Date of Release: February 14, 1996 No. 77175 Victoria Registry IN THE SUPREME COURT OF BRITISH COLUMBIA BETWEEN: ) ) REGINA ) )REASONS FOR JUDGMENT RESPONDENT) )OF THE HONOURABLE AND: ) )MR. JUSTICE COWAN JASON DYLAN PRATT ) ) APPELLANT) G. J. Ivanisko Counsel for the respondent D. M. McKimm Counsel for the appellant Date and Place of Hearing November 20, 1995 Victoria, B. C. 1 The appellant appeals his conviction of the offence of driving while prohibited contrary to s. 88(1) of the Motor Vehicle Act, R.S.B.C. 1976, c. 288 (the "Act"). 2 The grounds of appeal as set out in the appellant's notice of appeal are as follows: The Learned Trial Judged (sic) erred in finding that the provisions of section 88(2) in conjunction with the provisions of 88(3)(a) of the Motor Vehicle Act R.S.B.C. 1976, c.288 did not constitute a reverse onus and a breach of the accused's right to be presumed innocent under section 11(d) of the Charter of Rights and Freedoms. In the alternative that if those provisions of the Motor Vehicle Act were a reverse onus that they were saved by section 1 of the Charter of Rights and Freedoms. 3 Section 88(1) creates the offence of driving while prohibited. It provides: (1)A person who drives a motor vehicle on a highway or industrial road knowing that (a) he is prohibited from driving a motor vehicle under section 84, 85, 86 or 214, or (b) his driver's licence or his right to apply for or obtain a driver's licence is suspended under section 25, 83, 87, 88, 94 or 214X as it was before its repeal and replacement or its amendment came into force pursuant to the Motor Vehicle Amendment Act, 1982, commits an offence and is liable, (c) on a first conviction, to a fine of not less than $300 and not more than $2,000 and to imprisonment for not less than 7 days and not more than 6 months, and (d) on a subsequent conviction, regardless of when the contravention occurred, to a fine of not less than $300 and not more than $2,000 and to imprisonment for not less than 14 days and not more than one year. 4 Section 88(2) of the Act permits the court to admit into evidence a certificate of the superintendent of Motor Vehicles as proof of knowledge of the prohibition. It provides as follows: (2)Where a person is charged with an offence under subsection (1), the court hearing the charge may admit into evidence a certificate of the superintendent stating the information required by subsection (3) and where the certificate of the superintendent is admitted into evidence it is proof that the defendant had knowledge of the prohibition or suspension in effect at the time of the alleged offence unless he proves, on the balance of probabilities, that he did not know of the prohibition or suspension. 5 Section 88(3) provides: (3)Where a person is charged with an offence under subsection (1), the certificate referred to in subsection (2) shall state that the prohibition or suspension was in effect on the date of the alleged offence and that the records of the superintendent (a) show that a notice of the prohibition or suspension was mailed by certified mail to the person at his most recent address recorded in the records of the superintendent and that the superintendent subsequently received a Canada Post certified mail delivery card showing a recipient's signature that appears to be that of the person to whom the notice of prohibition or suspension was sent, or (b) contains a document that (i) indicates that the person so charged (A) has acknowledged that he is prohibited from driving a motor vehicle, or that his driver's licence or his right to apply for or to obtain a driver's licence is suspended, (B) has acknowledged that he has received from the superintendent a notice of prohibition against driving a motor vehicle or a notice of suspension of his driver's licence or of his right to apply for or to obtain a driver's licence, or (C) has surrendered his driver's licence to the superintendent subsequent to receiving from the superintendent a notice of prohibition, relating to a prohibition under section 84, 85 or 86, or a notice of suspension, and (ii) is signed by a signature that, from a comparison with the signature on the records of the superintendent, appears to be that of the person whom the superintendent intended to prohibit from driving a motor vehicle, or whose driver's licence or right to apply for or to obtain a driver's licence he intended to suspend, or to whom he mailed a notice of prohibition or suspension. 6 The appellant challenges the reverse onus clause in s. 88(2) which places an onus on an accused to prove on a balance of probabilities, once the certificate of the superintendent is admitted into evidence, that he did not know of the prohibition or suspension. 7 At trial the Crown relied upon a certificate of the superintendent to prove knowledge on the part of the accused that he was prohibited from driving a motor vehicle and was so on the date set out in the information. 8 Counsel for the accused made certain submissions regarding the admissibility of the certificate which were rejected by the trial judge and the certificate was admitted into evidence. No evidence was called by counsel for the accused on the issue of the certificate's admissibility. 9 Counsel for the accused then sought to challenge the constitutionality of s. 88(2) and s. 88(3) of the Act. After hearing argument the trial judge initially held that the impugned provision of s. 88(2) did not create a reverse onus, he then however decided to defer to a decision of Brahan P.C.J. in the case of R. v. Aguado (16 August 1993), Victoria Registry, 67197 (P.C.). In that case Judge Brahan held that s. 88(2) did create a reverse onus but that the provisions of s. 88(2) were saved by reason of the provisions of s. 1 of the Charter. 