C.J.
Considered: Tupper v. The Queen, [1967] S.C.R. 589; referred to: R. v. Appleby, [1972] S.C.R. 303; Brownridge v. The Queen, [1972] S.C.R. 926; R. v. Proudlock, [1979] 1 S.C.R. 525; R. v. Oakes, [1986] 1 S.C.R. 103; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; R. v. Kozak and Moore (1975), 20 C.C.C. (2d) 175; R. v. Smith (1957), 27 C.R. 359; R. v. Haire (1958), 29 C.R. 233; R. v. McRae (1967), 50 C.R. 325; R. v. Gilson, [1965] 2 O.R. 505; R. v. Kernychne, Ont. C.A., March 17, 1965, unreported; R. v. Singleton (1956), 115 C.C.C. 391; R. v. Jones (1960), 128 C.C.C. 230; R. v. Patterson (1961), 46 Cr. App. R. 106; Taraschuk v. The Queen, [1977] 1 S.C.R. 385; R. v. Cooper, [1978] 1 S.C.R. 860; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; Latour v. The King, [1951] S.C.R. 19; Linney v. The Queen, [1978] 1 S.C.R. 646; Perka v. The Queen, [1984] 2 S.C.R. 232.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 1 , 11 (d).
Criminal Code, S.C. 1953‑54, c. 51, s. 295.
Criminal Code, R.S.C. 1970, c. C‑34, ss. 7(3), 17 [am. 1974‑75‑76, c. 105, s. 29], 241(1), 309(1) [rep. & subs. 1972, c. 13, s. 25], (2), 577(3).
Criminal Law Amendment Act, S.C. 1985, c. 19, s. 49.
Authors Cited
Canada. Law Reform Commission. Criminal Intrusion (Working Paper No. 48). Ottawa: 1986.
Canada. Statistics Canada, Canadian Centre for Justice Statistics. Canadian Crime Statistics 1985. Ottawa: Minister of Supply and Services Canada, 1986.
Mewett, Alan W., and Morris Manning. Criminal Law, 2nd ed. Toronto: Butterworths, 1985.
APPEAL from a judgment of the Ontario Court of Appeal (1983), 41 O.R. (2d) 250, 145 D.L.R. (3d) 689, 4 C.C.C. (3d) 440, 4 C.C.R. 222, 32 C.R. (3d) 322, allowing an appeal from a judgment of Clements Co. Ct. J. (1982), 38 O.R. (2d) 290, 138 D.L.R. (3d) 657, 69 C.C.C. (2d) 122, 2 C.R.R. 275, quashing an indictment charging the accused with possession of instruments suitable for house‑breaking. Appeal dismissed.
C. Jane Arnup, for the appellant.
John Pearson, for the respondent.
G. H. McCracken, Q.C., for the intervener the Attorney General of
Canada.
Paul Monty and Gilles Laporte, for the intervener the Attorney General of Quebec.
Robert G. Richards, for the intervener the Attorney General for Saskatchewan.
The reasons of Dickson C.J. and Lamer J. were delivered by
The Chief Justice ‑‑ The appellant, Murray Ross Holmes, was charged with unlawful possession of house‑breaking instruments. Section 309(1) of the Criminal Code provides that a person who, without lawful excuse, is found in possession of an instrument suitable for house‑breaking, in circumstances which give rise to a reasonable inference that the instrument has been used or is or was intended to be used for house‑breaking, is guilty of an indictable offence. This appeal concerns the constitutionality of s. 309(1) . The appellant Mr. Holmes argues that s. 309(1) violates the presumption of innocence enshrined in s. 11 (d) of the Canadian Charter of Rights and Freedoms . The Crown submits that s. 309(1) at no time requires an accused to disprove guilt in a manner which violates s. 11 (d) of the Charter .
I
Statutory and Constitutional Provisions
Before reviewing the factual and procedural history of this appeal, I will set out the relevant statutory and constitutional provisions.
Criminal Code, R.S.C. 1970, c. C‑34 (as amended by S.C. 1972, c. 13, s. 25):
309.(1) Every one who, without lawful excuse, the proof of which lies upon him, has in his possession any instrument suitable for house‑breaking, vault‑breaking or safe‑breaking, under circumstances that give rise to a reasonable inference that the instrument has been used or is or was intended to be used for house‑breaking, vault‑breaking or safe‑breaking, is guilty of an indictable offence and is liable to imprisonment for fourteen years.
