R. v. Tariq Shaikh, 2013 ONCJ 33

Citation: R. v. Tariq Shaikh , 2013 ONCJ 33 IN THE MATTER OF the Trespass to Property Act, R.S.O. 1990, c. T.21 Between Her Majesty The Queen prosecutor and Muhammad Tariq Shaikh defendant Ontario Court of Justice Mississauga, Ontario Quon J.P. Reasons for Judgment Charge: “enter premises when entry prohibited”, contrary to s. 2(1) (a)(

i) of the Trespass to Property Act . Trial held: September 26, 2012 Judgment rendered: January 30, 2013 Counsel:

D. Morton, Provincial Prosecutor R. Litkowski, counsel for the defendant Cases Considered or Referred To: Proulx v. Krukowski, [1993] O.J. No. 3084 (QL); (ON CA), 109 D.L.R. (4th) 606 (O.C.A.), per Dubin C.J.O., Blairand McKinlay JJ.A. R. v. Asante-Mensah, [1996] O.J. No. 1821(QL); 3 O.T.C. 240; 31 W.C.B. (2d) 84 (Ont. Ct. (Gen. Div.)), per Hill J. R. v. Asante-Mensah, (ON CA), [2001] O.J. No. 3819 (QL) (O.C.A.), per Goudge, MacPherson and Sharpe JJ.A. R. v. Clouston, [1986] O.J. No. 1869 (QL) (Ont. Dist. Ct.), per Bolan J. R. v. Daniels, (BC CA), [1990] B.C.J. No. 2379 (QL) (B.C.C.A.). R. v. Fingold, [1996] O.J.

No. 3464 (QL); 13 C.C.L.S. 343 (Ont. Ct. (Prov. Div.)), per Babe J. R. v. Lee's Poultry Ltd. (1985), (ON CA), 17 C.C.C. (3d) 539 (O.C.A.), per Brooke, Dubin and Martin JJ.A. R. v. Mardave Construction

(1990) Ltd., [1995] O.J. No. 4944 (QL); 26 W.C.B. (2d) 403 (Ont. Ct. (Prov. Div.)), per Katarynych J. R. v. Mardave Construction

(1990) Ltd., [1997] O.J. No. 6520 (QL) (Ont. Ct. (Prov. Div.)), per Westman J. R. v. Schwartz (1989), (SCC), 45 C.C.C. (3d) 97 (S.C.C.). R. v. Stone, [1984] O.J. No. 912 (QL) (Ont. Co. Ct.), per Murdoch J. R. v. Trabulsey, (ON CA), [1995] O.J. No. 542 (QL) (O.C.A.), per Houlden, Labrosse and Doherty JJ.A. R. v. Zachariou, [1999] O.J. No. 2488 (QL) (O.C.J.), per MacDonnell J. Statutes, Regulations, Statutory Instruments, and Rules Cited:

Canadian Charter of Rights and Freedoms,

Part 2 of the Constitution Act, 1982,

Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11, R.S.C. 1985, App. II, s. 11(d). Provincial Offences Act , R.S.O. 1990, c. P.33, s. 47(3). Trespass to Property Act , R.S.O. 1990, c. T.21, ss. 1(1), 2(1) (a)(i), 3(1) , 5(1) . Government Airport Concession Operations Regulations, SOR/79-373 ( Department of Transport Act , R.S.C., 1985, c. T-18), ss. 2(1) , 4 , 7 , 8 , 8(1) (b), 8(2) , 10 (a), 11(1) , and Schedule. Order Designating the Greater Toronto Airports Authority as a Designated Airport Authority and Designating the Date for the Transfer of the Toronto-Lester B.

Pearson International Airport to the Greater Toronto Airport Authority (AIRPORT TRANSFER (MISCELLANEOUS MATTERS) ACT, S.C. 1992, c. 5), SI/96-49 . Exhibits Entered: Exhibit #1 - Photocopy of the Non-Entry Notice given to Tariq Shaikh by Richard Garwood, a Public Safety and Security Officer for the Greater Toronto Airports Authority, pursuant to s. 3(1) of the Trespass to Property Act , which is numbered 000035 and dated September 19, 2009. 1 . INTRODUCTION [ 1 ] Many people earn a living by driving a taxicab. Undoubtedly, a taxicab driver’s livelihood is predicated on obtaining fare- paying passengers.

In most cities, a primary source for finding these passengers would be at the airport, which also happens to be the case at the Toronto - Lester B. Pearson International Airport (“Pearson Airport”). However, not every taxicab driver who enters Pearson Airport is allowed to pick up fare-paying passengers there. It is only those who have been issued a license or permit by the Greater Toronto Airport Authority (“G.T.A.A.”) that are allowed to legally pick up passengers there.

Ergo, those who do not have such a license but surreptitiously pick up fares at Pearson Airport would not only be acting wrongfully, but unfairly as well, since they would be taking revenue away from those that do have such a license. [ 2 ] Furthermore, those taxicab drivers that have paid the fees for this license, which legally authorizes them to pick up passengers at Pearson Airport, sometimes have to wait in a long queue for hours just to be able to pick up passengers to earn that fare.

On the other hand, when someone who is not licensed to pick up fares there does improperly pick up a fare-paying passenger at the airport, they usually have not been waiting in a long queue and may have just themselves dropped off a passenger at the departures area of the airport. This improper fare-taking could also lead to confrontations or violence between those that are licensed to pick up fares at the airport and those that are not.

Moreover, the safety of passengers may be put at risk as unauthorized taxicab drivers may not be using vehicles of the standard required by the G.T.A.A. for transporting passengers or they may attempt to charge passengers more than the predetermined rates or fares. [ 3 ] Unfortunately, this practice of “scooping fares” by those unlicensed to pick up passengers at Pearson Airport is an enormous problem and has been going on there for many years.

In an effort to combat this problem, the G.T.A.A., which took over responsibility for the management, operation, and maintenance of Pearson Airport from Transport Canada in 1996, have been issuing written non-entry notices under s. 3(1) of the Trespass to Property Act , R.S.O. 1990, c. T.21 (“ T.P.A. ”), to those unauthorized or unpermitted taxicab drivers that have been illegally soliciting fares at the airport.

These non-entry notices inform them that they are banned or prohibited from entering onto the lands and buildings of Pearson Airport unless they are there only as travellers or there for employment purposes.

In other words, these unauthorized taxicab drivers have not been given an absolute ban on entering Pearson Airport, but are allowed two exceptions to their prohibition against entering Pearson Airport when they are there for flying in or out of the airport as a traveller, or under the employment exception, in which fare-paying passengers can be dropped off at the airport by taxicab drivers who do not possess a G.T.A.A. license, but they cannot legally pick up fare-paying passengers at the airport. [ 4 ] Moreover, when the banned taxicab driver, who does not have a G.T.A.A. license, is then found on the lands or buildings of Pearson Airport after being served with a non-entry notice and they are not there as a traveller or dropping off a passenger as part of their employment, then they could be charged with an offence for being a trespasser at the airport under s. 2(1) (a)(

i) of the T.P.A.

[5] Now, turning to the case at bar, the prosecution contends that the defendant, Mohammad Tariq Shaikh, who is apparently wellknown to G.T.A.A. security officers and the police officers stationed at Pearson Airport, and who is supposedly one of those taxicabdrivers that is not licensed by the G.T.A.A. to pick up fares at Pearson Airport, had been banned by the G.T.A.A. from entering PearsonAirport on September 19, 2009, when he had been served on that day with a written notice under s. 3(1) of the T.P.A. not to enter ontothe lands or buildings of the airport.

Then, less than two weeks after being banned, he was found at Pearson Airport on September 30,2009, allegedly trying to solicit a fare inside the arrivals

section for international flights at Terminal 1. Because of being at the airport on September 30th, the defendant was charged for trespassing by a police officer, who did not believe the defendant had been legitimately atthe airport or had been within the exemptions to the non-entry ban. Specifically, the defendant was charged with committing the offenceof “enter premises when entry prohibited”, contrary to s. 2(1)(a)(

i) of the T.P.A. [6] After many adjournments and delays in this proceeding, the trial of the defendant’s trespass charge was finally held andcompleted on September 26, 2012. In his defence to the trespass charge, the defendant argues that the prosecution had failed to prove hehad been trespassing at the airport, since it had failed to negative the exceptions to his airport ban, which had allowed him to be at theairport as a traveller or to be there for employment purposes.

In other words, the defendant contends the prosecution has failed to prove arequired element of the offence, namely, proving the defendant had not been acting under a right or authority conferred by law while atthe airport, which required the prosecution to prove beyond a reasonable doubt that the defendant had not been a traveller or there foremployment on September 30, 2009.

