R. v. Laba

Sopinka J. -- I agree with the Chief Justice's conclusion that this Court has jurisdiction to hear this appeal under s. 40(1) of the Supreme Court Act , R.S.C., 1985, c. S-26 , and his reasons for arriving at that conclusion. In these reasons I will deal with the substantive issue in dispute, namely, the constitutionality of s. 394(1) (b) of the Criminal Code , R.S.C., 1985, c. C-46 . I should make it clear at the outset that the constitutionality of other subsections of s. 394 is not in issue in this appeal.

Background

The respondents were charged by an indictment dated October 20, 1989 with conspiracy to commit the indictable offence of selling or purchasing any stolen rock, mineral or other substance that contains precious metals, contrary to s. 394(1) (b) of the Criminal Code .

The Chief Justice has outlined the procedural history of these proceedings and I will content myself with mentioning only a few matters that are particularly pertinent to my reasons.

Boissonneault J., who struck down s. 394(1)(b) in its entirety, found that it violated s. 11(d) of the Canadian Charter of Rights and Freedoms and was not saved by s. 1: (1990), 62 C.C.C. (3d) 375. In coming to this conclusion he was not persuaded by the affidavits filed by the Crown that the theft of precious metals is a significant problem. On appeal to the Court of Appeal the Crown conceded that there was an infringement of s. 11(d) of the Charter but sought to reverse the judgment of Boissonneault J. on the ground that he erred in failing to save the impugned provision under s. 1 of the Charter . The Court of Appeal ((1992), 74 C.C.C. (3d) 538) concluded that the Crown had failed to discharge its burden of establishing that the reverse onus provision was a reasonable limit within the meaning of s. 1 of the Charter . It came to this conclusion on the basis that the Crown had failed to satisfy the first branch of the Oakes test, that is, that the objective of the provision was pressing and substantial. It therefore varied the judgment below by striking out the words "he establishes that" from the paragraph.

Issues

On August 10, 1993 I stated the following constitutional questions which set out the substantial issues in this appeal:

1.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 ?

2.If the answer to question 1 is in the affirmative, is s. 394(1) (b) of the Criminal Code a reasonable limit on the s. 11(d) Charter right, pursuant to s. 1 of the Charter ?

The preliminary point relating to prematurity which was resolved below adversely to the Crown was not renewed in this Court. It is, therefore, not necessary to deal with it here.

Relevant Statutory Provisions

Criminal Code , R.S.C., 1985, c. C-46

394. (1) Every one is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years who

. . .

(b) sells or purchases any rock, mineral or other substance that contains precious metals or unsmelted, untreated, unmanufactured or partly smelted, partly treated or partly manufactured precious metals, unless he establishes that he is the owner or agent of the owner or is acting under lawful authority; or

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;

Constitution Act, 1982

52. (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.

Analysis

Both in this Court and in the Court of Appeal the Crown conceded that the reverse onus in s. 394(1)(b) violates s. 11(d) of the Charter because it is open for a person to be convicted under that provision even if there is a reasonable doubt as to whether he or she was entitled to buy or sell the precious metal. There is no doubt in my mind that this concession was properly made and that the parties were correct in proceeding on the basis that the only point in issue is whether s. 394(1) (b) of the Criminal Code constitutes a reasonable limit on the s. 11(d) Charter right pursuant to s. 1 of the Charter .

Nonetheless I must emphasize that s. 394(1)(b) does not constitute either a trivial or a technical impairment of the Charter right. The purpose of s. 394(1)(b) is clearly to criminalize trade in stolen precious metal ore. It does not apply to legitimate transactions, i.e., transactions performed by persons who are the owner or agent of the owner or are acting under some form of lawful authority. Since s. 394(1)(b) requires the accused to prove ownership, agency or lawful authority on the balance of probabilities it is possible for a person to be convicted under the section despite the presence of a reasonable doubt as to whether they were engaged in a legitimate transaction. In other words, s. 394(1)(b) permits accused persons to be convicted despite the presence of a reasonable doubt as to their guilt. This directly contravenes the presumption of innocence enshrined in s. 11(d) of the Charter .