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;
II
Facts
As stated, Murray Ross Holmes was charged that he unlawfully had in his possession instruments suitable for house‑breaking to wit: a pair of vice grips and a pair of pliers under circumstances that gave rise to a reasonable inference that the said instruments were intended to be used for house‑breaking, contrary to s. 309(1) of the Criminal Code . Prior to entering a plea, counsel for Holmes moved to quash the indictment. Clements Co. Ct. J. granted the motion: (1982), 38 O.R. (2d) 290.
On appeal, the Ontario Court of Appeal set aside the order of Clements Co. Ct. J., and directed that the indictment be prosecuted in the ordinary way: (1983), 41 O.R. (2d) 250.
III
Judgments
Clements Co. Ct. J. quashed the indictment on the ground thats. 309(1) of the Code was inconsistent with the presumption of innocence and s. 11 (d) of the Charter . In his view, because it requires the Crown only to prove circumstances which give rise to "a" reasonable inference of guilty intent, s. 309(1) of the Code places an onus on the accused to adduce evidence of an alternative, and equally compelling, reasonable inference of innocent intent; that runs counter to the presumption of innocence entrenched in s. 11 (d) of the Charter .
In a unanimous judgment, Lacourcière J.A. (Weatherston and Cory JJ.A. concurring), of the Ontario Court of Appeal held that s. 309(1) does not constitute a "reverse onus" clause and thus is not inconsistent with s. 11 (d) of the Charter . In interpreting s. 309(1) , he relied on the following statement by Martin J.A. in R. v. Kozak and Moore (1975), 20 C.C.C. (2d) 175 (Ont. C.A.), at pp. 179‑80:
As will be gathered from what I have already said, it was incumbent upon the Crown to prove: (a) possession by the accused of the instruments specified in the indictment; (b) that they were suitable for the purpose of housebreaking, safe‑breaking or vault‑breaking; (c) that such instruments were found under circumstances that give rise to a reasonable inference that the instruments were intended to be used for housebreaking, safe‑breaking or vault‑breaking. It was only after those elements were proved that the accused were required to discharge the burden of proving a lawful excuse for the possession of such instruments on a balance of probabilities: see Tupper v. The Queen, [1967] 1 C.C.C. 253, 63 D.L.R. (2d) 289, [1967] S.C.R. 589.
As for the reference in s. 309(1) to "without lawful excuse, the proof of which lies upon him", Lacourcière J.A. stated the following (at p. 258):
The burden of adducing evidence of lawful excuse is not meant to apply to any of the inside requirements if I may extend the expression of Chief Justice Laskin [in Taraschuk v. The Queen, [1977] 1 S.C.R. 385, at p. 388], i.e., the three essential ingredients previously mentioned, but only to an extraneous excuse such as "I was insane", "I was under compulsion by threats", "I was drunk", "I was under automatism", etc. These are clearly extraneous excuses. On the other hand, if the explanation is "I am a plumber" or a tradesman who uses tools suitable for house‑breaking, the excuse may not have the same extraneous quality. It is nevertheless an excuse within the meaning of the section which requires proof by a preponderance of evidence. The reason for this is that it is based on the admission that although circumstances existed that, even if objectively viewed, gave rise to the requisite reasonable inference, such inference ought not in fact to be drawn in the circumstances because of the explanation.
Lacourcière J.A. concluded by stating (at p. 256):
Section 309(1) does not raise any presumption or create any reverse onus in the true sense. The Crown must establish the three mentioned essential ingredients by proof beyond a reasonable doubt. Only then can the evidentiary onus be shifted to the accused to provide, on a balance of probabilities, a lawful excuse. The section does not require that the Crown prove an intent to use the instruments for house‑breaking. If, however, the third requirement of circumstances, etc., is said to create a presumption of house‑breaking intent, I would be prepared to say that such intent is rationally connected to the facts required to be proved and meets the test enunciated in R. v. Oakes [(1983), 145 D.L.R. (3d) 123 (Ont. C.A.)].
Seeing the quashing of the indictment as tantamount to an acquittal based on an error of law, Lacourcière J.A. allowed the appeal, set aside the order of Clements Co. Ct. J. and directed that the prosecution of the indictment continue.
IV
The Issues
The constitutional questions in this appeal were stated as follows:
1.Is section 309(1) of the Criminal Code of Canada inconsistent with s. 11 (d) of the Canadian Charter of Rights and Freedoms ?
