R. v. Schwartz

R. v. Schwartz
Collection
Supreme Court Judgments
Date
1988-12-08
Report
[1988] 2 SCR 443
Case number
18401
Judges
Dickson, Robert George Brian; Beetz, Jean; McIntyre, William Rogers; Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire
On appeal from
Manitoba
Subjects
Constitutional law
Courts
Criminal law
Notes
SCC Case Information: 18401
Decision Content
r. v. schwartz, [1988] 2 S.C.R. 443
Arnold Godfried Schwartz Appellant
v.
Her Majesty The Queen Respondent
and
The Attorney General of Canada Intervener
indexed as: r. v. schwartz
File No.: 18401.
1987: October 14; 1988: December 8.
Present: Dickson C.J. and Beetz, Estey*, McIntyre, Lamer, La Forest and L'Heureux‑Dubé JJ.
on appeal from the court of appeal for manitoba
Constitutional law ‑‑ Charter of Rights ‑‑ Presumption of innocence ‑‑ Gun control ‑‑ Reverse onus with respect to proof of registration certificate for restricted weapon ‑‑ Whether reverse onus infringing presumption of innocence ‑‑ Canadian Charter of Rights and Freedoms, ss. 1 , 11 (d) ‑‑ Criminal Code, R.S.C. 1970, c. C‑34, ss. 89(1)(a), (b), 106.7(1), (2).
Criminal law ‑‑ Gun control ‑‑ Registration certificate for restricted weapon ‑‑ Owner of weapon required to prove possession of certificate ‑‑ Whether reverse onus infringing presumption of innocence guaranteed by Charter ‑‑ Canadian Charter of Rights and Freedoms, ss. 1 , 11 (d) ‑‑ Criminal Code, R.S.C. 1970, c. C‑34, ss. 89(1)(a), (b), 106.7(1), (2).
Courts ‑‑ Jurisdiction ‑‑ Appeal from summary conviction appeal court ‑‑ Jurisdiction of Court of Appeal.
Appellant was convicted in Provincial Court on two counts of unlawful possession of a restricted weapon. The original owner had purchased the weapons in the United States, had registered them in Canada when he moved to Winnipeg, and had given the registration papers, which were in his name, to appellant when appellant bought the weapons. Appellant's application for a firearms acquisition certificate was refused by the Winnipeg Police. The police later searched appellant's home and confiscated the restricted weapons. The convictions were quashed by the summary conviction appeal court but were restored by the Court of Appeal. The constitutional question before the Court dealt with whether s. 106.7(1) of the Criminal Code contravened s. 11 (d) of the Canadian Charter of Rights and Freedoms . Also at issue was whether the Court of Appeal erred in deciding the appeal on a question of fact or, in the alternative, on a question of mixed fact and law.
Held (Dickson C.J. and Lamer J. dissenting): The appeal should be dismissed. The constitutional question should be answered in the negative.
Per McIntyre, La Forest and L'Heureux‑Dubé JJ.: A question of law involving the admissibility of evidence was raised here. To set aside an acquittal, the Crown must satisfy the Court that the result would not necessarily have been the same if the error made at trial had not occurred. The Crown met that test.
Parliament in enacting Part II.1 of the Criminal Code intended to prohibit the acquisition and use of weapons except as permitted by the strict controls it prescribed. Only a person possessing a restricted weapon for which he has no registration certificate can be convicted under s. 89(1) . If a certificate of registration is not obtained, a criminal offence arises from the mere possession of the restricted firearm. Far from reversing any onus, s. 106.7 provides that a document purporting to be a valid registration certificate is evidence and proof of the statements contained therein and exempts an accused from prosecution.
Although the accused must establish that he falls within the exemption, there is no danger that he could be convicted under s. 89(1), despite the existence of a reasonable doubt as to guilt, because the production of the certificate resolves all doubts in favour of the accused and in the absence of the certificate no defence is possible once possession has been shown.
It was not necessary to consider s. 1 here. The impugned legislation, however, did meet the Oakes test. Firstly, its objective was sufficiently important to warrant overriding a constitutionally protected right. Secondly, the proportionality test was met. The provisions were rational, fair and not arbitrary; they impaired the protected right as little as possible; and, the measures adopted were carefully tailored to balance the community interest and the interest of those wanting to legally possess weapons.
Per Beetz J.: Given the dates of pre‑Charter trial and post‑Charter summary conviction appeal, it was assumed without deciding that the Charter applied; the reasons of McIntyre J. were concurred in.