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. For example, a tourist who purchases a souvenir containing precious metal ore from a gift shop in a city such as Timmins where such products are available might not be able to meet the burden of proof unless at the time of purchase she demanded and obtained admissible evidence from the seller establishing that he was the owner etc. or was in a position to call the seller as a witness. Section 394(1)(b) strikes at the heart of the protection afforded by s. 11(d) by increasing the likelihood that the innocent will be convicted.

2. Can s. 394(1)(b) be upheld as a reasonable limit under s. 1 of the Charter ?

(a)The context in which s. 394(1)(b) operates

It is now well established that the Charter is to be interpreted in light of the context in which it is being applied. The importance of the contextual approach was recognized by Wilson J. in Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326, at pp. 1355-56, and her comments have been cited with approval in numerous subsequent decisions: see, e.g., R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154, at p. 225; R. v. Keegstra, [1990] 3 S.C.R. 697, at p. 734; R. v. Seaboyer, [1991] 2 S.C.R. 577, at p. 647, and R. v. Levogiannis, [1993] 4 S.C.R. 475, at p. 483. This jurisprudence reveals that the historical, social and economic context in which a Charter claim arises will often be relevant in determining the meaning which ought to be given to Charter rights and is critical in determining whether limitations upon those rights can be justified under s. 1. Consequently, I find it useful to examine the historical, social and economic context in which s. 394(1)(b) operates in order to determine whether it constitutes a reasonable limit upon the right to be presumed innocent.

The offence created by s. 394(1)(b) can be traced back to s. 31 of the Act respecting Larceny and other similar Offences, S.C. 1869, c. 21. That provision made it an offence to sell or purchase gold or silver ore, except to or from an owner or agent thereof of mining claims being worked, or a person duly authorized by a mining official. Section 32 of the same Act made it an offence to purchase ore from anyone other than an owner or authorized seller without executing and filing a receipt. These two offences were eventually replaced by a single section, with the substance of s. 32 being dropped.

A reverse onus provision similar to the one now contained in s. 394(1)(b) was first introduced in 1938 when without debate Parliament amended s. 424 of the Criminal Code , R.S.C. 1927, c. 36. As a result, s. 424(1)(b) provided that everyone who "sells or purchases any rock, ore . . . unless such purchaser or seller is one to which this section does not apply by virtue of the provisions of subsection three . . ." was guilty of an indictable offence. Subsection 3 exempted from s. 424(1)(b) the owner or agent of the owner of mining claims then being worked, a person duly authorized by the proper officer, or any other purchaser who executed and filed an instrument recording the details of the transaction. Subsection 3 concluded by providing that in any prosecution under para. 1(b) "the burden of proof that the accused person is a person to whom the said paragraph (b) does not apply . . . shall be upon the accused".

I note that in this predecessor of s. 394(1)(b) the burden of proof imposed upon both the seller and the purchaser was the same. This meant that in the case of a purchaser proof was required that the person from whom he or she purchased was either an owner, agent of the owner or a person duly authorized or that the purchaser had executed and filed the necessary record of the transaction.

The current version of s. 394(1)(b) was enacted in the 1953-54 edition of the Code, c. 51, s. 337. It consolidated s. 424(1)(b) and subsection 3 making it an offence to sell or purchase minerals unless the seller or purchaser establishes "that he is the owner or agent of the owner or is acting under lawful authority". In view of the history of the section, it is apparent that a purchaser must establish that the person from whom he purchased is the owner etc. and not that the purchaser is the owner etc. as the literal reading of the subsection would suggest. The submissions on behalf of the Crown that discharge of the legal burden should occasion no serious difficulty in the case of a seller fail to address the plight of a purchaser who would virtually be required to obtain proof of the seller's credentials at the time of purchase. Oral assurances from the seller would not avail as these would be hearsay when offered in evidence by the purchaser.