To support the argument that the burden is on the prosecution to negative the defendant’sexemptions to the non-entry ban instead of requiring the defendant to prove that he fell within those exemptions, the defendant relies onBolan J.’s ruling in R. v. Clouston, [1986] O.J. No. 1869 (QL) (Ont. Dist.

Ct.), in which that court had held that the prosecution had beenrequired to prove, as an element of the trespass offence, that the defendant had not been acting under a right or authority conferred by lawwhile on the prohibited premises, which the defendant contends requires proving that a specific act had not occurred. [7] Furthermore, in addition to his first contention that the prosecution had failed to prove beyond a reasonable doubt that the defendant had not been at Pearson Airport on September 30th for either of the exemptions given to the defendant, the defendant alsocontends that the prosecution had failed to prove beyond a reasonable doubt that the written notice of non-entry initially given to him onSeptember 19, 2009, had been issued for a valid reason. [8] In their response to the defendant's arguments for an acquittal, the prosecution contends that the defendant did not come withinthe exemptions which permitted the defendant to enter Pearson Airport, as the defendant had not been at Pearson Airport on September30, 2009, as a traveller, since the defendant did not have any travel documents, nor could he have been employed at the time in question,since he had been found in the “arrivals” level instead of the “departures” level of the airport.

In short, the prosecution suggests that ifthe defendant had been a traveller then he could have easily provided the officer with travel documents or if he had been dropping offpassengers at the airport as part of his employment then he should have been logically on the “departures” level and not on the “arrivals”level of the airport.

Moreover, the prosecution also submits that the defendant did not inform the police officer, who had issued him the summons for the trespass charge on September 30th, of an excuse or a reason as to why he was there, considering that the defendantwould have been well aware that he had been prohibited from entering Pearson Airport, save for the two exemptions. In addition, theprosecution contends that Bolan J.’s ruling in R. v. Clouston had been implicitly overturned by the Court of Appeal for Ontario in R. v.Trabulsey, (ON CA), [1995] O.J.

No. 542 (QL), which had been a case that was factually about a taxicab driver whodid not have a G.T.A.A. license and who had been banned from being at the airport under the T.P.A. [9] Ergo, the principal issue that needs to be resolved in the present case is whether the prosecution has the burden to prove beyond areasonable doubt that the defendant had not been at the airport as a traveller or there for employment purposes, or whether the onus fallson the defendant to prove on a balance of probabilities that he fell within one of the exemptions to the G.T.A.A.’s non-entry ban. [10] After submissions were concluded, I reserved judgment and adjourned the matter to January 30, 2013, to render my decision.

These, therefore, are my written reasons for judgment: 2. THE CHARGE [11] Under a

Part III information sworn on November 3, 2009, the defendant had been charged with committing the offence of “enterpremises when entry prohibited”, contrary to s. 2(1)(a)(

i) of the Trespass to Property Act, R.S.O. 1990, c. T.21: Mohammad Tariq Shaikh, on or about the 30th day of September, 2009 at the City of Mississauga in the Central West Region did committhe offence of, without the express permission of the occupier, did unlawfully enter the premises of Pearson International Airport, afterreceiving written notice not to enter the said premises, contrary to the Trespass to Property Act, section 2(1)(a)(i).

3 . BACKGROUND [ 12 ] Pearson Airport is located in the City of Mississauga and is managed and operated by the Greater Toronto Airport Authority (“G.T.A.A.”). The G.T.A.A. is, therefore, the occupier of Pearson Airport for the purposes of the T.P.A. ( see R. v. Asante-Mensah , [1996] O.J. No. 1821 (QL) (Ont. Ct. (Gen. Div.)), per Hill J.). Furthermore, the G.T.A.A.’s authority to regulate taxicabs picking up passengers for hire at Pearson Airport is provided for in the Government Airport Concession Operations Regulations , SOR/79-373 (“G.A.C.O.

Regulations”), which are regulations enacted under the federal Department of Transport Act , R.S.C., 1985, c. T-18. [ 13 ] Furthermore, taxicab drivers are legally permitted to drop off passengers at Pearson Airport, but cannot pick up passengers for hire there unless they have been licensed by or have obtained a permit from the G.T.A.A. to do so. As such, only G.T.A.A. licensed taxicab drivers are legally authorized to pick up fare-paying passengers at Pearson Airport. (

a) SUMMARY OF EVENTS [ 14 ] Mohammed Tariq Shaikh, t he defendant, is a taxicab driver.

However, there is no evidence that has been adduced in the trial that the defendant had the required permit or license from the G.T.T.A. that allows him to pick up passengers for hire at Pearson Airport on either September 19 or September 30 of 2009. [ 15 ] In addition, the defendant is apparently well known to the Public Safety and Security Officers of the G.T.T.A. and to the officers of the Peel Regional Police, who are stationed at Pearson Airport. [ 16 ] On September 19, 2009, Richard Garwood, a Public Safety and Security Officer with the G.T.T.A., who had been responding to a call about an unattended vehicle in the departures area, testified that when he had arrived at the departures level he had observed an unattended Lincoln vehicle and the defendant accompanied by Officer Kittle walking towards him in the area referred to as Post 6 in the departures area of Terminal 1.

Garwood then served the defendant personally with a written non-entry notice issued in accordance with s. 3(1) of the T.P.A. (Exhibit 1). This written non-entry notice informed the defendant that he was prohibited from entering upon the lands and structures that comprise the Pearson Airport and that he had to immediately leave Pearson Airport by the most expeditious route and not return.

Furthermore, the notice also informed the defendant that if he did not comply with the notice and did enter onto Pearson Airport after being given that notice, his failure to comply with the dictate in the notice would be an offence under s. 2(1) of the T.P.A. , and that upon conviction, he would be liable to a fine of not more than $2000.00. [ 17 ] However, the written notice also informed the defendant that, despite the decree contained in the notice that he was not to enter Pearson Airport, he could still enter the airport, but only if he was himself there as a traveller or there for employment, which involved only the dropping off of passengers at the airport as part of his employment as a taxicab driver. [ 18 ] Furthermore, 11 days after the written trespass notice had been served on him on September 19, 2009, the defendant entered onto Pearson Airport on September 30, 2009, and had been observed by a police officer from the Peel Regional Police, who personally knew the defendant from previous dealings, walking inside Terminal 1 of Pearson Airport in the arrivals area for international flights.

The police officer also observed the defendant approach someone who appeared to be a traveller and said the defendant had a conversation with that person that only lasted for a couple of seconds. However, the police officer did not believe the defendant had been at Pearson Airport as a traveller or there for employment, and as such, charged the defendant for contravening s. 2(1) (a)(

i) of the T.P.A. for the offence of “enter premises when entry prohibited”, and had served the defendant with a summons to appear in court to answer to that regulatory charge. [ 19 ] The summons required the defendant to appear in court on November 24, 2009.

The matter then went through many adjournments and court appearances, namely: February 11, 2010; April 29, 2010; July 20, 2010; December 1, 2010; February 24, 2011; October 13, 2011; November 22, 2011; January 10, 2012; March 6, 2012; April 3, 2012, July 6, 2012; July 20, 2012, July 26, 2012, July 27, 2012, and September 26, 2012. [ 20 ] After all those appearances and adjournments, the trial of this charge eventually commenced on September 26, 2012. At the trial, two witnesses testified. They were both for the prosecution:

(1) Richard Garwood , a Public Safety and Security Officer employed by the G.T.A.A., who had been the person that served the written non-entry notice on the defendant on September 19, 2009, and

(2) P.C. Keith Graham , a police officer employed by the Peel Regional Police, who had been stationed at Pearson Airport and who had charged

the defendant on September 30, 2009, with the trespassing offence. (

b) SUMMARY OF TESTIMONY [ 21 ] The following is a

summary of the two witnesses’ testimony:

(1) RICHARD GARWOOD, a Public Safety and Security Officer employed by the G.T.A.A. [ 22 ] Security Officer Richard Garwood testified that he is employed as a Safety and Security Officer with the G.T.A.A. and has been with them since March 2003. [ 23 ] In addition, Security Officer Garwood said that he was on duty on September 19, 2009, and that he had been called on that day about an unattended vehicle that had been located on the departures level at Post 6 of Terminal 1. [ 24 ] When Garwood arrived at the Post 6 location in the departures level, he said he had observed an unattended vehicle and described it as a Lincoln motor vehicle.

Garwood then said he observed Officer Kittle approach him with Mohammed Tariq Shaikh, who Garwood described as being well known to him for soliciting rides at the airport without a license. [ 25 ] Garwood said he then issued a new trespass notice numbered 00035 (Exhibit 1) to Mohammed Tariq Shaikh, the defendant, but Garwood said the defendant had refused to sign the notice. Garwood then said he handed a copy of the non-entry notice to the defendant.

