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 REVERSE ONUS CLAUSES IN CANADIAN
CRIMINAL LAW - AN OVERVIEW'

J. C. LEVY*

2
I. INTRODUCTION

Reaction in British Columbia 3 and Prince Edward

Island 4 to the decision of the Supreme Court of Canada in
Tupper v. The Queen5 has thrown into stark relief the extra-
ordinary confusion which presently surrounds the inter-
pretation of those sections of the Criminal Code 6 and of a

Of the Faculty of Law, University of Saskatchewan.

1 The literature on this topic is rather sparse in Canada. See,
W. A. Schultz, "The Statutory Onus of Proof in Narcotics
Cases" (1967), 10 Can. B.J. 492; W. H. Jarvis. "Primary and
Secondary Burdens of Proof in Criminal Law" (1963), Crim.
L. Q. 425; D. E. Jabour, "Onus of Proof in Narcotics Cases"
(1961), 4 Can. B.J. 4; J. C. Martin, "The Burden of Proof
as Affected by Statutory Presumptions of Guilt" (1939),
17 Can. Bar Rev. 37.
2 This paper is intended as a general survey only. It is hoped
to deal in greater detail with some of the specific points
raised in due course.
3 R. v. Silk (1969), 71 W.W.R. 481; [1970] 3 C.C.C. 1 (B.C. C.A.).
4 R. v. Cahill, [1969] 4 C.C.C. 44; (1969), 6 C.R.N.S. 166 (P.E.I.
C.A.).
5 [1967] S.C.R. 589.
6 Sections 16(4); 50(1)(a); 58(3); 80; 94; 98D(3); 98(H);
102(1)(b), (c); 106(c); 125(b); 131(2), (3); 150(3); 162; 168(3);
182(4); 186(2); 224A(l); 229(2); 233(3); 239(2); 240(4);
244(a); 253(1); 261; 266(1); 285(5); 293(1); 295(1); 295A;
304(4); 312; 319(b), (c); 326(2); 337(1)(c); 345(2); 348; 352
(2); 360(1)(a); 360(2); 362; 363(3); 371(2); 381; 393; 394;
395; 400(3); 401; 402; 702(2). It is not intended to say any-
thing specifically about §16(4). It is also possible that statu-
tory exceptions not specifically subject to a reverse onus,
such as those in §61, may nevertheless be so interpreted:
R. v. Ewens [1967] 1 Q.B. 322 (CCA).
1970 Reverse Onus Clauses in Canada

great variety of other Dominion7 and Provincial 8 Acts

which use language suggesting that some burden of proof
is cast upon the accused. The problem of interpretation is
usually said to have two distinct aspects: the first being
to decide whether the statutory language in question merely
requires that the accused adduce some evidence relating
to a particular matter (i.e., the burden on the accused is
an evidential one), or whether it requires that the accused
actually persuade the court of some matter (i.e., the burden
on the accused is a persuasive one); the second aspect is
to determine the quantum of persuasion required of an
accused when the persuasive burden is found to be cast
upon him. 9 My concern in this paper is essentially with the
second aspect of the problem thus stated.
There are three possible quantums of persuasion which
could be required of an accused in these situations. (1). The
accused must prove that which is required of him beyond
a reasonable doubt. (2). The accused must prove that which
is required of him on a balance of probabilities. (3). The
accused must merely raise a reasonable doubt in his favour
in relation to that matter which he is required to prove.
The first of these three alternatives can be eliminated at
once, there being unanimous agreement in Canada that,
absent extraordinary and compelling statutory language,
of which no example presently exists in Canada, 10 an
accused can never be required to persuade a court of any
matter to the same extent as proof is invariably required
of the prosecution."
Although judges and academics alike have long be-
moaned the fact that until relatively recently, the judiciary
7 There would appear to be at least a further fifty such clauses
in other Dominion Acts. The best known are in the Narcotic
Control Act, Stat. Can. 1960-61, c. 35. §8; Food & Drugs Act,
Stat. Can. 1952-53, c. 38; §33, added Stat. Can. 1960-61, c. 37,
§1, amend. Stat. Can. 1968-69, c. 41, §8; ibid., §42, added
Stat. Can. 1968-69, c. 41, §10.
8 Examination of R.S.S. 1965, together with all subsequent
Saskatchewan Acts up to and including Stat. Sask. 1970,
reveals sixty-nine such clauses.
9 This terminology seems to be generally accepted now, and
will be used throughout. What I have called the 'persuasive'
burden is sometimes also called the 'legal' or 'primary'
burden. See, R. Cross, Evidence (3rd ed. 1967) 66-69.
10 But see, Leland v. Oregon (1952), 343 U.S. 790; 72 S.Ct. 1002;
96 L.Ed. 1302.
11 R. v. Browne & Angus (1951), 1 W.W.R. (N.S.) 449 (B.C. C.A.)
seems to be the last case where this possibility was even
considered. It should be noted, however, that this test was
applied in Scotland in Thaw v. Segar, [1962] Sc.L.T. (Sh.Ct.)
63. See also, R. v. Jacobson & Levy, [1931] S.Afr. L.R. (App.
Div.) 466.
 SASKATCHEWAN LAW REVIEW VOL. 35

has used the word 'proof' indiscriminately,'12 to mean either

'evidence' or 'persuasion', an examination of the history
of reverse onuses suggests, it is submitted, that the problem
is perhaps somewhat less complex than it has been thought
to be. It is clear that the basic rules of pleading and evi-
dence in criminal cases were in very large measure taken
over directly from the law relating to civil causes. 2 A The
indictment or information was regarded as if it were the
plaintiff's pleading in a civil suit, and accordingly, it was
held that in order to state a 'cause of action', the Crown
must aver all matters necessary to constitute the offence,
even if this meant making a negative averment.13 Again,
by borrowing from the law of civil pleading, it was clear
that where the accused traversed (i.e., denied) any of the
Crown's averments, the Crown had to persuade the court
of the truth of that which it had averred. However, much
confusion entered the law when attempts were made to
apply the maxim ei incumbit probatio qui dicit non qui
negat14 to the criminal law: the application of this maxim
would mean that even though the Crown might be required
to make a negative averment in the information or indict-
ment, nevertheless, the accused had the burden of per-
suasion since it was he who asserted the positive.
The dispute over the application of this maxim in
criminal law is still unsettled, 5 but there is considerable
12 E.g., articles cited supra, note 1, and material there cited.
12A Partly because it was an obvious model anyway, partly
because in earlier times much of what is now criminal law
was dealt with by the civic process of an action of debt for
a penalty by a common informer. Two of the best illustra-
tions of this are United States v. Cook (1872), 84 U.S. (17
Wall.) 168; and Commonwealth v. Hart (1853), 65 Mass.
(9 Cush.) 130. See also, Elkin v. Janson (1845), 13 M. & W.
654; 153 E.R. 274; Vavasour v. Ormrod (1827), 6 B. & C. 430;
108 E.R. 509; Apothecaries Co. v. Bentley (1824), Ry. &
M. 162; 171 E.R. 978; Williams v. The East India Co. (1802),
3 East 192: 102 E.R. 571; Spieres v. Parker (1786), 1 T.R.
141; 99 E.R. 1019; Bluet v. Needs (1736), 2 Comyns 523;
92 E.R. 1189.
13 R. v. Crowther (1786), 1 T.R. 125; 99 E.R. 1009; R. v. Hill
(1725), 2 Ld. Raym. 1415; 92 E.R. 421; Whitwicke v. Osbaston
(1661), 1 Lev. 26; 83 E.R. 280; Newis v. Lark (1571), 2 Plowd.
403; 75 E.R. 609, at 618.
14 The early common law appears to favour the view that the
maxim did not apply: e.g., R. v. Combs (1688), Comb. 57;
90 E.R. 341; Apothecaries Co. v. Bentley (1824), 1 C. & P.
538; 171 E.R. 1307 is contra.
15 Although there is but little scope for dispute today, since
statutory sections like Criminal Code, §702 generally mean
that in many cases, the Crown will no longer have to make
a negative averment unless it relates to an essential element
of the crime charged against the accused.
1970 Reverse Onus Clauses in Canada

