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R. v. Gough
The judgment of the Court was delivered CORY J.A.:—On October 20, 1983 Arthur William Gough was convicted on the following charge: That between the 2nd day of February, 1983, and the 6th day of February, 1983, at the City of St. Catharines, in the Regional Municipality of Niagara, and elsewhere in the Province of Ontario, he did without lawful authority confine, imprison or forcibly seize Elaine Primeau, contrary to s. 247 of the Criminal Code of Canada. The issue to be determined on this appeal is whether s. 247(3) of the Criminal Code contravenes the provisions of s. 7 and s. 11(d) of the Canadian Charter of Rights and Freedoms. The Factual Background Elaine Primeau, the complainant, is a small woman weighing some 97 pounds. The accused is a large man weighing over 200 pounds. The complainant and the accused knew each other for five years before the alleged offence; indeed, they lived together for much of that time. The relationship was far from tranquil. During their last two years together the couple attended on professional counsellors to assist them in controlling the temper of the accused and preventing his physical abuse of Mrs. Primeau. In February, 1982 the couple became engaged to be married. A short time thereafter the accused refused to continue the professional counselling respecting his temper and former violence. The couple quarrelled over this decision. In January, 1983 Elaine Primeau broke off her engagement with the accused. Fearful of her own safety as a result of this action, she and her two children went into hiding at the home of a friend. On February 3rd, after three weeks of hiding, Mrs. Primeau left her friend's home to do some errands. She warned her friend that if she did not return or if she was seen in the presence of the accused the police should be notified. During the course of her errands, Mrs. Primeau did encounter the accused and went with him to a restaurant. For some time they discussed their relationship even though his children had joined them for lunch. In spite of Mrs. Primeau's protestations the accused insisted on driving her home after he had dropped off his children. Mrs. Primeau was driven to a dental clinic where she had to pay a bill. The accused accompanied her into the clinic. The accused and Mrs. Primeau then drove to a donut shop where the couple continued their conversation about their broken engagement. The accused repeated his intention to drive Mrs. Primeau home. Once again she protested and the accused prevailed. Once they were in the car he said they were going to get gas and then they would go for a drive. When Mrs. Primeau responded that she did not want to go, the accused seemed to get angry. According to Mrs. Primeau he had a blank look on his face and she felt he was "ready to swing". As a result she remained silent. Shortly after entering the car Mrs. Primeau suggested that they might resume their relationship. She explained that this suggestion was untrue but it was made in order to placate the accused. When they reached the highway the accused stopped at a pay phone and Mrs. Primeau telephoned a friend who was looking after the children. The accused and Mrs. Primeau then set off on the trip to Sault Ste. Marie. In light of the disposition I propose to make with regard to this case it is preferable to avoid the details of the journey. It is sufficient to observe that during the course of the journey from St. Catharines to Sault Ste. Marie no resistance was offered by Mrs. Primeau. Her behaviour remained essentially passive. In a statement filed at the trial the accused denied that he had used force or threats to compel Mrs. Primeau to accompany him to Sault Ste. Marie. From that same statement it could be inferred that the accused believed that Mrs. Primeau consented to accompany him on the trip. Eventually the accused and Mrs. Primeau arrived at the home of her parents in Sault Ste. Marie. They talked and then had dinner with her parents at the home of her brother. They spent the night at her parents' house. The next morning the police arrived and arrested the accused. Charge to the Jury Relating to s. 247(3) During the course of his charge to the jury the learned trial judge made the following comment with regard to s. 247(3): Going back if I may, ladies and gentlemen of the jury just for a moment to 247(2), that is the charge the accused is facing. I tell you in law that everyone who does any one of those things, either confines, imprisons or forcibly seizes, if in your opinion any one of those three have been done, then the of fence is complete. In other words, they are alternative means to commit the offence. You commit it when you confine someone or you imprison someone or you forcibly seize them. The same applies to that definition of subsection (3); and that is, unless the accused proves the failure to resist was not caused by threats, duress, force or exhibition of force. If you find any one of those four things, that is sufficient. The jury came back with a request for a copy of s. 247 and it was provided. In addition, the jury foreman said this: If Your Honour would re-define the meaning of the words in subsection (3) it would assist us. The judge then gave the following directions: The words used in subsection (3) that you wish defined are threats, duress, force or exhibition of force. "Threat" is defined as "a declaration of intention of determination to inflict punishment, loss or pain on another. A menace, especially any menace of such a nature and extent as to unsettle the mind of another person and take away from his or her acts that free and voluntary action which alone constitutes consent." It is "a declaration of