A.M.Y. Appellant v. Her Majesty the Queen Respondent Library Heading Restriction on Publication: Section 110, Youth Criminal Justice Act Judge: The Honourable Justice Peter Rosinski, 2017 NSSC 99

SUPREME COURT OF Nova Scotia Citation: R. v. A.M.Y. , 2017 NSSC 99 Date: 20170419 Docket : Hfx. No. 455910 Registry: Halifax Between: A.M.Y. Appellant v. Her Majesty the Queen Respondent Library Heading Restriction on Publication:

Section 110, Youth Criminal Justice Act Judge: The Honourable Justice Peter Rosinski Heard: April 4, 2017, in Halifax, Nova Scotia Written Decision: April 19, 2017 Subject:

Summary conviction appeal – conviction for breach of non-association clause in recognizance –

interpretation of interaction between s. 794(2) and “lawful excuse” in s. 145(3) Criminal Code

Summary: A.M.Y. was prohibited from being in the company of another youth, N.Y., “unless in the presence of an adult approved by your parent or guardian”. A.M.Y. was found in a car with N.Y., another youth and two adults. Youth Court judge concluded that the burden was upon the youth to establish the factual foundation for the “lawful excuse”/exception relying on s 794(2). Defence called no evidence – Youth Court therefore had no evidence to establish that the adults in the car were “approved by your parent or guardian” and therefore, convicted A.M.Y.

A.M.Y. maintains that the burden is on the Crown to establish beyond a reasonable doubt that the adults in the car were not approved by A.M.Y.’s parent or guardian. Issues: (

i) Did the Youth Court judge err in law in her

interpretation and application of s 794(2)? That is: (

a) Is s. 794(2) applicable to a charge of breach of recognizance pursuant to s. 145(3) ? (

b) If so, what interpretive effect does s. 794(2) have in relation to the wording in s. 145(3) ? (

c) What are the essential elements of the offence as alleged in the information in this case? (ii) If so, was this a reversible error?

Result: (

i) The Youth Court judge committed a non-reversible error of law in placing reliance on s. 794(2) in the circumstances of this case

a) Generally, s. 794(2) could have application to charges of breach of recognizance – s. 145(3) - because it arguably provides more expansive wording than merely “lawful excuse”, and in such cases places the burden to prove any of those s. 794(2) bases to avoid conviction on the accused;

b) However, in the case at bar, s. 794(2) was not applicable, because it was unnecessary: as with s. 794, generally the wording in s. 145(3) - “without lawful excuse, the proof of which lies on them,” has been interpreted in the jurisprudence to place an evidentiary/persuasive burden on the balance of probabilities on an accused to establish the factual foundation underlying any exceptions to bail conditions;

c) the jurisprudence establishes that exceptions to bail conditions are not essential elements of the s. 145(3) offence generally, and the wording of the information in this case did not transform the “exception” into an essential element of the offence, but rather left the “exception” to be considered under the rubric of “lawful excuse”. (ii) The Youth Court judge did not commit a reversible error because whether the trial judge had used the approach under s. 794(2) or under “lawful excuse, the proof of which lies upon them”, either one would have yielded the identical result, and no material prejudice to A.M.Y. was occasioned thereby.

THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET. SUPREME COURT OF Nova Scotia Citation: R. v. A.M.Y. , 2017 NSSC 99 Date: 20170419 Docket: Hfx. No. 455910 Registry: Halifax Between: A.M.Y. Appellant v. Her Majesty the Queen Respondent Restriction on Publication:

Section 110, Youth Criminal Justice Act Judge: The Honourable Justice Peter Rosinski Heard: April 4, 2017, in Halifax, Nova Scotia Counsel: Claire McNeil and Stephanie Smolensky, for the Appellant Erica Koresawa, for the Respondent By the Court:

