Tis the Season as they say when I do some Criminal Code housekeeping. This year it is more of a reno then a Spring cleaning as late 2018 brought in major revisions to the Criminal Code. Although I am not sorry to see the repealed sections go, I do feel wistfully nostalgic for them. Alarming the Queen for example (now repealed s. 49) and dueling (now repealed s. 71) were guaranteed to bring a smile to the 1Ls. But with all renos, there are bound to be oversights. The wall looks freshly painted but deep in the corner there’s a patch left undone. The Criminal Code revisions are no different.
Take for example the removal of the reverse onus phrases “proof of which lies” on the accused. The Backgrounder on Bill C-51, which brought in this change explains the reasoning behind the removal. This phrase, which reverses the burden of proof onto the accused, is constitutionally suspect. By reversing the burden, s.7 is engaged as the presumption of innocence, a principle of fundamental justice, is compromised. In the words of the Backgrounder such reversals of the onus onto the accused could “result in convictions where a reasonable doubt exists as to the accused’s guilt.” The removal of these reverse onus requirements is not only Charter consistent but necessary. Yet, a review of the Code reveals some such reversals are left intact.
Let’s look at which reverse onus phrases were removed. Including the Forms, there are 47 references to the onus, “proof of which lies” on the accused, deleted. The most notable large-scale removal was from s. 794, deleting subsection (2) placing the burden on the accused in summary conviction offences to prove an “exception, exemption, proviso, excuse or qualification prescribed by law operates” in favour of the accused. Many of the removals were in sections where the case law raises potential Charter unconstitutionality such as in the reverse onus in possession of housebreaking tools under s. 351.
What is not removed is more telling. Three of the sections retaining the reverse onus phrase appear in Part XXIII of the Codeon Sentencing. The phrase in sections 742.6(9) and 742.6(16) are still operative. These sections are engaged when an offender allegedly breaches a conditional sentence order (cso). Both subsections outline options given to the court upon finding, on a balance of probabilities, that the offender did “without reasonable excuse, the proof of which lies on the offender” breach a condition of the cso. These subsections were subject to a Charter challenge in the Ontario Court of Appeal decision in R v Casey with leave to the SCC refused. The Ontario Court of Appeal found the breach is not an offence within the meaning of s. 11 of the Charter. Any argument the subsections violated ss. 11(d) (reversal of burden of proof), s. 11(h) (rule against double jeopardy) and s. 7 (principles of fundamental justice) were dismissed. The decision hinged on the characterization of the cso regime and the consequences of a breach. In the OCA’s opinion a breach of a conditional sentence was not a separate offence as the sentencing judge, who reviews the breach, can only deal with the expired portion of the sentence. A sentence, which the Court was quick to remind, is a term of imprisonment being served in the community. Finding a breach cannot increase that sentence. Additionally, the sentencing judge is reviewing the alleged breach as the supervisor of the cso and not as a trial judge quatrial judge.
Even so, courts have added a caveat to this supervisory power under s. 742.6. In the 2005 decision of the then Justice Cromwell, in the New Brunswick Court of Appeal, R v LeBorgne, found the breach regime “engaged important interests of the offender” and “vital interests of the offender are in play and must be scrupulously protected” (at para 13) and “scrupulously fair” (at para 14).
Another section, s. 734.5, which is similar to s. 55.1 Cannabis Act, also retains the reverse onus provision. Section 734.5 is also a sentencing provision relating to the default payment of a fine. This section provides for an additional “incentive” for the offender to pay a fine by permitting the provincial government to refuse to issue a licence or permit, such as a driver’s licence, to the offender until the fine is paid “proof of which lies on the offender.” Again, this is enforcement of a sentence imposed and is not to be viewed as additional punishment. This section was considered in the most recent Supreme Court decision on the unconstitutionality of the victim fine surcharge, R v Boudreault. That section had used the s. 734.5 enforcement regime for the fine surcharges.
Leaving aside the special circumstances of the use of the reverse onus in these sentencing provisions, there are still two offences in the Criminal Code, sections 440and 383(2), where the reverse onus is retained. These sections create offences similar to the other sections from which the reverse onus phrase was removed. These two offences also happen to be the only offences in the Codedescribing the reverse onus as “the burden of proof” as opposed to the other now deleted phrases that introduce the reversal by stating “proof of which.” Was there perhaps a slip of the pen by not removing these sections too or is there some other reason for their retention?