The appellant and the intervener the Attorney General of Canada have tendered a great deal of evidence concerning whether the theft of and illegal trade in precious metal ore continues to be a pressing social problem requiring the continued existence of the offence created by s. 394(1)(b). The appellant has filed affidavits sworn by several gold mine managers from the Timmins area and an official with the Ontario Mining Association. Pursuant to an order of the Chief Justice the intervener was granted leave to file fresh evidence concerning the scope of the problem presented by theft of gold in the Yukon and Quebec. The parties have also filed fresh scientific evidence concerning the efficacy of a technique known as "gold fingerprinting" which allegedly permits scientists to match samples of gold with samples taken from the mines at which they originated. This scientific evidence was not available at the time of the hearing before the Court of Appeal.

The thrust of the evidence filed by the appellant and the intervener is that, as far as the gold mining industry in Ontario and Quebec is concerned, theft of raw gold is a serious problem. To the extent that it reduces the profitability of mining operations theft of raw gold threatens the viability of those operations and thus jeopardizes the economic benefits associated with the mining industry. Estimates of the losses due to theft of raw ore ranged from a low of $500,000 per year at one mine to a possible high of $2,250,000 at another mine. The theft of high-grade ore (sometimes known simply as high-grading) is easy because it is not difficult for an unscrupulous person to chip off or even crush and clean the ore while underground without being detected. Once the ore has been crushed and cleaned it is difficult if not impossible to trace to its source using currently available technology.

The situation in the Yukon is slightly different because of the prevalence of placer mines (as opposed to the "hard-rock" mines found in Ontario and Quebec). Placer mining is the process by which gold is recovered from stream and river valley gravels by passing it through sluice boxes. The nature of placer mining operations makes them extremely vulnerable to theft. The fact that most are small with modest profit margins means that they cannot afford security personnel or systems. Employees have access to gold during sluicing operations, as well as during clean-ups and processing. Much of the gold recovered in sluicing operations is in the form of small nuggets which can easily be secreted in an employee's clothing. Although theft is regarded as a significant problem for the placer mining industry, it is impossible to document the extent of theft from placer mines because no mine operator can know exactly how much gold was in the area mined.

The opinions with respect to the extent of the problem are weakened by the fact that they are not supported by either statistics, details or facts. In this regard the trial judge stated (at p. 381):

I accept mine managers as experts in their field. I question however the facts upon which they relied to arrive at their conclusion that theft of precious metals is a significant problem in their respective operations. The estimates of actual losses are not supported by any evidence. Anticipated losses are not supported by fact. There are no specific details or record keeping. This is not surprising in view of the nature of the property in question. Nevertheless I am left with presumptions.

This evidence has been supplemented by evidence admitted as fresh evidence on this appeal. The additional evidence, while somewhat more ample, suffers from the same frailty. Nevertheless, in light of the view that I take with respect to the proper approach to the first branch of the Oakes test, this evidence is of marginal importance and I am prepared to assume that it establishes that a serious problem exists with respect to theft of precious metals.

The evidence is equally inconclusive as to whether s. 394(1)(b) is an effective response to the problem posed by the theft of precious metal ore. On the one hand there is evidence that very few if any charges are laid under s. 394(1)(b) in any given year. On the other hand, members of the mining community claim that s. 394(1)(b) has deterred theft and that knowledge of its existence makes potential buyers reluctant to purchase gold from anyone not clearly in lawful possession of it. Several of the Ontario mine managers expressed the opinion that if the burden of proving ownership of gold was on the prosecution no convictions for high-grading would occur because it would be virtually impossible to prove ownership of stolen gold. This opinion evidence does not distinguish between different kinds of burdens.