By the Court: Introduction [ 1 ] A.M.Y. was found guilty of having committed the following offence on May 22, 2016: Being at large on his recognizance entered into before a justice or judge on the 20 th day of May 2016, and being bound to comply with the condition of that recognizance to wit, Do Not Associate with or Be in the Company of [N.Y.] Unless in the Presence of an Adult Approved by Your Parent or Guardian, without lawful excuse fail to comply with that condition, contrary to s. 145(3) of the Criminal Code . [ 2 ] Her May 20, 2016 recognizance contained the following wording: The condition of this recognizance is that if the young person attends court on June 2, 2016 a 1:30 p.m.… and attends thereafter as required by the court in order to be dealt with according to law… and if the young person complies with the following conditions:

a) keep the peace and be of good behaviour (

b) you shall attend court as and when directed (

c) Reside at Phoenix Shelter, 1094 Tower Road, Halifax, Nova Scotia, unless permission to reside elsewhere is obtained from the court; (

d) have no direct or indirect contact or communication with [J.Z.] except through a lawyer (

e) do not associate with or be in the company of [N.Y. – her younger brother] unless in the presence of an adult approved by your parent or guardian; … (

j) do not associate with or be in the company of any persons known to you to have a youth or criminal record except as may be incidental to school attendance or employment; except as may be incidental to participation in organized sporting, recreational, religious activities or counselling/treatment program; except family members and except as may be incidental to being in the Phoenix shelter. The recognizance is void, otherwise it stands in full force and effect. [ 3 ] A.M.Y. appeals to this court requesting me to quash her conviction and enter an acquittal. She argues that the trial judge erred in her

interpretation and application of s. 794(2) Criminal Code , when she relied upon s. 794(2) to effectively reverse the evidentiary burden of proof of an essential element of the offence, and placed the burden on the defendant to disprove the offence charged. [ 4 ] Simply put, she argues that the Crown should have had the onus to prove beyond a reasonable doubt that the adults present in the car with her were not approved by her parent or guardian, rather than her being required to prove on a balance of probabilities that the adults present in the car with her were approved by her parent or guardian. [ 5 ] For the reasons that follow I dismiss the appeal.

Background [ 6 ] On May 22, 2016 at 7:30 p.m., A.M.Y. was found to be one of five passengers in a car stopped in Lower Sackville, Nova Scotia. Also present in the car was her brother, N.Y., and adults, Matthew Rideout and Michael Owen. [ 7 ] The trial judge concluded in part: Both officers recognized A.M.Y. and N.Y. who were in the vehicle… The officers went through the motions of ensuring that there was no one in the car of whom the parents had approved. I accept their evidence on this point, and that Constable Brennan and Constable Edwards spoke to A.Y. (A.M.Y.’s mother).

Constable Edwards contacted another individual as well. Based on those discussions, they were satisfied that there was no permission given to A.M.Y. to be in the company of N.Y.. They were satisfied that there had not been any approval given by a parent or guardian for A.M.Y. and N.Y. to be together in the presence of an adult. [Underlining in original] [After citing s. 794 Criminal Code ] I have had an opportunity to review that

section and the circumstances of this case and I am satisfied that the Crown has made out the charge beyond a reasonable doubt. This is not a complex matter and as far as I am concerned, the Crown can rely on that provision and is not required to prove that a parent had not given permission to allow A.M.Y. to be with her brother N.Y. In addition to relying on that section, I have considered the evidence of the officers who laid the charge once they felt confident, having spoken to A.Y., that there had been no approval given to A.M.Y. to be in the company of N.Y. There was no evidence called by the defence. Having regard to all the circumstances I find her guilty of the offence.

Grounds of appeal [8] A.M.Y. states in her notice of appeal: 1. The trial judge erred in law in her

interpretation and application of s. 794(2) of the Criminal Code to the charge against theappellant, in imposing a burden on the defendant to disprove the charge against her; 2. The trial judge erred in law in her

interpretation and application of s. 794(2) of the Criminal Code in adopting aninterpretation of s. 794(2) that is inconsistent with s. 11 (

d) of the Canadian Charter of Rights and Freedoms with the effect that: a. The judge reversed the evidentiary burden of proof of an essential element of the offence with the effect that the onus ofproof was placed upon the defendant rather than the Crown. Standard of review [9] Both counsel rely upon the extensive reasons of Justice Saunders in R. v. Skinner, 2016 NSCA 54, at paras. 15-27, to suggestthat “correctness” is the proper standard of review of the trial judge’s