Per Dickson C.J. (dissenting): Any burden on the accused that permits a conviction despite the presence of a reasonable doubt violates the presumption of innocence, regardless of the nature of the point the accused was required to prove. Otherwise, an accused, forced but unable to persuade the finder of fact of his or her innocence on a balance of probabilities, would be convicted of a criminal offence despite the existence of a reasonable doubt as to his or her guilt. The differences between defences which deny the existence of an essential element of an offence and defences that admit the existence of those elements do not affect the review of a provision under s. 11 (d). When the facts give rise to the possibility of either type of defence, the Crown should be required to disprove them by proof of guilt beyond a reasonable doubt.
Lack of registration, whether or not it is an "essential element" of s. 89(1) of the Code, is essential to the verdict. Section 106.7(1) relieves the Crown of the onus of proof beyond a reasonable doubt and requires the person charged under s. 89(1) to "prove" possession of a registration certificate on a balance of probabilities. The accused, therefore, is required to raise a more than a reasonable doubt. An accused, unable to meet this persuasive burden, could be convicted of unlawful possession of a restricted weapon notwithstanding the potential existence of a reasonable doubt.
The presumption of innocence guaranteed by s. 11 (d) of the Charter is not subject to statutory or common law exceptions and is infringed by any provision requiring that the accused bear a persuasive burden. In some instances, however, the accused may be required to point out some evidential basis to raise a defence which the Crown must then disprove beyond a reasonable doubt. Factors such as ease of proof and a rational connection go to the justification for an infringement and should be considered in the s. 1 analysis.
The Code contains a comprehensive `gun control' legislative scheme intended to discourage the use of firearms. The objective behind Part II.1 in general and s. 106.7(1) in particular relates to concerns which are pressing and substantial in a free and democratic society. The proportionality test in Oakes, however, was not met. There was no rational connection between the provision and the objective. The proved fact (possession of a restricted weapon) did not prove the presumed fact (lack of a registration certificate). The presumption of innocence was not impaired "as little as possible" by the challenged provision. To authenticate the certificate, the accused must testify (and so choose between his constitutionally guaranteed rights not to testify or to be presumed innocent) or call the local registrar of firearms as a defence witness. The Crown can disprove the existence of a registration certificate with information from the local registrar of firearms as to whether or not a certificate has been issued and, as a backup, from the central registry of all registration certificates.
Section 106.7(1) is not completely invalid notwithstanding the invalidity of its application here. While the nature of the registration figured highly in the s. 1 analysis here, the justification for s. 106.7(1) in connection with other documents or permits in Part II.1 could likely involve different issues and a different s. 1 analysis.
Per Lamer J. (dissenting): The disposition and the reasons of the Chief Justice, except for the objective assigned to s. 106.7 under the s. 1 scrutiny, were concurred in.
Section 106.7(1) is neither particular nor essential to weapons legislation. It is a purely evidentiary section intended to relieve the prosecution of the inconvenience of securing a certificate from the appropriate authority attesting to the absence of any record establishing registration. The objective, when the cost of this convenience is expressed in terms of a restriction on an accused's rights, was not sufficiently important to warrant overriding an accused's rights under s. 11 (d).
Cases Cited
By McIntyre J.
Applied: R. v. Oakes, [1986] 1 S.C.R. 103; distinguished: R. v. Appleby, [1972] S.C.R. 303; R. v. Vaillancourt, [1987] 2 S.C.R. 636; R. v. Whyte, [1988] 2 S.C.R. 3; referred to: R. v. Conrad (1983), 8 C.C.C. (3d) 482; R. v. Shelley, [1981] 2 S.C.R. 196; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; R. v. Morgentaler, [1988] 1 S.C.R. 30; R. v. Lee's Poultry Ltd. (1985), 17 C.C.C. (3d) 539; Dubois v. The Queen, [1985] 2 S.C.R. 350; R. v. Mannion, [1986] 2 S.C.R. 272.
