R. v. Laba

R. v. Laba
Collection
Supreme Court Judgments
Date
1994-12-08
Report
[1994] 3 SCR 965
Case number
23217
Judges
Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.
On appeal from
Ontario
Subjects
Constitutional law
Courts
Notes
SCC Case Information: 23217
Decision Content
R. v. Laba, [1994] 3 S.C.R. 965
Her Majesty The Queen Appellant
v.
Henry Arthur Johnson, Andrew Isedore Laba,
Raymond Lebrun, Sr., Lionel Raymond Legendre,
Jean Paul Timm and Danilor Tichinoff Respondents
and
The Attorney General of Canada Intervener
Indexed as: R. v. Laba
File No.: 23217.
1994: June 15; 1994: December 8.
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.
Cases Cited
By Lamer C.J.
Applied: Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; referred to: R. v. Barnes, [1991] 1 S.C.R. 449; R. v. MacKenzie, [1993] 1 S.C.R. 212; R. v. Meddoui, [1991] 3 S.C.R. ix; Paper Machinery Ltd. v. J. O. Ross Engineering Corp., [1934] S.C.R. 186.
By Sopinka J.
Referred to: Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154; R. v. Keegstra, [1990] 3 S.C.R. 697; R. v. Seaboyer, [1991] 2 S.C.R. 577; R. v. Levogiannis, [1993] 4 S.C.R. 475; R. v. Oakes, [1986] 1 S.C.R. 103; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; R. v. Downey, [1992] 2 S.C.R. 10; R. v. Chaulk, [1990] 3 S.C.R. 1303; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; Schachter v. Canada, [1992] 2 S.C.R. 679; R. v. Holmes, [1988] 1 S.C.R. 914; Knodel v. British Columbia (Medical Services Commission) (1991), 58 B.C.L.R. (2d) 356.
By L'Heureux‑Dubé J.
Referred to: Mills v. The Queen, [1986] 1 S.C.R. 863; R. v. Meltzer, [1989] 1 S.C.R. 1764; Bar of the Province of Quebec v. Ste‑Marie, [1977] 2 S.C.R. 414; R. v. Morgentaler, Smoling and Scott (1984), 41 C.R. (3d) 262; R. v. Cranston (1983), 60 N.S.R. (2d) 269; Kourtessis v. M.N.R., [1993] 2 S.C.R. 53; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; R. v. Swietlinski, [1994] 3 S.C.R. 481; R. v. Vaillancourt (1990), 76 C.C.C. (3d) 384; R. v. Gardiner, [1982] 2 S.C.R. 368; Hill v. The Queen, [1977] 1 S.C.R. 827; R. v. Barnes, [1991] 1 S.C.R. 449; R. v. MacKenzie, [1993] 1 S.C.R. 212; R. v. Jewitt, [1985] 2 S.C.R. 128.
Statutes and Regulations Cited
Act respecting Larceny and other similar Offences, S.C. 1869, c. 21, ss. 31, 32.
Canadian Charter of Rights and Freedoms, ss. 1 , 7 , 11 (c), (d).
Constitution Act, 1982, s. 52 .
Criminal Code, R.S.C. 1927, c. 36, s. 424 [rep. & sub. 1938, c. 44, s. 22].
Criminal Code, R.S.C., 1985, c. C‑46 [am. c. 27 (1st Supp.)], ss. 256 , 394(1) (b), (c), 465(1) (c), 674 , 676(1) (c), 693(1) (a), (b) [rep. & sub. c. 34 (3rd Supp.), s. 12 ].
Criminal Code, S.C. 1953‑54, c. 51, s. 337.
Ontario Court of Appeal Criminal Appeal Rules, SI/93‑169.
Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 59.06(1).
Supreme Court Act, R.S.C., 1985, c. S‑26, ss. 2 , 40(1) [rep. & sub. 1990, c. 8, s. 37], (3), 53.
Authors Cited
House of Commons Debates, 2nd Sess., 11th Parl., January 19, 1910, p. 2166.
Sopinka, John, and Mark A. Gelowitz. The Conduct of an Appeal. Toronto: Butterworths, 1993.
APPEAL from a judgment of the Ontario Court of Appeal (1992), 74 C.C.C. (3d) 538, 15 C.R. (4th) 198, 10 C.R.R. (2d) 321, 56 O.A.C. 97, varying a judgment of the Ontario Court (General Division) (1990), 62 C.C.C. (3d) 375, 4 C.R.R. (2d) 185, declaring s. 394(1) (b) of the Criminal Code to be of no force and effect. Appeal allowed in part.
