R. v. P.H., (1998) 69 O.T.C. 219 (GD)

• Judge: Sheppard, J.
• Court: Ontario Court of Justice General Division (Canada)
• Case Date: June 24, 1998
• Jurisdiction: Ontario
• Citations: (1998), 69 O.T.C. 219 (GD)

R. v. P.H. (1998), 69 O.T.C. 219 (GD)

MLB headnote and full text

Temp. Cite: [1998] O.T.C. TBEd. JL.130

Her Majesty The Queen (appellant) v. P.H. (respondent)

(File No. 97-Y0808G)

Indexed As: R. v. P.H.

Ontario Court of Justice

General Division

Sheppard, J.

July 10, 1998.

Summary:

The accused (young offender) was charged with two counts of being an occupant of a motor vehicle taken without the owner's consent, in circumstances where he, as an occupant, knew the vehicle had been taken without the owner's consent (Criminal Code, s. 335(1)). Section 335(1.1) stated that s. 335(1) did not apply to an occupant who, on becoming aware that it was taken without the owner's consent, attempted to leave the vehicle (if feasible) or actually left the vehicle. Section 794(2), applicable to all summary conviction offences, provided, inter alia, that the burden of proving that an exception, exemption, etc., operated in the accused's favour was on the accused. The trial judge held that s. 335, as it applied to occupants, violated ss. 7, 11(c) and 11(d) of the Charter, struck down the section in its entirety, and quashed the information. The Crown appealed.

The Ontario Court (General Division) examined s. 335 and held that the section itself (absent s. 794(2)) did not violate the Charter. The Crown conceded that s. 794(2) when applied to s. 335(1.1) created a reverse onus provision which violated the presumption of innocence. The court held that the reverse onus provision could not be justified under s. 1 of the Charter. The court held that there was a less intrusive remedy than the one ordered by the trial judge. The court allowed the appeal, declared s. 794(2) inoperative with respect to section 335, and otherwise set aside the order declaring s. 335 to be unconstitutional. The court set aside the order quashing the information and ordered a trial.

Civil Rights - Topic 4945

Presumption of innocence - Evidence and proof - Reverse onus provisions - See paragraphs 1 to 23.

Civil Rights - Topic 8380.2

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Declaration of statute invalidity - See paragraph 24.

Civil Rights - Topic 8380.14

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Severance of portion of statute or section - See paragraph 24.

Criminal Law - Topic 1685

Offences against property - Theft - Particular offences - Occupant of stolen vehicle - See paragraphs 1 to 23.

Cases Noticed:

R. v. Dunlop, [1979] 2 S.C.R. 881; 27 N.R. 153; 47 C.C.C.(2d) 93, refd to. [para. 9].

R. v. Coney (1882), 8 Q.B.D. 534, dist. [para. 9].

R. v. Nagy (1988), 30 O.A.C. 12; 45 C.C.C.(3d) 350 (C.A.), refd to. [para. 10].

R. v. Phillips (1996), 108 C.C.C.(3d) 514 (Ont. Gen. Div.), dist. [para. 11].

R. v. Laba - see R. v. Johnson et al.

R. v. Johnson et al., [1994] 3 S.C.R. 965; 174 N.R. 321; 76 O.A.C. 241; 94 C.C.C.(3d) 385, refd to. [para. 19].

R. v. Curtis (G.) and Hudson (D.) (1998), 107 O.A.C. 136 (C.A.), refd to. [para. 21].

R. v. Lee's Poultry Ltd. (1985), 7 O.A.C. 100; 17 C.C.C.(3d) 539 (C.A.), refd to. [para. 23].

R. v. Schwartz, [1989] 2 S.C.R. 443; 88 N.R. 90; 56 Man.R.(2d) 92; 45 C.C.C.(3d) 97, refd to. [para. 23].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 335(1), sect. 335(1.1) [para. 5]; sect. 794(2) [para. 7].

Counsel:

Brian K. Awad, for the appellant;

James H. Silver, for the respondent.

This appeal was heard on June 24, 1998, before Sheppard, J., of the Ontario Court (General Division), who delivered the following judgment on July 10, 1998.