By Dickson C.J. (dissenting)
R. v. Oakes, [1986] 1 S.C.R. 103, aff'g (1983), 145 D.L.R. (3d) 123; R. v. Appleby, [1972] S.C.R. 303; Sunbeam Corporation (Canada) Ltd. v. The Queen, [1969] S.C.R. 221; Rose v. The Queen, [1959] S.C.R. 441; R. v. Ponsford (1978), 41 C.C.C. (2d) 433; R. v. Colbeck (1978), 42 C.C.C. (2d) 117; Vézeau v. The Queen, [1977] 2 S.C.R. 277; R. v. Vaillancourt, [1987] 2 S.C.R. 636; R. v. Holmes, [1988] 1 S.C.R. 914; R. v. Whyte, [1988] 2 S.C.R. 3; R. v. Edwards, [1974] 2 All E.R. 1085; R. v. Lee's Poultry Ltd. (1985), 17 C.C.C. (3d) 539; Latour v. The King, [1951] S.C.R. 19; R. v. Proudlock, [1979] 1 S.C.R. 525; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; McGuigan v. The Queen, [1982] 1 S.C.R. 284; R. v. Wilson (1984), 17 C.C.C. (3d) 126; Dubois v. The Queen, [1985] 2 S.C.R. 350.
By Lamer J. (dissenting)
R. v. Oakes, [1986] 1 S.C.R. 103.
Statutes and Regulations Cited
Canada Evidence Act, R.S.C. 1970, c. E‑10, ss. 29(2), 30.
Canadian Charter of Rights and Freedoms, ss. 1 , 11 (c), (d).
Criminal Code, R.S.C. 1970, c. C‑34, ss. 83(1), 84, 88(1), 89(1), (2), (3), 90, 91(1), 94(1), 95(3), 104(1), (12), 106.1(1), (3), (6), (7), (8), 106.2(1), (10), 106.4(3), 106.6(1) , 106.7(1) , (2) , 241(1) , (6) , (7) , 605(1) (a), 613(1)(a), 730, 755(1), 771(1), (2).
Criminal Code, S.C. 1892, c. 29, s. 105.
Interpretation Act, R.S.C. 1970, c. I‑23, s. 24(1).
Authors Cited
Canada. Solicitor General. Evaluation of the Canadian Gun Control Legislation. First Progress Report. Project team: Elizabeth Scarff, et al. Ottawa: Solicitor General Canada, Research Division, 1981.
Cross, Sir Rupert. The Golden Thread of the English Criminal Law. Cambridge: Cambridge University Press, 1976.
Delisle, Ronald Joseph. Evidence: Principles and Problems. Toronto: Carswells, 1984.
Ewart, J. Douglas, Michael Lomer and Jeff Casey. Documentary Evidence in Canada. Toronto: Cars­wells, 1984.
Finley, David. "The Presumption of Innocence and Guilt: Why Carroll Should Prevail Over Oakes" (1984), 39 C.R. (3d) 115.
Friedland, Martin L. A Century of Criminal Justice. Toronto: Carswells, 1984.
Halsbury's Laws of England, vol. 11, 4th ed. London: Butterworths, 1976.
Hawley, Donna Lea. Canadian Firearms Law. Toronto: Butterworths, 1988.
Mahoney, Richard. "The Presumption of Innocence: A New Era" (1988), 67 Can. Bar Rev. 1.
Ratushny, Edward. "The Role of the Accused in the Criminal Process," in Gérald‑A. Beaudoin and Walter Surma Tarnopolsky, eds., The Canadian Charter of Rights and Freedoms : Commentary. Toronto: Carswells, 1982.
Stuart, Donald. Canadian Criminal Law, 2nd ed. Toronto: Carswells, 1987.
Wigmore, John Henry. Wigmore on Evidence, vol. 7, 3rd ed. Boston: Little, Brown & Co., 1940.
Williams, Glanville Llewelyn. The Proof of Guilt, 3rd ed. London: Stevens & Sons, 1963.
APPEAL from a judgment of the Manitoba Court of Appeal (1983), 25 Man. R. (2d) 295 (on a rehearing following a preliminary judgment of that Court (1983), 25 Man. R. (2d) 164, 5 D.L.R. (4th) 524) allowing an appeal from a decision of Barkman Co. Ct. J. (1983), 22 Man. R. (2d) 46, allowing an appeal from conviction by Allen Prov. Ct. J. Appeal dismissed, Dickson C.J. and Lamer J. dissenting. The constitutional question should be answered in the negative.
J. J. Gindin, for the appellant.
Bruce Miller, for the respondent.
Julius A. Isaac and Yvon Vanasse, for the intervener the Attorney General of Canada.
