Supreme Court Judgments

Supreme Court of Canada

R. v. Appleby, [1972] S.C.R. 303

Date: 1971-06-28

Her Majesty The Queen Appellant;

and

William F. Appleby Respondent.

1971: May 18, 19; 1971: June 28.

Present: Fauteux C.J. and Abbott, Martland, Judson, Ritchie, Hall, Spence, Pigeon and Laskin JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA

Criminal law—Evidence—Care and control of motor vehicle while ability to drive impaired—Accused found in driver’s seat—Statutory presumption—Degree of proof required to rebut presumption—Reasonable doubt or proof on balance of probabilities—Criminal Code, 1953-54 (Can.), c. 51, ss. 222, 224A(1)(a).

Civil rights—Care and control of motor vehicle while ability to drive impaired—Statutory presumption—Onus on accused to rebut presumption—Onus not incompatible with Canadian Bill of Rights——Criminal Code, 1953-54 (Can.), c. 51, ss. 222, 224A(1)(a)—Canadian Bill of Rights, 1960 (Can.), c. 44, s. 2(f).

The respondent, a taxi driver, was charged with having the care and control of a motor vehicle while his ability to drive was impaired by alcohol or a drug contrary to s. 222 of the Criminal Code. It is admitted that he was in an impaired condition and was seated in the front seat of his taxi at the time of his arrest. He sought to rebut the presumption under s. 224A(1)(a) of the Code by testifying that he entered the driver’s seat of the taxi to use the radio to summon a wrecker, rather than for the purpose of driving the vehicle. The trial judge entered a conviction on the basis that although the evidence raised a reasonable doubt in his mind, he was not satisfied that the respondent had established by a a preponderance of evidence or by a balance of probabilities “that he did not enter or mount the motor vehicle for the purpose of setting it in motion”. On an appeal by way of stated case, the judge quashed the conviction on the ground that, to rebut the presumption, the accused was not obliged to do more than raise a reasonable doubt. This judgment was affirmed by the Court of Appeal. The crown was granted leave to appeal to this Court on the question as to whether the Court of Appeal erred in

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holding that the degree or standard of proof required to rebut the statutory presumption created by s. 224A(1)(a) is not proof by the balance of probabilities but only proof raising a reasonable doubt.

Held: The appeal should be allowed and the conviction restored.

Per Fauteux C.J. and Abbott, Martland, Judson, Ritchie, Hall, Spence and Pigeon JJ.: Section 224A(1)(a) imposes a burden of proof on an accused by a preponderance of evidence or by a balance of probabilities, and it is not enough merely to raise a reasonable doubt. There is no distinction between the word “establishes” as used in the section and the word “proves” as used in other sections of the Criminal Code. When a statute imposes an onus upon an accused person to establish or to prove an essential fact that burden of proof is fulfilled by satisfying the obligation which rests upon the party in a civil action to prove by a preponderance of evidence or by a balance of probabilities the allegation of which proof is required. If it is enough, to rebut the presumption, for the accused to raise a reasonable doubt as to whether or not he entered the motor vehicle for the purpose of setting it in motion, then it would follow that if the Crown has established the basis of the presumption beyond a reasonable doubt, it must also give similar proof of the facts which the statute deems to exist and expressly requires the accused to negate. Such a construction would make the statutory presumption ineffective and the section meaningless.

There is nothing in this procedure which deprives the accused of the right to be presumed innocent until proved guilty according to law within the meaning of Woolmington v. Director of Public Prosecutions, [1935] A.C. 462, and s. 2(f) of the Canadian Bill of Rights.

Per Hall and Laskin JJ.: The effect of s. 224A(1)(a) of the Code is to oblige the accused to do more than raise a reasonable doubt. A burden is cast upon him to adduce negating evidence that would carry proof on a balance of probabilities.

