R v Goleski: Who Has the Burden of Proof for “Reasonable Excuses”?
On February 11, 2015, the Supreme Court of Canada (“SCC”) dismissed the appeal of R v Goleski, 2014 BCCA 80 [Goleski], from the British Columbia Court of Appeal (“BCCA”). The SCC found that the BCCA had correctly interpreted s. 794(2) of the Criminal Code, RSC 1985, c C-46, as having imposed a persuasive burden on the accused to prove an exception, exemption, proviso, excuse, or qualification prescribed by law. In dismissing the appeal, the analysis that is now binding to all court levels in Canada is the one provided by Frankel J.A. of the BCCA.
This decision from the BCCA is of particular interest since it: (1) clarifies that the accused, rather than the Crown, bears the burden of proving on a balance of probabilities the factual foundation of a “reasonable excuse” for refusing to comply with a breathalyzer demand; and (2) distinguishes a “reasonable excuse” from other defences known to law.
Criminal Code Provisions
Section 254(5) of the Criminal Code states, “[e]veryone commits an offence who, without reasonable excuse, fails or refuses to comply with a [breathalyzer] demand…” as it relates to impaired driving. (For more details, see s. 254(3) of the Criminal Code.)
Section 794(2) states, “[t]he burden of proving that an exception, exemption, proviso, excuse 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 exception, exemption, proviso, excuse or qualification does not operate in favour of the defendant, whether or not it is set out in the information.”
On the night of February 1, 2006, Constable Meikle pulled Mr. Goleski over for speeding (25 kilometres per hour over the speed limit) and for failing to stop at two stop signs. When Mr. Goleski inquired as to why he had been pulled over, Constable Meikle informed him of the reasons stated above. Constable Meikle detected the odour of alcohol and asked Mr. Goleski whether or not he had been drinking. Mr. Goleski stated that “he had had a few drinks.”
Mr. Goleski provided a breath sample into an approved (roadside) screening device. The screening device registered a “fail,” indicating a blood alcohol concentration of at least 100 milligrams, 20 milligrams over the legal limit. Constable Meikle then read Mr. Goleski the breathalyzer demand and advised him of his right to counsel. Mr. Goleski consented to providing a breath sample and waved his right to counsel. Once at the police station, Mr. Goleski twice refused to provide a breath sample.
At trial, Mr. Goleski testified that he had stopped at both stop signs. He also stated that he felt he “was being targeted” and that Constable Meikle was being untruthful,” “couldn’t be trusted,” and “wasn’t going to be honest” about the results of the breath sample in the written report. During cross-examination, Mr. Goleski stated that “quite possibly” he had been speeding before being stopped. Additionally, Karen Evelyn Chamberlain, a passenger in the truck with Mr. Goleski, testified that Mr. Goleski had stopped at both stop signs.
Conflicting Case Law
Mr. Goleski argued at trial that, based on the interpretation given to s. 794(2) of the Criminal Code in R v Lewko, 2002 SKCA 121 [Lewko], he need only raise a reasonable doubt as to whether or not he had a reasonable excuse to refuse the demand.
At trial, the judge declined to follow Lewko and relied on R v Gray (1986), 30 CCC (3d) 234 (BCCC) (not available on CanLII) [Gray]. In Gray, McKinnon J. (as he then was), held that by reason of s. 794(2) of the Criminal Code (then s. 730(2)), the onus of proving a reasonable excuse was on the accused. In applying Gray, the trial judge concluded that if Constable Meikle had lied to Mr. Goleski about having seen him fail to stop at two stop signs, then it would have been objectively reasonable for Mr. Goleski to believe that Constable Meikle may not be truthful in the written report. The trial judge further stated that such an objective belief “would provide a reasonable excuse for refusing the demand” (Goleski, para 16). However, the trial judge convicted Mr. Goleski as he had failed to “establish ‘reasonable excuse’ on the balance of probabilities.”
On appeal, the judge in R v Goleski, 2011 BCSC 911, concluded that Gray was not binding on him, and as a result, chose to follow the Saskatchewan Court of Appeal’s decision in Lewko. In Lewko, Bayda CJ. concluded that s. 794(2) places only an evidentiary burden on the accused, and that an accused need “only raise the question of the possibility of a reasonable excuse…[by] produc[ing] sufficient evidence of something that is capable of being a reasonable excuse” (Lewko, para 20).
Once the issue of reasonable excuse is raised, the persuasive burden rests on the Crown to prove beyond a reasonable doubt that the accused did not have a reasonable excuse. In reaching this conclusion, Bayda C.J. agreed with the statement in McWilliams’ Canadian Criminal Evidence, 3d ed (Aurora: Canada Law Book, 2002) that the words “except by way of rebuttal” implied that the ultimate persuasive burden is on the Crown (Lewko, para 16).