The following are the reasons delivered by
1. The Chief Justice (dissenting)‑‑Section 106.7(1) of the Criminal Code, R.S.C. 1970, c. C‑34, requires an accused charged with a firearms offence to prove that he or she held the necessary permit or certificate for the firearm. The constitutional validity of this section is the primary question in this case. A secondary question is raised as to the jurisdiction of a provincial court of appeal on an appeal from a summary conviction appeal court. At the outset, I would like to mention that this case has been argued throughout on the basis of s. 106.7(1). Section 730 of the Code has not been in issue.
I
Facts
2. Arnold Godfried Schwartz was charged under s. 89(1) of the Criminal Code (i) that he did unlawfully have in his possession a restricted weapon, to wit: a .44 Magnum revolver for which he did not have a registration certificate issued to him; (ii) that he did unlawfully have in his possession a restricted weapon, to wit: a .38 Special revolver for which he did not have a registration certificate issued to him. The evidence disclosed that Schwartz had bought the two handguns in 1978 from one of his employees, Horst Schimiczek, who had acquired the .38 Special in Texas and the .44 Magnum in North Dakota. Schimiczek had moved to Winnipeg, duly registered the two weapons, and then sold the guns to Schwartz. He gave Schwartz the registration papers, in Schimiczek's name. Later, an application in Schwartz's name for a firearms acquisition certificate, the necessary first step to obtain a registration certificate, was received by the Firearms Section of the City of Winnipeg Police Department. At the time, the Firearms Section was under control of Staff Sergeant Gordon Pilcher, who reviewed the application and determined that a notice of intention to refuse a firearms acquisition certificate should be sent to Schwartz. A notice to this effect was delivered to Schwartz by double registered mail.
3. Approximately nine months after the notice was mailed, members of the Winnipeg Police Department executed a search of Schwartz's home, and located and confiscated a .44 Magnum and a .38 Special.
4. Schwartz proceeded to trial before Allen Prov. Ct. J. and was convicted on both charges. He was fined $50 on each charge. On appeal, Barkman Co. Ct. J. allowed the appeal and quashed the convictions. The Crown then appealed to the Manitoba Court of Appeal (Hall J.A., Matas J.A. concurring, and Huband J.A. dissenting in part). The acquittals were set aside and convictions restored. Leave was granted by this Court to appeal the judgment of the Manitoba Court of Appeal.
II
Legislative and Constitutional Provisions
5. The relevant legislative and constitutional provisions follow:
Criminal Code
89. (1) Every one who has in his possession a restricted weapon for which he does not have a registration certificate
(a) is guilty of an indictable offence and is liable to imprisonment for five years; or
(b) is guilty of an offence punishable on summary conviction.
106.7 (1) Where, in any proceedings under any of sections 83 to 106.5, any question arises as to whether a person is or was the holder of a firearms acquisition certificate, registration certificate or permit, the onus is on the accused to prove that that person is or was the holder of such firearms acquisition certificate, registration certificate or permit.
(2) In any proceedings under any of sections 83 to 106.5, a document purporting to be a firearms acquisition certificate, registration certificate or permit is evidence of the statements contained therein.
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;
III
Judgments of the Manitoba Courts
Provincial Judges Court
6. Allen Prov. Ct. J. found the appellant guilty on both counts. He stated, in part:
The fact is there comes a situation in each case where the evidence is so overwhelming and points clearly in one direction that one would have to speculate and resort to pure conjecture to have a reasonable doubt. I do not have a reasonable doubt.
7. Section 106.7(1) of the Code, imposing an onus on the accused, does not appear to have been raised in argument in support of the case for the Crown nor relied upon by Allen Prov. Ct. J. The constitutional validity of the section was not challenged before him.
County Court of Winnipeg
8. There were three major grounds of appeal before Barkman Co. Ct. J. [(1983), 22 Man. R. (2d) 46]. The first was that it was not proved beyond a reasonable doubt that the accused possessed the restricted weapons. The second was that some of the evidence concerning the lack of registration was hearsay and therefore inadmissible. The third ground was that the evidence concerning lack of registration could only be admitted if notice were given under s. 30 of the Canada Evidence Act, R.S.C. 1970, c. E‑10.
9. Defence counsel objected to the admission of evidence of Sergeant Pilcher relating to information contained in a file compiled by staff members under his supervision. Counsel also objected to Sgt. Pilcher testifying about any documents that might have been placed in the file after he was transferred out of the Firearms Section. Barkman Co. Ct. J. held that the trial judge erred by admitting the evidence of Sgt. Pilcher which did not relate specifically to things done by Pilcher himself; Sgt. Pilcher had gone on to other duties; such evidence was hearsay and could only be admitted after giving notice pursuant to s. 30 of the Canada Evidence Act .