2.If so, is s. 309(1) of the Criminal Code of Canada justified on the basis of s. 1 of the Canadian Charter of Rights and Freedoms ?
The Attorneys General of Canada, Quebec and Saskatchewan intervened in the appeal in support of the Crown respondent.
The above questions call for three separate lines of inquiry. First, meaning must be given to s. 309(1) of the Criminal Code . This Court must give precise content to the provision in light of its legislative and jurisprudential history. A host of conflicting interpretations has been offered by the parties and interveners to this appeal. Secondly, the implications of s. 11 (d) of the Charter in relation to the provision on its true construction must be addressed. Thirdly, assuming the answer to the first constitutional question to be in the affirmative, the effect of s. 1 of the Charter must be analyzed.
V
Section 309(1) of the Criminal Code
Counsel for the appellant submits that s. 309(1) is a "reverse onus" provision and contravenes s. 11 (d) of the Charter . She argues that s. 309(1) permits the Crown to rely on evidence equally consistent with a reasonable and innocent explanation, because the section requires the Crown to prove only that one inference is that the accused intended to use the instruments for burglary purposes. This appears to follow Clements Co. Ct. J.'s line of reasoning and arguably leads to the conclusion that the section has the effect of lowering the standard of proof required of the Crown below that of a reasonable doubt, since evidence consistent with both guilty intent and innocent intent would not constitute proof beyond reasonable doubt. With respect to the phrase "without lawful excuse", counsel for the appellant submits that it reinforces the conclusion that the accused bears the burden of proving innocent intent on a balance of probabilities.
The respondent Crown's primary submission is that s. 309(1) does not create a reverse onus at all. In its view, a reverse onus exists when an accused is required to disprove on a balance of probabilities the existence of an essential element of an offence. In its supplementary factum, it submits that the purpose or intention of the accused in possessing the instruments in question is not an essential element of the offence. Adopting the submissions of the Attorney General of Quebec on this point, the Crown argues that s. 309(1) does not require an accused to disprove any of the three essential elements of the offence as outlined by Martin J.A. in R. v. Kozak and Moore, supra, on a balance of probabilities. As such, s. 309(1) does not constitute a reverse onus clause. In the alternative, the Crown submits that if the intention of an accused is an essential element of the offence, any burden placed on the accused merely is an evidential one. That is, s. 309(1) 's reference to "a reasonable inference" simply describes "the general process by which an inference of intent is to be drawn"; the question is essentially the same as in all criminal offences: did the accused actually have the intent to use the instruments for house‑breaking? The burden of proving intent, in this alternative submission, remains on the Crown throughout the trial. With respect to the phrase "without lawful excuse", the Crown submits that it is an anachronism carried forward to the present from early English legislation. It submits that the clause may be superfluous as it creates no defence that is not already available. The interveners, the Attorney General of Canada, the
Attorney General of Quebec and the Attorney General of Saskatchewan, make similar submissions.
After careful consideration, I am of the view that intention is an essential element of the offence and that the section does not require an accused to disprove guilty intent on a balance of probabilities. The burden of proving intention to use the instrument for house‑breaking rests on the Crown. The reference to "circumstances that give rise to a reasonable inference that the instrument . . . was intended to be used for house‑breaking" permits, but does not require, the jury to draw an inference of guilty intent from suspicious circumstances. If the jury is convinced beyond a reasonable doubt that the accused actually intended to engage in an unlawful act, that inference ought to be drawn. On the other hand, I am also of the view that the opening words of s. 309(1) , namely, "without lawful excuse, the proof of which lies upon him", place a persuasive burden on the accused to establish on a balance of probabilities an excuse in circumstances where he or she seeks to justify his or her actions despite an intention to use an instrument for house‑breaking purposes. Such would be the case where an accused seeks an acquittal due to duress or authorization by law. I reach this conclusion in light of this Court's reasoning in Tupper v. The Queen, [1967] S.C.R. 589, and s. 309(1) 's legislative history.
In Tupper v. The Queen, this Court had occasion to address s. 295(1) of the Code, the predecessor of s. 309(1) . Section 295(1) provided the following:
295.(1) Every one who without lawful excuse, the proof of which lies upon him, has in his possession any instrument for house‑breaking, vault‑breaking or safe‑breaking is guilty of an indictable offence and is liable to imprisonment for fourteen years.