interpretation and application of s. 794(2). I agree. Position of the parties

i) A.M.Y. [10] A.M.Y. argued that this was “not a case where ‘lawful excuse’ was raised or argued. Thus, the principles of law under s. 145(3)and the reverse onus regarding ‘lawful excuse’ do not arise on the facts of this case”. However, at the hearing both counsel concededthat whether seen through the lens of s. 145(3) or 794(2), neither

section applies until the Crown has proved the mens rea and actus reus. [11] Furthermore, A.M.Y. says that “in holding that s. 794(2) relieved the Crown from its onus of proof in relation to whether theadults were approved by a parent or guardian, the trial judge effectively reversed the onus of proof for an essential element of the offencefrom the Crown to the defence. This

interpretation is inconsistent with principles of statutory construction, as well as the presumption ofinnocence, a cornerstone of criminal justice, and as such is contrary to Charter values.” [12] She argues that persuasive reasoning from appeal courts concludes that s. 794(2) does not apply to proceedings under s 145(3)which has a “lawful excuse” provision: R. v. Truong, 2011 BCSC 1151 per Smart J. [13] The narrow issue on that

summary conviction appeal, was whether the Crown, having proved that the appellant was initiallybound by the continuing condition in his recognizance of October 21, 2006 that he remain outside the 500 block of E.

Hasting Street inVancouver, could, without more, prove that he was still bound by it on January 1, 2007, or whether the onus is shifted to him to provethat he was not bound by it. [14] Justice Smart concluded that, regarding both s 794(2) and 145(3), neither shifts the onus to an accused to provide a lawfulexcuse, exception or exemption, until the Crown has first proven each element of the offence -para 31; and that s. 794(2) has noapplication to a charge under s. 145(3): “I can think of no ‘exception, exemption, proviso, excuse or qualification’ that would provide adefence to a charge under s. 145(3).

If there is, it would be captured by the words ‘without lawful excuse’. [15] Justice Smart at para. 30, relied on: the Ontario Court of Appeal decision in R. v. Legere, (1994) (ON CA),95 CCC (3d) 555, where the court in relation to “the without lawful excuse portion of s. 145 (3)” adopted the following wording from anearlier Ontario Court of Appeal decision in relation to analogous wording (“without lawful justification or excuse, the proof of which lieson him”), in relation to possession, etc., of counterfeit money – s. 450 Criminal Code: (

a) In my view, the inclusion of the words ‘lawful justification or excuse’ ought to be so construed; that is to say, construed as adding adefence that would not otherwise be available under the

section and not as limiting the meaning of the

section by eliminating what wouldotherwise be an element in the Crown’s case and the defence that it had not been proved. And on the reasoning in R. v. PH, (2000) (ON CA), 143 CCC (3d) 223 (Ont CA) , where Justice Finlayson stated forthe court: (b) Section 794(2) of the Code… applies in narrow circumstances, usually regulatory offences, where a status in law has been conferredupon the accused who otherwise would be culpable… [citing from R. v.

Lee’s Poultry Ltd,(1985) (ON CA), 17CCC(3d) 539 (OCA)]: It is a fundamental rule of criminal law that the accused is presumed to be innocent until his or her guilt is proved beyond a reasonabledoubt and, as such, the onus is on the Crown to prove each element of the offence to the degree required. At common law an exceptiondeveloped to this fundamental rule for a class of offences created by regulatory legislation.

Often such legislation created offences bybanning specified activities but excepted persons who had authority of the regulatory body to do the acts banned… Section 794(2) speaks of exceptions, exemptions, provisos, excuses or qualifications. If it was intended to apply to defences, the word isnot so arcane that he could not have been included in the list… [16] To reiterate, the appellant says that the prohibited act, and an essential element of the s. 145(3) offence, is that “A.M.Y.

violated her condition to ‘not associate with or be in the company of N.Y. unless in the presence of an adult approved by your parent orguardian’.” [17] Not until the Crown has proved this essential element of the offence beyond a reasonable doubt, could s. 794(2) becomerelevant, and a defendant face an evidentiary burden on a balance of probabilities to demonstrate “a lawful excuse” as contained in s.145(3). (ii) Crown [18] The Crown argues that “the prohibited act in this case was associating with or being in the company of NY.