Moreover, Garwood said his authority to hand out the non-entry notice to the defendant came from s. 3(1) of the Trespass to Property Act . [ 26 ] In addition, Garwood opined that the defendant had been at the airport that day to solicit fares without being properly licensed to do so. [ 27 ] Furthermore, Garwood said that the written notice given to the defendant contained information informing the defendant that he could after one year of the notice being issued, or one year after his last conviction under the T.P.A. and after all his fines under the T.P.A. were paid, apply to the President and C.E.O of the G.T.A.A. to have the non-entry notice issued on September 19, 2009, removed.

In addition, Garwood said the non-entry notice also informed the defendant that there were two exceptions to the defendant’s ban on entering onto the land and buildings of Pearson Airport. In explaining what these two exceptions to the non-entry ban in the notice entailed, Garwood said the defendant could still enter Pearson Airport, but only if the defendant was there for employment or using the airport as a traveller. [ 28 ] However, Garwood said that there had been no indication that the defendant had been travelling on that day.

Furthermore, Garwood described how the defendant could be exempted for employment purposes by having a pre-arranged passenger to pick up, in which the defendant would have to purchase a permit for pre-arranged passengers and that the defendant would have to wait in the pre- arranged passenger compound where he would then be dispatched from to pick up the pre-arranged passenger. Garwood also said that the defendant would have to pre-order the pickup, pay a fee of about $6.00, which is based on the size of the vehicle, and sign in the name of the passenger at the pre-arranged passenger compound.

Garwood then said the pre-arranged passenger ticket would be given to the commissioner at the special compound. [ 29 ] Garwood also said that he had no other dealings with the defendant that day and that it had been Officer Kittle who had the majority of the dealings that day with the defendant and that Garwood had only issued and served the non-entry notice on the defendant. Moreover, Garwood said that, regardless of Officer Kittle’s involvement with the defendant, Garwood emphasized that it had been his intention that day to still serve the defendant with a non-entry notice under the Trespass to Property Act .

(2) P.C. Keith Graham, of the Peel Regional Police [ 30 ] P.C. Keith Graham testified that he was now in his 30 th year with the Peel Regional Police, with nine of those years being stationed at Pearson Airport, which he said is situated in the City of Mississauga. [ 31 ] On September 30, 2009, P.C. Graham said he was on the “scooper” detail and had been looking for unlicensed cabs at the airport. He also said that he knew most of the taxicab drivers personally. At 11:58 p.m. that day, P.C.

Graham said he had observed the defendant being present inside the Terminal 1 building of Pearson Airport in the arrival area for international flights. Furthermore, Graham said he then observed the defendant come up to a passenger and speak to that passenger for about two seconds. Graham said he then approached the defendant, who was half-way across the hall, which had been about 40 meters from his position, but as Graham approached and walked toward the defendant, the passenger, who had been in the short conversation with the defendant, left and walked away and was no longer in the defendant’s presence.

Graham also said that he did not hear any of the conversation between that particular passenger and the defendant, nor did Graham have any idea what they had been talking about. Nor did Graham know if the passenger had been a relative or a friend of the defendant. However, Graham said he had formed the conclusion to give the defendant a summons for trespassing at Pearson Airport. [ 32 ] P.C. Graham also said that the defendant just being in this building at Pearson Airport had given him the grounds to investigate the defendant for violating the Trespass to Property Act .

Graham also said he knew the defendant from prior contact with the defendant and had formed the belief that when he had observed the defendant that he should issue a summons under the Trespass to Property Act. However, Graham also added that on many occasions when he had observed the defendant at Pearson Airport he had not issued the defendant a summons. [ 33 ] Moreover, P.C.

Graham said that he has seen many people at the airport doing the “hello and goodbye” activity over the nine years that he had been stationed there, and in comparison to that activity, Officer Graham said that the interaction between that passenger and the defendant for those two seconds did not look like a personal interaction between them. [ 34 ] Furthermore, P.C. Graham said he had met the defendant previously and knows the defendant to be able to talk to him.

Graham also said on that day the defendant had produced his Ontario Health Card as identification, but does not recall if the card had been one of those photo health cards. Moreover, Graham said that the defendant had given Graham the address where he lives, which Graham said, had been the same address that the defendant had given to Graham on previous occasions. 4. ISSUES [ 35 ] The issues to be decided in this proceeding may be summarized as follows: (

a) Is the prosecution required under s. 2(1) (a)(

i) of the T.P.A. to negative the employment and traveller exemptions to prove the trespass charge; or, is it the defendant who has the burden under s. 2(1)(a)(i), if he wishes to be acquitted of the trespass charge, to prove on a balance of probabilities that he falls within those exemptions to the non-entry ban? (

b) Is proving that the employment and traveller exemptions did not apply to the defendant while the defendant was at Pearson Airport on September 30, 2009, an essential element of the offence set out in s. 2(1) (a)(

i) of the T.P.A. that has to be proven by the prosecution? (

c) Does the ruling in R. v. Clouston stand for the proposition that the prosecution is required to prove that the employment and traveller exemptions did not apply to the defendant when the defendant had been at Pearson Airport on September 30, 2009, beyond a reasonable doubt, in order to prove that the defendant had not been acting under a right or authority conferred by law while at Pearson Airport on that day? (

d) Does the exemption provision provided in s. 47(3) of the Provincial Offences Act that requires the defendant to prove that an exception or exemption applies to the defendant, apply in this case?

(

e) If the burden is on the defendant to prove that he falls within the employment or traveller exemptions to the non-entry ban, is this a reverse onus provision that violates the presumption of innocence guaranteed by s. 11(

d) of the Charter ? (

f) Does the prosecution have to prove beyond a reasonable doubt that the non-entry notice under s. 3(1) of the T.P.A. given to the defendant on September 19, 2009, had been given for a valid reason? 5. RELEVANT STATUTORY PROVISIONS [ 36 ] The defendant has been charged with committing the offence of "enter premises when entry prohibited" on September 30, 2009, which is contrary to s. 2(1) (a)(

i) of the Trespass to Property Act , R.S.O. 1990, c. T.21 (“ T.P.A.” ). This

section provides that where a person, who had been previously informed that they are prohibited from entering the premises in question and then entered those premises again, while not acting under a right or authority conferred by law and without also obtaining the express permission from the occupier of those premises to enter the premises, “the proof of which rests on that person”, then that person would be guilty of trespass. The penalty for being convicted of contravening this

section is a fine of not more than $2000 [ emphasis is mine below ]: Trespass an offence 2(1) Every person who is not acting under a right or authority conferred by law and who, (

a) without the express permission of the occupier, the proof of which rests on the defendant , (

i) enters on premises when entry is prohibited under this Act, … is guilty of an offence and on conviction is liable to a fine of not more than $2,000. Colour of right as a defence

(2) It is a defence to a charge under subsection (1) in respect of premises that is land that the person charged reasonably believed that he or she had title to or an interest in the land that entitled him or her to do the act complained of. [ 37 ] In addition, the word "occupier" is defined in s. 1 of the T.P.A. and includes a person who is in physical possession of premises or who has the responsibility for and control over the condition of the premises or the activities carried on there [ emphasis is mine below ]:

Definitions 1(1) In this Act, "occupier" includes, (

a) a person who is in physical possession of premises , or (

b) a person who has responsibility for and control over the condition of premises or the activities there carried on, or control over

persons allowed to enter the premises, even if there is more than one occupier of the same premises; [38] A Public Safety and Security Officer employed by the G.T.A.A. had personally served the defendant on September 19, 2009, witha written notice of non-entry pursuant to s. 3(1) of the T.P.A. Section 3(1) of the T.P.A., provides that someone may be prohibited fromentering a property or premises if a notice of non-entry is given to that person.

The G.T.A.A. is the occupier of Pearson Airport, and assuch, its agents or employees were legally permitted to issue the non-entry notice to the defendant: Prohibition of entry 3(1) Entry on premises may be prohibited by notice to that effect … [39] Furthermore, the methods in which the occupier of the premises may give the s. 3(1) non-entry notice to someone are containedin s. 5(1) of the T.P.A. and includes giving the notice orally or in writing, or by means of a posted sign, or by means of the markingsystem set out in s. 7 of the T.P.A.: Method of giving notice 5(1) A notice under this Act may be given, (

a) orally or in writing; (

b) by means of signs posted so that a sign is clearly visible in daylight under normal conditions from the approach to each ordinarypoint of access to the premises to which it applies; or (

c) by means of the marking system set out in

section 7. [40] Moreover, the G.T.A.A.’s authority to establish a licensing scheme for taxicabs operating at Pearson Airport is set out under s. 4of the Government Airport Concession Operations Regulations, SOR/79-373 (“G.A.C.O. Regulations”), which are enacted under thefederal Department of Transport Act, R.S.C., 1985, c. T-18. Pearson Airport is a designated airport for the purposes of s. 4 (see R. v.Trabulsey, (ON CA), [1995] O.J. No. 542 (QL) (O.C.A.), para. 9 and R. v. Asante-Mensah, [1996] O.J. No. 1821(QL) (Ont. Ct. (Gen.