10. Barkman Co. Ct. J. considered as properly admitted the evidence of Sgt. Pilcher to the effect that (1) he refused an application by the accused for a firearms acquisition certificate; (2) he wrote a refusal letter; (3) he searched the file of the city of Winnipeg Police regarding the accused in 1979 and did not find a registration certificate for a restricted weapon, and he had the file with him in court; (4) the address of the house of the accused was situated in the city of Winnipeg area for registration of firearms. According to the evidence, no one to whom a certificate had been refused could get a certificate during the five years following. The evidence of Sgt. Pilcher was the only evidence before the judge relating to the registration of the restricted weapons, except for the evidence of the previous owner, Mr. Schimiczek, who testified that he spoke to the accused about registration of the weapons in the early part of 1981 and the accused then told him that he had not yet registered them.
11. Barkman Co. Ct. J. further held [at p. 48] that Sgt. Pilcher could give evidence as to what he did and saw personally, but "his evidence as to what he saw is not evidence of the truth of the information contained in the documents which he saw in the file in question". He held that Allen Prov. Ct. J. had improperly admitted as an exhibit the application for a firearms acquisition certificate in Schwartz's name as it had not been identified by the person receiving it as having been submitted by Schwartz. He concluded [at p. 49] that the remaining evidence, together with the testimony of Schimiczek, "falls far short of proof beyond a reasonable doubt that the accused did not have registration certificates issued to him for the restricted weapons . . . ."
12. Counsel for the Crown, after arguing unsuccessfully against the exclusion of the so‑called hearsay evidence, then contended that even if such evidence were not admissible, this would not affect the conviction of the appellant because s. 106.7(1) of the Code placed the onus on the accused to satisfy the Court that the weapons were properly registered. Counsel for Schwartz argued in response that s. 106.7(1) of the Code was either inapplicable to his client or unconstitutional by reason of s. 11 (d) of the Charter . Barkman Co. Ct. J. held that s. 106.7(1) was not ambiguous and that it applied to the appellant. He then went on to consider the judgment of the Ontario Court of Appeal in R. v. Oakes (1983), 145 D.L.R. (3d) 123, aff'd [1986] 1 S.C.R. 103. Barkman Co. Ct. J. referred to the three factors mentioned by Martin J.A. in Oakes, underlined in the passage below, at pp. 50‑51, to be taken into consideration in determining whether it is reasonable for Parliament to place the burden of proof on the accused in relation to an ingredient of the offences in question:
(a) the magnitude of the evil sought to be suppressed, it is to my mind a great evil that is sought to be suppressed by the requirement of registration of restricted weapons since registration will not be granted where a person has within the last five years (1) been convicted of an offence on indictment in which violence against another person was used, threatened or attempted; etc (see s. 194(3)(b)); (b) the difficulty of the prosecution making proof of the presumed fact. Since the advent of the computer and in accordance with the evidence of Sergeant Pilcher that records are maintained in Ottawa as to persons who are refused certificates or permits, it would not be difficult for the Crown to prove lack of registration; (c) the relative ease with which the accused may prove or disprove the presumed fact. The accused need only produce the registration certificate or permit to prove the registration (see s. 106.7(2)) in the circumstances of this case, but in other situations it may be more difficult. [Emphasis added.]
13. Barkman Co. Ct. J. went on to point out that the circumstances of the case before him were such as to satisfy the threshold question of legitimacy of the reverse onus. However, this provision also applied to ss. 89(3), 91(1), and 94(1). Under these sections it could be very difficult for the accused to prove the fact of registration by another person. He held that (a) there was no rational connection between the proven fact (possession) and the presumed fact (lack of registration), and (b) in applying the reverse onus to all of ss. 83 to 106.5, it may be impossible for an accused to prove the fact of registration. Section 106.7(1) was therefore constitutionally invalid. He concluded that the trial judge erred by admitting hearsay evidence and that s. 106.7(1) did not apply because it offended s. 11 (d) of the Charter . Barkman Co. Ct. J. allowed the appeal and quashed the conviction.
Manitoba Court of Appeal
14. The ground of appeal taken to the Manitoba Court of Appeal was in these terms:
THAT the learned County Court Judge erred in law in ruling Section 106.7(1) of the Criminal Code of Canada was unconstitutional in that the said section contravened the provisions of Section 11 (d) of the Canadian Charter of Rights and Freedoms .