The exception –‘unless in the presence of an adult approved by your parent or guardian’ – does not form part of the prohibited conduct. Rather [suchevidence]… would provide the appellant with the lawful excuse.” [19] Counsel relies on the reasoning in R. v. Zamora, 2013 BCSC 473. [20] Mr. Zamora was bound by a recognizance “not to be in the area bounded by [certain streets in Vancouver] except for thepurpose of going directly to or directly from the courthouse at 222 Main Street, [21] Vancouver, B.C., and/or the bail supervisor’s office at 275 E. Cordova Street, Vancouver. Mr.

Zamora was found within theprohibited area. He argued there was no evidence that he was not going directly to or from the courthouse or the bail supervisor’s office,and the trial judge acquitted him, because she considered the exceptions to be an essential element of the Crown’s case. [22] Justice Kelleher set aside the acquittal and ordered a new trial. He concluded at para. 25: I am satisfied that the information in this case sets out the full text of the bail condition that was allegedly breached, including itsexceptions. That does not require the Crown to disprove the exceptions.

My conclusion that the exceptions to the conditions of therecognizance in the information constitutes surplusage is consistent with the case law and is grounded in good policy. The Crown, whenit prepares an information, should not be discouraged from providing the accused with important information about the terms of arecognizance. [23] More significantly, he agreed with Judge Dhillon's reasoning in R. v.

Dempster, 2012 BCPC 275, and specifically the followingstatements in that case: 74 I conclude that if the conditions of a recognizance include an excuse or exception without which the alleged act or omission would beunlawful, there is no need for the prosecution to prove a prima facie case of lack of excuse.

If all other essential elements of the chargehave been proved, the accused has the burden of showing on a balance of probabilities that the excuse or exception applies as a bar to anotherwise successful prosecution. [24] In Dempster, the defendant was subject to a recognizance with conditions: You shall obey a curfew… each day, except as follows (

a) with the written consent of the bail supervisor. Such consent to be given onlyfor compelling personal, family or employment reasons, or (

b) when travelling directly to or returning directly from your place ofemployment or while in the court [sic] of your employment. You shall provide the bail supervisor with written details of employment ifrequested to do so, or (

c) when travelling directly to or returning directly from an educational institution in which you are enrolled, orwhile in the course of classes or extracurricular (sic) activities approved in advance by the bail supervisor"; and You shall not possess any cell phone, pager or portable telecommunication device except for purposes directly and immediately relatedto your employment. [25] Mr. Dempster was found guilty on both counts. [26] Lastly, the Crown relies on the reasoning in R. v. Ali, 2015 BCCA 333. Mr. Ali was released on a recognizance, whichcontained 11 exceptions to a house arrest condition.

He was permitted outside his home for the purpose of travelling directly to and fromthese activities: Reporting to a bail supervisor or immigration Canada; consulting with his lawyer; going to court appearances and immigration hearings;attending medical or dental appointments made in advance for himself or his children; shopping for groceries and other personalnecessities, either for himself or his children, one time per week for no more than two hours; all of these activities had to be performedbetween 7:00 a.m. and 6:00 p.m.; attending his children's school or recreational activities [between 7:00 a.m. and 11:00 p.m.]; attendingmotor vehicle auctions to purchase motor vehicles one time per week; transporting vehicles which he had purchased from auction to hisrented warehouse; going to auto wreckers and automotive parts outlets to buy parts needed for the repair of vehicles, one time per month. [27] He was convicted of 19 of 21 counts of failing to comply with his recognizance of bail.

He appealed 18 convictions relating toviolations of his house arrest condition. [28] The trial judge held that Mr. Ali was not required to establish on a balance of probabilities that his actions fell within anexception to the house- arrest condition. The Crown was required to prove the inapplicability of the 11 exceptions to the house arrestcondition beyond a reasonable doubt. He was nevertheless convicted. [29] On appeal, Madam Justice Stromberg-Stein stated for the court, at paras. 28-30: In my view, the judge's conclusion is inconsistent with R. v.