Div.)), at para. 16): PERMIT DESIGNATIONS 4(1) The Minister may designate any airport at which a permit is required to operate a commercial passenger vehicle or a courtesyvehicle.

(2) Where the Minister designates an airport pursuant to subsection (1), he may specify the class or classes of commercial passengervehicles or courtesy vehicles that require the operator of those vehicles to be issued a permit before operating those vehicles at thatairport.

(3) A designation referred to in subsection (1) or a specification referred to in subsection (2) may be revoked by the Minister.

[ 41 ] In addition , taxicabs fall within the definition of a “commercial passenger vehicle” that is defined in s. 2(1) of the G.A.C.O. Regulations : “commercial passenger vehicle” means a rental motor vehicle or a motor vehicle that is used in the transportation of persons for compensation; [ 42 ] Furthermore, s. 8 of the G.A.C.O. Regulations specifies that taxicab drivers may drop off passengers at an airport, but only taxicab drivers who have the requisite G.T.A.A. permit or license may pick up passengers for hire at a “designated airport”, such as at Pearson Airport.

However, the pre-arrangement provision in s. 8(1)(b), as it was in 2009 before it was amended, would not have been applicable to Pearson Airport in 2009, as Pearson Airport had not been expressly listed as an airport under Column l of the

Schedule of the G.A.C.O. Regulations that lists which airports are permitted to have the pre-arrangement scheme, despite Security Officer Garwood testifying that the pre-arrangement scheme would have been included in the employment exemption to the non-entry ban given to the defendant [ emphasis is mine below ]: PERMITTED OPERATIONS 8(1) Subject to

section 10, any person may transport a passenger (

a) in a commercial passenger vehicle or a courtesy vehicle from any place outside an airport to a place at the airport where the transportation does not contravene any provincial law relating to trespassing ; or (

b) in a commercial passenger vehicle or courtesy vehicle set out in column II of an item of the

schedule from any place at an airport set out in column I of that item to any place outside the airport , if arrangements have been made for the transportation by or on behalf of the passenger before the arrival of the vehicle at the airport .

(2) A person who uses a commercial passenger vehicle or a courtesy vehicle to provide transportation to persons from any place at an airport that has been designated pursuant to subsection 4(1) to any place outside the airport must : (

a) have entered into a licence agreement with the Minister that provides for such transportation of persons; or (

b) have a permit in respect of the vehicle and operate the vehicle in accordance with the terms and conditions of the permit . …

SCHEDULE (Paragraph 8(1)(b)) Column I Column II Item Airport Vehicle 1. Red Lake taxi, limousine, off-airport rental motor vehicle, courtesy vehicle provided by hotel or by other rental accommodation 2. Kenora taxi, limousine, off-airport rental motor vehicle, courtesy vehicle provided by hotel or by other rental accommodation 3. The Pas taxi, limousine, off-airport rental motor vehicle, courtesy vehicle provided by hotel or by other rental accommodation 4. Fort McMurray off-airport rental motor vehicle 5. Fort Nelson off-airport rental motor vehicle

6. Fort St. John off-airport rental motor vehicle 7. Grande Prairie off-airport rental motor vehicle 8. Lethbridge off-airport rental motor vehicle 9. Watson Lake off-airport rental motor vehicle 10. Whitehorse off-airport rental motor vehicle Column I Column II Item Airport Vehicle [ 43 ] Also, the requirement for the operator of a taxicab to apply for and obtain a license or permit from the G.T.A.A. before the taxicab can be operated at Pearson Airport and legally pick up passengers there is set out in s. 11(1) of the G.A.C.O.

Regulations [ emphasis is mine below ]: ISSUE OF PERMITS 11(1) Subject to sections 13 and 14, where an operator of a commercial passenger vehicle or courtesy vehicle requires a permit to operate that vehicle at an airport pursuant to subsection 4(1) or (2) , the airport manager at the airport may , on written application for it, issue a permit to the operator permitting the operation of that vehicle at that airport subject to such terms and conditions as the airport manager deems necessary . [ 44 ] In addition, a taxicab driver who does not have a G.T.A.A. license to pick up passengers at Pearson Airport and who has just dropped off a passenger at the airport that they had picked up from outside the airport is required by s. 10 (

a) of the G.A.C.O. Regulations to leave Pearson Airport by the most direct route once they have dropped off their passenger [ emphasis is mine below ]: GENERAL CONDITIONS OF OPERATION OF GROUND TRANSPORTATION SERVICES AT AN AIRPORT 10. The operation of any commercial passenger vehicle at an airport shall be subject to the following conditions : (

a) every person who has transported a passenger in a commercial passenger vehicle from a place outside an airport to a place at the airport shall leave the airport by the most direct route ; … [ 45 ] Furthermore , s. 47(3) of the Provincial Offences Act , R.S.O. 1990, c.

P.33 (“ P.O.A. ”), which governs this regulatory proceeding, places the burden on the defendant to prove on a balance of probabilities that an authorization, exception, exemption or qualification prescribed by law operates in favour of the defendant, and that the prosecution is not required to prove that the authorization, exception, exemption or qualification does not operate in favour of the defendant except by way of rebuttal: Burden of proving exception, etc. 47(3) The burden of proving that an authorization, exception, exemption or qualification prescribed by law operates in favour of the defendant is on the defendant, and the prosecutor is not required, except by way of rebuttal, to prove that the authorization, exception, exemption or qualification does not operate in favour of the defendant, whether or not it is set out in the information. [ 46 ] Moreover, s. 11(

d) of the Charter provides that any person charged with committing an offence has the right to be presumed innocent until proven guilty according to law : 11. Any person charged with an offence has the right

... (

d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal; 6. ANALYSIS [47] In his submissions as to why he should be acquitted of the trespass charge, the defendant contends that the prosecution has failedto prove he had committed the offence beyond a reasonable doubt in two ways.

First, the defendant argues that the prosecution has notmet its burden in proving an essential element of the offence; specifically, that the prosecution has failed to prove that the defendant hadnot been at Pearson Airport on September 30, 2009, as a traveller or at the airport for employment, and therefore, failed to prove beyonda reasonable doubt that the defendant had not been acting under a right or authority conferred by law.

Second, the defendant argues thatthe prosecution has also failed to prove beyond a reasonable doubt that the non-entry notice issued to the defendant by Security OfficerGarwood under s. 3(1) of the T.P.A. on September 19, 2009, had been issued for a valid reason. [48] As such, the first issue to be resolved is whether the prosecution is legally required to prove that the defendant had not been at theairport under the traveller or employment exemption to the non-entry ban or whether the burden is legally on the defendant to prove on abalance of probabilities that he had been at the airport on September 30, 2009, under one of the exemptions to the non-entry ban.

If theprosecution is required to negative the traveller and employment exemptions to the defendant’s non-entry ban as an element of theoffence and the prosecution has failed to do so beyond a reasonable doubt, then the matter would be concluded at that point with anacquittal being entered on behalf of the defendant.

However, if the prosecution is not obligated to prove that the traveller andemployment exemptions did not apply to the defendant on September 30, 2009, and the prosecution has met its burden in proving that the defendant who had not been acting under a right or authorization conferred by law while being at Pearson Airport on September 30th,when he had been prohibited from entering Pearson Airport by the G.T.A.A., it will have to be determined if the defendant has a legalburden to prove that he falls within an exemption to avoid conviction.

If the defendant does have the burden to prove the traveller oremployment exemption applied to him, then he must prove the exemption applied on a balance of probabilities. [49] Once the first argument for an acquittal is resolved, then the second basis that had been argued by the defendant for an acquittalwill have to be considered. For this second query, it will have to be decided whether the prosecution is indeed required to prove that thenon-entry notice issued to the defendant on September 19, 2009, had been issued for a valid reason, and if such is required to be proven,has the prosecution done so?

However, if it is determined that the issuance by the G.T.A.A. of the non-entry notice to the defendant wasnot unjustified nor invalid, then it will have to be decided whether the prosecution has proven the trespass charge against the defendantbeyond a reasonable doubt. (

A) WHO HAS THE BURDEN TO PROVE WHETHER THE TRAVELLER OR EMPLOYMENT EXEMPTIONS HAD APPLIEDOR HAD NOT APPLIED TO THE DEFENDANT ON SEPTEMBER 30, 2009?

