R. v. Downey

R. v. Downey
Collection
Supreme Court Judgments
Date
1992-05-21
Report
[1992] 2 SCR 10
Case number
21874
Judges
La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank
On appeal from
Alberta
Subjects
Constitutional law
Criminal law
Notes
SCC Case Information: 21874 On February 7th, 1997, the Parole Board of Canada awarded Corrine Louise Reynolds a criminal record suspension (formerly called a "pardon") for the convictions mentioned in this decision.
Decision Content
R. v. Downey, [1992] 2 S.C.R. 10
Kenneth Dale Downey Appellant
v.
Her Majesty The Queen Respondent
and
The Attorney General of Canada and
the Attorney General of Quebec Interveners
Indexed as: R. v. Downey
File No.: 21874.
1991: November 1; 1992: May 21.
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 .
Cases Cited
By Cory J.
Referred to: R. v. Appleby, [1972] S.C.R. 303; R. v. Proudlock, [1979] 1 S.C.R. 525; R. v. Oakes, [1986] 1 S.C.R. 103; Dubois v. The Queen, [1985] 2 S.C.R. 350; Schuldt v. The Queen, [1985] 2 S.C.R. 592; R. v. Vaillancourt, [1987] 2 S.C.R. 636; R. v. Whyte, [1988] 2 S.C.R. 3; R. v. Kowlyk, [1988] 2 S.C.R. 59; R. v. Keegstra, [1990] 3 S.C.R. 697; R. v. Grilo (1991), 64 C.C.C. (3d) 53; R. v. Celebrity Enterprises Ltd. (1977), 41 C.C.C. (2d) 540; Shaw v. Director of Public Prosecutions (1961), 45 Cr. App. R. 113; R. v. Chaulk, [1990] 3 S.C.R. 1303; R. v. Clarke, [1976] 2 All E.R. 696.
By McLachlin J. (dissenting)
R. v. Oakes, [1986] 1 S.C.R. 103, aff'g (1983), 40 O.R. (2d) 660; Re Boyle and The Queen (1983), 5 C.C.C. (3d) 193; R. v. Whyte, [1988] 2 S.C.R. 3; County Court of Ulster County v. Allen, 442 U.S. 140 (1979); R. v. Grilo (1991), 64 C.C.C. (3d) 53.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 1 , 11 (d).
Criminal Code, R.S.C. 1927, c. 36, ss. 216(1)(i), 238(j), 239.
Criminal Code, R.S.C. 1970, c. C‑34, s. 195(1)(j) [ad. 1972, c. 13, s. 14; rep. & sub. 1980‑81‑82‑83, c. 125, s. 13], (2) [rep. & sub. idem].
Criminal Code, R.S.C., 1985, c. C‑46, s. 212(1) (j), (h), (2) [ad. c. 19 (3rd Supp.), s. 9 ], (3) [idem].
Criminal Code, S.C. 1892, c. 29, ss. 207(l), 208.
Criminal Code, S.C. 1953‑54, c. 51, s. 184.
Prostitution Act, 1979, No. 71 (N.S.W.), s. 5.
Prostitution Regulation Act 1986, No. 124 (Vict.), ss. 4, 12(3).
Sexual Offences Act, 1956 (U.K.), 4 & 5 Eliz. 2, c. 69, s. 30(2).
Authors Cited
Canada. Special Committee on Pornography and Prostitution. Pornography and Prostitution in Canada, vol. 2. Ottawa: Minister of Supply and Services Canada, 1985.
Canada. Committee on Sexual Offences Against Children and Youths. Sexual Offences Against Children, vol. 2. Ottawa: Minister of Supply and Services Canada, 1984.
Cromwell, Thomas A. "Proving Guilt: The Presumption of Innocence and the Canadian Charter of Rights and Freedoms ". In William H. Charles, Thomas A. Cromwell and Keith B. Jobson, eds., Evidence and the Charter of Rights and Freedoms. Toronto: Butterworths, 1989.
Cross, Sir Rupert. Evidence, 5th ed. London: Butterworths, 1979.
Erbe, Nancy. "Prostitutes: Victims of Men's Exploitation and Abuse" (1984), 2 Law & Inequality 609.
Milman, Barbara. "New Rules for the Oldest Profession: Should We Change Our Prostitution Laws?" (1980), 3 Harv. Women's L.J. 1.