early authority that it could not apply to transfer the

burden of persuasion to the accused where the proof of
the truth of the negative averment made by the Crown
was an essential element of the guilt of the accused. In
other words, the accused could not be required to disprove
some matter in circumstances where this would be tan-
tamount to raising a presumption of guilt against him."
Further confusion arose when the rule relating to negative
averments was merged with the completely independent
principle, again borrowed from the law of civil causes, that
where a defence plea amounted not to a traverse but to
a confession and avoidance, this amounted to the pleading
of a new fact by the accused, which he must therefore
prove.' 7 Another complicating factor was the attempt to
introduce into the criminal law another civil procedure
rule, that where a fact is peculiarly within the knowledge
of one of the parties to a dispute, the onus of proof in re-
lation to that fact lies on that party.18 It seems fairly clear,
however, that this principle has only been applied against
the accused in a criminal case where the reversal of the
onus could be justified by reference either to the 'negative
averment' rule, or to the 'confession and avoidance' rule,
and that it would not of itself be sufficient to require an
accused to disprove an essential element of the Crown
case in the persuasive burden sense. 19
The really significant point, however, is that most of
the cases before the latter part of the Nineteenth Century
are concerned not with the quantum of proof required of
an accused, but with the much more fundamental issue of
when the accused is required to persuade. Implicit in all
the arguments is the view that once it is decided that an
accused must indeed carry the persuasive burden in relation
to some matter, then he must do so by reference to the 20
normal quantum of proof required in civil proceedings,

18 R. v. Hazy & Collins (1826), 2 C. & P. 458; 172 E.R. 207;

R. v. Rogers (1811), 2 Camp. 652; 170 E.R. 1283; Anon. (1579),
3 Dyer 363a; 73 E.R. 815.
1" Elkins v. Janson, supra, note 12a; R. v. Bryan (1738), An-
drews 289; 95 E.R. 402; and cases therein cited.
18 R. v. Turner (1816), 5 M. & S. 206; 105 E.R. 1026. But the
alleged rule was doubted by Alderson B. in Elkins v. Janson,
supra, note 12A.
19 R. v. Billett (1952), 105 C.C.C. 169, (S.C. B.C.); Jayasena
v. The Queen, [1970] 2 W.L.R. 448 (P.C.); Attygalle v. The
Queen, [1936] A.C. 338 (P.C.).
20 See generally, Commonwealth v. York, (1845), 50 Mass. (9
Met.) 93, at 122.
 SASKATCHEWAN LAW REVIEW VOL. 35

namely, on the balance of probabilities, or by a preponder-

ance of the evidence.
Completely independently of the foregoing problems,
the law was also concerning itself with the question of the
amount of evidence which could be regarded as sufficient
in law to support a finding against an accused, where that
evidence was unanswered. Here again, a concept was bor- 21
rowed from the law of civil causes - the prima facie case.
So too, certain presumptions were being developed, which
in effect stated that upon proof of certain elements of its
case, the Crown would be regarded also as having estab-
lished some further matter against the accused. In both
these situations, the legal effect was that the accused had
to call some evidence tending to rebut the Crown case,
unless he was prepared to see the matter go by default
against him. It always has been fairly clear that the only
effect of the erection of a prima facie case against the
accused is to cast an evidential burden on him. But the
law of presumptions has always been rather confused
and confusing: in some cases, the appropriate analogy was
seen to be the prima facie case, thus casting an evidential
burden on the accused; in others, the confession and avoi-
dance model was chosen, thus casting a persuasive burden
on the accused. Thus presumptions formed a confusing link
between two distinct areas of the law, and, rather as with
the stone thrown into the pond, the circles of confusion
spread ever wider; it was not that the distinction between
the evidential and the persuasive burdens themselves be-
came blurred, but rather that the distinction between the
circumstances in which each came in to play became blurred,
and this led to the application of one of the burdens to a
situation in which historically
22
and on principle the other
burden should have applied.
In the middle and late Nineteenth Century, two further
lines of development started, to compound confusion yet
further. Historically, no real distinction had been taken
between what would now be called indictable offences on
the one hand, and summary conviction offences on the
other. However, the precedents for applying the civil pro-
cedure rules were much stronger in the case of the latter
type of offence, since many of these offences had their
origins in common informer actions, which were prosecuted2
by way of the action of debt for a penalty - a civil action. 1
21 See text at note 37, infra.
22 E.g., R. v. Edwards (1964), 50 M.P.R. 164; [1965] 2 C.C.C. 30
(N.S. C.A.).
23 See note 12A, supra.
1970 Reverse Onus Clauses in Canada