This statutory onus is compatible with s. 2(f) of the Canadian Bill of Rights which prescribes that “no law of Canada shall be construed or applied so as to deprive a person charged with a criminal

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offence of the right to be presumed innocent until proved guilty according to law.” The “right to be presumed innocent” is a way of expressing the fact that the Crown has the ultimate burden of establishing guilt. The presumption does not preclude any statutory or non-statutory burden upon an accused to adduce evidence to neutralize, or counter on a balance of probabilities, the effect of evidence presented by the Crown. The test for the invocation of s. 2(f) is whether the enactment against which it is measured calls for a finding of guilt of the accused when, at the conclusion of the case, and upon the evidence, if any, adduced by Crown and by accused, who have also satisfied any intermediate burden of adducing evidence, there is reasonable doubt of culpability. Section 224A(1)(a) is not of this character.

APPEAL by the Crown from a judgment of the Court of Appeal for British Columbia[1], affirming a judgment of Dohm J. on an appeal by way of stated case. Appeal allowed.

G.L. Murray, Q.C., for the appellant.

C.R. Maclean, for the respondent.

Fauteux C.J. and Abbott, Martland, Judson, Hall, Spence and Pigeon JJ. concurred with the judgment delivered by

RITCHIE J.—This is an appeal brought pursuant to leave granted by this Court from a judgment of the Court of Appeal of British Columbia[2] dismissing the appellant’s appeal from an order made by Mr. Justice Dohm whereby he gave answer to the question posed in a case stated by Provincial Judge H.M. Ellis by holding that the Provincial Judge was wrong in ruling that the standard of proof required to rebut the statutory presumption created by s. 224A(1)(a) of the Criminal Code is proof by a preponderance of evidence or by a balance of probabilities.

The sole question of law upon which leave to appeal to this Court was granted was:

That the Court of Appeal for British Columbia erred in holding that the degree or standard of proof re-

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quired to rebut the statutory presumption created by section 224A(1)(a) of the Criminal Code is not proof by the balance of probabilities but only proof raising a reasonable doubt?

The present respondent was charged with having care and control of a motor vehicle while his ability to drive was impaired by alcohol or a drug contrary to s. 222 of the Criminal Code, and as it appears to be admitted on all sides that he was indeed in an impaired condition at the relevant time, the only question left at issue is whether or not he had the care and control of the taxi in the front seat of which he was seated at the time of his arrest. In proof of this latter element of the offence, the Crown relied on the statutory presumption created by s. 224A(1)(a) which reads as follows:

224A. (1) In any proceedings under section 222 or 224,

(a) where it is proved that the accused occupied the seat ordinarily occupied by the driver of a motor vehicle, he shall be deemed to have had the care or control of the vehicle unless he establishes that he did not enter or mount the vehicle for the purpose of setting it in motion;…

The preamble to the case which was stated by the learned Provincial Judge at the request of the respondent, includes the folowing:

3. Evidence upon the proceedings questioned was heard before me on the 9th day of March, A.D. 1970, and I reserved decision until the 15th day of April, A.D. 1970, whereupon I found the said William F. Appleby guilty, as charged.

4. The relevant facts as found are:

(a) That the Defendant sought to rebut the presumption under Section 224A(1)(a) by testifying that he entered the driver’s seat of the taxi to use the radio to summon a wrecker, rather than for the purpose of driving the vehicle and, although this evidence was unsupported by any other witness, it did raise a reasonable doubt in my mind.

(b) I made a ruling upon the points of law relevant to the question raised, relying on the Judgment of Munro, J., in the case of R. Vs McRae (1969) 4 CCC 374 which dealt with Section 224(2) of the Criminal Code of Canada,

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As will hereafter appear from a further consideration of the McRae[3] case, it seems to me that it must be concluded that the learned Provincial Judge entered the conviction on the basis that although he was in doubt as to the respondent’s evidence, he was not satisfied that he had established by a preponderance of evidence or by a balance of probabilities “that he did not enter or mount the motor vehicle for the purpose of setting it in motion.”