15. It would appear that before the Court of Appeal of Manitoba, counsel agreed to argue only the constitutional question. This was entirely appropriate as appeals to the Court of Appeal from a summary conviction appeal court are limited to questions of law. In a preliminary judgment by the Manitoba Court of Appeal ((1983), 25 Man. R. (2d) 164), Matas J.A. stated, at p. 166:
...the decision of Barkman, C.C.C.J., on the constitutional point is inextricably linked to the question of law arising out of the first question [the evidentiary question]. Implicit in the acquittal based on the constitutional question is the decision of the learned Chief County Court judge on the admissibility of evidence given at the trial by Sergeant Pilcher, the officer in charge of the firearms section and applications for firearms acquisitions and permits for restricted weapons in the City of Winnipeg. In my opinion, it is inappropriate for this court to consider constitutional questions in the context of a prosecution unless all the available material is properly before the court. In order to have a decision of this court, based on all the available material, I would grant leave to the Crown to argue the evidentiary point.
He therefore adjourned the disposition of the appeal pending re‑hearing.
16. Upon the re‑hearing, the Court of Appeal ((1983), 25 Man. R. (2d) 295), allowed the Crown's appeal (Huband J.A. dissenting in part). Hall J.A. held that Barkman Co. Ct. J. erred in law by ruling inadmissible certain evidence given by Sgt. Pilcher. He further held at p. 297 that "the evidence of Sergeant Pilcher and that of the witness Schimiczek is sufficient to support the implicit finding of the learned trial judge that no registration certificates had ever been issued to the accused for the restricted weapons and that therefore he was not the holder of such certificates . . . ." Though he was of the view that it was unnecessary to decide the issue, Hall J.A. agreed with Huband J.A.'s conclusion, discussed below, that s. 106.7(1) was a reasonable limit on the presumption of innocence. Matas J.A. concurred with Hall J.A. on the evidentiary issue but expressed no opinion on the constitutional point.
17. Huband J.A., dissenting in part, disagreed with Hall J.A.'s conclusion on the evidence and therefore felt it incumbent to rule on the constitutionality of s. 106.7(1) . In Huband J.A.'s view, there was an added reason to address the constitutional issue. The appeal to the Court of Appeal, pursuant to s. 771 of the Code, was on a question of law alone. He stated, at p. 299, that "The consideration of Staff Sergeant Pilcher's evidence involves the court in a question of sufficiency of evidence which ... is a question of fact rather than law."
18. Relying on R. v. Appleby, [1972] S.C.R. 303, and refusing to follow the Ontario Court of Appeal's approach in R. v. Oakes, supra, Huband J.A. held that s. 106.7(1) does not contravene the presumption of innocence according to law. In the alternative, he was of the view that, although it is true that mere possession of a restricted weapon does not logically lead to an inference that the weapon is unregistered, "proof of registration is so easily provided by the accused himself that it becomes reasonable to require an accused to answer an onus upon him at that point". Huband J.A. therefore would have allowed the appeal relying on s. 106.7(1) of the Code.
19. It is difficult to find a common thread in any of the issues in any of the decisions of the Manitoba courts. The court of first instance found the accused guilty on the evidence presented, without recourse to s. 106.7(1) of the Code. On appeal, Barkman Co. Ct. J. held that the evidence of the lack of a registration certificate was inadequate in the absence of s. 106.7(1) and that that section was unconstitutional. He held that the ease of proof concerning possession of a permit was not difficult for the police but utterly impossible for an accused if one looked at all of the offences to which s. 106.7(1) applied. Moving to the Court of Appeal, the picture is less clear. Hall J.A. concluded that the Crown succeeded on the evidential point and although it was therefore unnecessary to consider s. 106.7(1) , he would nonetheless have upheld it. Matas J.A. was content to leave the constitutional point to another day and resolved the case simply on the evidentiary point. Finally, Huband J.A., in dissent on this point, would appear to have shared the views of Barkman Co. Ct. J. on the evidentiary point. Although he would have resolved the evidentiary point in favour of the accused, he would uphold s. 106.7(1) and find the accused guilty.
IV
Issues
20. Before this Court, a constitutional question was stated as follows:
Is section 106.7(1) of the Criminal Code of Canada constitutionally invalid in that it contravenes the provisions of s. 11 (d) of the Canadian Charter of Rights and Freedoms ?
The Attorney General of Canada and the Attorneys General of Alberta, British Columbia and Ontario served notices of intervention. All the provincial Attorneys General subsequently withdrew their interventions.