(1) THE RELATIONSHIP BETWEEN THE PROVINCIAL T.P.A. AND THE FEDERAL LEGISLATION REGULATINGTAXICABS AT PEARSON AIRPORT [50] First of all, the G.T.A.A.’s use of the provincial Trespass to Property Act, R.S.O. 1990, c. T.21 (“T.P.A.”), as a mechanism toprevent or deter unauthorized taxicab drivers from illegally picking up passengers for hire at Pearson Airport, has been held by the Courtof Appeal for Ontario in R. v. Trabulsey, (ON CA), [1995] O.J.

No. 542 (QL), not to be in conflict with the federallegislation that regulates the operation of taxicabs or commercial vehicles that are used for transporting passengers at Pearson Airport. [51] Furthermore, the Court of Appeal in R. v. Asante-Mensah, (ON CA), [2001] O.J.

No. 3819 (QL), had alsoconsidered the question of whether banning a taxicab driver from entering Pearson Airport under the T.P.A. had infringed on their libertyrights protected by s. 7 of the Charter, and at para. 24, had agreed with the trial judge’s conclusion that even if a non-entry notice givenunder the T.P.A. did implicate a banned taxicab driver’s liberty interest, it had been done so in accordance with the principles of

GTAA Greater Toronto Airports Authority Autorité aéroportuaire du Grand Toronto fundamental justice [emphasis is mine below]: In our view, the appeal can be disposed of on the basis of the trial judge's alternative line of reasoning. Without commenting on thedifficult question of the relationship between liberty in s. 7 of the Charter and commercial activity engaged in by an individual, we agreewith the trial judge's conclusion that even if the trespass notice did implicate the accused's liberty interest, it did so in accordance withthe principles of fundamental justice. [52] Moreover, at para. 31 of R. v.

Asante-Mensah, the Court of Appeal also adopted the trial judge’s reasoning that the occupier ofPearson Airport, in using the trespass initiative to exclude or ban taxicab drivers who were “scooping” fares at Pearson Airport fromentering Pearson Airport, had chosen a proportionate response and means to deal with and address the scooper problem at PearsonAirport [emphasis is mine below]: In conclusion, we specifically endorse the trial judge's

summary on this issue: Government officials, charged with the responsibility of effective operation of one of the world's busiest airports, in an effort to provide asuperior and safe commercial passenger service to the travelling public and to avoid traffic chaos and the potential for violence at theToronto Airport, came to a reasonably held view that the trespass initiative would significantly further these important objectives. Theaction was legitimately taken in good faith and in an evenhanded, not an arbitrary, or capricious, way.

The means chosen were rationaland, in the circumstances of the entire history of the accused, were justified with a rational connection between the means chosen and theobjectives pursued. Within an acceptable range, the solution adopted by federal airport authorities, exercising a legal right to manageproperty in the public interest of the users of the facility, was sufficiently tailored to intrude to the extent reasonably viewed as necessaryto stop the accused, and those of a similar bent, from undermining the regulatory scheme for commercial vehicles operating at theairport.

In light of the accused's evasiveness and contempt for regulation by the occupier, no lesser intrusion than absolute refusal ofadmittance could reasonably be viewed as proportionate to the problem faced. [53] The Court of Appeal also held in R. v. Trabulsey, (ON CA), [1995] O.J. No. 542 (QL), at para. 40, that s. 2(1)of the T.P.A. only applies to persons who are “not acting under a right or authority conferred by law”. Moreover, the Court of Appealreasoned that because s. 8 of the G.A.C.O.

Regulations, which regulate taxicab drivers picking up and dropping off passengers at PearsonAirport, would constitute “an authority conferred by law”, then taxi drivers who comply with the G.A.C.O. Regulations, would not bedefying the T.P.A. [emphasis is mine below]: In the present case, there can be no offence of trespass to property under the Trespass Act when taxi drivers comply with the GACOregulations. Section 2(1) of the Trespass Act applies only to persons "not acting under a right or authority conferred by law".

As s. 8 ofthe GACO regulations constitutes "an authority conferred by law", taxi drivers who comply with the regulations will not be defying theTrespass Act.

(2) THE NOTICE OF NON-ENTRY SERVED ON THE DEFENDANT ON SEPTEMBER 19, 2009 [54] In proving that the defendant had contravened s. 2(1)(a)(

i) of the T.P.A., the prosecution first adduced evidence that the defendanthad been notified in writing on September 19, 2009, by the G.T.A.A., which is the occupier of Pearson Airport, that he was prohibitedfrom entering the premises that comprise Pearson Airport. This evidence was from Security Officer Garwood, who is employed by theG.T.A.A. and who had observed the defendant on September 19, 2009, walking and being accompanied by Officer Kittle in thedepartures level of Terminal 1 at Pearson Airport.

Garwood, who had attended at the departures level of Terminal 1 to investigate a callabout a unattended Lincoln vehicle being at that location, said he personally knows the defendant as someone who is not licensed to pickup passengers at Pearson Airport and also as someone who illegally solicits fares at Pearson Airport without a license, and who hebelieved had been at the airport that day to solicit fares without being properly licensed to do so.

Additionally, Garwood said he had intended on September 19th to issue the defendant a non-entry notice under s. 3(1) of the T.P.A., despite Garwood only observing thedefendant walking with Officer Kittle and that Officer Kittle had dealt mainly with the defendant on that day. Furthermore, Garwoodsaid that before he had served the non-entry notice on the defendant that day the defendant had refused to sign the non-entry noticedocument when asked to do so by Garwood. The non-entry notice document that had been given to the defendant on September 19,2009, which had been entered as Exhibit 1, is produced below:

Agent R Garwood 000035 Name/Nom Tariq Shaikh Date (dd/mm/yyyy) (jj/mm/aaaa) 19/09/2009 Address/ [address removed for privacy] Adresse Identification / D/L [drivers license number removed for privacy] Identification Type of Activity/ Solicit For For Commercial Hire Type d’activité Trespass to Property Act /

Loi sur l’entr ée sans autorisation NOTICE / AVIS YOU ARE HEREBY GIVEN NOTICE pursuant to Section 3(1) of the Trespass to Property Act, R.S.O. 1990, c.T21 that you are prohibited from entering upon the premis- es (i.e. lands and structures) comprising Toronto-Lester B. Pearson International Airport. IN ACCORDANCE WITH THIS NOTICE, you are hereby directed to immediately leave the premises of Toronto-Lester B. Pearson International Airport by the most expeditious route and not return.

YOU ARE ADVISED that entry onto such premises and failure to comply with this notice are offences under Section 2(1) of the Trespass to Property Act and upon conviction you are liable to a fine of not more than $2000.00. LA PRÉSENTE A POUR BUT DE VOUS INFORMER QUE conformément au paragraph 3(1) de la

Loi sur l’entrée sans autorisation, L.R.O. (1990), ch. T21 , l’entrée sur lieux vous est interdite (c.-à-d. terres et structures), y compris l’Aéroport international Lester B. Pearson de Toronto.

CONFORMÉMENT À CET AVIS, vous êtes par la présente invite à quitter immédiatement les lieux de l’Aéroport international Lester B. Pearson de Toronto le plus rapidement possible et à ne plus revenir. LA PRÉSENTE VOUS INFORME que l’entrée dans sur lieux et le non-respect de cet avis sont des infractions conformément au paragraphe 2(1) de la

Loi sur l’entrée sans autorisation et que si vous êtes déclaré coupable de telles infractions, vous êtes passible d’une amende de 2000 $. “R.

Garwood” _______________________________ _________________________________ Signature/Signature Issuant/Émission Ò Agent for/ Agent pour The Greater Toronto Airports Authority/ Refused to Sign/Refus de signer L’ Autorité aéroportuaire du Grand Toronto Note: An application to the President & Chief Executive Officer for withdrawal of this notice will be considered one year after issue provided that you have complied with Section 3(1) of the Trespass to Property Act as outlined herein.

In the event that you are charged and convicted in court for failure to comply, the application will not be considered until one year after your last conviction and you provide proof that all fines assessed by the court have been paid. This notice does not prohibit entry on the airport for employment or travel purposes or if entry has been prohibited to one or more areas, then to other areas of the airport.