In the course of the reasons for judgment which he delivered on behalf of the majority of the Court of Appeal of British Columbia in the present case, Mr. Justice Tysoe appears to me to have adopted the view that if an accused’s evidence leaves the court in doubt as to his purpose in entering the driver’s seat of a motor vehicle, he thereby “establishes that he did not enter or mount the motor vehicle for the purpose of setting it in motion” within the meaning of s. 224A(1)(a). In reaching this conclusion Mr. Justice Tysoe adopted the decision of Mr. Justice Lord in R. v. Sokalski[4], and in commenting on that decision he said:

It is my view that the dictum that ‘if the accused raises a reasonable doubt as to what was his intention, that is as far as he need go in rebutting the presumption’ was not mere obiter, but was part of the ratio of the decision. I think we are bound by the judgment in that respect. Whether that be so or not, while freely admitting that the question is a close one, in my respectful opinion the dictum correctly describes the nature and extent of the onus which rests upon the accused in order to rebut the presumption of care or control created by section 224A(1)(a).

The main argument before this Court turned on the meaning to be attached to the word “establishes” as it occurs in s. 224A(1)(a) of the Criminal Code. It will be seen that the Court of Appeal treated this word as being equivalent to “raises a reasonable doubt”, but with the greatest respect, I am unable to distinguish between the word “establishes” as used in s. 224A(1)(a) and the word “proves” as used in other sections of the Criminal Code. In the case of Clark v.

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The King[5], Mr. Justice Anglin (as he then was) had to consider the provisions of s. 19(3) of the Code with respect to insanity which then read as follows:

Everyone shall be presumed to be sane at the time of doing or omtting to do any act until the contrary is proved.

In the course of his reasons for judgment at page 625, he had this to say:

‘Proved’ is not a word of art. Aaron’s Reefs v. Twiss 1896 A.C. 273 at 282. It may have different shades of meaning varying according to the subject matter in connection with, and the context in which, it is used. ‘Tested’ or ‘made good’ or ‘established’ are its ordinary equivalents…. Here I find nothing to warrant requiring evidence of greater weight than would ordinarily satisfy a jury in a civil case that a burden of proof had been discharged—that, balancing the probabilities upon the whole case, there was such a preponderance of evidence as would warrant them as reasonable men in concluding that it had been established that the accused when he committed the act was mentally incapable of knowing its nature and quality, or if he did know it, did not know that he was doing what was wrong. That I believe to be the law of Canada, as it appears to be that of most of the states of the American Union.

This standard of proof was reaffirmed in this Court in Smythe v. His Majesty the King[6], in the reasons for judgment of Sir Lyman Duff at page 17, which were in turn followed in the reasons for judgment of Fauteux J. (as he then was) in Latour v. The King[7], where he said of the defence of insanity:

So, there is, in such case, an obligation to prove or to establish the defence of insanity even if it need not be established beyond reasonable doubt but only to the reasonable satisfaction of the jury. (The italics are my own).

In light of these authorities I am of opinion that the same considerations apply in rebutting the presumption created by s. 224A(1)(a) as those

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which apply in the case of an accused charged with having possession of housebreaking instruments contrary to s. 295(1).

Section 295(1) reads, in part, as follows:

295. (1) Every one who without lawful excuse, the proof of which lies upon him, has in his possession…

and in the course of the reasons for judgment delivered on behalf of the majority of this Court in Tupper v. The Queen[8], Mr. Justice Judson described the nature of the burden resting on the accused in the following language:

Once possession of an instrument capable of being used for housebreaking has been shown, the burden shifts to the accused to show on a balance of probabilities that there was lawful excuse for possession of the instrument at the time and place in question. (The italics are my own).