On the other hand, the respondents rely on the development of a new technique which allows gold to be identified as coming from a particular source by a form of fingerprinting. The scientists whose evidence was tendered by the parties seem to agree that although gold fingerprinting permits stolen gold to be linked to a particular mine in certain circumstances there are a number of important limitations upon the effectiveness of the technique. The scientists explain that gold fingerprinting relies upon modern analytical techniques which permit mineralogists to identify and quantitatively measure concentrations of trace elements in mineral particles. These techniques can be used to link stolen gold to a particular mine by determining whether the trace elements in the sample of the gold whose origin is in dispute match the trace elements in samples taken from a particular mine or mineral deposit. However, it appears that given the current state of technical knowledge it may be difficult to make such a link if the known source has mineral deposits which are highly variable in terms of the trace elements which they contain or if the unknown sample has been refined (thus potentially altering the trace elements which it contains).

It is particularly difficult to identify gold obtained from a placer mining operation because the gold particles found in placer mines may be derived from more than one deposit (and thus have different fingerprints) and because trace elements may be leached from or otherwise redistributed within placer gold grains. Another limitation on the effectiveness of the fingerprinting technique is that it depends on the existence of a known sample. At present no database of samples exists in Canada. The cost of establishing such a database is stated to be about $3.3 million and could be set up within one year.

In the context of this background, I turn to the question whether s. 394(1)(b) can be upheld under s. 1 of the Charter . The test for determining whether this is the case was set out in R. v. Oakes, [1986] 1 S.C.R. 103, at pp. 138-39. Taking into account the modification suggested by the Chief Justice in his reasons in Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835, released concurrently herewith, the test can be stated as follows:

1) 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;

2) The means chosen to achieve the legislative objective must pass a three-part proportionality test which requires that they (a) be rationally connected to the objective, (b) impair the right or freedom in question as little as possible and (c) have deleterious effects which are proportional to both their salutary effects and the importance of the objective which has been identified as being of "sufficient importance".

(i)Pressing and Substantial Objective

I agree with the Attorney General of Canada that the objective of s. 394(1)(b) is the deterrence of theft of precious metal ore. In furtherance of this general objective, the specific objective of the reverse onus clause is to facilitate the prosecution of offenders given the special problem of proof to which I have referred above. I also agree that s. 394(1)(b) creates a "true criminal offence" and that like other true criminal offences involving activity bereft of social utility, it is an expression of society's repugnance to the conduct proscribed. In these circumstances, the Court can conclude, in the absence of extrinsic evidence as to the importance of the objective, that the subsection meets the first branch of the Oakes test.

With respect, I am of the opinion that the Court of Appeal erred in coming to a contrary conclusion. Given the nature of the enactment, I question the use of statistics as to the number of prosecutions. The paucity of prosecutions does not necessarily reflect on the seriousness of the problem. The statistics might be affected by a number of factors such as the priority which is given to enforcement by the police and the Crown.

Furthermore, the lack of evidence as to the role played by the reverse onus clause in furtherance of the objective appears to me to be relevant to the second branch of the Oakes test, that is, whether the means employed to achieve the objective are justifiable. The Court of Appeal, however, treated the absence of such evidence in combination with the paucity of prosecutions to deny the existence of a pressing and substantial objective.

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 strike me as rational responses to the problem posed by theft of precious metal ore. The criminalization of trade in stolen goods is a common and eminently sensible method of deterring theft. Where there is good reason to believe that it would be difficult for the Crown to prove that goods have been stolen it is rational to place some kind of burden of proving that they have not been stolen upon the accused. 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. If this were the case it would not be so clear that the reverse onus was a rational means of achieving the legislative objective. However, the evidence before the Court suggests that technology has not yet advanced to this point.

Before moving on to consider the next step in the Oakes test I would like to address the respondents' argument that s. 394(1)(b) fails the rational connection test because it creates an unreasonable presumption that any ore which has been purchased or sold was stolen. This argument is premised upon the notion that in order for a legislatively created presumption to pass this portion of the Oakes test it must be internally rational in the sense that there is a logical connection between the presumed fact and the fact substituted by the presumption. This argument was made by the appellant in R. v. Downey, [1992] 2 S.C.R. 10. It was contended that a presumption which is not internally rational unduly enmeshes the innocent in the criminal process. This argument was not accepted by the majority. Consequently, I regard it as settled that there is no general requirement that a presumption be internally rational in order to pass the rational connection phase of the proportionality test. The only relevant consideration at this stage of the analysis is whether the presumption is a logical method of accomplishing the legislative objective. Later in these reasons, I will consider the relevance of this factor in connection with the final phase of the proportionality test.