Burden to Prove “Reasonable Excuse” is on Accused
In order to determine whether or not there was a shift in onus in proving a “reasonable excuse,” it was necessary for the BCCA to interpret the meaning of s. 794(2) of the Criminal Code. According to Elmer A. Dredger, when undergoing statutory interpretation, “the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament” (Elmer A. Dredger, Construction of Statutes, 2nd ed (Toronto: Butterworths, 1983) 87, cited in Rizzo and Rizzo Shoes Ltd (Re),  1 SCR 27, para 21).
The shift in onus dates back to 1848 in England with the enactment of An Act to facilitate the Performance of the Duties of Justices of the Peace out of Sessions, within England and Wales, with respect to summary Convictions and Orders, 11 & 12 Vict, c 43. Section 14 of that statute stated, with respect to exceptions, “…it shall not be necessary for the Prosecutor or Complainant in that Behalf to prove such Negative, but the Defendant may prove the Affirmative thereof in his Defence….”
It is evident from the language of the statute that while the burden is on the Crown to prove the elements of an offence beyond a reasonable doubt, the burden is on the accused to establish on a balance of probabilities that by reason of a statutory exception, the accused had not committed the offence charged (Goleski, para 60). Although there were some minor changes in language, the provision maintained the same shift in onus.
This interpretation of the provision was supported by the Queen’s Bench decision in R v Edwards,  1 QB 27 (not available on CanLII). Lawton J. concluded that, “[i]n our judgement the object of the proviso to section 14 [(now s. 794(2))] was to apply the common law relating to exceptions and provisos to the new courts.” As such, Lawton J. found, “if the information or complaint should negative ‘any exception, proviso or condition’ the prosecutor or complainant need not prove such negative, but the defendant might prove the affirmative.”
On April 1, 1955, with the coming into force of the Criminal Code, SC 1953-54, c 51, the language of the provision changed to include the words “except by way of rebuttal.” Section 702 (as it then was) stated: “[t]he burden of proving that an exception, exemption, proviso, excuse 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 exception…does not operate in favour of the defendant….” Similarly to previous versions of the provision, several appellate courts have reflected the ideology that the accused carries the burden.
From the enactment of the first provision addressing exception, it is clear that Parliament “intended to place the persuasive burden on an accused to establish that he or she was entitled to the benefit of ‘any exemption, exception, proviso or condition,’ provided by statute” (Goleski, para 60).
Defences Versus Excuses
The BCCA also felt it was necessary to rectify any confusion created by Lewko, and the adoption of Lewko by the appeal court judge in this case, with respect to the connection between common law defences and “reasonable excuses.” In doing so, the court concluded that defences and “reasonable excuses” are separate from one another.
In R v Perka,  2 SCR 232 [Perka], the SCC first recognized the defence of necessity and concluded that for the defence, the persuasive burden was on the Crown and the accused only bore an evidentiary burden (Perka, 258). Distinguishing the defence of necessity from “reasonable excuses,” the court stated, with respect to “reasonable excuses,” “[o]ne who wishes to plead the possession of a licence or other lawful authority in response to a charge of impartation bears…the burden of persuading the trier of fact that such licence exists. One who pleads necessity bears no such burden” (259).
Applying the SCC’s judgment in Perka, Gorman J. of the Newfoundland and Labrador Provincial Court in R v Sheehan (2003), 35 MVR (4th) 61 (NLPC), concluded that s. 254(5) of the Criminal Code does not provide the accused with a defence but rather an opportunity to escape liability by raising a “reasonable excuse.” On these grounds, it would be incorrect to ignore the authority of the SCC and the common law by equating a “reasonable excuse” to common law defences.
Although the language utilized in s. 794(2) of the Criminal Code is quite ambiguous, as admitted by the BCCA, it is evident that Parliament “did not intend to effect a sea change to a provision grounded in the common law and which had been in force for close to 85 years” (Goleski, para 75). Interpreting the provision incorrectly as placing only an evidentiary burden on the accused, or being synonymous with common law defences, has the effect of causing significant change to the presumption that legislation respects the common law (para 77).
For example, the decision in Lewko did effect a change in law as it placed “reasonable” excuses in the same category as common law defences (para 78). As a result of this, s. 794(2) of the Criminal Code would do nothing more than require an accused to meet the “air of reality” test applicable to defences (para 78).
According Sullivan on the Construction of Statutes, 5th ed (Markham: LexisNexis Canada, 2008), “[a]lthough legislation is paramount, it is presumed that legislatures respect the common law. It is also presumed that legislatures do not intent to interfere with common law rights, to oust the jurisdiction of common law courts, or generally to change the policy of the common law” (431). Additionally, such a change in interpretation would not only impact the meaning of s. 794(2) of the Criminal Code, but the meaning of similar provisions in other statutes.
It follows that without more specific and clearer language, it would be inappropriate to interpret the meaning of a provision in such a way that flouts the intentions of Parliament and the authority of the common law. As such, the persuasive burden to establish a “reasonable excuse” on a balance of probabilities was on Mr. Goleski.