Following a decision delivered by Lord Reading in Rex v. Ward[9], a considerable body of case law developed in British Columbia and elsewhere to the effect that the onus of disproof of an essential ingredient of an offence imposed upon an accused by statute could be discharged by the accused giving evidence which raised a reasonable doubt in the mind of the court. This was the attitude adopted by Bird J.A. (as he then was) in Rex v. Hoy[10] and by Sheppard J.A., who delivered the judgment of the Court of Appeal of British Columbia in Reg. v. Jones[11].

The case of Rex v. Ward was, however, repudiated in a judgment of Parker L.C.J., in the Court of Criminal Appeal in Rex v. Patterson[12], where the accused was charged with having possession of housebreaking instruments and Lord Parker, after saying that the Ward case “ought not to be followed” went on to say:

Once possession of such an implement has been shown the burden shifts onto the prisoner to prove, on the balance of probabilities, that there was lawful

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excuse for his possession of the implement at the time and place in question.

In the course of his reasons for judgment in Rex v. McRae, supra, upon which the learned Provincial Judge relied in the stated case, Mr. Justice Munro, after making general reference to the above authorities, proceeded to say:

I do not find it necessary to review such authorities since the judgment of the Supreme Court of Canada in Tupper v. The Queen and the judgment of the British Columbia Court in Reg. v. McCoole, 1968 65 W.W.R. 427. It is my opinion that it is now settled law in Canada that when a statute imposes an onus upon an accused person to establish or to prove an essential fact that burden of proof is fulfilled by satisfying the obligation which rests upon the party in a civil action to prove by a preponderance of evidence or by a balance of probability the allegations of which proof is required by the party so asserting.

I adopt this as an accurate statement of the law, and as Mr. Justice Bull states in his reasons for judgment in the present case, it will be found that the leading authorities in the House of Lords, the Privy Council and other Commonwealth Courts of Appeal are to the same effect. In this regard, the language used by Lord Diplock in Public Prosecutor v. Yuvaraj[13] appears to me to be particularly pertinent. He there said:

Generally speaking, no onus lies upon a defendant in criminal proceedings to prove or disprove any fact: it is sufficient for his acquittal if any of the facts which, if they existed, would constitute the offence with which he is charged are “not proved.” But exceptionally, as in the present case, an enactment creating an offence expressly provides that if other facts are proved, a particular fact, the existence of which is a necessary factual ingredient of the offence, shall be presumed or deemed to exist ‘unless the contrary is proved.’ In such a case the consequence of finding that that particular fact is ‘disproved’ will be an acquittal, whereas the absence of such a finding will have the consequence of a conviction. Where this is the consequence of a fact’s being ‘disproved’ there can be no grounds in public policy for requiring that exceptional degree of certainty as excludes all reasonable doubt that that

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fact does not exist. In their Lordships’ opinion the general rule applies in such a case and it is sufficient if the court considers that upon the evidence before it it is more likely than not that the fact does not exist. The test is the same as that applied in civil proceedings: the balance of probabilities.

The exceptional provisions relating to proof in proceedings under ss. 222 and 224, which are contained in s. 224A(1)(a), are in my opinion well described in the above-quoted language of Lord Diplock where he refers to an enactment which “expressly provides that if other facts are proved, a particular fact the existence of which is a necessary factual ingredient to the offence, shall be presumed or deemed to exist ‘unless the contrary is proved.’ ”

With all respect, it appears to me that if the Court of Appeal of British Columbia were correct in holding that it is enough, to rebut the presumption created by the words “shall be deemed” as they occur in s. 224A(1)(a), for the accused to raise a reasonable doubt as to whether or not he entered the motor vehicle for the purpose of setting it in motion, then it would, in my view follow, that if the Crown has established the basis of the presumption beyond a reasonable doubt, it must also give similar proof of the facts which the statute deems to exist and expressly requires the accused to negate. This is exactly the burden which the Crown would have to discharge if the section had not been enacted, and in my view such a construction makes the statutory presumption ineffective and the section meaningless.

I have accordingly concluded that s. 224A(1)(a) imposed a burden of proof on the respondent by a preponderance of evidence or by a balance of probabilities and that it is not enough for an accused merely to raise a reasonable doubt.