The second step in the inquiry into whether an impugned provision is a proportional means of achieving a given end is to determine whether the government has demonstrated that the provision impairs constitutionally protected rights or freedoms as little as possible. This usually involves determining whether alternative means of achieving the objective were available to Parliament.

The legislature is entitled to some deference in choosing the means of attaining a given objective. As Lamer C.J. stated in R. v. Chaulk, [1990] 3 S.C.R. 1303, at p. 1341, "Parliament is not required to search out and to adopt the absolutely least intrusive means of attaining its objective" (emphasis in original). However, it is also important to remember that this is not a case in which the legislature has attempted to strike a balance between the interests of competing individuals or groups. Rather it is a case in which the government (as opposed to other individuals or groups) can be characterized as the singular antagonist of an individual attempting to assert a legal right which is fundamental to our system of criminal justice. As the majority wrote in Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927 (at p. 994), in such circumstances the courts are in as good a position as the legislature to assess whether the least drastic means of achieving the governmental purpose have been chosen, especially given the inherently legal nature of the rights in question and the courts' accumulated experience in dealing with such matters.

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. Under such a provision the accused would simply be required to adduce or point to evidence which, if accepted, would be capable of raising a reasonable doubt as to whether he was the owner or agent of the owner or was acting under lawful authority. If he or she succeeded in raising such a doubt the burden would shift to the Crown to prove the contrary beyond a reasonable doubt. If the Crown failed to dispel a reasonable doubt, the accused would be acquitted. 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 appellant has not demonstrated to my satisfaction that Parliament has chosen the alternative which impairs s. 11(d) as little as is reasonably possible. I, of course, take into account that Parliament should be accorded some leeway and need not choose the least restrictive alternative that can be imagined. Imposing a legal or persuasive burden on the accused in respect of an offence characterized as a true criminal offence is a serious impairment of s. 11(d). In my opinion, Parliament's purpose will be effectively served by the imposition of an evidential burden. A seller will have to testify or produce documents tending to show that he or she was either the owner or agent of the owner, or is duly authorized. A purchaser may be required to adduce viva voce evidence or produce a document tending to show that the person from whom he or she purchased the material was the owner, agent of the owner or duly authorized. In either case, the matter will have been narrowed to identify the basis of the seller's claim in the one case and the identity of the seller in the other. This will in most cases enable the Crown to produce testimony or documents disproving the claim that the seller or alleged seller is the owner or agent or is duly authorized.

Accordingly, I conclude that the Crown has not discharged its burden to establish that s. 394(1)(b) impairs the right to be presumed innocent embodied in s. 11(d) of the Charter to the minimum extent reasonably necessary to achieve its objective. Having regard to the foregoing, however, the imposition of an evidentiary burden is justified in order to achieve Parliament's purpose.

In light of my conclusion that s. 394(1)(b) does not pass the minimal impairment stage of the Oakes test it is not essential for me to consider whether it passes the final stage of the test, namely the proportionality requirement. Therefore, as far as this portion of the test is concerned I will only reiterate my concern that s. 394(1)(b) permits the conviction of a wide range of innocent people and thus constitutes a serious violation of s. 11(d). This flows from the facts that the presumption contained in s. 394(1)(b) lacks any sort of internal rationality (i.e., it is not rational to presume from the fact that one has purchased or sold precious metal ore that the transaction was illegitimate) and that the burden of proof on the balance of probabilities is an onerous one which many innocent people may be unable to meet. I question whether the deterrence sought by s. 394(1)(b) justifies such a significant infringement of the right to be presumed innocent. Even if I were persuaded that the imposition of a legal burden was clearly more effective in achieving Parliament's objective, I would find that it 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.