David Butt, for the appellant.
Marc Rosenberg and Alison Wheeler, for the respondents Laba, Lebrun and Tichinoff.
James Wallbridge, for the respondent Timm.
Elaine F. Krivel, Q.C., and Robert J. Frater, for the intervener the Attorney General of Canada.
The judgment of Lamer C.J. and Sopinka, Cory, McLachlin, Iacobucci and Major JJ. was delivered by
I. Lamer C.J. -- There are really three issues in this appeal: (1) does this Court have the jurisdiction to hear the appeal? (2) does s. 394(1) (b) of the Criminal Code, R.S.C., 1985, c. C-46 , infringe s. 11 (d) of the Canadian Charter of Rights and Freedoms ? and (3) if the answer to question 2 is in the affirmative, is s. 394(1) (b) of the Criminal Code a reasonable limit on the s. 11 (d) right pursuant to s. 1 of the Charter ? In these reasons, I will address only the first of these issues. Justice Sopinka will address the second and third in his reasons.
I. Relevant Statutory Provisions
II. The relevant statutory provisions are as follows:
Criminal Code, R.S.C., 1985, c. C-46
674. No proceedings other than those authorized by this Part and Part XXVI shall be taken by way of appeal in proceedings in respect of indictable offences.
693. (1) Where a judgment of a court of appeal sets aside a conviction pursuant to an appeal taken under section 675 or dismisses an appeal taken pursuant to paragraph 676(1)(a), (b) or (c) or subsection 676(3), the Attorney General may appeal to the Supreme Court of Canada
(a) on any question of law on which a judge of the court of appeal dissents; or
(b) on any question of law, if leave to appeal is granted by the Supreme Court of Canada.
Supreme Court Act, R.S.C., 1985, c. S-26
2. (1) In this Act,
. . .
"final judgment" means any judgment, rule, order or decision that determines in whole or in part any substantive right of any of the parties in controversy in any judicial proceeding;
. . .
"judgment", when used with reference to the court appealed from, includes any judgment, rule, order, decision, decree, decretal order or sentence thereof, and when used with reference to the Supreme Court, includes any judgment or order of that Court;
40. (1) Subject to subsection (3), an appeal lies to the Supreme Court from any final or other judgment of the Federal Court of Appeal or of the highest court of final resort in a province, or a judge thereof, in which judgment can be had in the particular case sought to be appealed to the Supreme Court, whether or not leave to appeal to the Supreme Court has been refused by any other court, where, with respect to the particular case sought to be appealed, the Supreme Court is of the opinion that any question involved therein is, by reason of its public importance or the importance of any issue of law or any issue of mixed law and fact involved in that question, one that ought to be decided by the Supreme Court or is, for any other reason, of such a nature or significance as to warrant decision by it, and leave to appeal from that judgment is accordingly granted by the Supreme Court.
. . .
(3) No appeal to the Court lies under this section from the judgment of any court acquitting or convicting or setting aside or affirming a conviction or acquittal of an indictable offence or, except in respect of a question of law or jurisdiction, of an offence other than an indictable offence.
II. The Procedural Background
III. On October 20, 1989, the respondents were charged with conspiracy to commit the indictable offence of selling or purchasing any stolen rock, mineral, or other substance that contains precious metals contrary to ss. 394(1) (b) and 465(1) (c) of the Criminal Code .
IV. On December 15, 1989, the respondents brought a pre-trial motion before Boissonneault J. challenging the constitutional validity of s. 394(1) (b) of the Criminal Code under ss. 7 , 11 (c), and 11 (d) of the Charter . The parties agreed to proceed by filing written arguments followed by oral submissions. At the hearing of the motion on May 8, 1990, the Crown objected to the hearing, arguing that it was premature and that the constitutional validity of legislation should not be determined in a factual vacuum -- although the written submissions presented evidence relating to the purpose and background of s. 394(1) (b), no evidence was tendered relating to the commission of the offence.
V. On November 13, 1990, Boissonneault J. overruled the Crown's objections because: (1) all parties had agreed to proceed by way of written argument followed by oral submissions and a determination; (2) it was not necessary to have a full factual context in order to rule on the constitutionality of the section; and (3) the trial for conspiracy that would provide the full factual context would be lengthy and might prove unnecessary. He therefore ruled on the motion and 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: (1990), 62 C.C.C. (3d) 375.
VI. In light of this ruling, on January 14, 1991, Boissonneault J. granted the respondents' application for a stay of proceedings on the ground that the substantive offence under which the respondents were charged was of no force or effect.