Holmes, (SCC), [1988] 1 S.C.R. 914 at 924 – 25, where, inthe context of an analysis of the constitutionality of the offence of possession of break- in instruments, the majority held that “the

opening words of s 309(1) , namely, 'without lawful excuse, the proof of which relies upon him', placed a persuasive burden on theaccused to establish on a balance of probabilities an excuse in circumstances where he or she seeks to justify his or her actions despite anintention to use an instrument for housebreaking purposes." I agree with the Crown that where there are numerous exceptions to acondition, it would be impractical to require that the Crown negate each in establishing that a breach occurred, especially since evidencesupporting the application of an exception would be in the exclusive purview of the accused.… Goleski [2015 SCC 6] establishes that s.794(2) reflects common law principles that the burden falls on the accused to prove an exception or excuse on a balance of probabilities:para. 75.

In my view, the same common law principles establish that a person charged with an offence under s. 145(3) of the CriminalCode, must prove an exception or an excuse on a balance of probabilities. Why the trial judge did not commit a reversible error in law by her

interpretation and application of s. 794(2) Criminal Code [30] This involves consideration of several subsidiary questions. i. Is s. 794(2) applicable to a charge of breach of recognizance pursuant to s.145(3)? Generally, it is because: substantively it may provide further bases for avoiding criminal conviction, to the extent that itswording is more expansive than a merely “lawful excuse”; and procedurally because it places the evidentiary/persuasive burden toestablish such other bases for avoiding criminal conviction under s 794(2) on the accused; ii.

If so, what interpretive effect does s. 794(2) have in relation to the wording in s.145(3) “without lawful excuse, the proof of which lies on them”? In the case at bar, s. 794(2) reinforces that the evidentiary/persuasiveburden in s. 145(3) on a balance of probabilities is on the accused, however the jurisprudence also establishes that an accused bears theburden of proof to prove “lawful excuse”, therefore reliance on s. 794(2), was unnecessary. iii.

What are the essential elements of the offence as alleged in the information inthis case (i.e. must the Crown prove beyond a reasonable doubt that the adults in the car with A.M.Y. were not “approved by your parentor guardian”)?

The accused must demonstrate on evidence to a balance of probabilities standard, that the adults in the car with A.M.Y.were approved by her parent or guardian. (i) Section 794(2) can be applicable to a charge of breach of recognizance pursuant to s. 145(3) [31] Courts of appeal in the past have found in obiter dicta comments, and otherwise, that: s. 794(2) “applies in narrowcircumstances, usually regulatory offences, where a status in law has been conferred upon the accused who would otherwise be culpable”- R. v.

PH, (2000) (ON CA), 143 CCC (3d) 223 (OCA), at para. 14, where the court found that s. 794 (2) “simply hasno application to the defence set out in s. 335(1.1) Criminal Code”; see also R. v. Truong, 2008 BCSC 1151, at para. 24, and para. 32where we find: “it appears to me that this

section has no application to a charge under s. 145(3)” –per Smart J. sitting as a SCAC; R. v.DMH, (1991) (NS CA), 109 NSR (2d) 322 (CA), where Hart J.A. stated for the court in relation to a charge that ayouth did not have a burning permit contrary to s. 23(3) Forests Act: “in our opinion, s. 794(2) clearly relieves the Crown of the burdenof negativing the exception herein, and is merely an extension of the common-law principle developed over the years in relation toregulatory offences prohibiting acts by persons other than those authorized by law… The failure to have a burning permit is not anelement of the offence charged against the respondent, but an exception or exemption, which, if proven by the respondent, could justifyhis acquittal.”; R. v.

TG, (1998), (NS CA), 165 NSR (2d) 265 (CA), where Chipman J.A. stated in relation to a charge ofunlawful possession of liquor under s. 78(2) Liquor Control Act at paras. 15-19: The offence charge is unlawful possession under s. 78(2). All possession is thereby made unlawful, except as authorized by the Act orthe regulations. Necessary to securing a conviction here, however, is reliance on the combined operation of s. 7 of the

SummaryProceedings Act… and s. 794(2) of the Criminal Code… The effect of these provisions is that it was not necessary for the Crown toallege or prove that the appellant’s possession was not otherwise authorized by the Act. [32] For present purposes, this authority, and any uncertainty regarding the issue, was swept away when the Supreme Court ofCanada released its decision in R. v. Goleski, 2015 SCC 6. It concluded that s. 794(2) was correctly applied to a refusal/failure to providea breath sample contrary to s. 254(5) and the “without reasonable excuse” exception contained therein.