New South Wales. Parliament. Report of the Select Committee of the Legislative Assembly Upon Prostitution, 1986.
Sansfaçon, Daniel. Prostitution in Canada: A Research Review Report. Ottawa: Department of Justice, Research and Statistics Section, 1984.
Sansfaçon, Daniel. Agreements and Conventions of the United Nations with respect to Pornography and Prostitution. Ottawa: Department of Justice, Research and Statistics Section, 1984.
Silbert, Mimi H. and Ayala M. Pines, "Occupational Hazards of Street Prostitutes" (1981), 8 Crim. Just. & Behavior 395.
United Kingdom. Criminal Law Revision Committee. Seventeenth Report. Prostitution: Off‑street activities. London: H.M.S.O., 1985.
United Kingdom. Criminal Law Revision Committee. Working Paper on Offences relating to Prostitution and allied Offences. London: H.M.S.O., 1982.
Weisberg, D. Kelly. "Children Of The Night: The Adequacy Of Statutory Treatment Of Juvenile Prostitution" (1984), 12 Am. J. Crim. L. 1.
APPEAL from a judgment of the Alberta Court of Appeal (1990), 105 A.R. 351, dismissing the accused's appeal from his conviction for living on the avail of prostitution contrary to s. 195(1) of the Criminal Code . Appeal dismissed, La Forest, McLachlin and Iacobucci JJ. dissenting.
Terence C. Semenuk and Mitchell C. Stephensen, for the appellant.
Jack Watson, for the respondent.
Robert J. Frater, for the intervener the Attorney General of Canada.
Monique Rousseau and Gilles Laporte, for the intervener the Attorney General of Quebec.
The following are the reasons delivered by
//La Forest J.//
La Forest J. (dissenting) -- I have had the advantage of reading the reasons of my colleagues. I agree with Justice Cory that s. 195(2) (now s. 212(3)) of the Criminal Code, R.S.C. 1970, c. C-34, infringes the presumption of innocence guaranteed by s. 11 (d) of the Canadian Charter of Rights and Freedoms for the reasons he gives. I, however, agree with Justice McLachlin's conclusion that s. 195(2) cannot pass muster under s. 1 of the Charter , though I approach the matter somewhat differently.
No one can deny the importance of the objective under s. 195(1)(j) of the Code, which makes it an offence to live on the avails of prostitution of another person. It is aimed at the parasites who control street prostitutes. The presumption in s. 195(2) is there to encourage reporting and to facilitate prosecutions without the need for the prostitutes involved to testify. In other words, because of the parasitic and coercive nature of the pimp-prostitute relationship, prostitutes, often young girls, are extremely reluctant to come forward and testify against their pimps; see the Report of the Committee on Sexual Offences Against Children and Youths (the Badgley Committee), Sexual Offences Against Children (1984), vol. 2, at pp. 1057-58. I think the presumption may well be rationally connected to the objective of securing convictions without evidence from the complainant prostitute. However, the basic facts contained in s. 195(2) are not intrinsically blameworthy and simply cast too wide a net. It 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.
I would, therefore, allow the appeal, quash the conviction and order a new trial.
The judgment of L'Heureux-Dubé, Sopinka, Gonthier, and Cory JJ. was delivered by
//Cory J.//
Cory J. -- Section 195(1) (j) (now s. 212(1) (j)) of the Criminal Code, R.S.C. 1970, c. C-34, makes it an offence to live wholly or in part on the avails of another person's prostitution. Section 195(2) (now s. 212(3)) 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". At issue on this appeal is whether the evidential burden thus placed on an accused contravenes the right to be presumed innocent set forth in s. 11 (d) of the Canadian Charter of Rights and Freedoms . If the impugned section does infringe s. 11 (d) of the Charter it must be determined whether it can be justified pursuant to s. 1 of the Charter .
Factual Background
The appellant, Kenneth Downey, was jointly charged with his companion, Corrine Louise Reynolds, with two counts of living on the avails of prostitution. They were both convicted at trial and their appeals to the Court of Appeal of Alberta were dismissed.