21. In addition to the constitutional question, the appellant submits that the Court of Appeal erred in deciding the appeal on a question of fact or, in the alternative, on a question of mixed fact and law. I propose first to address this latter issue, and then turn to the constitutional issue in this appeal. I note that although the trial in the Provincial Court occurred before the Charter came into force, no issue was raised as to whether s. 11 (d) should apply, all subsequent proceedings having taken place after April 17, 1982.
V
The Jurisdiction of the Court of Appeal
22. The appellant submits that the Court of Appeal erred in deciding the appeal on a question of fact or mixed fact and law, namely, the sufficiency of evidence. The respondent Crown submits, however, that the Court of Appeal was faced with a question involving the admissibility, not sufficiency, of evidence; the question before the Court of Appeal was a question of law; as a result that court had jurisdiction to hear the case.
23. The notice of appeal to the Court of Appeal filed by the Deputy Attorney General for Manitoba, reproduced above, alleged that Barkman Co. Ct. J. erred in law in holding s. 106.7(1) unconstitutional. In addition, the appeal was "upon any other point in law the evidence may disclose". The Crown appeal was pursuant to s. 771 of the Code, limiting the jurisdiction of the Court of Appeal to questions of law alone. As stated earlier, the Court of Appeal, per Matas J.A., granted leave to argue "the evidentiary point." It is in relation to the Court of Appeal's reasons given after the rehearing that the appellant alleges that the Court of Appeal decided the case on a question of fact or, in the alternative, mixed law and fact. Section 771(2) of the Code provides that "Sections 601 to 616 apply mutatis mutandis to an appeal under this section." It is well‑settled that the question whether a trial verdict is unreasonable or cannot be supported by the evidence is not a "question of law" under s. 605(1)(a) of the Code. Sufficiency of proof is a question of fact reserved for the trial judge. See Sunbeam Corporation (Canada) Ltd. v. The Queen, [1969] S.C.R. 221, and Rose v. The Queen, [1959] S.C.R. 441.
24. It should be noted, however, that a summary conviction appeal court is not restricted to questions of law alone. Section 755(1) of the Code provides that in appeals from a summary conviction, "sections 610 to 616, with the exception of subsections 610(3) and 613(5), apply mutatis mutandis". Section 613(1)(a) permits a summary conviction appeal court to allow an appeal if the verdict is "unreasonable or cannot be supported by the evidence" or if the trial judge erred "on a question of law" (R. v. Ponsford (1978), 41 C.C.C. (2d) 433 (Alta. C.A.)) This is not to say that a summary conviction appeal court is entitled to retry the case (R. v. Colbeck (1978), 42 C.C.C. (2d) 117 (Ont. C.A.))
25. Counsel for the appellant refers to several passages of the reasons of the Court of Appeal in support of his submission that the court decided the appeal on a question of fact. Hall J.A., for example, stated the first of the two issues in the following terms:
(1) did the learned judge of appeal err in finding that the evidence fell short of providing beyond a reasonable doubt that the accused did not have registration certificates issued to him for the restricted weapons...?
Moreover, Hall J.A. stated that "the evidence of Sergeant Pilcher and that of the witness Schimiczek is sufficient to support the implicit finding of the learned trial judge that no registration certificates had ever been issued to the accused for the restricted weapons . . . ." Matas J.A. concurred with this part of Hall J.A.'s reasons, stating that "on the evidentiary issue the appeal of the Crown should be allowed and the conviction restored". The appellant also relies on Huband J.A.'s statement that "The consideration of Staff Sergeant Pilcher's evidence involves the court in a question of sufficiency of evidence which ... is a question of fact rather than law".
26. It cannot be denied, however, that the examination of the sufficiency of evidence by Hall J.A. occurred in the context of his finding that Barkman Co. Ct. J. erred in law "by ruling inadmis­sible certain unspecified evidence of Sergeant Pilcher relating to information contained in a file compiled by staff members under his supervision on the ground that it did not relate specifically to things done by him and was therefore hearsay and could only be admitted under s. 30 of the Canada Evidence Act ". The majority of the Court of Appeal was correct in assuming, and the Crown correct in submitting, that the absence of legal justification for admitting evidence at trial involves a question of law.