However, I see a materialdistinguishing feature in the case of a s. 145(3) offence, which expressly sets out the burden to establish the exception: “without lawfulexcuse, the proof of which lies on them”. [33] In its short, oral, unanimous decision, the Supreme Court of Canada stated: In our view, the British Columbia Court of Appeal correctly concluded that s. 794(2) of the Criminal Code, properly interpreted, imposesa persuasive burden on the accused to prove an ‘exception, exemption, proviso, excuse or qualification prescribed by law’.

We do notthink it appropriate to deal with the new issues raised by the intervenors. [1] [34] Mr. Goleski was charged with failing or refusing to comply with a breathalyzer demand contrary to s. 254(5). As JusticeFrankel stated for the Court of Appeal, at para. 1: This appeal concerns where the onus lies when an accused asserts that he or she had a reasonable excuse for failing or refusing to complywith a breathalyzer demand.

Must the Crown prove the accused did not have a reasonable excuse beyond a reasonable doubt, or must theaccused prove on a balance of probabilities the facts asserted as giving rise to a reasonable excuse? The answer to that question rests on

the

interpretation of s. 794(2) of the Criminal Code. [35] The court’s

summary suggests – by virtue of s. 794(2) of the Criminal Code, an accused who asserts a “reasonable excuse” forfailing or refusing to comply with a breathalyzer demand bears the burden of proving the factual foundation for that excuse on a balanceof probabilities. [36] Justice Frankel also noted at para. 28: The single question raised on this appeal concerns the allocation of the persuasive burden when an accused claims to have had a“reasonable excuse” for failing or refusing to provide a breath sample. Both the Crown and Mr.

Goleski agree that s 794(2) of theCriminal Code applies to a charge under s. 254(5) i.e., that the “reasonable excuse” in s. 254(5) is an “excuse” under s. 794(2). Theyfurther agree that the disposition of this appeal turns on the

interpretation of s. 794(2). [37] Justice Frankel concludes at paras. 78 and 80: 78 In coming to the conclusion in Lewko that the words "except by way of rebuttal" did effect a change in the law, Bayda C.J.S. placedthe "reasonable excuse" provided for in s. 254(3) of the Criminal Code in the same category as such common-law defences as necessity,duress, and self-defence: para. 18. As a result, he concluded that s. 794(2) does no more than require an accused to meet the "air ofreality" test applicable to those defences. With respect, I cannot agree with this reasoning.

As Dickson J. stated in Perka at 258-59, thestatutory exceptions referred to in what was then s. 7(2) of the Narcotic Control Act (para. 43 above), are distinct from the common lawdefences. I note that Perka is not referred to in Lewko. 79 Section 794(2) applies not just to a "reasonable excuse" in the breathalyzer context, but to a broad range of statutory exceptions. Byvirtue of s. 34(2) of the

Interpretation Act, R.S.C. 1985, c. I-21, s. 794(2) applies to

summary conviction offences under other federalenactments "except to the extent that the enactment otherwise provides". For example, it applies to offences under the Excise Act, R.S.C.1985, c. E-14. Based on the

interpretation of s. 794(2) in Lewko, a person charged under that Act by way of

summary conviction withmanufacturing tobacco without a licence (s. 226(a)) would not have to prove the existence of a licence, but only tender some evidence inthat regard. Similarly, interpreting s. 48(2) of the Controlled Drugs and Substances Act (para. 47 above) in accordance with Lewkowould mean that a person charged with importing a prohibited drug "except as authorized under the regulations" (s. 6(1)), would onlyhave to tender some evidence that he or she was authorized to bring that drug into Canada.

In my view, it would require much clearerlanguage in a provision such as s. 794(2) to ascribe to Parliament an intention to require the prosecution to carry the burden of provingthat an accused did not have authority to engage in activities that are generally prohibited. 80 With respect to the flaw in the reasoning in Lewko, the following from Sheehan is apposite: [13] ... The equating of a reasonable excuse within section 254(5) of the Criminal Code with other defences known to law (see paragraph18 of Lewko) is in my view incorrect.