From September 1985 to May 1986, Corrine Reynolds owned and operated an escort agency. When the agency received calls for escorts either Elizabeth Wilson or Sherry Siegel, both of whom testified at trial, would go on dates with the callers. The callers, referred to as clients by the accused, were then charged an introduction or agency fee. The fee charged was the same for all clients and was turned over to the agency. The agency in turn deposited the money in a bank account maintained by Corrine Reynolds in the name of CLR Holdings. Any money that was paid to Wilson or Siegel in respect of sexual services was kept by them. Corrine Reynolds also went out with clients on the same basis as Wilson and Siegel. Wilson and Siegel had sexual relations of one kind or another with 85 to 90 percent of the clients that they dated. There is no question that both Reynolds and Downey were aware of this sexual activity. Indeed they knew of the particular sexual preferences of many of the clients of the agency.
During the time Wilson and Siegel worked at the agency, Downey answered the agency's telephones, made up the receipts and did the banking. Throughout this period he had no other employment. On one occasion when Reynolds was away Downey ran the agency for a month. It was then that he "suspended" or fired Siegel.
This is not a case of pimps manipulating young girls. Both Wilson and Siegel were mature women. Strangely enough they did not consider themselves prostitutes in spite of receiving payment for their sexual activities with clients of the agency.
During the course of the trial an application was made for a declaration that s. 195(2) of the Criminal Code was of no force or effect because of s. 11 (d) of the Charter . The application was dismissed and the trial judge ruled that the section was constitutionally valid.
Courts Below
(a) The Court of Queen's Bench
The trial judge found that s. 195(2) was not a true reverse onus provision. Rather he found it created an evidential presumption or inference which could be rebutted by raising a reasonable doubt as to its validity. He expressed the opinion that requiring an accused to raise a reasonable doubt as to guilt did not require the accused to give evidence. He noted that the required fact in the presumption (living with or habitually in the company of a prostitute) might not be proven by the Crown. In any event the accused could introduce a reasonable doubt through the cross-examination of Crown witnesses.
(b) The Court of Appeal (1990), 105 A.R. 351
The Court of Appeal dismissed the appeal from the bench without hearing from the respondent. Kerans J.A. expressed the view that the impugned section should be understood as merely directing the jury that the fact of living with prostitutes and consorting with them was to be considered in deciding the question of guilt or innocence. A jury which had any doubt as to the appropriateness of the inference would give effect to that doubt.
Does Section 195(2) Infringe Section 11(d) of the Charter ?
Pre‑Charter Classification of Presumptions
At the outset it may be helpful to review briefly some pre‑Charter considerations of statutory presumptions.
In R. v. Appleby, [1972] S.C.R. 303, this Court considered a presumption which required the accused to establish a state of affairs. There the presumption provided:
[W]here it is proved that the accused occupied the seat ordinarily occupied by the driver of a motor vehicle, he shall be deemed to have had the care or control of the vehicle unless he establishes that he did not enter or mount the vehicle for the purpose of setting it in motion;
It was held that the word "establishes" required the accused to prove on a balance of probabilities that he did not enter the vehicle for the purpose of setting it in motion. The presumed fact must be disproved on the balance of probabilities rather than by the mere raising of a reasonable doubt.
In R. v. Proudlock, [1979] 1 S.C.R. 525, the accused was charged with breaking and entering with intent to commit an indictable offence. Section 306(2)(a) (now s. 348(2)(a)) of the Criminal Code provided that the intent to commit an indictable offence was to be presumed when, in the absence of any evidence to the contrary, proof was adduced of having broke and entered. Under this section, the trier of fact is required to draw the conclusion from proof of the basic fact in the absence of evidence to the contrary. This mandatory conclusion results in an evidential burden whereby the accused will need to call evidence unless there is already evidence to the contrary in the Crown's case. Pigeon J. for the majority concluded that evidence which is disbelieved by the trier of fact is not "evidence to the contrary" for the purposes of discharging the evidential burden. At pages 549 and 551 he wrote:
The accused does not have to "establish" a defence or an excuse, all he has to do is to raise a reasonable doubt. If there is nothing in the evidence adduced by the Crown from which a reasonable doubt can arise, then the accused will necessarily have the burden of adducing evidence if he is to escape conviction. However, he will not have the burden of proving his innocence, it will be sufficient if, at the conclusion of the case on both sides, the trier of fact has a reasonable doubt.
. . .