VII. The Crown appealed from this ruling on the grounds of error in hearing and deciding the constitutional challenge prior to the hearing of evidence on the charges and in holding that s. 394(1) (b) was not a reasonable limit, pursuant to s. 1 of the Charter , of the right to be presumed innocent in s. 11 (d) of the Charter .
VIII. In reasons released June 16, 1992, 74 C.C.C. (3d) 538, Tarnopolsky J.A. considered the argument that the trial judge erred in hearing and deciding the constitutional challenge prior to the hearing of evidence on the charges. He concluded (at p. 546) that:
Therefore, there is clear and recent jurisprudence of the Supreme Court of Canada and of this court indicating that, in certain circumstances, perhaps more particularly when the focus of a case is on s. 1 , it is proper to proceed with a constitutional challenge to a criminal law provision in the absence of adjudicative facts. In light of the Crown's admission that adjudicative facts would not ameliorate the hearing of this appeal, this is a proper case in which one could proceed in their absence. Moreover, there are legislative facts before the court, which were tendered by both the Crown and the respondents and were identified as sufficient by the trial judge. Neither counsel has been able to point to anything else that the court ought to know in order to proceed. On that basis, the record here, which will be amplified in the next part, is sufficient for the appeal to be heard in its current form.
IX. The appellant conceded that the reverse onus provision in s. 394(1) (b) of the Criminal Code contravened the presumption of innocence guaranteed by s. 11 (d) of the Charter and therefore Tarnopolsky J.A. examined only the question of whether the violation could be saved as a reasonable limit under s. 1 of the Charter . He concluded that the appellant had not met the onus of proving that the reverse onus clause was a reasonable limit within the meaning of s. 1 of the Charter . He concluded (at p. 552):
As mentioned earlier, the motion judge held that all of s. 394(1) (b) was of no force and effect. However, this is not necessary, as it is only the reverse onus clause in that provision that is unconstitutional. The rest of s. 394(1) (b) is not affected. It provides for the offence, the constitutional validity of which is not in question. Therefore, I would allow the appeal to the extent that all of s. 394(1) (b) was struck down, but would dismiss it with respect to the invalidity of the reverse onus clause. Thus, I would merely strike out the words "he establishes that", in that provision. [Emphasis in original.]
The Court of Appeal issued the following order:
THIS COURT DID ORDER the appeal against the Order should be and the same was thereby allowed to the extent that, with the exception of the words "he establishes that" which are struck out, the validity of the remainder of section 394(1) (b) of the Criminal Code of Canada is upheld.
III. Analysis
X. The first issue in the case at bar is whether this Court has jurisdiction to hear the Crown's appeal against the Court of Appeal decision. The appellant claimed that the appeal to the Court of Appeal was dismissed and therefore this Court has jurisdiction to hear the appeal under s. 693(1) (b) of the Criminal Code . The respondents claimed that the appeal to the Court of Appeal was allowed and therefore this Court does not have jurisdiction to hear the appeal under s. 693(1) (b). I will conclude that the appeal against the stay of proceedings to the Court of Appeal was allowed and therefore this Court does not have jurisdiction to hear the appeal under s. 693(1) (b). However, I will also conclude that this Court has jurisdiction to hear an appeal against the reading out of the reverse onus clause of s. 394(1) (b) of the Criminal Code under s. 40(1) of the Supreme Court Act .
XI. Before going any further, I should note that the specific jurisdictional issue in this case relates to the more general issue of appellate jurisdiction with regard to challenges under s. 52 of the Constitution Act, 1982 to the constitutionality of laws and to the even more general issue of the proper conduct of s. 52 proceedings. My analysis will be grounded in the following premise: 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. These two proceedings will usually, but need not always, be governed by the same rules and practices. While I will confine my remarks to the issue of jurisdiction, I must acknowledge that there will be implications of this analysis for other issues (the admissibility of evidence, intervener status, etc.). However, I leave the discussion of these implications to future cases in which these other issues actually arise.
A. Section 693(1)(b) of the Criminal Code
XII. Section 693(1) (b) of the Criminal Code states that:
693. (1) Where a judgment of a court of appeal sets aside a conviction pursuant to an appeal taken under section 675 or dismisses an appeal taken pursuant to paragraph 676(1)(a), (b) or (c) or subsection 676(3), the Attorney General may appeal to the Supreme Court of Canada
. . .
(b) on any question of law, if leave to appeal is granted by the Supreme Court of Canada. [Emphasis added.]