one's purpose or intention to work injury to the person, property, or rights of another, with a view of restraining such person's freedom of action". It was therefore clear that the jury were concerned about and wished clarification of s. 247(3). The definition of the words used in s. 247(3) were the last directions that they took with them into the jury room before rendering their verdict. Section 247 of the Code Section 247 reads as follows: 247. (1) Every one who kidnaps a person with intent(a) to cause him to be confined or imprisoned against his will, is guilty of an indictable offence and is liable to imprisonment for life. (2) Every one who; without lawful authority, confines, imprisons or forcible seizes another person is guilty of an indictable offence and is liable to imprisonment for five years. Section 247(3) was introduced into the Criminal Code in its present form in 1954 as s. 233(3). It replaced s. 297(2) of the earlier Code which was in a somewhat more comprehensible form and read as follows: Upon the trial of any offence under this section the non resistance of a person so unlawfully kidnapped or confined shall not be a defence unless it appears that it was not caused by threats, duress or force or exhibition of force. The amendment was purportedly made to make it clear 'hat the onus of establishing the "defence" of non resistance lay upon the accused. The importance of s. 247(3) derives from the essential elements the Crown is required to prove in proceedings under s. 247(2), namely that the confinement, imprisonment or forcible seizure was against the will or without the consent of the victim. Although lack of consent is not specifically referred to in s. 247(2), it must be a requisite element of the offence. Otherwise the section could apply in the most innocent situations. A friend driving a co-worker to the office confines him in the car. The driver, we can assume, is not a person in authority. The passenger by word or deed consents to being confined in the car. The consent must exempt the driver from the provisions of s. 247(2). Similarly a visitor to a cottage on an island must consent to being confined within the perimeter of the island for the length of the stay. Once again the consent of the guest saves the host from the provisions of s. 247(2). Thus if the Crown fails to prove beyond a reasonable doubt that the confinement was without the consent of the victim, the accused must be acquitted of the charge that he contravened s. 247(2). It is at this juncture that s. 247(3) becomes vitally important. Lack of resistance by the purported victim would be an important element in demonstrating that the victim consented to the confinement. Subsection (3) is worded in a difficult and confusing manner largely as the result of the use of a double negative. It speaks of the lack of resistance as a defence, yet the lack of resistance by a victim cannot be a defence by itself, it can only be a relevant item of evidence, albeit a very important item, bearing upon the issue of consent. It is evidence that is vitally important to the defence in the case at bar. The Charter of Rights Does s. 247(3) contravene the provisions of the Canadian Charter of Rights and Freedoms? Posing this question raises another: what principles should guide a court in determining whether a statutory provision is rendered invalid by the Charter? At the outset the effect of the impugned provision must be reviewed. By this enactment Parliament has directed the jury that they cannot draw the inference that the lack of resistance of the victim indicated consent to the confinement, unless the accused satisfies the onus placed upon him. The subsection requires the accused to demonstrate that the lack of resistance was not occasioned by threats, duress, force or exhibitions of force. This onus is a heavy, if not an impossible one for it requires the accused to show what was, or rather, what was not in the mind of the victim. That is to say, the accused must show that the victim's failure to resist was not occasioned by any word or act of his. It imposes a statutory rule of evidence upon the accused in connection with a specific offence. Those circumstances make it worthy of investigation to see if it conflicts with the Charter Not all reverse onus provisions will be rendered invalid by the Charter. In many instances they will be reasonable and appropriately applied in the situation to which they are directed. Here, the problem arises from the wording of the subsection. The situation might be very different if, for example, the subsection simply indicated that non resistance occasioned by threats, duress, force or exhibition of force was not to be considered as evidence of consent to confinement. The Charter was not enacted in a vacuum, nor was it intended to be applied arbitrarily. Rather, it must be considered in the context of a system of law that operated reasonably well over an extended period of time. Nonetheless, existing enactments as well as future legislation must comply with its provisions. Neither present nor future legislation can inhibit the basic rights of Canadians declared in the Charter unless it is a statutory limitation which can be justified in a free and democratic society as provided by s. l of the Charter itself. Section 7 of the Charter proclaims that no one is to be deprived of their liberty except in accordance with the principles of fundamental justice. Section 11(d) states that everyone is to be presumed innocent until proven guilty in a fair and public hearing. The Charter therefore imposes certain minimum standards upon the conduct of criminal trials. A reverse onus clause must be reviewed to determine if its effect is to cause the trial of the accused to fall below the minimum standard of protection of individual rights. In R. v. Oakes, (1983) 40 O.R.