In the course of the argument before us, however, counsel for the respondent contended that this construction of the section ran contrary to the provisions of s. 2(f) of the Canadian Bill of Rights, 1960 (Can.), c. 44, in that if s. 224A(1)(a) were so construed or applied it would “deprive a person charged with a criminal offence of the right to be presumed innocent until proved guilty according to law…”. The relevant por-

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tions of s. 2 of the Canadian Bill of Rights read as follows:

2. Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgement or infringement of any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or applied so as to…

(f) deprive a person charged with a criminal offence of the right to be presumed innocent until proved guilty according to law in a fair and public hearing by an independent and impartial tribunal, or of the right to reasonable bail without just cause;…

Although no argument was presented in the court below in relation to the Bill of Rights, I think it desirable to deal with the contention made in this Court because the case of Reg. v. Silk[14], was made the subject of comment in the reasons for judgment of Mr. Justice Tysoe, and because it appears to represent the final opinion of the Court of Appeal of British Columbia on this question.

Reg. v. Silk was a case under the Food and Drugs Act, 1952-53 (Can.), c. 38 (as amended) where the onus placed on the accused by s. 33(2) (b) was limited to cases where “the court finds that the accused was in possession of a controlled drug” and it is then provided that “… he shall be given an opportunity of establishing… (b) that he was not in possession of the controlled drug for the purpose of trafficking”. In the course of his reasons for judgment in this case Mr. Justice Tysoe said:

First of all I wish to say that in my view Regina v. Silk, supra, is not conclusive of the question now before us. That case dealt with the meaning to be given to the word ‘establishes’ appearing in an entirely different section to Code section 224A(1)(a) and used in a wholly dissimilar context. For the

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same reasons, I do not find Tupper v. The Queen, supra, helpful. Moreover, in Regina v. Silk some reliance was placed on the provisions of section 2(f) of the Canadian Bill of Rights. In the case before us that section was not referred to in argument by either counsel, both of whom are experienced members of the Bar. Accordingly, I give no consideration to the question of applicability of its provisions.

Mr. Justice Tysoe, however, concluded his reasons for judgment by saying:

I would repeat what I said in Regina v. Silk, supra, at the foot of p. 284 and apply it to section 224A(1)(a):

When interpreting a provision such as s. 33, the fundamental right of an accused as expressed by Lord Sankey L.C. in Woolmington v. Director of Public Prosecutions, (1935) A.C. 462,… must be kept in mind and an interpretation which destroys that fundamental right should not be adopted unless the words used permit of no other interpretation. Any doubt as to the meaning should be resolved in favour of an accused.

In presenting the argument concerning the Bill of Rights, the respondent’s counsel in the present case did little more than adopt the reasoning of Mr. Justice Tysoe in the Silk case where he said at page 496:

If parliament has imposed on an accused the onus of establishing by placing beyond dispute or by a preponderance of evidence or on a balance of probabilities that he has not had possession for the purpose of trafficking, it has deprived him of the benefit of a reasonable doubt as to the purpose of his possession, and it has in effect imposed upon him the burden of disproving a positive averment of an integral part of the offence charged against him. It is difficult for me to believe that parliament intended to do this. Had parliament said that one accused of this particular offence or, for that matter, any other offence, has the onus of proving he is not guilty, I venture to think that no one would disagree with the proposition that it had deprived the accused of the right to be presumed innocent until proved guilty according to law. It is my view that the same result follows if parliament imposes on an accused the burden of disproving a positive averment of an im-

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portant integral part of the offence of having possession for the purpose of trafficking.