If your application for withdrawal of this notice is accepted, you will be required to sign an undertaking to abide by all the GTAA Rules and Regulations in effect at the time governing activities at Toronto-Lester B. Pearson International Airport. Failure to conduct yourself accordingly will result in the issuance of a Trespass to Property Act Notice. Note: Une demande de retrait de cet avis faite auprés du président et chef de la direction sera examinée un an après la confirmation que vous vous êtes conformé au paragraphe 3(1) de la

Loi sur l’entrée sans autorisation qui est énoncé dans la présente. Dans le cas où vous êtes déclaré coupable devant le tribunal en raison d’un non-respect de la loi, la demande ne sera examinée qu’un an après votre derniére condamnation et le dépȏt de la preuve que toutes les amendes imposées par le tribunal ont été payées. Cet avis n’interdit pas l’entrée à l’aéroport à des fins de travail ou de voyage ou, si l’entrée a été interdite à plus d’un secteur, aux autres secteurs de l’aéroport.

Si la demande de retrait de cet avis est acceptée vous devrez signer un document dans lequel vous promettez de vous conformer à toutes les règles et à tous les règlements en vigueur de la GTAA qui régissent les activités commerciales à l’Aéroport international Lester B. Pearson de Toronto. Si vous ne vous conformez pas, cet avis sera envoyé de nouveau.

Original _Groundside Operations Canary – Issuant Pink – Agent Green – Police Couleur originale – Exploitation Canari – Émission Rose – Agent Vert – Police [55] Hence, the September 19th non-entry notice had specifically informed the defendant that he was prohibited from entering uponthe premises (i.e. lands and structures) comprising Toronto-Lester B.

Pearson International Airport by virtue of the T.P.A.: YOU ARE HEREBY GIVEN NOTICE pursuant to Section 3(1) of the Trespass to Property Act, R.S.O. 1990, c.T21 that you areprohibited from entering upon the premises (i.e. lands and structures) comprising Toronto-Lester B.

Pearson International Airport. [56] However, the same notice also informed the defendant that he was not absolutely prohibited from entering Pearson Airport andcould be at Pearson Airport if he were to be there as a traveller or there for employment purposes: This notice does not prohibit entry on the airport for employment or travel purposes or if entry has been prohibited to one or more areas,then to other areas of the airport. [57] As such, the September 19th non-entry notice issued by the G.T.A.A. contains two exemptions to the non-entry prohibition, inwhich the G.T.A.A. expressly permits the defendant to enter Pearson Airport for two limited purposes: as a traveller or for employmentpurposes.

(3) WAS THE DEFENDANT ACTING UNDER A RIGHT OR AUTHORITY CONFERRED BY LAW WHEN HE HAD BEENAT PEARSON AIRPORT ON SEPTEMBER 30, 2009? [58] In considering the first issue of whether the prosecution has the onus to prove that the traveller or employment exemptions did notapply to the defendant on September 30, 2009, in order to prove that the defendant had not been acting under a right or authorityconferred by law when he had entered Pearson Airport on that date, it would be useful to begin with the Court of Appeal’s conclusion inR. v. Trabulsey, (ON CA), [1995] O.J.

No. 542 (QL), at para. 40, that a taxicab driver who complies with theG.A.C.O. Regulations would not be defying the T.P.A. To elaborate, the Court of Appeal had construed that s. 2(1) of the T.P.A. onlyapplies to persons who are “not acting under a right or authority conferred by law, and as s. 8 of the G.A.C.O. Regulations constituted“an authority conferred by law”, then it necessarily followed that taxicab drivers who had complied with the G.A.C.O.

Regulationswould not be in contravention of the T.P.A.: In the present case, there can be no offence of trespass to property under the Trespass Act when taxi drivers comply with the GACOregulations. Section 2(1) of the Trespass Act applies only to persons "not acting under a right or authority conferred by law". As s. 8 ofthe GACO regulations constitutes "an authority conferred by law", taxi drivers who comply with the regulations will not be defying theTrespass Act. [59] However, when the Court of Appeal had concluded that taxicab drivers who comply with the G.A.C.O.

Regulations would not becontravening s. 2(1) of the T.P.A., did they mean that the prosecution needs to only prove beyond a reasonable doubt that the defendantdid not have a license or permit issued by the G.T.A.A. to pick up fare-paying passengers at Pearson Airport as required by the G.A.C.O.Regulations, as well as proving that the defendant had been formally notified in writing under the T.P.A. that he had been banned fromentering Pearson Airport, in order to prove that the defendant was "not acting under a right or authority conferred by law" when he hadbeen walking in the arrivals area of Terminal 1 at Pearson Airport on September 30, 2009?

Or, does it mean, as suggested by thedefendant’s

interpretation of Bolan J.’s ruling in R. v. Clouston, [1986] O.J. No. 1869 (QL) (Ont. Dist. Ct.), that the prosecution also hadto prove as an element of the offence that the traveller or employment exemptions did not apply to the defendant on the day in question,in order to prove the defendant was “not acting under a right or authority conferred by law"? (

A) BOLAN J.’S RULING IN R. v. CLOUSTON [60] To make the argument that the prosecution is required to negative the exemptions to the non-entry prohibition that had been givento the defendant, of being a traveller or at the airport for employment, the defendant relies on his particular

interpretation of Bolan J.’sruling in R. v. Clouston, in which it had been held that one of the requisite elements that had to be proved was that when the accused

person had entered onto the premises in question, they had not been acting under a right or authority conferred by law. From thosewords, the defendant interpreted Bolan J.’s ruling to mean that the prosecution is required to negative those two exceptions to the non-entry prohibition in order to prove the required element of the offence that the defendant had not been acting under a right or authorityconferred by law on September 30, 2009, when the defendant was at Pearson Airport.

The ruling referred to by the defendant in theClouston case is the following [emphasis is mine below]: In my view, His Honour Judge Langdon was correct in holding that the prosecution need not allege or prove an occupier once the threerequisite elements are proved, namely: (

a) the defendant was not acting under a right or authority conferred by law; (

b) the defendant entered on the premises; (

c) entry was prohibited under the Trespass to Property Act. [61] On the other hand, the prosecution contends that the Court of Appeal in R. v. Trabulsey, (ON CA), [1995] O.J.No. 542 (QL), had implicitly reversed the decision in R. v. Clouston, while the defendant disputes whether the Court of Appeal hadindeed reversed the Clouston ruling, reasoning that since the Court of Appeal did not expressly mention Bolan J’s ruling or the Cloustoncase in their reasons, then Bolan J.’s ruling would still be valid law. [62] However, before deciding whether the defendant’s

interpretation of Bolan J.’s ruling required the prosecution to negative theexemptions to the defendant’s non-entry prohibition in order to prove that the defendant had not been acting under a right or authorityconferred by law, a review of the common law and statutory provisions that place the burden on an accused person to prove that they fallwithin an exception or an exemption, in order not to be convicted, needs to be undertaken first. (

B) IS PROVING WHETHER THE TRAVELLER OR EMPLOYMENT EXEMPTION DID OR DID NOT APPLY TO THEDEFENDANT AN ESSENTIAL ELEMENT OF THE OFFENCE SET OUT IN S. 2(1)(a)(

i) OF THE T.P.A. OR IS IT ANAFFIRMATIVE DEFENCE THAT HAS TO BE PROVEN BY THE DEFENDANT?

(1) The Common Law Rule In R. v. Edwards [63] The common law has recognized that in certain situations, the onus would be on an accused person to prove that an exemptionapplied to them if they wished to avoid conviction, especially for regulatory or public welfare offences. This regulatory offenceexception to the rule that the prosecution must prove every element of the offence had been created by the House of Lords in R. v.Edwards, [1975] Q.B. 27.

In that case, a statutory provision had been held to impose a burden of proof on the accused person toestablish on the balance of probabilities that he had a licence for the sale of liquor. Furthermore, Lawton L.J., writing for the House ofLords, in R. v. Edwards, reasoned at pp. 39-40, that this exception to the fundamental rule that the prosecution must prove every elementof the offence would be limited to offences arising under enactments which prohibit the doing of

an act except in specifiedcircumstances, or by persons of specified classes, or with special qualifications, or with the licence or permission of specified authorities,and where the exemption for which the accused person must establish, if they wished to avoid conviction, is not an essential element ofthe offence. [64] Moreover, the rule in R. v. Edwards has been adopted in Canada. In R. v.

Lee's Poultry Ltd. (1985), (ON CA),17 C.C.C. (3d) 539, the Ontario Court of Appeal held that although an accused person is presumed to be innocent until their guilt isproven beyond a reasonable doubt, they did recognize the applicability of the common law rule established for regulatory legislation inR. v. Edwards, in which there is an exception to the rule that the onus is on the Crown to prove each element of the offence to the degreerequired. The Court of Appeal also recognized that the rule in R. v.