If the prima facie case is made up by the proof of facts from which guilt may be inferred by presumption of fact, the law is clear on the authorities that, because the case in the end must be proved beyond a reasonable doubt, it is not necessary for the accused to establish his innocence, but only to raise a reasonable doubt. This he may do by giving evidence of an explanation that may reasonably be true, and it will be sufficient unless he is disbelieved by the trier of fact, in which case his testimony is no evidence. In any case, the evidence given by himself or otherwise, has to be such as will at least raise a reasonable doubt as to his guilt; if it does not meet this test the prima facie case remains and conviction will ensue.
The passage of the Charter led to a review of the intrinsic meaning of the presumption of innocence.
Section 11 (d) of the Charter provides that:
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;
In order to determine whether there has been an infringement of s. 11 (d) it must be decided whether or not the presumption under attack could lead to the result that an accused person would be found guilty even though a reasonable doubt existed as to that guilt.
The nature of presumptions was first considered post-Charter in R. v. Oakes, [1986] 1 S.C.R. 103. There Dickson C.J. noted that they could be classified in two categories. He expressed his view in this way at pp. 115-16:
Presumptions can be classified into two general categories: presumptions without basic facts and presumptions with basic facts. A presumption without a basic fact is simply a conclusion which is to be drawn until the contrary is proved. A presumption with a basic fact entails a conclusion to be drawn upon proof of the basic fact. . . .
Basic fact presumptions can be further categorized into permissive and mandatory presumptions. A permissive presumption leaves it optional as to whether the inference of the presumed fact is drawn following proof of the basic fact. A mandatory presumption requires that the inference be made.
Presumptions may also be either rebuttable or irrebuttable. If a presumption is rebuttable, there are three potential ways the presumed fact can be rebutted. First, the accused may be required merely to raise a reasonable doubt as to its existence. Secondly, the accused may have an evidentiary burden to adduce sufficient evidence to bring into question the truth of the presumed fact. Thirdly, the accused may have a legal or a persuasive burden to prove on a balance of probabilities the non-existence of the presumed fact.
Finally, presumptions are often referred to as either presumptions of law or presumptions of fact. The latter entail "frequently recurring examples of circumstantial evidence" . . . while the former involve actual legal rules. [Emphasis in original.]
A very useful analysis of presumptions that can be utilized in this case can be found in the writing of T. A. Cromwell in "Proving Guilt: The Presumption of Innocence and the Canadian Charter of Rights and Freedoms " in W. H. Charles, T. A. Cromwell and K. B. Jobson, eds., Evidence and the Charter of Rights and Freedoms (1989), 125, at pp. 130ff. (which in turn is based on the analysis favoured by Professor Cross in Evidence (5th ed. 1979), at pp. 122ff., approved in Oakes). The presumptions can be summarized in this way:
1) Presumptions which operate without the requirement of proof of any basic facts.
2) Presumptions which require proof of a basic fact.
(a) Permissive Inferences: Where the trier of fact is entitled to infer a presumed fact from the proof of the basic fact, but is not obliged to do so. This results in a tactical burden whereby the accused may wish to call evidence in rebuttal, but is not required to do so.
(b) Evidential Burdens: Where the trier of fact is required to draw the conclusion from proof of the basic fact in the absence of evidence to the contrary. This mandatory conclusion results in an evidential burden whereby the accused will need to call evidence, unless there is already evidence to the contrary in the Crown's case.
(c) Legal Burdens: Similar to the burden in (b) except that the presumed fact must be disproved on a balance of probabilities instead of by the mere raising of evidence to the contrary. These are also referred to as "reverse onus clauses".
The nature of the right to be presumed innocent set out in s. 11 (d) of the Charter was first considered in Dubois v. The Queen, [1985] 2 S.C.R. 350. There Lamer J. (as he then was) was concerned with the nature of the right in connection with s. 13 which provides protection against self-incrimination. In that case he stated (at p. 357):
Section 11 (d) imposes upon the Crown the burden of proving the accused's guilt beyond a reasonable doubt as well as that of making out the case against the accused before he or she need respond, either by testifying or by calling other evidence.
Thus there is implicit in the right to be presumed innocent an obligation on the Crown to make out a case for the accused to meet before a response can be called for from the accused.