In the same case the same learned judge said, at page 497:

It is one thing to impose an onus on an accused to disprove a negative averment and quite another to require him to disprove a postive averment of an integral part of an offence. Clearly, when parliament enacted sec. 2(f) of the Canadian Bill of Rights, it intended to assure that so fundamental and well established a principle of our law as the presumption of innocence should be preserved. In my opinion, the section provides protection against the possibility of the enactment of a statute declaring that a person shall be deemed guilty of a criminal offence unless he establishes his innocence. I think it also has reference and application to a statute which purports to require an accused to disprove by a preponderance of evidence or on a balance of probabilities a positive averment of an integral part of the offence charged against him, and I so interpret the section.

On this branch of the case I should say at the outset that in my respectful opinion this reasoning is based on a misunderstanding of the law as stated by Lord Sankey in Woolmington v. Director of Public Prosecutions[15] and this seems to me to be made apparent in the reasons for judgment of Nemetz J.A. in the Silk case where he says:

There is no doubt, in my mind, that the Canadian Bill of Rights in sec. 2(f) gives express statutory approval to Lord Sankey’s memorable words in Woolmington v. Director of Public Prosecutions (supra). The golden thread as he described it, which runs through the web of English Criminal law, was clearly identified by Martin, J.A., in Rex v. Lee Fong Shee, [1933] 60 C.C.C. 73, and by Davey, C.J.B.C., in Reg. v. Hartley and McCallum, (1968) 2 C.C.C. 183. In my respectful view, sec. 2(f) does nothing more than restate the common law by providing that the primordial burden of proving the guilt of an accused beyond a reasonable doubt is always on the crown.

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In the case of Hartley and McCallum[16], as in the Silk case, the Court was considering the statutory onus created by s. 33(2) (b) of the Food and Drugs Act, and the passage from Chief Justice Davey’s judgment to which Mr. Justice Nemetz refers reads as follows:

…if the prisoner by argument or evidence or cross-examination of the Crown’s witnesses establishes a reasonable doubt as to whether he had possession of the narcotic for the purpose of trafficking he must be acquitted of the particular offence… and in the result he ought to be convicted only of ordinary possession.

If section 2(f) of the Canadian Bill of Rights is to be taken as giving statutory approval to what Lord Sankey said in Woolmington’s case, it seems to me to be proper to quote the whole of the sentence to which Mr. Justice Nemetz refers. What Lord Sankey actually said, after having dealt with the defence of insanity was:

Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception. (The italics are my own).

The Silk case and the argument advanced on behalf of the respondent in this case, appear to me to proceed on the assumption that Lord Sankey’s famous dictum in some fashion established that the onus resting on an accused person to rebut a statutory presumption could be discharged by evidence which did nothing more than raise a reasonable doubt. In my view, however, when Lord Sankey used the words “subject also to any statutory exception” in relation to the burden of proof in criminal cases, he must be taken to have been referring to those statutory exceptions which reverse the ordinary onus of proof with respect to facts forming one or more ingredients of a criminal offence. This was the case in Public Prosecutor v. Yuvaraj, supra, and it is the case here. It seems to me, therefore, that if Woolmington’s

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case is to be accepted, the words “presumed innocent until proved guilty according to law…” as they appear in s. 2(f) of the Bill of Rights, must be taken to envisage a law which recognizes the existence of statutory exceptions reversing the onus of proof with respect to one or more ingredients of an offence in cases where certain specific facts have been proved by the Crown in relation to such ingredients.

In giving effect to the statutory presumption created by s. 224A(1)(a) in relation to a charge under s. 222, the position is that if it is proved that the accused was impaired by alcohol or a drug, and it is further proved that he was, at the relevant time, occuping the seat ordinarily occupied by the driver, he shall be deemed to have had the care or control of the vehicle, but the accused has the opportunity of rebutting this presumption if he “establishes” by the balance of probabilities “that he did not enter or mount the vehicle for the purpose of setting it in motion”.

If the accused cannot so satisfy the court then the statutory presumption prevails and he is guilty of an offence under s. 222, but, if he is able to provide the requisite evidence he must be acquitted. There is in my view nothing in this procedure which deprives the accused of the right to be presumed innocent until proved guilty according to law within the meaning of Woolmington v. Director of Public Prosecutions, supra, and s. 2(f) of the Bill of Rights.