The facts in Tupper were that early one morning police stopped a car in which Tupper was a passenger. Various screwdrivers, a flashlight, a crowbar, two nylon stockings and numerous items of clothing were found in the vehicle. Upon appeal to this Court, Tupper submitted that the Crown must prove some event, overt action or declaration to identify the tools with a specific unlawful purpose before the onus is cast on the accused to provide an explanation. Tupper relied on the following line of jurisprudence: R. v. Smith (1957), 27 C.R. 359 (Nfld. C.A.); R. v. Haire (1958), 29 C.R. 233 (Alta. C.A.); and R. v. McRae (1967), 50 C.R. 325 (Sask. C.A.) A conflicting line of authority was reflected in such cases as R. v. Gilson, [1965] 2 O.R. 505 (C.A.); R. v. Kernychne (Ont. C.A., March 17, 1965, unreported); R. v. Singleton (1956), 115 C.C.C. 391 (Ont. C.A.); R. v. Jones (1960), 128 C.C.C. 230 (B.C.C.A.)
Judson J., for the majority of the Court in Tupper, dismissed the appellant's argument and, at p. 593, stated the following:
Once possession of an instrument capable of being used for housebreaking has been shown, the burden shifts to the accused to show on a balance of probabilities that there was lawful excuse for possession of the instrument at the time and place in question.
Hall J. wrote a separate judgment concurring in the result, but expressed concern over the breadth of the prohibition. At page 594, he stated:
Whether Parliament intended it or not, s. 295(1), as it reads, permits of no other interpretation. It puts the possessor of many necessary tools of trade, automobile accessories and tools and hundreds of similar instruments used and carried daily for routine purposes which might be capable of being used for house‑breaking in the position that merely from being in possession under the most innocent circumstances, he can be brought into court and put to the proof that he has a lawful excuse for having a screwdriver, a flashlight or some other such household tool or instrument in his car, boat, tool kit or on his person at any given time or place which includes his home. It can be argued and readily accepted that this may not happen frequently, but it can and may happen if Parliament really intended what the section says when, without any qualification as to time or circumstance, it put the burden of proof on the person in whose possession any such item may be found.
The interpretation which the wording of the section compels should, I think, be drawn to Parliament's attention.
Tupper, then, stands for the proposition that the provision, as it was then worded, did not require the Crown to prove beyond reasonable doubt that the accused actually intended to use the instruments for house‑breaking purposes. All it needed to show was possession of an instrument capable of being used for house‑breaking; once that was shown, the onus fell upon the accused to persuade the jury that he or she had a lawful excuse for possessing the instrument in question. Tupper has since been affirmed by this Court in R. v. Appleby, [1972] S.C.R. 303, and the same conclusion has been reached with respect to similar legislation in England. See R. v. Patterson (1961), 46 Cr. App. R. 106.
It should be noted that s. 295(1) did not relieve the Crown of its obligation to prove beyond a reasonable doubt the essential elements of the offence as it was then worded: namely, possession by the accused of the instruments specified in the indictment, and that those instruments were suitable for the purpose of house‑breaking. Once these elements were established beyond a reasonable doubt, however, the accused bore the burden of proving "lawful excuse" on a balance of probabilities. A "lawful excuse" thus does not refer to, or tend to disprove, an element of an offence; rather, it refers to "matters which stand outside the requirements which must be met" (Taraschuk v. The Queen, [1977] 1 S.C.R. 385, at p. 388). Since an intention to use the instruments for an unlawful purpose was not an element of the offence as it was then worded, an accused was required to disprove such an intention on a balance of probabilities. Section 295(1), however, placed a similar, persuasive burden on an accused who admitted committing the offence and an intention to use the instruments for house‑breaking purposes but who sought exculpation, for example, on grounds of duress or authorization by law. Such defences equally stood "outside the requirements which [had to be] met". As such, they had to be established on a balance of probabilities.
In 1972, perhaps in response to Hall J.'s concurring judgment, Parliament amended s. 309 (S.C. 1972, c. 13), which, for ease of reference, I repeat:
309.(1) Every one who, without lawful excuse, the proof of which lies upon him, has in his possession any instrument suitable for house‑breaking, vault‑breaking or safe‑breaking, under circumstances that give rise to a reasonable inference that the instrument has been used or is or was intended to be used for house‑breaking, vault‑breaking or safe‑breaking, is guilty of an indictable offence and is liable to imprisonment for fourteen years. [Emphasis added.]