Section 440 is an odd offence creating an indictable offence for removing, wilfully and without the permission of the Minister of Transport, a natural bar such as a stone or earth from a public harbour. The reverse onus attaches to the proof of the written permission from the Minister. It may be argued that this permission is specifically an element of the offence and therefore should be disproved by the prosecution. Yet, the section contemplates otherwise by using the reverse onus. Some case law suggests the lawful excuse, consisting in s. 440 of the Minister’s permission, is not an element of the offence (see R v Gladue, 2014 ABPC 45, Rosborough, PCJ). It appears this authority has been questioned on summary conviction appeal (see R v Neufeld, 2014 ABPC 66, Rosborough, PCJ at paras 28-30). Considering the uncertainty in the law on this issue, this phrase “the burden of proof of which lies on the accused,” should have been removed from s. 440.
Notably, s. 440 does have a public welfare flavour to it. In the regulatory world, the defendant has the burden on a balance of probabilities to establish they acted with all due diligence. In this case, that the defendant had the necessary permits to make changes to a public harbour. But this offence is not of the regulatory world but the criminal one. It appears in the Criminal Code and it is punishable by Indictment for a maximum period of imprisonment of 2 years in the penitentiary. In any event, the regulatory argument that the accused is in the best position to produce this information fails in this instance as it is Minister permission, which one would assume is readily available to the government prosecuting such an offence.
The other offence retaining the reverse onus phrase, section 383, creates fraud-related offences in purchasing stocks or merchandise for the purpose of making a profit in the rise or fall of the price of those items. This activity does rather sound like what people regularly do when playing the stock market. It even sounds like what people also regularly do, when purchasing real estate, not for the purpose of inhabiting the property but for the purpose of flipping it in order to make money in the short term rise in price. What this section is directed to is a form of wash trading wherein an “investor simultaneously sells and purchases the same financial instruments to create misleading, artificial activity in the marketplace.” Of course, such conduct benefits the wash trader but to the detriment of legitimate people in the marketplace. Section 383(1) defines the offence of the making, signing or authorization for the sale of shares or goods with the intention of making a gain or profit by the rise or fall of the price. Subsection (2) where the onus resides finds that when it is established that the accused made, signed or authorized the sale or purchase of those goods, the onus is then on the accused to prove a bona fideintention to acquire or sell the shares or goods in question. Although this subsection appears to create an evidential burden and not a legal one, considering this section is merely a specific form of fraud under s. 380, the use of a reverse onus seems out of place and heavy-handed. Further, there is another specific offence relating to wash trading under the Code in s. 382, which is creating a false appearance of active trading of stocks does not use any such presumption. Additionally, a search of case authorities suggest that these situations are usually dealt with under securities regulation instead of the criminal law.
The reason the onus remains may be historical. In Burbidge’s Digest of the Criminal Law of Canada, the progenitor of the 1892 Code and upon which the Code was formulated, outlined a similar offence under Article 236. There the offence did not have a reverse onus phrase. However, in the 1892 codification of the offence, section 704, which is similar to 383(2) was added as an evidentiary presumption. Although evidentiary presumptions to ease the admission of documents and certificates signed by an official are present in the Codewe now use, there is no other such section that presumes an essential element of an offence upon proof of the accused’s acquiescence. For instance, the reverse onus in s. 197(3) of proving a place is not a common gaming house but is an “incorporated genuine social club” is intact. Or the requirement placed on the accused under s. 117.11 for the accused to prove someone else is the holder of a firearm or weapons authorization or licence for weapon offences listed. These burdens, as opposed to the onus under s. 383(2), do not require the accused to testify or provide evidence emanating from themselves. The s. 383(2) presumption would require a response from the accused to establish “good” intentions without which the accused could be found guilty of an indictable offence and liable to imprisonment for 5 years. Surely, this subsection (2) should have caught the notice of the government in amending the Code and should have been removed with the other reverse onus phrases. Even if the government wanted to retain an evidential burden, replacing the offending phrase with the less constitutionally challenged phrase of “in absence of evidence to the contrary,” would have been more consistent with the law.
Renovations are needed when a place is well-used, run down and no longer relevant but the new fabrication should not be a mere façade or a simple paint job that will brighten up the space but not make any substantive changes. The government has made good on its promise to delete some of the old sections in light of the ones more useful and meaningful, but they needed to step back from the finished product to ensure, after the paint dried, the entire building would still hold up. When it comes to the reverse onus sections, the government still needs to re-do that re-do to ensure all constitutionally suspect phrases become a memory of the past.