Edwards was embodied in s. 48(3) of the P.O.A. (which is now s.47(3) of the P.O.A.) for regulatory offences in Ontario, and that this provision did not offend s. 11(

c) and 11(

d) of the Charter. Furthermore, this exception for regulatory legislation had placed the onus on an accused person to prove that an exemption applied tothem, in order to prove that they had the right to do the prohibited act. In addition, the prosecution does not have to prove a prime faciecase of lack of excuse, qualification, or the like, but that it is for the defendant to prove that he was entitled to do the prohibited act.

However, the Court of Appeal also accepted that before the prosecution can rely on this exception, a court must construe the enactmentin which the charge is laid under, to determine if the true construction of that enactment prohibits the doing of acts, subject to provisos,exemptions and the like, and if it does, then the prosecution can rely upon the rule in R. v. Edwards that the accused person has the legalburden to prove they are within an exemption to avoid conviction [emphasis is mine below]:

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 reasonable doubt and, as such, the onus is on the Crown to prove each element of the offence to the degree required . At common law an exception developed to this fundamental rule for a class of offences created by regulatory legislation . Often such legislation created offences by banning specified activities but excepted persons who had authority of the regulatory body to do the acts banned. That exception is expressed in the terms of s. 48(3) of the Provincial Offences Act . It is also found, for example, in s. 730 of

Part XXIV of the Criminal Code which applies to

summary conviction offences. Both sections have their origin in Canada in s. 852 of the Criminal Code, 1892 and the common law. The common law rule was considered in R. v. Edwards , [1975] 1 Q.B. 27 . In that case the defendant was charged with selling intoxicating liquor without a justices' licence contrary to the statute. There was evidence that he was selling intoxicating liquor but no evidence was led by the prosecutor to prove that there was no licence in force. His appeal from conviction was dismissed.

Lawton L.J., who delivered the judgment of the Court of Appeal said at p. 30, referring to the exception: The prosecution, following the practice of many years in the Metropolitan Police District and probably one followed generally throughout England and Wales, did not call any such evidence, leaving the defendant to prove, if he could, that he did hold a justices' licence.

After reviewing what were considered the leading authorities on the question he said as to the origin and application of the exception at p. 39: In our judgment this line of authority establishes that over the centuries the common law, as a result of experience and the need to ensure that justice is done both to the community and to defendants, has evolved an exception to the fundamental rule of our criminal law that the prosecution must prove every element of the offence charged. This exception, like so much else in the common law, was hammered out on the anvil of pleading.

It is limited to offences arising under enactments which prohibit the doing of

an act save in specified circumstances or by persons of specified classes or with specified qualifications or with the licence or permission of specified authorities . Whenever the prosecution seeks to rely on this exception, the court must construe the enactment under which the charge is laid.

If the true construction is that the enactment prohibits the doing of acts, subject to provisos, exemptions and the like, then the prosecution can rely upon the exception . (Emphasis added) As to the application of the exception he said at p. 40: In our judgment its application does not depend upon either the fact, or the presumption, that the defendant has peculiar knowledge enabling him to prove the positive of any negative averment . (Emphasis added) As to the consequences of the rule he added at p. 40: Two consequences follow from the view we have taken as to the evolution and nature of this exception.

First, as it comes into operation upon an enactment being construed in a particular way, there is no need for the prosecution to prove a prima facie case of lack of excuse, qualification or the like ; and secondly, what shifts is the onus: it is for the defendant to prove that he was entitled to do the prohibited act. What rests on him is the legal or, as it is sometimes called, the persuasive burden of proof.

It is not the evidential burden . (Emphasis added) By that judgment, the exception referred to and as found in s. 48(3) of the Provincial Offences Act and s. 730 of the Criminal Code is what is today referred to as a reverse onus provision . Before the advent of the Charter of Rights and Freedoms, this form of exception was accepted by the governments that enacted the provision and by the courts to be consistent with the rights of an accused person charged with an offence to be presumed innocent until his guilt was proved according to law. Has s. 11(

d) of The Charter changed this? … In my respectful view, R. v. Oakes, supra, must be distinguished from this case. Unlike the

section in question in R. v. Oakes, supra, section 48(3) does not purport to create a presumption but rather to express in statute form an exception to a general rule of pleading and proof on specific issues in

summary conviction type cases . The exception provided for does not depend upon presumption . In applying R. v. Oakes, supra, therefore, Webb Co.Ct.J. had only to have regard to what was said by Martin J.A. at p. 681 (O.R.); p. 362

(C.C.C.): A reverse onus provision which, on proof of certain facts by the prosecution, casts on the accused the burden of disproving on a balanceof probabilities an essential element of the offence does not, however, contravene the right to be presumed innocent guaranteed by theCharter, provided that the reverse onus provision by way of exception to the general rule is a reasonable limitation of that right such ascan be demonstrably justified in a free and democratic society. … In my opinion, s. 48(3) of the Provincial Offences Act which was in force at the time The Charter was passed is a just law and does notoffend important principles which are now expressed in ss. 11(

c) and (

d) of The Charter and doesn't do so now. In any event tested by thefactors above referred to by Martin J.A. in R. v. Oakes, by history and by the words of s. 1 of The Charter, I think the legislation is validand Webb was wrong in holding to the contrary. [65] Furthermore, Macintyre J, writing for the majority of the Supreme Court of Canada, in R. v. Schwartz (1989), (SCC), 45 C.C.C. (3d) 97, at paras. 80 and 84, has adopted the Ontario Court of Appeal’s reasoning in R. v.

Lee's Poultry Ltd. (1985), (ON CA), 17 C.C.C. (3d) 539, and held that in a licensing system where an issue arises as to the possession of a licenseto do something in which an accused person is required to prove an exemption, is not only rational, but inherent in the system, since it isthe accused who is in the best position to resolve the issue by proving he holds a license, otherwise the issuance of a license would serveno useful purpose [emphasis is mine below]: Although the accused must establish that he falls within the exemption, there is no danger that he could be convicted under s. 89(1),despite the existence of a reasonable doubt as to guilt, because the production of the certificate resolves all doubts in favour of theaccused and in the absence of the certificate no defence is possible once possession has been shown.

In such a case, where the onlyrelevant evidence is the certificate itself, it cannot be said that the accused could adduce evidence sufficient to raise doubt without at thesame time establishing conclusively that the certificate had been issued. The theory behind any licensing system is that when an issuearises as to the possession of the licence, it is the accused who is in the best position to resolve the issue. Otherwise, the issuance of thecertificate or licence would serve no useful purpose.

Not only is it rationally open to the accused to prove he holds a licence (see R. v.Shelley, (SCC), [1981] 2 S.C.R. 196, at p. 200, per Laskin C.J.), it is the expectation inherent in the system. … In addition, as has been pointed out earlier, there is no possibility that a person could be convicted despite the existence of a reasonabledoubt as to his guilt. This could not occur. In my view, therefore, it is totally unreasonable to require the Crown to prove the non-occurrence of an event (registration) for which the Criminal Code itself provides the only relevant evidence directly to the affectedparty.

As Brooke J.A. said in R. v. Lee's Poultry Ltd. (1985), (ON CA), 17 C.C.C. (3d) 539 (Ont. C.A.), at p. 544regarding the comment by Dubin J.A. during the argument on that case: "How could it be unfair to ask a person to produce his licence or evidence that he has one? Surely, it is the sensible thing to do". [66] In addition, Babe J. in R. v. Fingold, [1996] O.J. No. 3464 (QL) (Ont. Ct. (Prov. Div.)), at paras. 101 to 103, confirmed that therule in R. v.

Edwards had been codified in s. 47(3) of the P.O.A., and also reaffirmed that for a regulatory offence there would be noconstitutional impediment to place the onus on an accused person to establish an exemption, as the accused person in certaincircumstances would be in the best position to prove such facts, since they would indubitably possess the required information [emphasisis mine below]: … I consider that Wholesale Travel establishes that for regulatory offences it is not unconstitutional to place an onus on the defence toestablish lack of fault.

Because I consider that the defence created by the Regulation is an additional defence that does not displace the common law defencesof due diligence or reasonable mistake of fact, I see no constitutional impediment to casting the onus on the defendant to establish thefacts to support it, since, in Iaccobucci's words, it "is in the best position to prove" such facts since it possesses the required information.Indeed, since the Regulation provides an "exemption" it was not necessary to explicitly state that the onus of proof is on the personclaiming the exemption because the Provincial Offences Act R.S.O. 1990, c.