The effect of this amendment was to make an intention to use the instruments an essential component of the offence. The Crown must prove not only possession of the instruments specified in the indictment and that they were suitable for house‑breaking purposes beyond a reasonable doubt, but also "circumstances that give rise to a reasonable inference that the instrument has been used or is or was intended to be used for house‑breaking". The jury must ask itself whether, given the circumstances, it is reasonable to conclude that the accused intended to, or did, use the instruments for house‑breaking purposes. Such an inference, in the context of a criminal charge, can only be reasonable where the jury is convinced beyond a reasonable doubt that the accused actually intended to, or did, use the instruments for the purpose of house‑breaking: R. v. Cooper, [1978] 1 S.C.R. 860.
The 1972 amendment thus had the effect of displacing Tupper to the extent that Tupper placed a persuasive burden on the accused to establish a lack of intention to use the instruments for house‑breaking purposes. Any burden on the accused with respect to such a defence is purely an evidential one: in the absence of any evidence to the contrary, the Crown's case may be sufficiently strong to support a finding that the accused possessed the requisite intent beyond a reasonable doubt. Upon the presentation of such circumstantial evidence by the Crown, the accused is placed in the position of being well‑advised to adduce evidence which would have the effect of raising a reasonable doubt that he or she intended to use the instruments for house‑breaking purposes. No longer is he or she obliged to persuade the jury of a lack of such an intention on a balance of probabilities, as was the case prior to 1972. If the jury entertains a reasonable doubt as to the accused's intention, it should not draw the inference of guilty intent from the circumstances and should enter a verdict of not guilty.
But, while the effect of the amendment was to displace the rule in Tupper with respect to defences or excuses which have the effect of negating the inference that the accused intended to use the instruments for house‑breaking purposes, s. 309(1) continues to cast a persuasive burden on the accused in circumstances where he or she admits that intention but claims a justification for his or her actions, such as duress or authorization by law. In other words, in circumstances where an accused seeks to raise a defence absolving him or her of liability despite proof of actus reus and mens rea beyond a reasonable doubt, s. 309(1) , like its predecessor, still requires the accused to establish such a defence on a balance of probabilities. In such circumstances, the persuasive burden on the accused remains.
I have had the benefit of reading the reasons of my colleague, McIntyre J. With the greatest respect, I do not agree with his conclusion that the phrase "without lawful excuse, the proof of which lies upon him" is limited to the lawful excuse of innocent intention. Nor do I agree that the entire phrase was rendered superfluous by the 1972 amendment to s. 309(1) .
"Lawful excuse" is a very general term. It normally includes all of the defences which the common law considers sufficient reason to excuse a person from criminal liability. It can also include excuses specific to particular offences. The word "excuse" is used in this broad meaning in s. 7(3) of the Criminal Code , which provides that all common law justifications and excuses continue to be available under the Code. This provision has been interpreted to mean that the common law defences are not frozen in time. They can be developed and tailored to fit changes in the law and new offences.
There is no doubt that Parliament can re‑define the meaning of "excuse", for example by expanding it to provide new excuses or excuses specific to a particular offence, or by narrowing it to include only certain excuses. The important point is that Parliament should give some indication, express or implied, that it has changed the meaning of "excuse" when it uses it in a statute. Otherwise, the word will be understood to have the meaning of "excuse" under the common law and as used by s. 7(3) , a broad term that allows for the development of defences in relation to changes in the law and in the context of particular offences. If Parliament does not give some indication that it has assigned a particular meaning to "excuse", the word will be taken to have the same meaning as "excuse" under the common law and in s. 7(3) .
With this in mind, I am unable to agree that the words "lawful excuse", which normally include a range of defences, have by their inclusion in
s. 309(1) been limited to one meaning and one meaning alone, namely, a defence of innocent purpose. There is nothing in the wording of the section to suggest that Parliament has narrowed the concept, qualified it, or given it a specific meaning. I conclude that the phrase includes all defences which are commonly considered to be lawful excuses. It may well be that the common law of excuses is flexible enough to allow for the development of the specific defence of innocent purpose in answer to a charge under s. 309(1) , but I do not agree that the general term can be said to be limited to this defence alone.