As more and more of these actions came to be absorbed

into the corpus of statutory criminal law - as misde-
meanours triable before justices of the peace - so the
stranglehold of civil procedure on minor criminal offences
was increased. Legislation enshrined the common law rules
about the circumstances in which the persuasive burden 24
was cast on the accused in relation to these minor offences.
In relation to indictable offences, however, the trend of
the common law was rather different, and a line of author-
ity started to develop restricting the circumstances in which
persuasive burden might be placed upon an accused. This
line of authority did not seek so much to overturn the old
civil procedure rules, but rather to make sure that they
were confined in their application, and not extended beyond
their traditional spheres. It was this line 2 5of development
that culminated in Woolmington v. DP.P.
Since the Woolmington case is now cited not infrequent-
]y as embodying a fundamental principle of the common
law completely opposed to interpretating a reverse onus
clause as casting a burden of persuasion on a balance of
probabilities on the accused, 26 it is clearly of importance
to examine exactly what it was that that case decided, and
how it fits in to the historical framework outlined above.
The starting point must be the oft-cited statement by Lord
Sankey, L.C. :27
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 about the defence
of insanity and subject also to any statutory exception.
If, at the end of and on the whole of the case, there
is a reasonable doubt . . . as to whether the prisoner
killed the deceased with a malicious intention, the pro-
secution has not made out the case and the prisoner is
entitled to an acquittal. (Emphasis added).
24 Presently, Criminal Code, §702. Formerly, Criminal Code,
1927, §717; Stat. Can. 1909, c. 9, §2; Criminal Code, 1906,
§717; Criminal Code, 1892, §852: R.S.C. 1886, c. 178,
§47; Stat. Can. 1869, c. 31, §44; R.S.U. & L.
Can. 1859, c. 103, §44: Stat. U.Can. 1853, c. 178, §13;
Stat. U.Can. 1851, c. 95, §13. Until the Act of 1909, this
section merely had the effect of relieving the prosecution
of the burden of proving a negative averment duly made:
R. v. Boomer (1907), 13 C.C.C. 98 (Div. Ct. Ont.). For the
history of the earlier parallel development in England, see
Nimmo v. Alexander Cowan & Sons Ltd., [1967] 3 All E.R.
187 (H.L.); Roberts v. Humphries (1873), L.R. 8 Q.B. 483.
2-5 [1935] A.C. 462; [1935] All E.R. Rep. 1.

26 Cases cited, notes 2 and 3, supra.

27 Note 25, supra, at 481; at 8.
 SASKATCHEWAN LAW REVIEw VOL. 35

It will be noted at once that the ambit of the decision itself

is only that where intention is an essential element of a
crime has the prosecution the persuasive burden cast upon
it throughout in relation to that element of intention. This
ruling is very much in accordance with ancient principle,"
although the majority of authority perverted that principle
by way of a presumption that once a killing is shown, the
persuasive burden shifts to the accused to show absence
of intention. In this limited sense, the Woolmington case
marks a change in the law, which is nevertheless not parti-
cularly radical since it merely reiterates the principles
underlying this area of the law, to which murder had be-
come an exception. This, surely, is all that Lord Sankey's
"golden thread" refers to.
By extension, the Woolmington principle has also been
held to apply at common law, at least in the context of a
charge of murder, to matters of justification or excuse
which, under the old rules of pleading, would have had to
be raised by the defence by way of confession and avoi-
dance2' This extension of Woolmington does mark a fun-
damental departure from historical legal principle, and
it must now be taken that when a matter is raised by way
of confession and avoidance, the common law requires mer-
ely that an evidential foundation be laid so that the matter
may be properly regarded as before the court.3 0 But it
must also be noted that this principle is expressly recog-
nized as being subject to statute, and statute can be relevant
in two ways: firstly, a statute may carve out an exception
in relation to some new matter even though this may be
entirely a post-Woolmington development; secondly, and
more importantly, the statutory exception may already
have been in existence at the time Woolmington was de-
cided. In this second sense, the statutory 'exception' will
be nothing more than a pre-existing codification of the old
common law, and as has recently been emphatically recog-
nized by the Privy Council,3 1 the new common law of Wool-
minaton cannot be used to reverse the old common law
where that has been adopted by a legislature.
If the foregoing be correct, it will be seen that Wool-
mington requires that the Crown prove any affirmative
28 See cases cited, note 16. supra. And see, Wilde, J., dissenting,
in Commonwealth v. York, note 20, supra. See also, Davis
v. United States (1895), 160 U.S. 469.
20 E.g., R. v. Wheeler, [1967] 3 All E.R. 829, (C.A.). For an
early Canadian statement of this view, see, Picariello v. The
King, [1923] 1 W.W.R. 1481, per Duff J., at 1495-7 (S.C.C.).
30 Ibid.
31 Jayasena v. The Queen, note 19, supra.
1970 Reverse Onus Clauses in Canada

averment that is an essential element of its case, and that

where a matter is put before the court by way of confession
and avoidance, the Crown must negative it in order to secure
a conviction. Significantly, however, nothing is said about
the burden of persuasion in relation to negative averments
by the Crown which are not essential elements of its case,
and accordingly are treated as arising by way of con-
fession and avoidance on the part of the accused. The mat-
ters by way of confession and avoidance which Woolmington
has been interpreted as dealing with are what are often
called the 'affirmative defences'.3 2 Accordingly, it is even
more difficult to use Woolmington as the basis for re-inter-
preting pre-existing statutory language in the inessential
negative averment type of case than it was to extend the
case to cover the affirmative defences, and there is no sign
of any such development at common law.

II. LINGUISTIC ASPECTS

A. 'Raise a reasonable doubt'.
It has already been suggested" that historically, the
debate was not concerned with quantum of proof, but
rather with the question of upon whom the burden of
persuasion lay; the answer to the former question was
too obvious to need discussion in light of the civil procedure
background to the criminal law rules in this area. Accord-
ingly, both then and today, it is submitted that if the
judiciary wishes to avoid imposing the burden on a balance
of probabilities on an accused in a given case, the law
should be interpreted as stating only that in a certain set
of circumstances the Crown is regarded as having estab-
lished a prima facie case, thereby suggesting that the
matter will go against the accused unless some counter-
vailing evidence is produced. Such an interpretation clearly
leaves the ultimate burden of persuasion in the light of all
the evidence on the Crown. Much of the difficulty in present
Canadian law stems from the reluctance of the judiciary
to take this approach to the interpretation of reverse onus
clauses. The proposition that an accused in respect of whose
guilt a reasonable doubt exists must therefore be acquitted
is used to suggest that where a statute places a burden
of persuasion upon the accused, all he has to do is to per-
suade the court that there is a reasonable doubt in the
matter. 4
32 See generally, M.P.C. T.D. No. 4, §1.12 (1955), and Com-
mentary.
33 Text at note 20, supra.
34 E.g., cases cited, notes 3 and 4, supra.
48 SASKATCHEWAN LAW REVIEW VOL. 35