For all these reasons I am of opinion that the learned Provincial Judge came to the correct decision on the point of law which was questioned by the stated case. I would accordingly allow this appeal and restore the conviction of the respondent.

Hall J. concurred with the judgment delivered by

LASKIN J.—I agree with my brother Ritchie that the effect of s. 224A(1)(a) of the Criminal Code is to oblige the accused, in the stated circumstances, to do more than raise a reasonable

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doubt. A burden is cast upon him to adduce negating evidence that would carry proof on a balance of probabilities.

The question that remains is whether this statutory onus is compatible with s. 2(f) of the Canadian Bill of Rights which, so far as relevant, prescribes that in the absence of a statute expressly excluding the Canadian Bill of Rights (and there is none here), “no law of Canada shall be construed or applied so as to deprive a person charged with a criminal offence of the right to be presumed innocent until proved guilty according to law”. It was not contended that there was any problem with respect to the “due process of law” provision of s. 1(a) of the Canadian Bill of Rights. Certainly, it cannot be said that no rational connection exists between the fact to be deemed and the fact required to be proved: see Regina v. Sharpe[17].

I do not construe s. 2(f) as self-defeating because of the phrase “according to law” which appears therein. Hence, it would be offensive to s. 2(f) for a federal criminal enactment to place upon the accused the ultimate burden of establishing his innocence with respect to any element of the offence charged. The “right to be presumed innocent”, of which s. 2(f) speaks, is, in popular terms, a way of expressing the fact that the Crown has the ultimate burden of establishing guilt; if there is any reasonable doubt at the conclusion of the case on any element of the offence charged, an accused person must be acquitted. In a more refined sense, the presumption of innocence gives an accused the initial benefit of a right of silence and the ultimate benefit (after the Crown’s evidence is in and as well any evidence tendered on behalf of the accused) of any reasonable doubt: see Coffin v. U.S.[18]

What I have termed the initial benefit of a right of silence may be lost when evidence is adduced by the Crown which calls for a reply. This does not mean that the reply must necessarily be by the accused himself. However, if he

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alone can make it, he is competent to do so as a witness in his own behalf; and I see nothing in this that destroys the presumption of innocence. It would be strange, indeed, if the presumption of innocence was viewed as entitling an accused to refuse to make any answer to the evidence against him without accepting the consequences in a possible finding of guilt against him. The presumption does not preclude either any statutory or non-statutory burden upon an accused to adduce evidence to neutralize, or counter on a balance of probabilities, the effect of evidence presented by the Crown. Hence, I do not regard s. 2(f) as addressed to a burden of adducing evidence, arising upon proof of certain facts by the Crown, even though the result of a failure to adduce it would entitle the trier of fact to find the accused guilty.

In my opinion, the test for the invocation of s. 2(f) is whether the enactment against which it is measured calls for a finding of guilt of the accused when, at the conclusion of the case, and upon the evidence, if any, adduced by Crown and by accused, who have also satisfied any intermediate burden of adducing evidence, there is reasonable doubt of culpability. Section 224A(1)(a) is not of this character.

I may observe that what is true of s. 224A(1)(a) is also true of the insanity provisions of the Criminal Code. The presumption of sanity, expressed in s. 16(4), may be overcome by the accused on a balance of probabilities: see The Queen v. Borg[19]. I note that it has been held by the Supreme Court of the United States that the due process clause of its Constitution is not offended by a State requirement that an accused prove the defence of insanity beyond a reasonable doubt: see Leland v. Oregon[20]. That is not an issue which arises under our formulation of the law.

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I would, accordingly, allow the appeal and restore the conviction.

Appeal allowed and conviction restored.

Solicitor for the appellant: G.L. Murray, Vancouver.

Solicitor for the respondent: C.R. Maclean, Vancouver.