A similar point arose in Brownridge v. The Queen, [1972] S.C.R. 926, which considered the meaning of a "reasonable excuse" for refusing to supply a breath sample under the impaired driving provisions. Laskin J., as he then was, writing for himself and Hall J., held that the phrase did not include defences that would otherwise be available, and concluded that a denial of the right to counsel under the Canadian Bill of Rights was not a reasonable excuse for refusing a breath sample. With respect for Laskin J., I prefer the opinion of Ritchie J., writing for himself, Fauteux C.J. and Martland and Spence JJ., who held that "reasonable excuse" included a denial of the right to counsel. Ritchie J. seems to have understood the phrase "reasonable excuse" to be a general term which could include a variety of excuses, without distinctions based on whether an excuse had been generally recognised by the law as an excuse or was specific to the offence in question. (There was no majority on this point since Ritchie and Laskin JJ. agreed in the result, while Abbott, Judson and Pigeon JJ. dissenting, would have held that the accused was not detained and thus had no right to counsel.)
Because I do not agree that the words "lawful excuse" are limited to the defence of innocent purpose, I cannot agree with McIntyre J.'s conclusion that the phrase was rendered superfluous by the 1972 amendment. Since the phrase includes lawful excuses other than that of innocent purpose, it continues to have a meaning. Nor is it simply surplusage. The phrase "the proof of which lies upon him" means that an accused who wishes to raise a defence of lawful excuse must prove it on a balance of probabilities, following the principle set out in Tupper, supra, R. v. Appleby, supra, and R. v. Proudlock, [1979] 1 S.C.R. 525.
Section 309(1) requires the accused to prove a lawful excuse on a balance of probabilities. The question to be answered, therefore, is whether s. 309(1) runs counter to the right to be presumed innocent until proven guilty enshrined in s. 11 (d) of the Charter .
VI
The Presumption of Innocence and Section 11 (d) of the Charter
The overarching principle of judicial review under the Charter is that the judiciary is entrusted with the duty of ensuring that legislatures do not infringe unjustifiably upon certain fundamental individual and collective interests
in the name of the broader common good. Viewed from one perspective, this profound responsibility potentially can be seen as challenging the nature of democratic institutions in Canada, to the extent that those institutions represent the collective voice of the communities and individuals which comprise Canadian society. Viewed from another perspective, however, in interpreting and giving meaning to constitutional guarantees and determining what constitute reasonable limits under s. 1 of the Charter , the courts are guided by the same principle under both lines of inquiry: namely, that Canadian society is to be free and democratic. The infusion of the spirit of individual and collective democratic aspirations into the process of defining the contours of constitutional guarantees and determining the reasonableness of state‑imposed limitations on those guarantees thus ensures that the courts are and will remain allies of Canadian democracy, strengthening any weaknesses of democracy by providing a voice and a remedy for those excluded from equal and effective democratic participation in our society.
The purposes behind the presumption of innocence enshrined in s. 11 (d) of the Charter , and its relationship to a democratic and free society, have been addressed in R. v. Oakes, [1986] 1 S.C.R. 103, at pp. 119‑20, as follows:
The presumption of innocence is a hallowed principle lying at the very heart of criminal law. Although protected expressly in s. 11 (d) of the Charter , the presumption of innocence is referable and integral to the general protection of life, liberty and security of the person contained in s. 7 of the Charter (see Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, per Lamer J.) The presumption of innocence protects the fundamental liberty and human dignity of any and every person accused by the State of criminal conduct. An individual
charged with a criminal offence faces grave social and personal consequences, including potential loss of physical liberty, subjection to social stigma and ostracism from the community, as well as other social, psychological and economic harms. In light of the gravity of these consequences, the presumption of innocence is crucial. It ensures that until the State proves an accused's guilt beyond all reasonable doubt, he or she is innocent. This is essential in a society committed to fairness and social justice. The presumption of innocence confirms our faith in humankind; it reflects our belief that individuals are decent and law‑abiding members of the community until proven otherwise.
Thus, the presumption of innocence is a value deeply embedded in the fabric of Canadian legal history and a manifestation of a social commitment to justice. The right to be presumed innocent until proven guilty when charged with a criminal offence accords the respect and concern due to individuals by virtue of their fundamental rights to life, liberty and security of the person. As such, it is simultaneously a legal articulation of the relationship between the individual and the community and a recognition of the necessity of the rule of law.
Canadian and international authorities on both the presumption of innocence and its relationship to a "reverse onus" clause were canvassed extensively in Oakes and it is sufficient to reiterate that, with respect to the former, the minimum content of the right to be pre