It is submitted that this type of analysis is incorrect

in principle, and further, that it renders nonsensical legis-
lative use of two very different types of language. Where
a statute states that some matter, once established, "shall,
in the absence of evidence to the contrary, be proof" of
some further matter, it is clear that the only possible
burden on the accused is to adduce some "evidence to
the contrary"; where, however, the legislative language
requires that an accused 'prove', 'establish' or 'show' some-
thing, without these words being in any way connected
with the word 'evidence', presumably something different
is meant. 5 My thesis is that this difference cannot be
merely that the accused persuade the court that there is
a reasonable doubt.
The imposing of an evidential burden on the accused
leaves the Crown in the position of having to prove the
absence of a reasonable doubt at the end of the day; the
persuasive burden on the accused interpreted so as to re-
quire only the raising of a reasonable doubt leaves the
defence in the position of having to prove the presence of
a reasonable doubt at the end of the day. In both situations,
the key feature is that if, on all the evidence, there is a
reasonable doubt about whether the relevant element of
the offence has been established against the accused, then
the accused must be acquitted. Surely, it is to allow seman-
tics to triumph over reality to suggest that there is any
persuasive burden on an accused who is merely required to
prove the presence of that which the prosecutor is already re-
quired to prove is absent. In short, such an interpretation of a
reverse onus clause merely has the effect of raising a prima
facie case against the accused - and there are many legis-
lative precedents for doing this by express and unam-
biguous language where it is so desired.3 6
In some cases, indeed, it appears that the only effect
of raising a prima facie case against the accused is that
the court may find that element of the case against him,
in the absence of further evidence; in other situations, the
existence of the prima facie case appears to mandate that
in the absence of further evidence that element of the case
be determined against the accused.3 7 Even in the first type
35 Notes 42 and 43, infra.
36 See, R. v. Vitale, [1970] 1 C.C.C. 108, at 110 (Ont. C.A.).
See also, Public Prosecutor v. Yuvaraj, [1970] 2 W.L.R.
226 (P.C.).
37 See, R. v. Sunbeam Corporation Ltd., [1967] 1 O.R. 661, at
679-695, per Laskin J.A., dissenting. The thrust of recent
decisions is much in favour of the 'may' interpretation:
Tremblay v. The Queen (1969), 10 D.L.R. (3d) 346 (S.C.C.);
Austin v. The Queen (1968), 1 D.L.R. (3d) 48 (S.C.C.).
1970 Reverse Onus Clauses in Canada

of case, however, how often will the trier of fact, correctly

directed,88 find the existence of a reasonable doubt on a
matter where all the evidence is against the accused, and
the accused has not sought to remedy this situation? Ac-
cordingly, therefore, it is submitted that any difference
between the imposition of an evidential burden and the
imposition of a burden to persuade of the existence of a
reasonable doubt is illusory, whichever type of evidential
burden be considered. If the accused in fact adduces evi-
dence, in all cases, all the evidence must be weighed by
the trier of fact to determine whether there is a reasonable
doubt. If the accused does not adduce evidence, the only
difference is that if the prescribed burden be the persuasive
one, the matter must be found against him, whereas in the
case of certain evidential burden situations, the matter is
still theoretically at large, with the proviso that in real
life, as opposed to juristic imagination, the matter will
almost invariably be found against him.
There is one other possible method of distinguishing
between the effect of the imposition of an evidential burden
on the accused and the effect of the imposition of a per-
suasive burden to raise a reasonable doubt. It could conceiv-
ably be argued that, whereas the evidential burden is
satisfied by evidence directed to the accused's purpose,
whatever its source, the persuasive burden can only be
satisfied by evidence either coming from the defence, or
even from the accused himself. This argument is very
vulnerable to the reductio ad absurdissimum that it would
mean that the accused could not avail himself of excul-
patory matter contained in a statement put in as part of
the Crown case, or of the fruits of cross-examination of
the Crown witnesses, either of which can, it is clear,
operate in satisfaction of an evidential burden.9 More
seriously, however, particularly where it is suggested that
the evidence must come from the accused in person, rather
than the defence generally, the privilege against self-in-
crimination is destroyed, and the right of the accused not
to give evidence unless he wishes to - and thereby expose
himself to cross-examination - is all but taken away. This
interpretation of a reverse onus clause becomes quite un-
tenable - particularly when it is remembered that we
are here dealing with principles of long standing in the
law, and that it was not until the late Nineteenth Century
that the accused was even allowed to give evidence on his

3 R. v. Skihar (1969), 72 W.W.R. 233 (Sask. C.A.).

89 E.g., R. v. Goodyear, [1970] 3 C.C.C. 287 (Ont. C.A.).
 SASKATCHEWAN LAW REVIEW VOL. 35

own behalf. 40 Finally, it should be noted that there does

not appear to be one single case in which this position has
been taken.

B. The Statutory Language

If it be accepted, then, that any difference between
an evidential burden on the accused and a persuasive
burden requiring the raising of a reasonable doubt is but
illusion (or delusion), the answer to our problem must be
found in an examination of the statutory language of reverse
onuses, to see whether such language is capable of being
interpreted as imposing only an evidential burden, if that
is the judicially-desired result. It has already been sug-
gested 41 that there are two forms of language commonly
used in statutes which have always been interpreted as
imposing only an evidential burden on the accused, namely,
that certain facts, once proved, shall be "prima facie evi-
dence" of some other matter; 42 and that certain facts, once
proved, are "in the absence of any evidence to the contrary",
proof of some other matter. 43 Clearly, it would be rather
strange if a legislature also chose to use a whole series of
very different formulae to achieve exactly the same result
in law as the two formulae set out above, especially when
one remembers that these other formulae are used in situ-
ations where the common law itself cast a persuasive
burden on the accused.
44
These other formulae have already been mentioned,
as using one or more variants of certain 'key words', such
as 'prove', 'establish', 'satisfy', or 'show', 45 to express the
nature of the obligation on the accused. These formulae
have been used in Canadian criminal law statutes since
the late Nineteenth Century,46 and yet there does not appear
40 In Canada by the Canada Evidence Act, Stat. Can. 1893,
c. 31, §4; in Britain by the Criminal Evidence Act, 1898,
61 & 62 Vict., c. 36, §1.
41 Text at note 35, supra.
42 This particular form of words is no longer used in the
current Criminal Code: see, Stat. Can. 1968-69, c. 38, §92.
It is still used in other Dominion Acts and in Provincial
Statutes.
43 Criminal Code, §§169: 184(2); 186(4); 221(3); 226A(6); 284
(2); 285(4); 292; 293(2); 307(2); 339(2); 357; 364(1); 387.
44 See notes 6, 7, 8, supra.
45 Note 20, supra.
46 E.g., Criminal Code, §295(1), which traces back through
Criminal Code, 1927, §464; Criminal Code, 1906, §464; Crim-
inal Code, 1892, §417; R.S.C. 1886, c. 164, §43; Stat. Can.
1869, c. 21, §59.
1970 Reverse Onus Clauses in Canada