In Schuldt v. The Queen, [1985] 2 S.C.R. 592, this Court once again considered the presumption that had come before it in Proudlock, supra. Eventually the case turned upon whether an acquittal in the face of such a presumption constituted a question of law or a fact. Nonetheless the decision is helpful in its qualification of the presumption. It was held at p. 610 that:
But when the burden has been shifted (as is the case for proof of intent when a person is found in a place which he or she has broken into), it can be said, absent any evidence to the contrary, that there is no evidence upon which a reasonable doubt could exist as regards the intent of the accused, and an appeal against the ensuing acquittal raises a question of law alone.
In other words the presumption required the trier of fact to convict in the absence of any evidence to the contrary. This presumption would come within category 2(b).
In R. v. Oakes, supra, the Court considered s. 8 of the Narcotic Control Act which provided that if the Crown was able to prove beyond a reasonable doubt that the accused had been in possession of a narcotic, then the accused was to be "given an opportunity of establishing that he was not in possession of the narcotic for the purpose of trafficking". The section in effect required the accused to establish on a balance of probabilities that he did not have possession of the narcotics for purposes of trafficking. It was held that s. 11 (d) required that an individual must be proven guilty beyond a reasonable doubt; that the State must bear the burden of proving this; and proof of guilt must be accomplished "according to law in a fair and public hearing by an independent and impartial tribunal".
Dickson C.J. applying this basic principle to the reverse onus provision contained in s. 8 of the Narcotic Control Act concluded at pp. 132-33 that:
In general one must, I think, conclude that a provision which requires an accused to disprove on a balance of probabilities the existence of a presumed fact, which is an important element of the offence in question, violates the presumption of innocence in s. 11 (d). If an accused bears the burden of disproving on a balance of probabilities an essential element of an offence, it would be possible for a conviction to occur despite the existence of a reasonable doubt. This would arise if the accused adduced sufficient evidence to raise a reasonable doubt as to his or her innocence but did not convince the jury on a balance of probabilities that the presumed fact was untrue.
The Chief Justice went on to note that even though a rational connection might exist between the established fact and the presumed fact this may not be sufficient to render the presumption constitutional. On page 134 he stated:
A basic fact may rationally tend to prove a presumed fact, but not prove its existence beyond a reasonable doubt. An accused person could thereby be convicted despite the presence of a reasonable doubt. This would violate the presumption of innocence.
Contrary to the decision of the Ontario Court of Appeal, Dickson C.J. stressed that the rational connection between the proven and the presumed fact is better taken into account when analyzing the effect of s. 1 of the Charter on the impugned legislation, rather than in the process of determining whether s. 11 (d) had been violated.
The principles set forth in Oakes were applied in R. v. Vaillancourt, [1987] 2 S.C.R. 636, where s. 213 (d) of the Criminal Code was questioned. The section provided that the offence of murder was committed if the accused used a weapon or had it on his person at the time he commits or attempts to commit an offence or during flight after committing or attempting to commit the offence. Thus a conviction of murder was possible although the accused had neither an objective nor subjective intent to kill the victim. Lamer J. speaking for the majority of the Court concluded that the Crown was required to prove all elements of the offence together with those required to satisfy s. 7 of the Charter . He found that any provision which created an offence which allowed for the conviction of an accused notwithstanding the existence of a reasonable doubt on any essential element infringed s. 7 and s. 11 (d). He wrote at pp. 654-55:
These essential elements include not only those set out by the legislature in the provision creating the offence but also those required by s. 7 of the Charter . Any provision creating an offence which allows for the conviction of an accused notwithstanding the existence of a reasonable doubt on any essential element infringes ss. 7 and 11 (d).
Clearly, this will occur where the provision requires the accused to disprove on a balance of probabilities an essential element of the offence by requiring that he raise more than just a reasonable doubt. It is for this reason that this Court struck down the reverse onus provision in s. 8 of the Narcotic Control Act. . . .
Sections 7 and 11 (d) will also be infringed where the statutory definition of the offence does not include an element which is required under s. 7 .
He then cited the words of Dickson C.J. in Oakes, supra, set out earlier and continued:
It is clear from this passage that what offends the presumption of innocence is the fact that an accused may be convicted despite the existence of a reasonable doubt on an essential element of the offence, and I do not think that it matters whether this results from the existence of a reverse onus provision or from the elimination of the need to prove an essential element.
. . .