10 Two issues accordingly arise on this appeal viz whether the provisions of s. 88(2) of the Act create a reverse onus so that the accused's right to be presumed innocent under s. 11(d) of the Charter is violated and if the answer to that is in the affirmative whether it is saved under s. 1 of the Charter. THE REVERSE ONUS ISSUE 11 In R. v. Whyte (1988), 42 C.C.C. (3d) 97 (S.C.C.) Dickson C.J.C. who delivered the judgment of the court at p. 109 stated: ... 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. 12 In the present case knowledge by an accused who drives a motor vehicle on a highway or industrial road that he is prohibited from driving is an essential element of the offence created by s. 88(1) of the Act which the Crown must prove beyond a reasonable doubt. 13 Section 88(2) of the Act places a burden on an accused to disprove this essential element of the offence on a balance of probabilities and accordingly in my opinion the accused's presumption of innocence guaranteed by s. 11(d) of the Charter is violated, thereby. IS SECTION 88(2) JUSTIFIED BY SECTION 1 OF THE CHARTER 14 A recent decision in which the Supreme Court of Canada had occasion to consider the test for justification under s. 1 of the Charter is RJR - MacDonald Inc. v. Canada (Attorney General) (21 September 1995), 23460 and 23490 (S.C.C.). 15 In that case the majority of the court held that certain sections of the Tobacco Products Control Act, S.C. 1988, c. 20 infringed the right of free expression as set out in s. 2(b) of the Charter and then went on to consider whether the infringement was justifiable under s. 1. It was held that the impugned sections were not so justified. 16 At paragraph 130 of her reasons for judgment McLachlin J. set forth the factors to be considered under s. 1. She stated: The factors generally relevant to determining whether a violative law is reasonable and demonstrably justified in a free and democratic society remain those set out in Oakes. The first requirement is that the objective of the law limiting the Charter right or freedom must be of sufficient importance to warrant overriding it. The second is that the means chosen to achieve the objective must be proportional to the objective and the effect of the law -- proportionate, in short, to the good which it may produce. Three matters are considered in determining proportionality: the measures chosen must be rationally connected to the objective; they must impair the guaranteed right or freedom as little as reasonably possible (minimal impairment); and there must be overall proportionality between the deleterious effects of the measures and the salutary effects of the law. 17 In my opinion the Crown has failed to establish that s. 88(2) by imposing a legal burden on an accused to prove lack of knowledge of the suspension of his licence impairs an accused's constitutional right to be presumed innocent under s. 11(d) of the Charter as little as possible. 18 In the case of R. v. Laba (1995), 94 C.C.C. (3d) 385 (S.C.C.) the court had under consideration s. 394(1)(b) of the Criminal Code which provides: 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 19 At issue was whether the reverse onus provision contained in that section was saved by s. 1 of the Charter. The Crown had conceded that the reverse onus violated s. 11(d) of the Charter because it was open for a person to be convicted under the provision even if there was a reasonable doubt as to whether he or she was entitled to buy or sell the precious metal. At pp. 417 - 419 Sopinka J. who delivered the judgment of the court in respect of the constitutional question involved dealt with the minimal impairment aspect of the test to be applied in considering whether the Charter violation concerned could be justified under s. 1 of the Charter. He stated: 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.C. stated in R. v. Chaulk (1990), 62 C.C.C. (3d) 193 at p. 221, [1990] 3 S.C.R. 1303, 2 C.R. (4th) 1: "... 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), 58 D.L.R. (4th) 577 at p. 626, 25 C.P.R. (3d) 417, [1989] 1 S.C.R. 927, 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. 20 In my opinion that analysis has application to the present case. I consider that it was open to the legislature in enacting s. 88(2) to have placed an evidentiary burden on an accused to raise a reasonable doubt regarding his knowledge of his licence having been suspended rather than the legal burden of disproving knowledge. 21 Sopinka J. went on to state at p. 420: 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. 22 At p. 420 et seq. he considered what remedy could be fashioned pursuant to s. 52 of the Constitution Act. 23 One remedy considered and which he adopted was that of "striking down the offending words coupled with reading in appropriate words to substitute an evidentiary burden." 24 At pp. 423 - 424 he concluded: 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: 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, in the absence of evidence which raises a reasonable doubt that he is the owner or agent of the owner or is acting under lawful authority; or (Emphasis added.) 25 I am of the opinion that it is appropriate to adopt a similar remedial procedure in this case by striking down the words in s. 88(2) which read "unless he proves, on the balance of probabilities, that he did not know of the prohibition or suspension" and substituting the words "in the absence of evidence which raises a reasonable doubt that he knew of the prohibition or suspension", so that s. 88(2) should be read as follows: (2)Where a person is charged with an offence under subsection (1), the court hearing the charge may admit into evidence a certificate of the superintendent stating the information required by subsection (3) and where the certificate of the superintendent is admitted into evidence it is proof that the defendant had knowledge of the prohibition or suspension in effect at the time of the alleged offence in the absence of evidence which raises a reasonable doubt that he knew of the prohibition or suspension. 26 The appeal is allowed. "J. C. Cowan, J." February 14, 1996 Victoria, British Columbia