Therefore, this Court only has jurisdiction to hear this appeal under s. 693(1) (b) if the Court of Appeal dismissed the Crown's appeal against the stay of proceedings. However, this appeal was not dismissed.
XIII. The argument here is quite simple: (1) appeals under the Criminal Code are against orders not reasons; (2) 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; (3) the order in the case at bar was a stay of proceedings; (4) the stay was lifted (albeit implicitly); therefore (5) the appeal was allowed. The first and third premises of this argument are uncontroversial. The conclusion follows deductively from the premises. However, the second and the fourth premises require some discussion.
XIV. The second premise of this argument is drawn from, and supported by, R. v. Barnes, [1991] 1 S.C.R. 449, R. v. MacKenzie, [1993] 1 S.C.R. 212, and R. v. Meddoui, [1991] 3 S.C.R. ix. In Barnes, I wrote at p. 466:
The Crown is not given by statute the ability to appeal to this Court a decision which allowed its appeal from an acquittal or judicial stay of proceedings, but which gave the Crown less than what had been requested. As a result, there is no statutory provision which would allow the Crown to appeal from the Court of Appeal's judgment. Absent a statutory right of appeal, there is no right of appeal. [Emphasis in original.]
In MacKenzie, La Forest J. wrote at pp. 228-29:
The problem for the Crown in this case is that the Court of Appeal allowed the Crown's appeal, albeit on a different issue than that which the Crown sought to pursue in this Court. The Crown's overall success in the court below precluded any further appeal, or cross-appeal, to this Court.
. . .
As in Barnes, a court of appeal has allowed a Crown appeal, thereby precluding any appeal, or cross-appeal, by the Crown to this Court. The subdivision of a case on appeal into discrete grounds does not assist the Crown in this regard: an unfavourable ruling by a court of appeal on one point of law is overtaken by the Crown's success on other grounds. [Emphasis in original.]
On the basis of this case law, I conclude that 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.
XV. The fourth premise of the argument is that the stay was lifted (albeit implicitly). At the end of his reasons, Tarnopolsky J.A. wrote (at p. 552):
. . . I would allow the appeal to the extent that all of s. 394(1) (b) was struck down, but would dismiss it with respect to the invalidity of the reverse onus clause. Thus, I would merely strike out the words "he establishes that", in that provision. [Emphasis in original.]
However, the formal order of the Court of Appeal reads:
THIS COURT DID ORDER the appeal against the Order should be and the same was thereby allowed to the extent that, with the exception of the words "he establishes that" which are struck out, the validity of the remainder of section 394(1) (b) of the Criminal Code of Canada is upheld.
Nowhere did the Court of Appeal explicitly state that the stay was lifted. However, the lifting of the stay is implicit in the formal order -- the appeal was for a lifting of the stay and, in the formal order, the Court of Appeal allowed the appeal. The omission on the part of the Court of Appeal to explicitly state that the stay was lifted could have been rectified in two ways (neither of which involved an appeal to this Court). First, the Crown could simply have proceeded to trial and, if faced with an objection from the defence, argued that the lifting of the stay could be read into the formal order. Second, the Court of Appeal could have been prevailed upon to explicitly lift the stay and give the Crown directions as to how to proceed. An appellate court has the power to amend a judgment which has been drawn up and entered. In Paper Machinery Ltd. v. J. O. Ross Engineering Corp., [1934] S.C.R. 186, this Court discussed an inherent jurisdiction in this Court to amend a judgment: "(1) Where there has been a slip in drawing it up, or (2) Where there has been error in expressing the manifest intention of the court" (p. 188). In Ontario, where the Criminal Appeal Rules, SI/93-169, adopt the rules governing appeals in civil cases, a motion might have been made pursuant to Rule 59.06(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Therefore, the Court of Appeal's failure to explicitly lift the stay should have been addressed by way of the Crown simply proceeding with a trial or making an application to the Court of Appeal rather than an appeal to this Court. Thus, although the stay was not lifted explicitly, it was lifted implicitly.
XVI. I therefore conclude that the appeal was allowed and, accordingly, this Court has no jurisdiction under s. 693(1) (b) to hear the appeal.
B. Section 40 of the Supreme Court Act
XVII. At first glance, s. 674 of the Criminal Code appears to preclude an appeal to this Court under s. 40 of the Supreme Court Act . Section 674 of the Criminal Code states that:
No proceedings other than those authorized by this Part and Part XXVI shall be taken by way of appeal in proceedings in respect of indictable offences.