(2d) 660 the question of the constitutionality of reverse onus clauses was first considered by this Court when s. 8 of the Narcotic Control Act R.S.C. 1970, c. N-l was reviewed. By its provisions, s. 8 cast the onus upon an accused found in possession of a narcotic to show that such possession was not for the purposes of trafficking. It was found that the clause was inoperative by reason of s. 2 of the Canadian Bill of Rights R.S.C. 1970, Appendix III and constitutionally invalid by reason of s. 11(d) of the Charter. Unlike the case at bar, in R. v. Oakes, supra, the failure of the accused to meet the onus placed upon him would automatically result in his conviction. Nevertheless, the propositions set forth by Martin J.A. for the guidance of courts in Ontario considering reverse onus clauses are applicable in this case. They may be summarized in the following manner: (a) If the reverse onus clause under consideration is unreasonable, arbitrary or capricious it cannot be demonstrably justified in a free and democratic society. Application of Charter Principles to s. 247(3) and the Facts of this Case In this case the evidence adduced established the lack of resistance of the complainant. The complainant told the accused soon after she entered his car that there was a possibility that they might get back together again. The accused drove the complainant not to a wilderness retreat but to the home of her parents in Sault Ste. Marie. Once the trip to the Sault was under way, Mrs. Primeau expressed no complaint as to the conduct of the accused, nor did she say anything when they arrived at her parents home or during the visit to her brother. On this evidence a jury might have been left in reasonable doubt as to whether the complainant consented to the confinement or whether the accused honestly believed on reasonable grounds that she consented to taking the trip to Sault Ste. Marie. The jury were vitally concerned with the wording of s. 247(3) and asked for a definition of the words used in that subsection. The effect of the subsection was to remove from the jury any consideration they might have given to the lack Of resistance of the complainant as an element of proof indicating her consent to the confinement unless the accused demonstrated that on a balance of probabilities the lack of resistance was not occasioned by his threats, force or any of the other elements mentioned. As noted earlier, the wording of the subsection is such that it requires the accused to adduce evidence as to the state of mind of the complainant. The jury mint well have been in reasonable doubt as to the guilt of the accused had it not been for the directions they received as to the onus resting upon the accused as a result of the provisions of the subsection. The factual situation in this case demonstrates the unfairness of the burden imposed on the accused by s. 247(3). The subsection fails to meet the criteria set forth in R. v. Oakes, supra to qualify as a reasonable and therefore valid reverse onus clause. There is no rational connection between the proven fact of the lack of resistance and the presumed fact that it resulted from threats of the accused (or any of the other elements set out in the subsection). Even more emphatically can it be said that the accused could not rationally establish what he was required to prove, namely the state of mind of the victim. How can an accused realistically be expected to establish that the victim did not resist because of threats or duress? The appreciation of the state of mind of another person is something so subjective that to require the accused to establish that a specific state of mind did not exist is patently unreasonable and fundamentally unfair. The onus imposed by s. 247(3) is neither necessary nor usual. For example, the former charge of rape did not require the accused to establish that the failure of the complainant to resist intercourse was not caused by his threats, duress, force or exhibition of force. Rather the Crown was required to prove beyond a reasonable doubt that any apparent consent to intercourse was occasioned by the threats, duress, force or exhibitions of force of the accused. The victim in a rape case could not be in any better position to establish the elements of the of fence than a victim of forcible confinement. The burden imposed on the accused deprives the accused of his right set out in s. 11(d) of the Charter, to be presumed innocent, in the sense that it requires him to establish that the failure to resist, which must be an important aspect of his defense, was not occasioned by his actions. Can the subsection come within the saving provision of s. 1 of the Charter as a limit to rights that can reasonably be justified in a free and democratic society? I think not. The Crown did not present argument on this point and I do not think there is a justification under this section of the Charter. In R. v. Oakes, supra, it was observed that statutory exceptions to the rule that an accused has the right to be presumed innocent do not contravene the presumption of innocence guaranteed by the Charter as long as they are reasonable. However, statutory provisions which are arbitrary or unreasonable do contravene the Charter. The unreasonable nature of the subsection is such that it goes beyond the "reasonable limits" that can "be demonstrably justified in a free and democratic society". In my view, s. 247(3) is constitutionally invalid by reason of s. 11(d) of the Charter. I would set aside the conviction and remit the matter for a new trial. DUBIN J.A. THORSON J.A.
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