Subsection 254(5) of the Criminal Code does not provide the accused with a "defence." What itdoes, is to provide the accused with the opportunity to escape liability by raising a reasonable excuse. It has been held for instance, to be"different" and "wider" than the defence of honest mistake (see R. v. Mosher (1992), (ON CA), 71 C.C.C. (3d) 165(Ont. C.A.), at page 172). In my view, the error in Lewko involves a failure to appreciate the distinctive nature of the manner in whichParliament has drafted subsection 254(5).

It provides the accused with an opportunity to escape liability in a manner particularized to thatsubsection. A subsection which it should be recalled, requires the accused to provide potentially incriminating evidence. Subsection254(5) does not limit the application of defences which would otherwise be available to that offence or those "general defences" whichare available to all offences. What it does, is that it allows the accused to raise as a reasonable excuse for refusing or failing to complywith a demand, issues that would never constitute a defence to any other charge.

Interestingly, when an accused person raises the issue(or defence if you prefer) of reasonable excuse, he or she is conceding that the Crown has proven beyond a reasonable doubt theexistence of the requisite mens rea and actus reus for the offence.

Since the excuse must be objectively reasonable, since it only appliesif the Crown has proven beyond a reasonable doubt that the accused has committed both the actus reus and mens rea of the offence andsince it does not limit resort to other defences, then the onus of establishing the proffered excuse should rest with the accused. [38] However, while I agree with the spirit of Justice Frankel’s comments at para. 28, it must be remembered that s. 794(2) onlyapplies to

summary conviction offences as in Goleski; it does not apply to an indictably-elected s. 145(3) charge, but nevertheless, evenwithout resort to s. 794(2), in such cases, in my view, the burden to establish the exception must still be on the accused, by virtue of theexception based on, the wording in s. 145(3) itself, and relevant persuasive jurisprudence. [39] Thus, there remains no question that s. 794(2) can be applicable, to (summary conviction) Criminal Code offences, andspecifically s. 145(3), i.e.: substantively (as providing bases to avoid conviction), and procedurally(to place the evidentiary/persuasiveburden on the accused to establish any bases to avoid conviction outside of “lawful excuse”) - see also R. v.

Ali, 2015 BCCA 333, supra. (ii) How should s. 794(2) should be applied in the context of cases involving s. 145(3) Criminal Code?

Substantively, it may providebases beyond “lawful excuse” to avoid conviction, but procedurally it merely reinforces the wording “the proof of which lies uponthem” in s. 145(3). [40] As noted above, once the Crown has proved beyond a reasonable doubt the existence of the required mens rea and actus reusfor the offence, the manner in which Parliament has drafted s. 145(3) provides an accused with an opportunity to escape liability in amanner particularized to that subsection - i.e. upon proving the factual foundation for what an accused asserts is a “lawful excuse”. [41] While the court in Goleski, was clearly alive to the reality that s. 794(2) was more expansive wording than the wording in s.254(5) “without reasonable excuse”, it did not consider that redundancy to be problematic.[2] [42] An obvious distinction exists between the wording of the s. 254(5) charge in Goleski, [“without reasonable excuse”] and 145(3)charge in this case [”without lawful excuse, the proof of which lies on them”].

Section 794(2) operates to provide an accused in cases ofs. 254(5) offences, with bases to avoid conviction even after the mens rea and actus reus have been proved beyond reasonable doubt, butmore importantly emphasizes that the burden to establish those bases of avoidance lies with the accused on a balance of probabilities,

whether for “lawful excuse” or other bases to avoid conviction contained in s. 794(2). [43] Thus, the application of s. 794(2), insofar as the evidentiary/persuasive burden is concerned, may be said to be redundant inrelation to s. 145(3) charges in cases such as the one at bar. (iii) The evidentiary/persuasive burden that the adults in the car with A.M.Y. were “approved by your parent or guardian” is on A.M.Y.,and that matter is not an essential element of the s. 145(3) offence, generally, or as specifically drafted in this case [44] While strictly speaking, A.M.Y. is correct that “lawful excuse” was not expressly raised or argued at trial, its operation wasnecessarily at play in this case because, whether characterized as a “s. 794(2)” issue, or as a “lawful excuse” issue, both approaches inessence involve the same consideration of whether there was a basis to avoid conviction upon the Crown having established the actusreus and mens rea of the offence, and therefore there is no material prejudice to A.M.Y. occasioned thereby. [45] While the trial judge may have been in error in not examining the “lawful excuse” basis to avoid conviction specifically, havingdone so under the rubric of s. 794(2), she effectively did not make a reversible error in law - by combined operation of ss. 813 and 686(1)(b)(iii) Criminal Code, and R. v.