However, for the reasons given in my judgment in Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835, s. 674 of the Criminal Code does not limit the jurisdiction provided to the Supreme Court of Canada by s. 40(1) of the Supreme Court Act in the circumstances of this case.
XVIII. At first glance, s. 40(3) of the Supreme Court Act also appears to preclude an appeal to this Court under s. 40 of the Supreme Court Act . Section 40(3) states that:
40. . . .
(3) No appeal to the Court lies under this section from the judgment of any court acquitting or convicting or setting aside or affirming a conviction or acquittal of an indictable offence or, except in respect of a question of law or jurisdiction, of an offence other than an indictable offence.
However, an appeal against a ruling on the constitutionality of a law is not an appeal from a judgment of any court acquitting or convicting or setting aside or affirming a conviction or acquittal of an indictable offence. Therefore, it is not precluded by s. 40(3) .
XIX. Section 40(1) of the Supreme Court Act states that:
40. (1) Subject to subsection (3), an appeal lies to the Supreme Court from any final or other judgment of the Federal Court of Appeal or of the highest court of final resort in a province, or a judge thereof, in which judgment can be had in the particular case sought to be appealed to the Supreme Court, whether or not leave to appeal to the Supreme Court has been refused by any other court, where, with respect to the particular case sought to be appealed, the Supreme Court is of the opinion that any question involved therein is, by reason of its public importance or the importance of any issue of law or any issue of mixed law and fact involved in that question, one that ought to be decided by the Supreme Court or is, for any other reason, of such a nature or significance as to warrant decision by it, and leave to appeal from that judgment is accordingly granted by the Supreme Court.
XX. For an appeal under s. 40(1) , the judgment appealed against must be the final or other judgment of the Federal Court of Appeal or of the highest court of final resort in a province, or a judge thereof, in which judgment can be had in the particular case. 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 for the purposes of s. 40(1) . Therefore, this Court has jurisdiction under s. 40(1) to grant leave to appeal against a ruling on the constitutionality of a law that cannot be piggybacked onto proceedings set out in the Criminal Code .
XXI. To find otherwise would be to accept an absurd consequence. Consider the following example. In a trial on a charge of operating a motor vehicle while impaired, a Superior Court judge in Ontario declares s. 256 of the Criminal Code (warrants to obtain blood samples) unconstitutional and inoperative and rules that the evidence obtained as a result of a warrant under this section is inadmissible. Despite this declaration, the accused is convicted on the remaining evidence. The accused chooses not to appeal this conviction. The Crown cannot appeal against the conviction through the Criminal Code (because no such appeal is provided for by Parts XXI and XXVI of the Code). Unless the analysis I propose is accepted, s. 256 will remain inoperative in Ontario unless and until one of the following four scenarios transpires. First, a case involving s. 256 of the Criminal Code comes before another Superior Court judge in Ontario, this second judge disagrees with the first judge and declares the section constitutional, the accused is convicted, the accused appeals the conviction to the Court of Appeal, and the Court of Appeal affirms the conviction. Second, a case involving s. 256 comes before another Superior Court judge in Ontario, this second judge agrees with the first judge on the constitutionality issue and acquits the accused, the Crown appeals the acquittal to the Court of Appeal, and the Court of Appeal declares the section constitutional. Third, a case involving s. 256 comes before a Superior Court judge of another province or territory, this judge declares the section unconstitutional, the accused is acquitted, the Crown appeals the acquittal to the Court of Appeal, the Court of Appeal affirms the acquittal, and the Crown successfully appeals against the Court of Appeal decision at the Supreme Court of Canada. Fourth, a case involving s. 256 comes before a Superior Court judge in another province or territory, this second judge disagrees with the first judge and declares the section constitutional, the accused is convicted, the accused appeals the conviction to the Court of Appeal, and the Court of Appeal affirms the conviction, and the accused successfully appeals against the Court of Appeal decision to the Supreme Court of Canada. If ever a finding of unconstitutionality coincides with a conviction, no appeal against the finding of unconstitutionality will be available if the accused chooses not to appeal.
XXII. To me, such a consequence is absurd. First, the constitutionality of a law is left dependent upon the resolution of an issue completely unrelated to constitutionality, i.e., the guilt or innocence of the accused and upon his or her decision to appeal a conviction. Second, a law can be struck down by a Provincial or Superior Court judge and then left to hang there inoperative until some time in the future when another case on point happens to come before another judge and happens to result in a verdict that provides for an avenue of appeal through the Criminal Code . Just as an accused is entitled to his or her day in court, so too is the legislature. The legislature does not properly get this day in court if its ability to get to court on the issue of the const