to be any case prior to 193347 in which it is even suggested

that once the Crown has sufficiently proved the facts neces-
sary to bring the reverse onus into play 48 there is any
lesser persuasive burden on the accused than the ordinary
civil burden of the balance of probabilities. Certainly, there
are many cases in which it is held that the reversal of onus
does not apply to the particular matter to which the Crown
alleges that it does apply, 49 or in which it is held that the
Crown has not established the facts necessary to bring the
reverse onus clause in to play, 50 but the fact is that there
is not one case in which it is as much as suggested that,
once these two preconditions have been met and the reverse
onus is applicable, the burden is anything other than the
civil one. Such decisions as there are on this point prior
to 193351 all support this view of the law. This is surely the
best evidence of the manner in which these reverse onus
formulae have traditionally been interpreted, and of the
manner in which the various legislatures intended them
to be interpreted.
On the other hand, however, it is clear that the many
statutory reversals of onus historically to be found in
Canada were entirely within the major common law areas
where this was common form, namely, the 'negative aver-
ment' and the 'confession and avoidance' situations. It has
already been pointed out52 that a positive averment by the
Crown in relation to some matter that was an essential
element of the Crown case, and not arising by way of con-
fession and avoidance, was not historically the subject of
a reverse onus. Significantly, however, the statutory section
in respect of which much of the discussion of reverse onus
clauses is now taking place is that contained in the Narcotic
Control Act,53 and the Food and Drugs Act, 54 wherein the
legislature has apparently sought to create a reverse onus
in that very situation in which the old common law did

4T R. v. Lee Fong Shee, [1933] 3 W.W.R. 204 (B.C. C.A.).

48 This is the ratio decidendi of such cases as R. v. Boomer
(1907), 13 C.C.C. 98 (Div. Ct. Ont.); R. v. White (1871), 21
U.C.C.P. 354.
49 E.g., R. v. Ceal, [1929] 1 W.W.R. 797 (Co. Ct. B.C.). See also,
McGowan v. Carville [1960] I.R. 330.
so E.g., R. v. Nowicki, [1944] 1 W.W.R. 48, (C.A. Man.); R. v.
Conrod (1902), 5 C.C.C. 414 (C.A. B.C.).
51 E.g., R. v. Farrell (1916), 26 C.C.C. 273 (C.A. Ont.); In re
Barrett (1869), 28 U.C.Q.B. 559; Roberts v. Humphreys
(1873), L.R. 8 Q.B. 483 (Div. Ct.).
52 Notes 16 and 19, supra.
53 Note 7, supra.
54 Note 7, supra.
 SASKATCHEWAN LAW REVIEW VOL. 35

not permit it. A new type of reverse onus clause is therefore

introduced into the law, using the traditional language of
reverse onuses, but in a totally new context. This is an
important point to be borne in mind when we consider the
present state of the law.

III THE PRESENT STATE OF THE LAW

Clearly, the first matter which must be considered
here is whether or not the Supreme Court has spoken on
the question of the construction of reverse onus clauses.
This requires an examination of Tupper v. The Queen.55
The second question before the Court in this case involved
the interpretation of the Criminal Code, §295(1), 51 and,
strictly speaking, did not require a ruling on the extent
of the burden of proof imposed on the accused under this
section, but rather, a ruling on the facts which must be
established by the Crown before the burden shifts to the
accused. The Provincial Courts of Appeal were divided
on whether, once the Crown had proved that the accused
was in possession of instruments capable of being used
for housebreaking, the onus automatically shifted to the
accused to justify his possession, or whether, in the event
that the instruments in question were everyday articles
normally used for lawful purposes, the Crown was required
to go further and associate those instruments with some
unlawful purpose before the accused could be called upon
to justify his possession.
In unanimously taking the former view, 57 the Court
expressed itself as follows:58
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 prob-
abilities that there was lawful excuse for the possession
of the instrument at the time and place in question.
(Emphasis added).
Thus, in a sense gratuitously, the Court also ruled on the
burden imposed on the accused in addition to the time at
which the burden is imposed. It did so without reference
to, let alone discussion of, the many conflicting cases on

55 Note 5, supra.
58 "Everyone who . . . has in his possession any instrument for
housebreaking, [etc.] is guilty of an indictable offence .... "
5T See generally, J.C.E. Wood, "Statutory Interpretation:
Tupper v. The Queen" (1968), 6 Osgoode Hall L.J. 92.
58 Note 5, supra, at 593.
1970 Reverse Onus Clauses in Canada

the subject of quantum - surely, so astonishing a way

to settle the law as to give rise to the inference that it was
not the intention of the Court to do so. Accordingly, it is
submitted that it is best to treat this aspect of the judgment
in the Tupper case as either obiter dictum, or, alternatively,
as per incuriam.
Ordinarily, such cavalier treatment of a pronounce-
ment by the Supreme Court might well be regarded by
the profession as simply an academic foible best ignored.
Significantly, however, this aspect of the Tupper case has
recently received detailed consideration in the Courts of
Appeal for both Prince Edward Island 9 and British Co-
0
lumbia,1 and in neither court were any of the judges
prepared to accept Tupper as settling the law on this topic.
In Prince Edward Island, in R. v. Cahill,61 the court was
faced with what, it has been suggested above, was the
narrow second issue before the Supreme Court in Tupper,
namely, what does the Crown have to prove before the
reverse onus comes into play. The court unanimously agreed
that this precise issue was squarely disposed of by Tupper,
but Campbell C. J. went on in to what he himself called
a "somewhat extended excursion into the realm of academic
dictum", 62 expressing his total disagreement with the view
of the interpretation of reverse onus clauses taken in
Tupper, and stating that in his opinion that aspect of the
judgment was merely dictum, which he would decline to
follow until squarely pronounced as part of the ratio
decidendi by the Supreme Court. Significantly, he took
this position even in relation to Criminal Code, §295 itself,
which was the very section under consideration in Tupper.
The other two judges, Bell and Trainor JJ., expressly de-
clined to give any opinion 03
on this question until it was
properly before the court.
In British Columbia, the subsequent history of Tupper
is rather curious. In R. v. McCoole,64 followed in R. v.
McDonald & Morgan,65 the Court of Appeal accepted Tup-
per as having settled the question of the interpretation of
Criminal Code, §295 in relation to the reverse onus question;
this view of the law was also followed in R. v. McRae,66 by

59 Note 4, supra.
60 Note 3, supra.
61 Note 4, supra.
62 Note 4, supra, at 54.
03 Ibid.

64 (1968), 65 W.W.R. 427.

