R. v. P.H., (2000) 129 O.A.C. 299 (CA)

• Judge: Finlayson, Weiler and Sharpe, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: February 11, 2000
• Jurisdiction: Ontario
• Citations: (2000), 129 O.A.C. 299 (CA)

R. v. P.H. (2000), 129 O.A.C. 299 (CA)

MLB headnote and full text

Temp. Cite: [2000] O.A.C. TBEd. FE.038

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

(C31878)

Indexed As: R. v. P.H.

Ontario Court of Appeal

Finlayson, Weiler and Sharpe, JJ.A.

February 11, 2000.

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), in a decision reported 69 O.T.C. 219, 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 allowed the appeal, declared s. 794(2) inoperative with respect to s. 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. The accused appealed the finding that s. 335 was valid and constitutional legislation.

The Ontario Court of Appeal granted leave to appeal but dismissed the appeal and re­mitted the matter for trial.

Civil Rights - Topic 4909

Presumption of innocence - General prin­ciples - Circumstances not infringing pre­sumption - The accused was charged as an occupant of a motor vehicle known to have been taken without the owner's consent (Criminal Code, s. 335(1)) - The accused argued that s. 335 violated ss. 7 and 11(d) (presumption of innocence) of the Charter by imposing liability for morally blameless conduct - The Ontario Court of Appeal rejected the argument - By its terms, s. 335 plainly required the Crown to establish beyond a reasonable doubt that the oc­cupant of the motor vehicle knows that the vehicle was taken without the owner's consent - That was not a morally blameless state of mind and nothing in the Charter precluded Parliament from criminalizing such activity - See paragraphs 11, 12 and 17.

Civil Rights - Topic 4945

Presumption of innocence - Evidence and proof - Reverse onus provisions - The accused was charged as an occupant of a motor vehicle known to have 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) provided, inter alia, that the burden of proving that an exception, exemption, etc., operated in the accused's favour was on the accused - 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 Ontario Court of Appeal held that there was no judicial authority supporting the concession and it should not have been made - See para­graphs 9 and 10.

Civil Rights - Topic 4945

Presumption of innocence - Evidence and proof - Reverse onus provisions - The accused was charged as an occupant of a motor vehicle known to have 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 attempted to leave the vehicle (if feasible) or actually left the vehicle - Sec­tion 794(2), provided, inter alia, that the burden of proving that an exception, ex­emption, etc., operated in the accused's favour, was on the accused - The accused argued that s. 794(2), when applied to s. 335(1.1), created a reverse onus provision which violated the presumption of inno­cence - The Ontario Court of Appeal held that s. 794(2) had no application to the defence set out in s. 335(1.1) - Section 794(2) applied in narrow circumstances (usually regulatory offences) - Section 335(1.1) was an enlargement of the com­mon law defences of compulsion, duress or coercion and maybe mistake and necessity - These defences did not impose a reverse onus - See paragraphs 9 to 16.

Civil Rights - Topic 4949

Presumption of innocence - Evidence and proof - Removal of element of intent - [See Civil Rights - Topic 4909 ].

Criminal Law - Topic 1685

Offences against property - Theft - Par­ticular offences - Occupant of stolen vehi­cle - [See Civil Rights - Topic 4909 and both Civil Rights - Topic 4945 ].

Criminal Law - Topic 5229

Evidence and witnesses - Burden of proof - Proof of exception, exemption, excuse or qualification - [See second Civil Rights - Topic 4945 ].

Cases Noticed:

M. v. H., [1999] 2 S.C.R. 3; 238 N.R. 179; 121 O.A.C. 1; 171 D.L.R.(4th) 577, refd to. [para. 10].

R. v. Mills (B.J.) (1999), 248 N.R. 101; 244 A.R. 201; 209 W.A.C. 201 (S.C.C.), refd to. [para. 12].

Davidson v. Slaight Communications Inc., [1989] 1 S.C.R. 1038; 93 N.R. 183; 59 D.L.R.(4th) 416; 26 C.C.E.L. 85; 89 C.L.L.C. 14,031; 40 C.R.R. 100, refd to. [para. 13].

R. v. Lee's Poultry Ltd. (1985), 7 O.A.C. 100; 17 C.C.C.(3d) 539 (C.A.), refd to. [para. 14].

R. v. Gill, [1963] 2 All E.R. 688 (C.C.A.), refd to. [para. 15].

R. v. Martin (1991), 43 O.A.C. 378; 2 O.R.(3d) 16 (C.A.), affd. [1992] 1 S.C.R. 838; 145 N.R. 161; 59 O.A.C. 321; 71 C.C.C.(3d) 572, refd to. [para. 18].

R. v. Martin (J.) (1994), 72 O.A.C. 316 (C.A.), refd to. [para. 19].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 335(1), sect. 335(1.1) [para. 7]; sect. 794(1), sect. 794(2) [para. 8].

Authors and Works Noticed:

Mewett, Alan W., and Manning, Morris, Criminal Law (3rd Ed. 1994), p. 519 [para. 15].

Counsel:

C. Jane Arnup, for the respondent;

James H. Silver, for the appellant;

Peter De Freitas, for the intervener, At­torney General of Canada.

This appeal was heard on January 14, 2000, before Finlayson, Weiler and Sharpe, JJ.A., of the Ontario Court of Appeal.

Finlayson, J.A., delivered the following judgment for the Court of Appeal which was released on February 11, 2000.