On the other hand, I believe that the imposition of an evidentiary burden upon the accused is justified even though it still impairs the right to be presumed innocent. I find it 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 I find that this only minimally increases the likelihood of an innocent person being convicted and represents a justifiable limitation upon the right to be presumed innocent.

Remedy

As pointed out above, Boissonneault J. struck out all of s. 394(1)(b) and stayed the proceedings. The Court of Appeal struck out the words "he establishes that" which create the reverse onus. It found that it was not necessary to strike the whole subsection because "only the reverse onus clause . . . is unconstitutional". They, however, found it unnecessary to consider the issue of minimal impairment, having concluded that the subsection failed the first branch of the Oakes test. In the circumstances, the Court of Appeal did not consider whether Parliament could achieve its objective by less invasive means. It follows that the Court of Appeal did not consider whether reducing the onus provision to an evidentiary burden was an appropriate remedy.

In view of the conclusion that I have reached on the s. 1 issue, the available alternative remedies are: (i) striking down the offending words, a remedy adopted by the Court of Appeal and supported in this Court by the respondents; and (ii) striking down the offending words coupled with reading in appropriate words to substitute an evidentiary burden. The latter remedy was supported by the Crown in the event that it failed in having the subsection saved under s. 1. The remedy adopted by the trial judge was not requested by the respondents and leave to cross-appeal was neither requested nor granted. Assuming that, in these circumstances this remedy were available, it would clearly be inappropriate having regard to the principles expressed hereafter.

In fashioning a remedy pursuant to s. 52 consequent on a Charter breach, the court must apply the measures which will best vindicate the values expressed in the Charter while refraining from intrusion into the legislative sphere beyond what is necessary. See Schachter v. Canada, [1992] 2 S.C.R. 679, at p. 707. With respect to the range of remedies the Chief Justice stated in Schachter, at p. 695:

A court has flexibility in determining what course of action to take following a violation of the Charter which does not survive s. 1 scrutiny. Section 52 of the Constitution Act, 1982 mandates the striking down of any law that is inconsistent with the provisions of the Constitution, but only "to the extent of the inconsistency". Depending upon the circumstances, a court may simply strike down, it may strike down and temporarily suspend the declaration of invalidity, or it may resort to the techniques of reading down or reading in.

Applying these criteria to this case I observe that Charter values are fully vindicated by removing from the subsection the words that impose a legal burden. Section 52 requires nothing more than removal of the words that create a legal burden. Substitution of words that reduce the legal burden to an evidentiary burden furthers the legislative objective while fully vindicating Charter values. Whether such substitution is more intrusive into the legislative sphere than simply striking down all reference to any obligation of the accused leaving the full legal and evidentiary burden on the Crown is the issue I must now address.

I have found that reducing the legal burden to an evidentiary burden will effectively further the legislative objective embodied in s. 394(1)(b). It follows that, prima facie, retention of this provision is less of an intrusion into the legislative sphere than striking it. As stated by Lamer C.J. in Schachter, at p. 697:

Where the offending portion of a statute can be defined in a limited manner it is consistent with legal principles to declare inoperative only that limited portion. In that way, as much of the legislative purpose as possible may be realized.

The case for retention is only prima facie because it may appear from all of the circumstances that it would not be safe to conclude that the legislature would have passed the provision in its altered form. The legislature may have preferred some alternative means to achieve its objective. Thus in Schachter the Chief Justice stated that it is relevant to ask the question whether it is safe to assume that the legislature would have enacted the legislation in its altered form. I propose to examine this question as it relates to the proposed revision of s. 394(1)(b).