65 [1970] 3 C.C.C. 180.
60 (1969), 6 C.R.N.S. 199.
 SASKATCHEWAN LAW REvIEw VOL. 35

Munroe J., on the construction of the reverse onus in Crim-

inal Code, §224A(1). In none of these cases, however, was
any reference made to the earlier decision of the Court
of Appeal in R. v. Hartley & McCallum,6 7 decided after
Tupper, but without reference to it, holding that the re-
verse onus in the Narcotic Control Act, §8,68 cast a burden
of persuasion on the accused, which, however, merely re-
quired him to raise a reasonable doubt. Next, in R. v. Silk,"9
a full court, in five detailed judgments, followed R. v.
Hartley & McCallum,70 holding that Tupper had no rel-
evance to the interpretation of the reverse onus in the
Food & Drugs Act, §33(3), 71 which is substantially identical
with that contained in the Narcotic Control Act, §8. The
court did not find it necessary to refer to its own previous
decision in R. v. McCoole.7 2
This situation is by no means as confused as it may at
first appear to be, however, for in R. v. Silk, the following
passage appears in the judgment of Tysoe J. A., which, it
is suggested, states the ratio decidendi of the case:7 3
If Parliament has imposed on an accused the onus of
establishing . . . 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 Par-
liament intended to do this.

It is one thing to impose an onus on an accused to dis-

prove a negative averment and quite another to re-
quire him to disprove a positive averment of an integral
part of the offence. (Emphasis added).
Clearly, the court here is seeking to deal with that very 74
type of reverse onus clause which, it has been suggested,
is outside the historical mainstream of situations in which
a persuasive burden can be regarded as cast upon the ac-
cused. When viewed in this light, the decision in R. v. Silk
67 (1968), 63 W.W.R. 174.
68 Note 7, supra.
69 Note 3, supra.
70 Note 67, supra.
71 Note 7, supra.
72 Note 64, supra.
73 Note 3, supra, at 496-7.
74 Note 52, supra.
1970 Reverse Onus Clauses in Canada

can be seen to have no bearing on the interpretation of

reverse onus clauses relating to negative averments or to
matters raised by the accused by way of confession and
avoidance, and thus there is no inconsistency in the court
supporting the dictum in Tupper as a correct statement
of the law of quantum of proof in
75
these other situations, as
it appears, indeed, to have done.
7
Unfortunately, however, in R. v. Jir Holdings Ltd
the British Columbia Court of Appeal somewhat destroyed
the logic of the position it had taken in the Silk case, as
outlined above, by applying the 'raise a reasonable doubt',
or evidential burden test in a case involving the reverse
onus contained in the Government Liquor Act, §§123,
77
124(1), which is a simple negative averment of a matter
to be raised by a confession and avoidance situation. This
appears to be consistent with the position taken by the
Chief Justice of Prince Edward Island in the Cahill case,
and inconsistent with the earlier British Columbia cases
of R. v. McCooleT 8 and R. v. McDonald and Morgan7 as
well as with the ratio decidendi of the Silk case, and the
matter is accordingly still in a state of some confusion. Per-
haps the best solution is to regard the decision in R. v. Jir
Holdings Ltd. 0 as given per incuriam, since it was based
on a concession by Crown counsel that he could not support
the conviction of the accused, the trial judge having applied
the 'balance of probabilities' test, in the light of the Silk
case. No other cases apart from Silk are cited in the judg-
ment, and it is clear that the question was not argued.
No other Provincial Courts of Appeal appear to have
been obliged yet to consider the problem of the correct
interpretation of reverse onus clauses in the light of the
Tupper case, and accordingly, it can only be a matter for
speculation as to what will eventually result. One of the
major difficulties in this area is that the distinction taken
by Tysoe J. A. in the Silk case between positive averments
that are integral parts of the Crown case on the one hand,
and those other matters which might be the subject of a
reverse onus on the other, does not seem to have been taken
by any other Canadian court, and decisions in the other
Courts of Appeal on the appropriate quantum of proof re-
quired of an accused are completely undifferentiated in
75 Cases cited notes 64 & 65, supra.
76 (1970), 72 W.W.R. 767.
77 R.S.B.C. 1960, c. 166.
78 Note 64, supra.
79 Note 6, supra.
80 Note 76, supra.
 SASKATCHEWAN LAW REVIEW VOL. 35

relation to the nature of the subject-matter of the reverse

onus. Some measure of the confusion surrounding the Ca-
nadian law on this topic can be gathered from a statement
of the position in the other provinces.
In three Provinces, Alberta, 81 Manitoba,82 and New-
foundland,3 there are clear decisions that all that an ac-
cused is required to do is to raise a reasonable doubt -
in other words, that there is merely an evidential burden
on the accused. In a further four Provinces, New Bruns-
wick,84 Nova Scotia,8 5 Ontario, 6 and Saskatchewan,8 7 there
are equally clear decisions that where a reverse onus comes
into play, the accused has the civil burden of proof on a
balance of probabilities cast upon him. It has already been
suggested that the law in both British Columbia and Prince
Edward Island is unclear, although the former would per-
haps best be regarded as inclining towards the civil burden
test in most situations, in the light of the Silk case. That
leaves Quebec, and unfortunately, this question does not
seem to have received much consideration from the Court
of Appeal of that Province, although there is some authority
in favour of the 'raise a reasonable doubt - evidential
burden' test. 8
In non-Canadian jurisdictions, the majority of the
authority is in favour of the balance of probabilities test.
There are clear decisions in the Privy Council,89 and the
English"° and Scottish"' courts in favour of this test, al-
though it is worth noting that the Privy Council has taken
the same position that Tysoe J. A. took in the Silk case,
that an accused cannot be required to disprove on a balance
of probabilities some positively averred integral element
of the Crown case, since that would be tantamount to re-
quiring that the accused prove his innocence. 92 Interestingly,
81 R. v. Hellenic Colonization Association, [1943] 2 W.W.R. 481.
82 R. v. Peleshaty, [1950] 1 W.W.R. 108.
83 R. v. Smith (1957), 27 C.R. 359.
84 R. v. Vautour, [1970] 1 C.C.C. 324, R. v. Jones (1933), 6
M.P.R. 399; [1934] 2 D.L.R. 499.
85 R. v. Edwards, [1965] 2 C.C.C. 30; R. v. Shaw, [1964] 1
C.C.C. 104.
a8 R. v. McConnell & Beer, [1967] 2 O.R. 527; R. v. Gilson,
[1965] 2 O.R. 505. But cf., R. v. Carefoot, [1948] 2 D.L.R. 22;
R. v. Fields (1921), 36 C.C.C. 214.
87 R. ex rel. Mitchell v. Kiehl, [1937] 1 W.W.R. 68.
88 R. v. Schleimer (1938), 72 C.C.C. 230.
89 Public Prosecutor v. Yuvaral, note 36, supra.
90 R. v. Patterson,[1962] 2 Q.B. 429 (C.C.A.); R. v. Carr-Briant,
[1943] 1 K.B. 607 (C.C.A.).
91 Neish v. Stevenson, [1969] Sc.L.T. 229.
92 Cases cited note 19, supra.
1970 Reverse Onus Clauses in Canada