Finally, the legislature, rather than simply eliminating any need to prove the essential element, may substitute proof of a different element. In my view, this will be constitutionally valid only if upon proof beyond a reasonable doubt of the substituted element it would be unreasonable for the trier of fact not to be satisfied beyond reasonable doubt of the existence of the essential element. If the trier of fact may have a reasonable doubt as to the essential element notwithstanding proof beyond a reasonable doubt of the substituted element, then the substitution infringes ss. 7 and 11 (d).
In R. v. Whyte, [1988] 2 S.C.R. 3, the accused was charged with having the care and control of a motor vehicle while impaired. The accused was found in the driver's seat of an automobile, slumped over the steering wheel. The keys were in the ignition but the engine was not running. The Crown relied on the same presumption considered in Appleby, supra, which placed the burden on an accused found in the driver's seat of establishing the absence of an intention to enter the vehicle for the purpose of setting it in motion. The presumption was challenged and it was found that it did in fact infringe s. 11 (d). It was held that the word "establishes" required proof on a balance of probabilities. The Crown argued that the section only required proof of an excuse rather than a disproof of any essential element of the offence. That argument was not accepted. Dickson C.J. for the Court stated at p. 18:
The real concern is not whether the accused must disprove an element or prove an excuse, but that an accused may be convicted while a reasonable doubt exists. When that possibility exists, there is a breach of the presumption of innocence.
He then continued:
If an accused is required to prove some fact on the balance of probabilities to avoid conviction, the provision violates the presumption of innocence because it permits a conviction in spite of a reasonable doubt in the mind of the trier of fact as to the guilt of the accused.
. . .
In the passage from Vaillancourt quoted earlier, Lamer J. recognized that in some cases substituting proof of one element for proof of an essential element will not infringe the presumption of innocence if, upon proof of the substituted element, it would be unreasonable for the trier of fact not to be satisfied beyond a reasonable doubt of the existence of the essential element. This is another way of saying that a statutory presumption infringes the presumption of innocence if it requires the trier of fact to convict in spite of a reasonable doubt. Only if the existence of the substituted fact leads inexorably to the conclusion that the essential element exists, with no other reasonable possibilities, will the statutory presumption be constitutionally valid.
It was held that the presumption in that section did not have that required "inexorable" character and thus failed the test proposed in Oakes and Vaillancourt.
In R. v. Kowlyk, [1988] 2 S.C.R. 59, the validity of a conviction based solely on the doctrine of recent possession was questioned. McIntyre J. held that the provision created no more than a permissive presumption from which the trier of fact may, but not must, draw an inference of guilt of theft from the possession of recently stolen property. He put his position in this way at pp. 71-72:
. . . where an explanation is offered for such possession which could reasonably be true, no inference of guilt on the basis of recent possession alone may be drawn, even where the trier of fact is not satisfied of the truth of the explanation. The burden of proof of guilt remains upon the Crown, and to obtain a conviction in the face of such an explanation it must establish by other evidence the guilt of the accused beyond a reasonable doubt.
In R. v. Keegstra, [1990] 3 S.C.R. 697, the presumption of innocence was again considered. The appellant was charged under a section which provided for relief from conviction if it could be established "that the statements communicated were true". Once again the section was challenged as contravening s. 11 (d). Dickson C.J. confirmed that the presumption of innocence is infringed whenever the accused is liable to be convicted despite the existence of a reasonable doubt. He reviewed the reasons in Whyte, supra, and then put forward his position in these words (at p. 790):
As is evident from the above quotation, the categorization of a factual finding as forming an element "essential" to the offence is of no consequence when determining whether s. 11 (d) has been breached.
Applying the approach taken in Whyte to this appeal, it is obvious that s. 319(3)(a) runs afoul of the presumption of innocence. Contrary to the arguments of those who would find s. 319(3)(a) compatible with s. 11 (d), it matters not that the defence of truth may be intended to play a minor role in providing relief from conviction. What is of essence is not the "essential nature" of the crime, but that the trier of fact will have to convict even where there is a reasonable doubt as to the truth of an accused's statements.
Perhaps it may be helpful to summarize the principles to be derived from the authorities.
I - The presumption of innocence is infringed whenever the accused is liable to be convicted despite the existence of a reasonable doubt.
II - If by the provisions of a statutory presumption, an accused is required to establish, that is to say to prove or disprove, on a balance of probabilities either an element of an offence or an excuse, then it contravenes s. 11 (d). Such a provision would permit a conviction in spite of a reasonable doubt.
III - Even if a rational connection exists between the established fa