27. Assuming the Court of Appeal to be correct on its disposition of this question of law, however, the court in my view erred by proceeding to reverse the acquittal without relying on s. 106.7(1) of the Code. Although the appeal before Barkman Co. Ct. J. was not de novo, the combined effect of s. 771(1) and (2), s. 755(1), and s. 613(1)(a) is that for purposes of review, the findings of Barkman Co. Ct. J. are to be treated as if they were the findings of a judge at first instance. Before it can set aside the decision of the summary conviction appeal court acquitting the accused, the Court of Appeal must be satisfied that Barkman Co. Ct. J. would have convicted Schwartz but for his decision that the trial judge erred in the admission of hearsay evidence: Vézeau v. The Queen, [1977] 2 S.C.R. 277.
28. Barkman Co. Ct. J. had before him the bulk of Sgt. Pilcher's evidence. His summary of the evidence which he admitted shows that the only major piece of evidence excluded was the application for a firearms acquisition certificate. Taken as a whole, the evidence is ambivalent whether a firearms acquisition certificate, and later on the registration certificate, might have been issued to the accused some time after 1979, when Sgt. Pilcher was no longer in charge of the file. To set aside the acquittals the jurisprudence of this Court requires that the Crown satisfy the Court that the verdict would not necessarily have been the same had the trial judge not erred with respect to the evidentiary issue. In my view, the Crown did not satisfy that onus and it cannot be said with any degree of certainty that Barkman Co. Ct. J. would have upheld the convictions but for his decision to exclude some of the evidence. Hall J.A. in my opinion therefore erred by entering a conviction without finding it necessary to resort to the "reverse onus" provision of s. 106.7(1). This Court must consider the application, and hence the constitutionality, of s. 106.7(1).
VI
Constitutional Issues: Section 11 (d) and the Presumption of Innocence
29. In R. v. Oakes, supra, R. v. Vaillancourt, [1987] 2 S.C.R. 636, R. v. Holmes, [1988] 1 S.C.R. 914, R. v. Whyte, [1988] 2 S.C.R. 3, this Court had occasion to address in detail the scope of the s. 11 (d) Charter right "to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal", and there is no need to review at length the principles contained in those cases. It suffices to say that Oakes stands for the proposition that "a provision which requires an accused to disprove on a balance of probabilities the evidence of a presumed fact, which is an important element of the offence in question, violates the presumption of innocence in s. 11 (d)" (p. 132). Similarly in Vaillancourt, Lamer J. held, for the majority on this point, that the presumption of innocence requires that the trier of fact be convinced of guilt beyond a reasonable doubt (at p. 655):
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 that just a reasonable doubt.
30. In Holmes, two members of the Court took the view that any burden on the accused that permitted a conviction despite the presence of a reasonable doubt violated the presumption of innocence, regardless of the nature of the point the accused was required to prove. In Whyte, this theme was repeated. In response to the argument that the presumption of innocence only requires the Crown to prove the essential elements of an offence, the Chief Justice said at p. 18:
The short answer to this argument is that the distinction between elements of the offence and other aspects of the charge is irrelevant to the s. 11 (d) inquiry. 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 the possibility exists, there is a breach of the presumption of innocence.
The exact characterization of a factor as an essential element, a collateral factor, an excuse, or a defence should not affect the analysis of the presumption of innocence. It is the final effect of a provision on the verdict that is decisive. 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. The trial of an accused in a criminal matter cannot be divided neatly into stages, with the onus of proof on the accused at an intermediate stage and the ultimate onus on the Crown.
(See also Donald Stuart, Canadian Criminal Law (2nd ed. 1987), at pp. 388‑91; Richard Mahoney, "The Presumption of Innocence: A New Era" (1988), 67 Can. Bar Rev. 1, at pp. 4‑13). To hold otherwise would result in the unacceptable situation that an accused, forced but unable to persuade the finder of fact of his or her innocence on a balance of probabilities, will be convicted of a criminal offence despite the existence of a reasonable doubt as to his or her guilt.
31. The cornerstone of our theory of criminal liability is that society should only sanction those people who are personally guilty of breaking the law. Only when guilt is established can society justly impose criminal penalties. This principle permeates the criminal law and is one of the basic premises of the presumption of innocence. It follows that the Crown is required to prove the guilt of the accused and bears this burden for all the issues raised by a charge. In this respect, a criminal prosecution is fundamentally different from a civil suit, which serves different ends and operates on different assumptions. Theories of proof in civil suits, under both common law and civil law, have been strongly influenced by Roman law, which requires the defendant to raise and prove exceptions to a suit. (See David Finley, "The Presumption of Innocence and Guilt" (1984), 39 C.R. (3d) 115.) Shifting the onus of pro