these Privy Council decisions were not referred to in the

Silk case. In both Ireland" and Australia 94 there are de-
cisions which appear to favour the balance of probabilities
test once the reverse onus is brought into play, although
in both jurisdictions there appears to be markedly greater
hostility to allowing the reverse onus to engage in the first
place than there is in Canada. 5 As is usually the case, there
are decisions in the United States, purporting to be based
on the common law, which will support both points of
view.96
One final matter which must be discussed concerning
the present state of the law on the interpretation of reverse97
onus clauses is the relevance if any of the Bill of Rights
to the interpretation of reverse onus clauses. Section 2(f)
of this Act was expressly relied on by four of the five judges
in the Silk case"9 as supporting, if not positively requiring
the result arrived at in that case. In the earlier cases of
R. v. Guertin"9 and R. v. Sharpe,1 the Ontario Court of
Appeal had held that the Bill of Rights had no application
to the interpretation of reverse onus clauses, but it is sub-
mitted that neither of these two cases can be regarded as
opposed to the position taken in the Silk case. Indeed, the
Sharpe case can in many ways be regarded as supporting
the position taken by the British Columbia Court of Appeal,
for in it, the Opium and Narcotic Drug Act, §4(4),2 which
is the predecessor to the present Narcotic Control Act,
§8, was interpreted as imposing merely an evidential bur-
den on the accused, and it was upon that basis that the
Bill of Rights was held to be irrelevant - the common
law itself dictated the very answer that was sought to be
produced by invocation of the Bill of Rights, and accor-
dingly, that Act could legitimately be regarded as mere
surplusage in that context.
The Guertin case is somewhat more difficult, since it
expressly holds that the Bill of Rights does not preclude
93 Cf. McGowan v. Carville, note 49, supra.
94 Everard v. Operman, [1958) V.R. 389, (Sholl J.), and cases
there cited. See also, Dowling v. Bowie (1952), 86 C.L.R.
136.
95 Cases cited notes 93 & 94, supra.
96 E.g. State v. Rosasco (1922), 205 Pac. 290, (Oregon); cf., e.g.,
Bell v. State (1911), 137 S.W. 670, (Tex. C.C.A.).
97 Stat. Can. 1960, c. 44, §2(f).
98 Davey C.J.B.C.; Tysoe, Branca & Nemetz JJ.A. Bull J.A.
was the lone dissentient on this point.
99 (1961), 130 C.C.C. 403.
1 (1961), 131 C.C.C. 75.
2 R.S.C. 1952, c. 201.
 SASKATCHEWAN LAW REVIEW VOL. 35

the imposition of a persuasive burden on a balance of prob-

abilities on an accused. However, the statutory section
under consideration in that case was Criminal Code, §80,
which contains an ordinary negative averment reverse
onus in the same form as that contained in the Criminal
Code, §295(1), and accordingly, the case is clearly distin-
guishable from both Sharpe and Silk. It is respectfully
submitted that this is indeed the true effect of the Bill of
Rights in this context, that it does not in any way change
the law relating to reverse onus clauses, but simply requires
that any statute passed after it came into effect be inter-
preted in conformity with the pre-existing common law
unless the statute itself expressly requires the contrary.
When viewed in this way, the Bill of Rights still allows
negative averments and matters arising by way of con-
fession and avoidance, other than affirmative defences as
common law,3 to be the objects of a reverse onus clause
casting the civil burden on the accused, but re-affirms the
common law position that a positive averment of an in-
tegral element of an offence cannot be so treated. When
viewed in this way, the Bill of Rights can either be regarded
as irrelevant, as in Sharpe, or as bolstering up the common
law, as in Silk, for neither interpretation gives the Act any
independent effect in this area of the law.

IV. THE FUTURE

The one thing that is clear about the present law on
the interpretation of reverse onus clauses is that it is in
a very confused state. This is much to be deplored, as these
clauses are very numerous in penal statutes, and keep
appearing in new legislation; 4 as their potential effect on
the liberty of the subject and the presumption of innocence
is immense, it is respectfully suggested that either a de-
tailed and authoritative exposition by the Supreme Court

s Note 29, supra.

4 In Dominion Statutes, the word 'establish' appears to be
the 'key word' presently in vogue: Stat. Can. 1968-69, c. 50,
§10(2); Stat. Can. 1968-69, c. 48, §52; Stat. Can. 1968-69,
c. 34, §9(2); Stat. Can. 1968-69, c. 21, §30(2). Cf., Stat. Can.
1968-69, c. 42, §11(1), (2). In Saskatchewan, the favoured
'key word' still seems to be 'prove': Stat. Sask. 1970, c.78,
§149; Stat. Sask. 1968, c. 6, §38(1); Stat. Sask. 1967, c. 78,
§83, amend. Stat. Sask. 1970, c. 24, §32. It is interesting to
note, however, that R.S.S. 1965, c. 291, §6(1), and R.S.S.
1965, c. 329, §47, both of which contained reverse onus
clauses, have been repealed and replaced by Stat. Sask.
1969, c. 24, and Stat. Sask. 1968, c. 58, respectively, neither
of which contain any reverse onus clause.
1970 Reverse Onus Clauses in Canada

or, preferably,5 explanatory legislation at both Dominion

and Provincial levels is a matter of some urgency. It is
clearly intolerable that after several centuries of develop-
ment of criminal law and procedure, so fundamental a
question as who has to prove what and to what extent
should remain in serious doubt.
If the matter falls to be dealt with by the Supreme
Court, it is submitted that the correct answer to the prob-
lem is that which is being groped towards by the British
Columbia Court of Appeal in Silk, which is in reality
simply a reversion to the true historical position, that an
accused can never, other than by crystal-clear language,
be required to disprove some essential positive element
of the Crown case. The most that can be required of him
in such a case is that he be required to run the risk of
that element of the case being decided against him unless
some evidence in his favour appear from some source. An
apparent reverse onus clause in this type of situation would
accordingly be interpreted as merely raising a prima facie
case against the accused thereby imposing an evidential
burden only on him. The existing forms of language which
have been interpreted as imposing merely an evidential
burden on the accused would continue to be so interpreted,7
and reversals of onus in the negative averment and con-
fession and avoidance situations would be authoritatively
interpreted as imposing a burden of persuasion on the
balance of probabilities.
Immediate legislative action could also be employed
to produce precisely the same result, by simply adding a
section to either the Dominion and the Provincial Inter-
pretation Acts, or by adding a section to the Criminal Code,
and to the various Provincial Summary Conviction Acts, or
their equivalents. It would scarcely require much ingenuity
to draft a section stating that an accused shall never be
required to disprove the existence of any positive element
of the offence with which he is charged, unless the con-
trary is expressly stated, but that in all other cases in
which statutory language is interpreted as imposing a bur-
den of persuasion on the accused, he shall be required to