P.33, s. 47(3) (formerly R.S.O. 1980, c. 400, s. 48(3))provides:

The burden of proving an authorization, exception or qualification prescribed by law operates in favour of the defendant is on thedefendant, and the prosecutor is not required, except by way of rebuttal, to prove that the authorization, exemption or qualification doesnot operate in favour of the defendant, whether or not it is set out in the information. This

section has been held to be a restatement of a common law rule of evidence applicable to regulatory offences and

summaryproceedings, as discussed in R. v. Edwards [1975] 1 Q.B. 27, and not to offend the presumption of innocence guaranteed in s. 11(

d) ofthe Charter: R. v. Lee's Poultry Ltd. (1985) (ON CA), 17 C.C.C. (3d) 539 (O.C.A.); Proulx v. Krukowski (1993) (ON CA), 109 D.L.R. 606 (O.C.A.). At page 607 of the latter judgment, the Court said: The exemption does not relate to any essential averment, and does not impose a burden on the respondent to disprove an essentialaverment of the offence. Furthermore s. 47(3) has nothing to do with reasonable doubt. When one comes within the exemption, theoffence becomes beyond the reach of the accused. [67] Furthermore, in R. v. Zachariou, [1999] O.J.

No. 2488 (QL) (O.C.J.), at paras. 13 to 15, MacDonnell J. (as he was then) indicatedthat the proper approach in construing whether the exception provision set out in s. 47(3) of the P.O.A. applied to a particular situationwould be as described by Lawton L.J. in R. v. Edwards, that it was limited to offences arising under enactments which prohibit the doingof

an act, except in specified circumstances or by persons of special classes or with special qualification or with the “license” or“permission” of specified authorities.

MacDonnell J. also reasoned that in deciding whether the Ontario Legislature had intended theburden of proof to be on the Crown to prove the non-existence of an event it was relevant in this determination to consider whether thelegislation at issue would be unenforceable if the burden were to be placed on the Crown [emphasis is mine below]: The rule that the Crown is required to prove every element of the offence charged is deeply rooted in the common law. However, the rulewas never absolute.

The common law recognized an exception for certain offences created by regulatory legislation, an exception whichis now embodied in s. 47(3) of the POA, and s. 794 of the Criminal Code. The proper approach to the question of whether the exceptionapplies was described by Lawton L.J. in R. v. Edwards, [1975] 1 Q.B. 27 (C.A.) at pp. 39-40: It is limited to offences arising under enactments which prohibit the doing of

an act save in specified circumstances or by persons ofspecified classes or with special qualifications or with the license or permission of specified authorities. Whenever the prosecution seeksto rely on this exception, the court must construe the enactment under which the charge is laid.

If the true construction is that theenactment prohibits the doing of acts, subject to provisos, exemptions and the like, then the prosecution can rely on the exception. … it would appear that the intention of the legislature was to prohibit the operation of motor vehicles on a highway "save in specifiedcircumstances or by persons ... with the license or permission of specified authorities", and thus, applying the test set out by Lawton L.J.,supra, it follows that s. 47(3) should apply to the issue of whether a defendant in a prosecution under s. 2(1) of the CAIA was insured.

I am reinforced in that opinion by the fact that if a burden of establishing the non-existence of a contract of insurance were on theCrown, the important objectives of s. 2(1) would be seriously undermined. The CAIA requires the owner of a motor vehicle to enter intoa contract of insurance but it leaves the choice of insurer to the owner. The contract is a private arrangement with a third party, and thestatus of that arrangement is, as between the government and the owner, a matter peculiarly within the knowledge of the owner.

Whethera contract of insurance is in force at any particular time is not a matter that the government can reasonably be expected to know. In myview, the fact that the legislation would be virtually unenforceable were the burden on the Crown is a relevant consideration withrespect to whether the legislature intended to put the burden on the Crown. [68] Moreover, in R. v. Stone, [1984] O.J. No. 912 (QL) (Ont. Co.

Ct.), Murdoch J. considered the issue of whether the prosecutionhad been required to negative an exemption available to an accused person or whether the accused person had the burden to prove anexemption, and held at paras. 14, 16 and 17, that the issue turned on whether or not the facts were peculiarly within the knowledge of theaccused, and if it did, then the accused person had the burden to prove the exemption, but if knowledge of the exemption is not withinthe peculiar knowledge of the accused person then the prosecution had the burden to negative the exemption in question [emphasis ismine below]: In my opinion the issue turns upon whether or not the facts are peculiarly within the knowledge of the accused. ...

The Ontario Court of Appeal in Rex v. Fresco (1933), (ON CA), 59 C.C.C. 391 quashed the accused's appeal on acharge that not being the owner or agent of the owner of a mining claim he sold gold contrary to s. 424(

b) of the Criminal Code.Middleton, J.A., at p. 392 referring to the decision of Rex v. Turner, 5 M. & S. 206, said at p. 392:

"Lord Ellenborough points out that if the Crown must prove the negative there would be a moral impossibility of ever convicting underthis Statute, and therefore common sense showed that the burden of proof in such cases ought to be cast upon the person who, byestablishing any one of the qualifications, will be well defended." and at p. 393, "Bayley, J., points out that in addition to the impossibility of the Crown producing satisfactory evidence, there is no hardship in castingthe burden upon the accused for he must know his own qualifications and be able to prove it." The learned judge justice continued at p. 393, "It is not without significance that in our Criminal Code, in the case of a

summary prosecution, by s. 717, it is expressly provided that theexceptions enumerated in a statute need not be negatived in the information or complaint, and that no proof as to the matters so negativedshall be required on the part of the complainant but may be proved by the defendant if he desires to bring himself within the provisionsof the exceptions." Laidlaw, J.A., in Rex v. Roher (1947) (ON CA), 89 C.C.C. 365 considered whether the burden of proof rested on theaccused in certain cases.

Having satisfied himself as to guilt of the accused he went on in the following vein at p. 374: "The burden of proof may be shifted by legislative interference, and certain exceptions to the general rule have been recognized by thecommon law. One of those exceptions is that "where the subject-matter of the allegation lies peculiarly within the knowledge of one ofthe parties, that party must prove it, whether it be of an affirmative or a negative character, and even though there be a presumption oflaw in his favour": Taylor on Evidence, 12th ed. vol. 1, s. 376.

"This exception equally prevails in all civil or criminal proceedingsinstituted against parties for doing acts which they are not permitted to do unless duly qualified": ibid., s. 377.

In Archibold's Criminal Pleading, Evidence & Practice, 31st ed., p. 330, the present rule upon the subject of negative averments is statedas follows: "In cases where the subject of such averment relates to the prisoner personally, or is peculiarly within his knowledge, thenegative is not to be proved by the prosecutor, but, on the contrary, the affirmative must be proved by the prisoner, as matter of defence;on the other hand, if the subject of the averment does not relate personally to the prisoner, or is not peculiarly within his knowledge or atleast in as much within his knowledge as within the knowledge of the prisoner, the prosecutor must prove the negative." [69] Also, in R. v.

Asante-Mensah, [1996] O.J. No. 1821 (QL) (Ont. Ct. (Gen.

Div.)), Hill J. had to consider an argument raised in atrespass prosecution, similar to the instant case, on whether an accused person who had to establish that they had been acting under aright or authority conferred by law, so as not to be a trespasser, had infringed on s. 7 of the Charter, and concluded at para. 133, thatalthough the constitutionality of s. 47(3) had not been challenged in the instant case, the accused’s argument should be dismissednevertheless because it had been s. 47(3) of the Provincial Offences Act which had placed upon the accused person the burden ofproving an “authorization prescribed by law”, and that s. 47(3) had been held previously not to infringe the Charter by the Ontario Courtof Appeal in Proulx v.

Krukowski (1994), (ON CA), 109 D.L.R. (4th) 606 [emphasis is mine below]: The accused further submitted that it infringed his

section 7 Charter right to have to establish in a prosecution for trespassing, that hewas acting under a right or authority conferred by law and therefore was not a trespasser. It is section 47(3) of the Provincial OffencesAct which places the burden of proving an authorization prescribed by law upon a defendant. Because the accused has not, however,challenged the constitutionality of this provision the argument fails. In any event, s. 47(3) has been held not to infringe the Charter:Proulx v. Krukowski (1994), (ON CA), 109 D.L.R. (4th) 606 (Ont. C.A.) at 607-8 per curiam. (2) S. 47(3) Of The P.O.A. And Proulx v.

Krukowski [70] Section 47(3) of the Provincial Offences Act, R.S.O. 1990, c. P.33 (“P.O.A.”), the procedural statute governing regulatoryproceedings in Ontario, has expressly placed the legal burden on an accused person to prove on a balance of probabilities that anauthorization, exception, exemption, or qualification prescribed by law operates in favour of the accused person and that the prosecutionis not required to prove that these exceptions or exemptions does not operate in favour of the accused person except by way of rebuttal:

47(3) The burden of proving that an authorization, exception, exemption or qualification prescribed by law ope

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