Sarrazin, 2011 SCC 54 , [2011] 3 SCR 505. [46] Both counsel agree that the essential elements of the offence in s. 145(3) Criminal Code were properly summarized in R. v.Custance, 2005 MBCA 23 at para. 10: 1. The Crown must prove that the accused was bound by an undertaking or recognizance; 2. The accused committed

an act which was prohibited by that undertaking or recognizance, or that the accused failed toperform

an act required to be performed by that undertaking or recognizance; and 3.

The accused had the appropriate mens rea, which is to say that the accused knowingly and voluntarily performed or failed toperform the act or omission which constitutes the actus reus of the offence. [47] I note that the Court of Appeal in Custance, which is relied upon by the appellant A.M.Y., stated at para. 24: Once the Crown proves the elements of the offence beyond a reasonable doubt, the onus shifts to the accused to provide a lawful excuseon a balance of probabilities. [48] The charge against A.M.Y. reads: … Being bound to comply with the condition of that recognizance, to wit, do not associate with or be in the company of [N.Y.] unless inthe presence of an adult approved by your parent or guardian, without lawful excuse fail to comply with that condition, contrary to s.145(3) of the Criminal Code. [49] What is the prohibited act alleged in the charge? [50] A.M.Y. insists that the prohibited act alleged is that the Crown must prove she “violated her condition to ‘not associate with herbe in the company of [N.Y.] unless in the presence of an adult approved by your parent or guardian’.” [51] She would argue that the Crown has drafted the allegation to include as an essential element, the “exception”, and as a matter offair notice of the charge to be answered, A.M.Y. was relying on this belief at trial, and it would be unlawful and unfair to allow aconviction to stand in those circumstances - see s. 581 Criminal Code. [52] Firstly, in relation to a fair notice.

A.M.Y. did not argue at trial that she did not have fair notice and was in any way prejudicedas she claims before this court. As I noted earlier, whether characterized under s. 794(2) or s. 145(3) “lawful excuse”, there is noreasonable basis upon which to believe that the exercise of justice herein would not garner the same outcome using either approach. [53] Moreover, I do not consider the Crown having drafted the information in a manner so as to include verbatim the entire clause ofthe recognizance, as thereby transforming the “exception” into an essential element of the offence. [54] Clause (

e) of the recognizance reads: Do not associate with her be in the company of [N.Y.] unless in the presence of an adult approved by your parent or guardian; [55] As Justice Kelleher concluded in R. v. Zamora, 2013 BCSC 473, at para. 25: I am satisfied that the information in this case sets out the full text of the bail condition that was allegedly breached, including itsexceptions. That does not require the Crown to disprove the exceptions. My conclusion that the exceptions to the conditions of therecognizance in the information constitutes surplusage is consistent with the case law and is grounded in good policy.

The Crown, whenit prepares an information, should not be discouraged from providing the accused with important information about the terms of arecognizance. [3] [56] In Custance, the court identified the prohibited behavior as being either the commission of

an act, which was prohibited; orfailure to perform

an act required to be performed. According to A.M.Y.’s argument, the Crown would have to prove as essentialelements of the offence beyond a reasonable doubt that A.M.Y: i. Was in the company of N.Y. (the act); and ii. Had failed to obtain approval of her parent/guardian to have “approved” adults present (an omission). [4]

[ 57 ] This breakdown reinforces that the clause in issue contains two separate aspects: A.M.Y. shall not be in N.Y.’s company; unless an “approved” adult(

s) is also present. [ 58 ] In my opinion, the drafting of the “condition” clearly creates a prohibition; and leaves one specific basis for an exception to that prohibition. Only the prohibition is an element of the offence charged pursuant to s. 145(3) . Conclusion [ 59 ] The trial judge committed no reversible error of law. A.M.Y. received a fair trial. The appeal is dismissed without costs. Rosinski, J. [3] See to similar effect in R. v. Dempster , 2012 BCPC 275 , Judge Dhillon’s statement at para. 25.