5 The performance of the Supreme Court in the area of

criminal law and procedure is not very happy at times. The
most recent example is The Queen v. Osborn, Oct. 8, 1970,
reversing (1969), 1 D.L.R. (3d) 664 (C.A. Ont.) in such
a way as to defy the extraction of a ratio decidendi.
6 Text at note 37, supra.
7 Text at notes 42 & 43, supra.
 SASKATCHEWAN LAW REVIEW VOL. 35

satisfy this burden on the balance of probabilities.8 This

would then force the judiciary to examine what is clearly the
critical issue in this type of case, namely, when is an accused
required to persuade rather than merely adduce evidence.
Clearly, in order to reduce the opportunities for inter-
Provincial conflicts of jurisprudence to a minimum, it would
be desirable for any such new interpretation section to
be drafted with the closest Federal-Provincial co-operation,
so that exactly the same formula is used throughout Canada.
At the same time, consideration could perhaps be given to
devising a small number of standardized formulae to be
used in all legislation throughout Canada clearly designed
to differentiate in future enactments between situations
where it is intended to impose an evidential burden on the
accused, and situations where the intended burden is the
persuasive one. Nothing more complex would seem to be
needed here than an adoption of perhaps three basic for-
mulae already to be found in the Criminal Code," to distin-
guish between three basic situations: (a) where the intention
is that an evidential burden be cast upon the accused, but
the accused need not necessarily be convicted even if he
does not adduce evidence; (b) where the intention is that
an evidential burden be cast upon the accused, and he
must be convicted if he does not adduce evidence, but if
he does adduce evidence can only be convicted if the matter
is proved beyond a reasonable doubt in the light of all the
evidence; (c) where the intention is that a persuasive bur-
den on a balance of probabilities be cast upon the accused,
a corollary of which is that he must be convicted unless
he satisfies that burden.
So far, nothing has been said about the various policy
factors which ought to underlie a legislative decision as
to what type of burden, if any, is to be placed on an accused
in a given situation. It is not intended to pursue this ques-
tion in detail in this paper, but it is suggested that if and
when the redrafting of the Criminal Code takes place, de-
tailed attention might be given to the circumstances in
which a legitimate interest of society can only or best be
served by casting some burden on the accused. 10 At present,

8 Perhaps a model may be found in the rather remarkable

section in an old New Brunswick liquor Act requiring the
Crown to prove its case "by a preponderance of evidence
according to the rules prevailing in the trial of civil causes."
R.S.N.B. 1927, c. 28, §110.
9 See text at notes 42-45, supra.
10 It is perhaps not without some significance that there is no
reversal of the persuasive burden to be found anywhere
in the recent draconic regulations made under authority
of the War Measures Act.
1970 Reverse Onus Clauses in Canada

one is left with the distinct impression that there is no

rational pattern underlying the present use of one or other
of the major types of reverse onus clauses in statutes, or
indeed, that there is no rational pattern underlying the
fundamental decision of whether or not some form of reverse
onus is required at all. Much may depend on the particular
model or precedent relied on by the draftsman." It is from
this apparent lack of legislative consistency that some courts
may have drawn an 'undisclosed major premise ' 2 favour-
ing the 'evidential burden - raise a reasonable doubt' test,
arguing that there is no apparent reason why an accused
in one situation should have a persuasive burden cast upon
him, while in some other clearly analogous situation the
burden is merely evidential: therefore, interpret in favour
of the accused, regardless of the inconsistencies that may
result.
A useful starting point for legislative re-examination
of the policy factors underlying the law of reverse onuses
may well be found in the recent decision of the United
States Supreme Court in Leary v. United States, 3 dealing
with the constitutionality of a statutory presumption of
guilt in relations to a charge of transporting mari-
huana knowing the same to have been brought into
the United States contrary to law, where proof of
possession of the marihuana is "deemed sufficient evi-
dence to authorize conviction unless the defendant ex-
plains his possession to the satisfaction of the jury."'" The
Court did not need to reach the question of requiring the
accused to prove something "to the satisfaction of the
jury",15 but instead struck the presumption down on the
ground that substantive due process requires:
[T]hat a criminal statutory presumption must be re-
garded as irrational or arbitrary, and hence unconsti-
tutional, unless it can at least be said with substantial
assurance that the presumed fact is more likely than
not to flow from the proved fact on which it is made
to depend.' 6
If indeed Parliament intended the Narcotic Control Act, §8,'7
and the analogous sections in the Food & Drugs Act to

11See notes 42 & 4, supra.

12 The phrase is Cardozo's.

13 (1969), 89 S.Ct. 1532.

14 21 U.S.C. §176a.
15 But see, United States v. Adams (1968), 293 F. Supp. 776,
at 783-4 (S.D. N.Y.).
' Note 13, supra, at 1548.
17 Note 7, supra.
 SASKATCHEWAN LAW REVIEW VOL. 35

enact a reversal of the persuasive burden, one may legiti-

mately wonder how well these sections would stand up
when measured against this standard. Many people might
be much happier about reversals of onus in Canadian law
if indeed the matter which the accused was required to
disprove was clearly something that might rationally be
presumed against him in the ordinary experience of man-
kind in the light of the facts already proved.
The other major policy factor which it is suggested
ought to be considered in the drafting of a rational law
relating to reverse onuses is the legitimate interest of so-
ciety in not having its police and other investigative forces
unproductively employed in accumulating the evidence
necessary to negative some defence available to an accused
where it is not even certain if that particular matter will
indeed be raised by way of defence; and in any event, where
the defence is raised, it is relatively easy for the accused
to show that it operates in his favour. The obvious example
of this type of situation is where the accused is charged
with performing some act without a license, or without
the qualifications required by the law: it is but little hard-
ship on an accused to produce his license or certificate of
qualification, if he has one, but it could be all but impos-
sible for the police to check every possible legal source
of a license or qualification in order to prove the absence
thereof. The same might well be said of the many situations
in which the accused is now required to prove that some
prima facie illegal act was in fact done with lawful excuse,
or in the honest belief that he was entitled to do it.'
My plea, then, is twofold: for immediate clarification
of the law itself, and for future consideration of the reasons
for the law, and clarification of the language in which it
is expressed. In the criminal law above all, certainty is
surely a paramount virtue, with rationality a very close
second. Neither is conspicuous by its presence at the present
time.

18 It is by no means clear that an honest belief in the existence

of some qualification, proviso, excuse etc. does in fact amount
to a defence where the burden of persuasion is cast upon
the accused in an offence otherwise held to be one of strict
liability. Although not strictly dealing with the point, the
recent decision of the Supreme Court in The Queen v. Pierce
Fisheries Ltd., June 26, 1970, does not suggest that such
a doctrine is likely to receive a sympathetic hearing. And
see, Sweet v. Parsley, [1969] 1 All E.R. 347 (H.L.). But see,
Proudman v. Dayman (1941), 67 C.L.R. 536 (H.C. Aust.).