There is nothing in the Parliamentary debates which would shed any light on whether there was any reason why Parliament would not have chosen words creating an evidentiary burden had it known at the time that adoption of a legal burden was not valid. As stated above the reverse onus was introduced without debate. There was, however, debate preceding the enactment of the predecessor of the companion subsection, which now is s. 394(1)(c), making it an offence to have possession of precious metals reasonably believed to have been stolen or dealt with contrary to the section. It too contains a reverse onus provision in identical language to s. 394(1)(b). The wording of the reverse onus provision (s. 424a) which was the subject of debate was slightly different and the subsection made it an offence if the accused "is unable to prove that he came lawfully by the same". The Minister of Justice, in explaining that reverse onus provisions had not caused problems in the past, referred to s. 988 of the Code which was the predecessor of s. 656 of the present Code. Then and now the section places an evidentiary burden on the accused. The Minister stated:

That [s. 988] has been our law for ten years or more. I do not know that any one has ever found any difficulty from it or been wrongfully prosecuted under it. This legislation [s. 424a] is on the same lines....

(House of Commons Debates, 2nd Sess., 11th Parl., January 19, 1910, p. 2166.)

When the predecessor of s. 394(1)(b) was enacted in 1938, it provided that the "burden of proof" was on the accused. In view of the fact that no clear distinction was being made between the legal burden and the evidentiary burden it is certainly arguable that Parliament in enacting these provisions intended no more than an evidentiary burden. The wording used is capable of this interpretation. In R. v. Holmes, [1988] 1 S.C.R. 914, this Court acknowledged that the words "without lawful excuse, the proof of which lies upon him" were capable of creating a legal burden but interpreted them to require the accused to raise a reasonable doubt. This is an interpretation which could be adopted in this case but I would hesitate to do so in view of the many provisions in the Criminal Code and other statutes employing the same wording, some of which may validly create a legal burden. I do, however, conclude from the foregoing and the fact that there are many provisions in the Criminal Code and other federal statutes that place an evidentiary burden on the accused, that it is safe to assume that Parliament would have enacted the subsection in question in this appeal but restricted to an evidentiary burden, if the option of a legal burden had not been available.

Nor do I consider that coupling the remedy of striking down and reading in is an undue intrusion on the legislative domain. Once the criteria to which I have referred above are satisfied, the technique employed to reach the result of the application of those criteria is more in the nature of mechanics than substance. Although the remedy which I consider appropriate on one view of the matter involves striking down and reading in, the same end result could be achieved by other techniques. As pointed out above, the reverse onus provision could be interpreted or read down to restrict it to an evidentiary burden. Indeed the net effect could also be considered as striking down only. While I have interpreted the words "he establishes" to amount to a legal burden, they include the evidentiary burden as well. Under the subsection as drafted the accused would not only be required to go forward with evidence but as well bears the burden of non-persuasion. The remedy I have adopted merely removes the latter from the subsection. In this regard it is useful to consider the following statement of Rowles J. in Knodel v. British Columbia (Medical Services Commission) (1991), 58 B.C.L.R. (2d) 356, at p. 388, which was quoted with approval by the Chief Justice in Schachter, at p. 699:

Accordingly, whether a court "reads in" or "strikes out" words from a challenged law, the focus of the court should be on the appropriate remedy in the circumstances and not on the label used to arrive at the result.

The Chief Justice went on to observe that the extent of the inconsistency can be defined conceptually rather than focusing on a verbal formula. When the inconsistency between s. 394(1)(b) and the Charter is defined in conceptual terms rather than purely in reference to the wording used by Parliament, it is manifest that the proposed remedy only involves striking down a portion of the subsection.

Disposition

I would answer the constitutional questions as follows:

1.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 ?

Yes.

2.If the answer to question 1 is in the affirmative, is s. 394(1) (b) of the Criminal Code a reasonable limit on the s. 11(d) Charter right, pursuant to s. 1 of the Charter ?

No.

As a consequence, pursuant to s. 52 of the Constitution Act, 1982 , I would strike down the portion of s. 394(1)(b) which is unconstitutional by removing the portion which imposes the legal burden of proving ownership, agency or lawful authority upon the accused. I do not find it necessary to strike down the aspect of s. 394(1)(b) which imposes an evidentiary burden upon the accused.

In the result I would allow the appeal in part by affirming the lifting of the stay but varying the Court of Appeal's order to state that, pursuant to s. 52 of the Constitution Act, 1982 , s. 394(1)(b) should be read as follows: