Supreme Court of Canada
Strasser v. Roberge, [1979] 2 S.C.R. 953
Date: 1979-10-02
J. Gordon Strasser Appellant;
and
Claude Roberge Respondent.
1978: March 16; 1979: October 2.
Present: Martland, Ritchie, Pigeon, Dickson, Beetz, Estey and Pratte JJ.
ON APPEAL FROM THE SUPERIOR COURT OF QUEBEC
Labour law—Participation in an unlawful strike—Elements of the offence—Burden of proof—Strict liability offence—Labour Code, R.S.Q. 1964, c. 141, ss. 1(h), 124.
Labour law—Penal prosecution—Preliminary arguments—Interested party—Multiple charge—Several offences in a single count—Labour Code, R.S.Q. 1964, c. 141, ss. 46, 93, 94, 95, 124, 126, 131, 133—Summary Convictions Act, R.S.Q. 1964, c. 35, s. 12, as amended by 1970 S.Q., c. 11, s. 4.
Respondent Roberge, who is president of his union, was charged in 1974 with participating in an unlawful strike, contrary to the provisions of ss. 124, 94, and 46 of the Labour Code. The information was signed by appellant Strasser, who was general manager of the business affected by the strike. The information consisted of two counts, the first referring to June 27, 1974, and the second mentioning July 3, 4, 5, 8, 9 and 10, as dates on which the offence was committed. The Labour Court having found him guilty on both counts, Roberge appealed to the Superior Court by trial de novo and was acquitted on both counts. As the law did not provide for an appeal to the Court of Appeal at the time, appellant obtained special leave from this Court to appeal here. The appeal deals first with the following three preliminary arguments, relied on by respondent:
1. the prosecutor did not allege or show that he was an interested party within the meaning of the Labour Code (s. 131);
2. the two counts of the complaint do not contain all the essential aspects of the offence alleged;
3. the second count of the complaint alleges several offences in the same count, contrary to the Summary Convictions Act (s. 12).
The question turns primarily on the elements of the offence and the evidence which the prosecution must present.
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Held (Dickson, Estey and Pratte JJ. dissenting): The appeal should be allowed.
Per Martland, Ritchie, Pigeon, Dickson, Beetz, Estey and Pratte JJ.: On the first preliminary argument, the evidence disclosed that Strasser was authorized to act for the employer, which is obviously an interested party. It was not necessary for appellant to have specific authorization to lay a complaint, as the general authorization which he held was sufficient. There is also nothing in the relevant legislation requiring him to state his authorization when he is laying a complaint. The second argument is also without merit. First, the fact that s. 124 of the Labour Code, under which the complaint was laid, does not contain the words “is guilty of an offence” does not mean that the offence was not created. The existence of the words “is liable to” is sufficient. It also cannot be argued that the counts are multiple, since each essentially corresponds to the terms of s. 124, adding certain details, and each charges respondent with only one of the three offences created by the section, namely with having participated in an unlawful strike. So far as the third argument is concerned, it relates only to the second count of the complaint, and it supports the conclusion that the latter should be quashed. The provisions of s. 12 of the Summary Convictions Act are peremptory: each offence charged must be set out in a separate count. Whether the offence in the case at bar is continuous or not, there should have been a separate count for each day on which the offence is alleged to have been committed.
Per Martland, Ritchie, Pigeon and Beetz JJ.: In order to decide on the principal point, it must be determined what are the elements of the offence charged and what evidence it is incumbent upon the prosecution to adduce. So far as the material element of the offence is concerned, the Labour Court correctly held that this element is proven once it is established that the accused abstained from providing his services at the same time as other workers abstained in concert from providing theirs. Participation in a strike does not necessarily mean active participation by the commission of positive acts. According to the Superior Court, the offence also contains an intentional element, due to the fact that the offence is described as the participation by one or more persons in the concerted inaction of a group. While the Superior Court was correct on this point, it erred in holding that proof of this intentional element lies on the prosecution and that the rule in Hodge’s case must be applied to this evidence. Accordingly, its conclusions giving Roberge the benefit of the reasonable doubt cannot be sustained. On the other hand, the Labour Court concluded that the offence had been committed
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due to the fact that the existence of the material element of the offence was proven beyond all reasonable doubt. Although the judgment of the Labour Court was rendered before that of this Court in R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299, several indications suggest that it treated this case as one of strict liability, and it did so correctly for the following reasons: (1) this was an offence created by a provincial statute; (2) the legislator has not explicitly indicated his intention to require proof of the intentional element by the prosecution; (3) the offence is of a regulatory nature; (4) nothing in the wording of the offence indicates that this may be an offence of absolute liability; (5) in the great majority of cases to which the prohibition applies, it would be virtually impossible for the prosecution to establish the existence of intent except through proof of the material factor. Finally, the non-participation of respondent in the concerted action preceding the strike is not a ground of defence. Although it is necessary for the prosecution to prove the strike, and therefore, prior concerted action, it does not have to prove that the accused was connected with such concerted action and participated in it. What is important is that respondent associated himself with the strike, not that he was one of its instigators.
In conclusion, in view of the fact that respondent is charged with an offence of strict liability, the material element of this offence was proven beyond any doubt, and respondent presented no evidence capable of exculpating him, the Labour Court properly found him guilty, and its judgment should be restored as to the first count.
Per Dickson, Estey and Pratte JJ., dissenting: The decision of this Court in R. v. Sault Ste. Marie cannot be employed to shift the burden of proof of the mental element of intention necessary to the commission of the offence. Sault Ste. Marie was solely concerned with “responsibility for negligence” in the context of public welfare offences and the introduction of some notion of fault to what would otherwise be absolute liability offences. If one accepts that the offence under s. 124 of the Labour Code has, as one of its components, an intentional element, the result is to negate not only a finding of absolute liability, but also a finding of strict liability. Once one has found an intentional element necessary to the commission of the offence, negligence becomes irrelevant, for the offence then falls into the first category of offences, that of mens rea, according to the classification made in Sault Ste. Marie. This case therefore cannot be used to justify the rejection of any need for proof of mens rea by the prosecution and the shifting of the burden of proof to the accused for an offence which requires mens rea. There is nothing in the
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language of s. 124 to support such a reversal of the burden of proof.
Whether one holds the view that the motion of non-suit should have been granted because there was no evidence of intention laid by the prosecution, or the alternative view that a reasonable doubt had been raised as to the participation of Roberge in the unlawful strike, the appeal must fail.
R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299 (applied); Transport Savard Ltée v. Séguin, [1965] R.D.T. 56; Burke v. Chénier Inc., [1973] T.T. 320; Thivierge v. Les Editions Graphiques Inc., [1973] T.T. 365; Rodrigue v. Lapointe, [1973] T.T. 370; Pert Knitting Ltd. v. Roy, [1975] R.D.T. 575; Christie Brown and Co. Ltd. v. Paradis, [1975] T.T. 348; Reilly v. Lehouiller, [1976] T.T. 183; Girard v. Paquet, [1978] T.T. 164; Labrie v. Métallurgistes unis d’Amérique, Local 7443 [1977] T.T. 113; Burke v. Gasoline Station Ltd., [1973] T.T. 13; Dressler v. Tallman Gravel & Sand Supply Ltd., [1963] 2 C.C.C. 25; R. v. Mason (1972), 8 C.C.C. (2d) 546; Office de la Construction du Québec v. Amco Door Installations Ltd., [1977] C.A. 135, leave to appeal denied [1977] 1 S.C.R. x; Recorder’s Court v. Dufour, [1947] Que. K.B. 331; R. v. Weston Bakeries Ltd., [1969] R.L. 37; Bossé v. Commission Scolaire Régionale Honoré Mercier, [1977] T.T. 1; Marchand v. Boivin, [1977] T.T. 125; International Brotherhood of Electrical Workers, Local Union 2085 v. Winnipeg Builders’ Exchange, [1967] S.C.R. 628, affirming (1966), 57 D.L.R. (2d) 141; Int. Longshoremen’s Ass. v. Maritime Employers’ Ass., [1979] 1 S.C.R. 120; R. v. Mitchell, [1964] S.C.R. 471; R. v. Cooper, [1978] 1 S.C.R. 860; R. v. Paul, [1977] 1 S.C.R. 181; Vézeau v. The Queen, [1977] 2 S.C.R. 277; R. v. Martin, [1942] 1 D.L.R. 391; Proudman v. Dayman (1941), 67 C.L.R. 536; Montreal Hardware Mfs. Co. Ltd. v. Dupuis, [1974] R.D.T. 506; Paradis v. The King, [1934] S.C.R. 165; R. v. Gagnon, [1956] S.C.R. 635, referred to.
APPEAL from a judgment of the Superior Court of Quebec, reversing a judgment of the Labour Court[1]. Appeal allowed, Dickson, Estey and Pratte JJ. dissenting.
Gilles Touchette, for the appellant.
Richard Cleary, for the respondent.
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The judgment of Martland, Ritchie, Pigeon and Beetz JJ. was delivered by
BEETZ J.—Appellant layed a complaint against respondent as follows:
[TRANSLATION] This constitutes the information of:
J. Gordon Strasser
Occupation: General Manager
Address: Pointe Campbell, Chibougamau, District of Abitibi
who states: I have reasonable and probable grounds to believe, and do believe, that:
Mr. Claude Roberge, 1406 O’Connell, in Chibougamau, District of Abitibi,
1. On June 27, 1974 Mr. Claude Roberge, being an officer of Local 5186 of the United Steelworkers of America, an organization of employees duly certified to represent the employees of Campbell Chibougamau Mines Ltd., participated in an unlawful strike at the mine of Campbell Chibougamau Mines Ltd., the whole contrary to the provisions of the Labour Code, in particular ss. 124, 94 and 46 of the said Code;
2. On July 3, 4, 5, 8, 9 and 10, 1974 Mr. Claude Roberge, being an officer of Local 5186 of the United Steelworkers of America, an organization of employees duly certified to represent the employees of Campbell Chibougamau Mines Ltd. participated in an unlawful strike at the mine of Campbell Chibougamau Mines Ltd., the whole contrary to the provisions of the Labour Code, in particular ss. 124, 94 and 46 of the said Code.
I therefore ask for justice and do sign:
(signed) J. GORDON STRASSER
Sworn before me at
Chibougamau, this 15th day
of July, 1974.
(signed) DENISE PLOURDE
Justice of the Peace acting
in and for the Province of Quebec.
On August 6, 1974 the respondent entered a plea of not guilty. On October 28, 1974 Judge Melançon of the Labour Court—as he then was—found respondent guilty on both counts of the complaint and imposed on him a fine of $700 plus costs, namely $100 for each day of the offence, the
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minimum provided by the Act: [1974] T.T. 432.
Respondent appealed to the Superior Court by trial de novo, but this trial was based solely on the evidence presented to Judge Melançon, the transcript of which was entered in the record of the Superior Court. On June 30, 1975 McNicoll J. of the Superior Court allowed the appeal and found respondent not guilty on both counts.
At the time, the law of Quebec did not provide for an appeal to the Court of Appeal. Appellant obtained special leave from this Court to appeal here.
I—Facts
In his brief, appellant gives a summary of the facts which is not disputed by respondent:
[TRANSLATION] At all times relevant hereto, respondent was president of the union certified to represent the employees of Campbell Chibougamau Mines Ltd., in accordance with the provisions of the Labour Code of Quebec.
During 1974, while a collective agreement was in effect, the employees asked that their salary rates be revised. There was an initial agreement in March 1974; however, subsequently representatives of the union, including respondent, submitted new demands to the company in light of the increase in the cost of living.
In particular, there were four meetings in June 1974 between representatives of the company and of the union. At these meetings, respondent asked for a readjustment of wages on the order of one dollar ($1.00) an hour; in addition, he suggested at one of these meetings that the company “could foresee problems” if the union’s demand was not granted.
In fact, a concerted work stoppage occurred on each of the dates mentioned in the information. On each of these dates, the respondent did not report to work. It was also admitted that respondent did not call the company on these dates to request permission to be absent, in accordance with established procedure. Respondent put forward no evidence in his defence.
II—Preliminary arguments put forward by respondent for quashing the complaint
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Before the trial commenced before the Labour Court and then in the Superior Court, respondent unsuccessfully put forward three arguments for quashing the complaint; and he continued to plead them in this Court:
[TRANSLATION] (1) the prosecutor did not allege or show that he was an interested party within the meaning of s. 131 of the Labour Code;
(2) the two (2) counts of the complaint do not contain all the essential aspects of the offence alleged, and in particular, do not disclose in what way the strike was unlawful;
(3) the second count of the complaint alleges several offences in the same count, contrary to s. 12 of the Summary Convictions Act, S.R.Q. 1964, c. 35, as amended by S.Q. 1970, c. 11.
1. First argument. This argument is based on s. 131 of the Labour Code, R.S.Q. 1964, c. 141:
131. Any penal prosecution under this code may be taken by the chief investigation commissioner or by any interested party.
The fines provided for in this act shall be paid into the consolidated revenue fund.
The Labour Code does not explain what an “interested party” is. Respondent contended that interested parties are only [TRANSLATION] “persons who have rights under the Labour Code”, and that only an employer is authorized by the Code to bring proceedings for participation in an unlawful strike.
In an initial unpublished judgment, rendered on October 8, 1974, on preliminary arguments, the Labour Court refused to allow this argument [TRANSLATION] “declining its jurisdiction… because this is a question which might be the subject of evidence when the case is heard”; however, it reserved respondent’s right to move for nonsuit subsequently if the prosecution did not establish this fact. In other words, the Court held that this argument was not a true declinatory exception on which it was necessary and possible to rule in limine litis, but an argument raising a question of fact on which jurisdiction might depend. On this point, the Labour Court followed
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the principal line of authority: Transport Savard Ltée v. Séguin[2]; Burke v. Chénier Inc.[3]; Thivierge v. Les Éditions Graphiques Inc.[4]; Rodrigue v. Lapointe[5]; Pert Knitting Ltd. v. Roy[6]; Christie Brown and Co. Ltd. v. Paradis[7]; Reilly v. Lehouiller[8] and Girard v. Paquet[9]. However, this line of authority is not consistent: see Labrie v. Métallurgistes unis d’Amérique, Local 7443[10].
There was in fact in the case at bar a motion for nonsuit once the prosecution evidence was complete, but this motion, which was dismissed, no longer dealt with the first preliminary argument: it was based on the contention that there had been a total absence of evidence that respondent had participated in the strike. In its final judgment, the Labour Court did not expressly dispose of the first argument, but dismissed it by implication since it found respondent guilty. The Superior Court did not decide the matter either, merely expressing its concurrence with the Labour Court so far as the preliminary arguments were concerned.
In my opinion, the first preliminary argument was dismissed because the evidence disclosed another fact making that argument irrelevant: appellant was authorized to act for the employer, and it is not disputed that the employer is an interested party.
Appellant was called as a witness and identified himself as follows:
[TRANSLATION] Mr. J. GORDON STRASSER
47 years old, GENERAL MANAGER OF
CAMPBELL CHIBOUGAMAU MINE
DOMICILED AT 1 POINTE CAMPBELL
CHIBOUGAMAU
He then began his deposition:
[TRANSLATION] Q. Mr. Strasser, in identifying yourself you mentioned that you were the General
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Manager of the Campbell Chibougamau Mine: is that the case?
A. Yes.
Q. Mr. Strasser, were you General Manager of the Campbell Chibougamau Mine from June twenty-seven (27) and including that date, and during the month of July, nineteen seventy-four (1974)?
A. Yes.
In cross-examination, appellant testified as follows:
[TRANSLATION] Q. Mr. Strasser, were you authorized in any way whatever to sign this information?
A. Yes.
Q. By whom and at what time, on what day?
A. I have authority to take such action as senior officer in the region.
Q. In what way—you were not specially authorized to lay this complaint by a resolution of your company, or by some other means?
At this point, the deposition was interrupted by an objection which the Court dismissed. The following passage then occurs:
[TRANSLATION] A. I was not specially authorized to lay this complaint, but I had general authorization to act in this manner as part of my responsibilities and my duties.
By Mr. RICHARD CLEARY, Counsel for the accused:
Q. So, if I understand you correctly, there was no resolution by the board of directors or by any other authority in the company authorizing you specifically to lay this complaint?
A. There was no specific authorization to lay this complaint.
This deposition is not contradicted. In my opinion, it proves that appellant held sufficient authority from his employer to lay the complaint; and the trial judge appears to have correctly concluded in his final judgment of October 28, 1974 that appellant acted in his capacity as agent of the employer. At p. 436, he wrote:
[TRANSLATION] “The first witness for the prosecution was Mr. J. Gordon Strasser, General Manager of the Campbell Chibougamau Mine. He stated that it was in this capacity and in light of his responsibilities in this
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regard that he layed and signed this complaint, his interest clearly being in seeing that the mines managed by him produced and were not stopped by an unlawful strike.” (My underlining.)
I do not think it is necessary for appellant to have received specific authorization to lay this complaint. I do not see why, in the case of a strike in which it may be thought advisable to lay complaints against scores or hundreds of persons, the general manager of a mine, the senior officer of a company in a given region, needs a specific resolution from the board of directors authorizing him to file each complaint. His case is covered by art. 1705 of the Civil Code:
Art. 1705. Powers granted to persons of a certain profession or calling to do any thing in the ordinary course of the business which they follow, need not be specified; they are inferred from the nature of such profession or calling.
In his submission counsel for the respondent argued that appellant did not purport to act on his employer’s behalf. Of course, the information could have been worded differently. For example, it could have been made in his name by the appellant “in his capacity as a duly authorized agent of Campbell Chibougamau Mines Ltd.”, or by “Campbell Chibougamau Mines Ltd., represented by its agent, J. Gordon Strasser”. However, I find nothing in the Labour Code or in the Summary Convictions Act, R.S.Q. 1964, c. 35, as amended, requiring a person laying a complaint to give notice of his mandate. Section 133 of the Labour Code provides that:
Any employer or association may be represented, for the purposes of this code, by duly empowered representatives.
This provision extends to penal proceedings covered by the Code and differs from the general rule of procedure that in a civil matter a person cannot use the name of another to plead, except the Crown through authorized representatives (art. 59 C.C.P.).
I know of no peremptory provision in the legislation in effect at the relevant period which requires a complainant to state in the information in what
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respect he is an interested party or whether he is acting for an interested party. I also do not see what detriment the person charged can suffer from the fact that the complaint does not contain these items of information. What is important is that the person filing the complaint be in fact an interested party or the agent of an interested party, and that this interest or mandate be proven. In the case at bar appellant’s mandate was proven. In order to dismiss the first preliminary argument relied on by respondent, there is accordingly no reason to decide whether, apart from his mandate, appellant was personally an interested party.
2. Second argument. In order to understand this argument and weigh its validity, the relevant provisions of the Labour Code must first be cited or summarized:
46. If the intervention of the conciliation officer has been unsuccessful, the right to strike or lock-out shall accrue sixty days or, in the case of the making of a first agreement, ninety days after the Minister has received the notification provided for in section 43, unless the parties submit their dispute to a council of arbitration.
93. Strikes are prohibited in all circumstances to the police officers and firemen in the employ of a municipal corporation.
94. It is forbidden to strike so long as an association of the employees concerned has not been certified or recognized and has not obtained the right to strike under section 46.
95. It is forbidden to strike during the period of a collective agreement, unless the agreement contains a clause permitting the revision thereof by the parties and the conditions prescribed in the preceding section have been observed.
Section 99 contains provisions relating to strikes by employees of a public service. Like ss. 94 and 95, it refers to s. 46.
Sections 124 and 126 read as follows:
124. Any person declaring or instigating a strike or lock-out contrary to the provisions of this code, or participating therein, shall be liable, in the case of an employer, association or officer or representative of an association, to a fine of one hundred to one thousand dollars for each day or part of a day during which such strike or lock-out exists and, in all other cases, to a fine of ten to fifty dollars for each such day or part of a day.
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126. Any person who fails to comply with any obligation or prohibition imposed by this code, by a regulation of the Lieutenant-Governor in Council or by a regulation or decision of the Board, is guilty of an offence and liable, unless another penalty is applicable, to a fine of twenty five to one hundred dollars and of one hundred to one thousand dollars for any subsequent offence within two years.
As counsel for the respondent explained in his submission, the second argument is twofold. First, he maintained that s. 124 of the Labour Code, mentioned in the complaint, only provides for penalties and creates no offence, because it does not contain the formula “is guilty of an offence”: the complaint should have referred to s. 126. Furthermore, as the complaint does not indicate in what respect the strike is unlawful, he argued that respondent is confronted by a multiple charge, namely that of having contravened ss. 93, 94, 95 and 99.
After hearing counsel for the respondent on this point, the Court did not require counsel for the appellant to reply, as it was of the opinion that the Labour Court and the Superior Court correctly dismissed this argument.
I concur in the reasons of the Labour Court regarding the first part of this preliminary argument:
[TRANSLATION] …it is clear that if s. 126 of the Labour Code creates a complaint, creates an offence of a general nature, s. 124 of the Code also creates, not one offence, but several offences related to what is called a strike instigated or existing contrary to the provisions of the Code.
Thus, under s. 124 of the Labour Code, someone can be charged with having declared a strike, can be charged with having participated in a strike, and can be charged with having instigated a strike, contrary to the provisions of the Code, and these are three (3) different situations giving rise, which may give rise, to three (3) complaints or three (3) counts in the same complaint.
…
…while I admit that action could have been taken under both s. 126 and s. 124 of the Labour Code, the fact that the action was taken purely under s. 124 L.C. does not exclude and does not make unlawful the complaint as laid.
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It was also expressly contended that s. 124 of the Labour Code does not create an offence, because we do not find in the wording of this section, in contrast with the wording of ss. 123, 125 and 126 in the same section of the Code, the statement that someone who does such a thing “is guilty of an offence” and is “liable …to a fine”.
…
The mere absence of certain words cannot by itself prevent the creation of an offence, and the fact that the words “is guilty of an offence” are not in a provision does not mean that the offence was not created.
The existence of the words “is liable to” corresponds to the level of legal language, which exists in the same way as the language of mining or carpentry or plumbing exists; the existence of these words is therefore sufficient for the offence to be created.
(This passage is contained in the unreported judgment of October 8, 1974.)
The second part of the second preliminary argument is also without merit. Sections 93, 94, 95 and 99 are contained in Chapter V of the Code, entitled “Strikes and lock-outs”. This chapter deals with strikes and lock-outs, without indicating whether criminal prosecution is possible if its provisions are not complied with. As such, the provisions of this chapter do not create offences. The provisions which do create offences are in Chapter VIII, entitled “Penalties”, which includes s. 124. It is to this section that reference must be made in applying the guideline approved by this Court in R. v. Sault Ste. Marie[11], at p. 1308: “does the accused know the case he has to meet, or is he prejudiced in the preparation of his defence by ambiguity in the charge?”. Each of the two counts in the complaint essentially corresponds to the terms of s. 124, adding certain details: each mentions the date or dates on which the alleged offence is supposed to have been committed; each clearly identifies respondent; each indicates the place where the unlawful strike took place, giving the name of the mine, and each charges respondent with only one of the three offences created by the section, namely, having participated in an unlawful strike, but not with having declared or
[Page 966]
instigated it. As each of these counts only charges respondent with one offence, I do not see how it can be said that they are multiple and that respondent is unable to know which offence he is being charged with in each count, because they do not specify in what respect the strike was unlawful. At the most it might be suggested that this was a case in which the prosecution would have to furnish particulars. These particulars were in fact requested by respondent; the Labour Court dismissed the request and respondent did not appeal from that judgment, which in any case involved a good deal of discretion.
3. Third argument. This argument relates only to the second count of the complaint. It is based on s. 12 of the Summary Convictions Act, as amended by c. 11 of the Statutes of Quebec, 1970, s. 4:
12. (1) Every complaint must be made in writing and, if the issue of a warrant is required, must be supported by oath.
(2) A single complaint may charge several offences; each offence charged must be set out in a separate count.
(3) Any person may make a complaint unless the law constituting the offence requires a special authorization.
(4) When an offence is continuous, such continuation shall constitute a separate offence day by day.
(5) When a defendant is liable to separate penalties according to whether the offence is a first or a subsequent one, the complaint must mention for which offence other than the first proceedings are instituted. It shall be incumbent upon the complainant to prove a previous conviction.
Respondent maintained that the second count was not worded in accordance with subss. 2 and 4 of s. 12. Judge Melançon held that the second count charged respondent with a continuing offence, that of having participated in a single unlawful strike lasting for several days, and he dismissed the third argument, relying on a judgment which he had himself rendered the previous year (Burke v. Gasoline Station Ltd.[12]), and on a
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decision of the Court of Appeal of Alberta, Dressier v. Tallman Gravel et al.[13], and a decision of the Court of Appeal of Nova Scotia, R. v. Mason[14]. However, in these two decisions, the legislation to be interpreted was provincial statutes referring to the Criminal Code, and did not include any provision worded like the new s. 12 of the Summary Convictions Act. The Court of Appeal of Quebec had to interpret s. 12 in a decision subsequent to the judgments rendered in the case at bar by the Labour Court and the Superior Court, Office de la Construction du Québec v. Amco Door Installations Ltd.[15] (Special leave to appeal to this Court was denied[16].) In that case, the complaint included two counts charging the accused with having used too many apprentices as compared with the number of qualified workers for a given week, contrary to the Manpower Vocational Training and Qualification Act, S.Q. 1969, c. 51, which also referred to the Summary Convictions Act. The trial judge concluded that the offence alleged was not a continuous offence, but that the information contravened subs. 2 of s. 12; he therefore quashed the information. The Court of Appeal affirmed his decision. Dubé J., speaking for the unanimous Court, gave the following reasons at p. 137:
[TRANSLATION] …in the case at bar the informations at issue are to be considered not according to the usual Criminal Code rules, but according to the rules of the Summary Convictions Act; I consider that s. 12 of that Act is very explicit and cannot give rise to any confusion: thus, it seems clear that each of the informations at issue covers a period of one week; according to what is reported in the judgment a quo, the complainant himself admitted that there had been an offence on each day of the week; accordingly, I think the wording of s. 12 of the Summary Convictions Act places us in the following dilemma: if the complaint includes a continuous offence, as appellant alleges, then it is subs. 4 of s. 12 of the Summary Convictions Act which applies, and this subsection states clearly that:
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When an offence is continuous, such continuation shall constitute a separate offence day by day;
on the other hand, if the complaint does not constitute a continuous offence, then it is subs. 2 of that section which applies:
each offence charged must be set out in a separate count.
It must accordingly be concluded that in either case the complaints as laid are contrary to the directions of s. 12 of the Summary Convictions Act, directions which in my opinion are peremptory.
I feel that the defect alleged against the complaints at issue relates to an essential aspect of the information, which cannot be remedied under s. 62 of the Summary Convictions Act, because this is not a mere error of form.
I am in agreement with these reasons of the Court of Appeal, although s. 62 of the Summary Convictions Act seems to me to apply to irregularities of substance as well as form. Under the first subsection of this section, such irregularities can be disregarded. When they are serious, they can be remedied, as provided in subs. 4, by amendments and an adjournment. However, s. 61 of the same Act implies that there are irregularities which cannot be remedied, as for example if the description of the offence is much too vague. See Recorder’s Court v. Dufour[17]; R. v. Weston Bakeries Limited[18]. A complaint which does not comply with the provisions of s. 12 must be regarded as vitiated by an irregularity of this kind, otherwise the peremptory provisions of that section would be a dead letter. The legislator saw fit to add to the formal requirements by the amendment made in 1970 to s. 12; the new provision is clear and it must be observed. The second count of the complaint must therefore be quashed.
The decision of the Court of Appeal was followed in Bossé v. Commission Scolaire Régionale Honoré Mercier[19] and, though with hesitation, in Marchand v. Boivin[20].
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III—The principal point
In this Court, respondent did not dispute that there had been a strike at the Campbell Chibougamau Mine on June 27, 1974, that this strike was unlawful and that at the time he was an officer of Local 5186 of the United Steelworkers of America, an association duly certified to represent the mine employees.
It must then be decided whether the Labour Court was correct in concluding that the participation of respondent in the strike was proven, or whether the Superior Court correctly concluded that it was not. In order to do this, the elements of the offence with which respondent is charged must be ascertained; what evidence it is incumbent upon the prosecution to adduce must also be determined.
The only evidence adduced against respondent was that he was not at work on June 27, 1974, a day on which he should have been there. It was also admitted that he had not asked for leave to be absent.
The Labour Court and the Superior Court arrived at opposite conclusions primarily because they disagreed on the elements of the offence and on the evidence required to establish them.
1. The material element of the offence
As I have noted above, it is no longer in dispute that on June 27, 1974 there was a strike within the meaning of the definition given in s. 1(h) of the Labour Code:
“strike”—the concerted cessation of work by a group of employees.
The Superior Court considered that in order to participate in a strike, it is necessary to take an active part in it as indicated by positive action; it noted, for example, that there was no evidence that on the day of the strike respondent had been seen among the many persons causing an obstruction, participating in picketing the mine or blockading it.
The Labour Court, on the other hand, considered that the material element of the offence
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was merely abstaining from providing his services at the same time as other employees were on strike, and that the commission of the offence did not require any positive action by the accused when, as in the case at bar, he was employed by a business being subjected to a strike.—The Labour Court noted that it might be otherwise where the accused was not employed by the business, and was participating in the strike or in demonstrations accompanying it, for sympathetic reasons on some political ground or for some other reason. I am not required to decide whether this could be so pursuant to s. 124, s. 128 or any other provision of the Labour Code.
I concur on this point with the Labour Court, in light of the definition of strike by the Labour Code and the meaning of the word “participer” (to participate). This word is not defined by the Code. According to the Robert dictionary, it means:
[TRANSLATION] TO take part in [something], join, contribute to, collaborate, co-operate, intervene, help, belong to, act in, be an accomplice, be involved in, partake, experience the same feelings through sympathy with someone, have a part in.
This word may have a positive or negative meaning depending on the nature of what is being participated in. In the case of an omission, like a work stoppage by a group of employees, the minimum and primary material aspect of participation is also an omission. In my opinion, it is an error to maintain that positive acts must be committed to constitute a participation in what the Act defines as an abstention. What the Labour Code specifically prohibits in s. 124 is not participation in picketing, in a blockade or in any other activity of this kind by a group of employees, but participation in a concerted cessation of work by a group of employees, that is, participation in a suspension of activity. The Labour Court correctly held that, apart from the intentional element of the offence, the essential material element is proven once it is established that the accused abstained from providing his services at the same time as other workers abstained in concert from providing theirs. Moreover, this conclusion seems more compatible than the other with the ordinary meaning of the words: when there is a strike and an employee stays home, it will ordinarily be said that, at first
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glance, the employee is on strike or is participating in a strike.
2. The intentional element of the offence
According to the Superior Court, the offence with which respondent was charged contains an intentional element which it defined as follows:
[TRANSLATION] AS the strike is defined as a “concerted cessation”, a decision must enter into it, namely a voluntary act which itself follows a statement of the situation having the effect of bringing about the adhesion of the mind, and it is not until this process is complete that it can be said there is a strike, and that someone can take part in it through an identical process, or at least an analogous, equivalent or similar process.
The Superior Court also held that proof of this intentional element lies on the prosecution and that, where this evidence is circumstantial, it must be such that it leads irresistibly to a conclusion of guilt, excluding any other logical explanation, in accordance with the rule in Hodge’s case. The Superior Court held that in fact in the case at bar the evidence was circumstantial and did not meet the rule in Hodge’s case: thus, [TRANSLATION] “there was no positive evidence” that the accused knew that other employees had ceased working; the prosecution also did not establish that the accused’s health permitted him to work on the day of the strike or that he was not the victim of some other impediment; and the Court concluded that the prosecution evidence therefore left open a reasonable doubt from which the accused must benefit.
I am in agreement with the Superior Court on only one point, namely that the offence alleged against respondent includes an intentional element, due to the fact that the offence is described as the participation by one or more persons in the concerted inaction of a group. I would describe this intentional element as follows: if the material element of the offence is abstaining from providing services at the same time as other employees are on strike, the intentional element is the intent to abstain from working with the other employees. This element consists in the accused’s individual intent to join the collective and concerted cessation of work.
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The nature of this intentional element is vividly described in a decision of the Court of Appeal of Manitoba, Winnipeg Builders’ Exchange v. International Brotherhood of Electrical Workers, Local Union 2085[21]. One of the incidental questions arising in that case was as to whether workers should have been ordered to cease an unlawful strike when there was no dispute between them and their employer, but they refused to cross a picket line formed against another employer by a union other than the one to which they belonged. The Court had to decide whether this refusal constituted, with respect to each worker, sufficient proof of participation in an unlawful strike. Freedman J.—as he then was—dissenting, concluded at pp. 147 and 148 that it did not:
As for the individual workmen defendants the most that can be said is that each of them refused to cross the picket line. But is that necessarily an act done in combination or in concert with the others? Or could it be an individual response of each man in accordance with a tenet of labour faith which commands his allegiance? I think there is a useful parallel in the illustration suggested to the Court by Mr. Green. One hundred men attended a Friday evening banquet. Ten of them, devout Roman Catholics, decline to eat the meat course. The conduct of each one of this latter group is precisely the same as that of the other nine. But it cannot be said that they acted in combination or in concert. Each met the situation according to his individual lights, albeit in the result they all responded in the same way. Whether in the present case the workmen did in fact act in concert or otherwise is uncertain, and is a matter which ought to have been left for determination until the trial of the action.
However, Monnin J., speaking for the majority, came to the opposite conclusion, at pp. 153 to 155:
No one worked during the cessation of work. The contracts were not terminated and plaintiffs or their subcontractors gave no permission to cease work. The definition of “strike” includes a cessation of work either “in combination or in concert or in accordance with a common understanding”. This was a most effective cessation of work since at most one person entered the building during its continuation.
In arguing that there was no evidence of combination or concerted effort, counsel used as an example a Friday
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night banquet at a large hotel, which banquet is attended by many people including some of the Catholic faith. At this banquet each and every devout Catholic declines to eat meat. In such circumstances, analogous to a certain degree to the instant case, he claimed that each Catholic acted individually and could not be said to have acted in concert or in combination with his co-religionists. The example must be carried further. By abstaining from eating meat the Catholic guest or guests do not bring the banquet to a complete stop, do not prevent others from eating their meat course, and do not literally stop persons from entering the hotel premises to attend this or any other function.
It is idle to suggest that each person individually refused to cross the picket line. There is a principle, well accepted by union members, as well as some other persons, that they do not cross a picket line, and at times union by-laws have provided stiff penalties for the breach of this precept. It has reached such a stage that it is considered a cardinal sin against organized labour to cross a picket line. See Carrot hers’ Collective Bargaining Law in Canada (1965), pp. 415-7. It is idle to claim that the stoppage was of an individual nature repeated by the number of persons who refused to cross the picket line on either of the three days. Rubin knew full well, and he hoped, that if he or someone picketed the premises the end result would be exactly what occurred here, namely, a cessation of work.
This cessation of work, considered along with the threats of Knight that he was not going to have his men work on the site as long as non-union men were also working there, and with Pullen’s remarks to Oneschuk that if non-union men were removed he would have his men return to work, was a concerted effort. These remarks were not only post hoc facto but indicate clearly concerted effort to apply pressure to compel Arthur Rempell Ltd., to employ union labour only.
…
The important fact is that as a result of this picketing every other union man united with Rubin and in concert with him refused to cross the picket line, compelling a complete stoppage of work. Under circumstances of this nature there is no necessity for a mass meeting or the reaching of an unanimous agreement in order to act in concert with another person. (My underlining.)
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This decision was upheld by this Court, although it did not decide the incidental question: International Brotherhood of Electrical Workers, Local Union 2085 v. Winnipeg Builders’ Exchange[22], at p. 637. (See also as to the nature of the intentional component the decision of this Court, Int. Longshoremen’s Ass. v. Maritime Employers’ Ass.[23], at pp. 138 to 140.)
Where the Superior Court erred, however, was in applying the rule in Hodge’s case to proof of intent. Even in the case of a criminal offence, where proof of guilty intent beyond reasonable doubt is required, this rule cannot be applied on this point: R. v. Mitchell[24], R. v. Cooper[25]. Additionally, even if the rule in Hodge’s case could be applied, it could not be applied so as to subject the prosecution to the burden of “negativing every conjecture to which circumstantial evidence might give rise and which might be consistent with the innocence of the accused”: per Ritchie J., speaking for the majority of this Court in R. v. Paul[26], at p. 191. Indeed, if the Superior Court’s logic is taken to its ultimate conclusion, the prosecution would have to establish not only that respondent was aware of the strike and that his health enabled him to be present at work, but also that his wife was not about to go into labour on that day, that he did not have to drive his injured child to hospital, that his house was not on fire, that his car had not broken down, that his alarm clock worked, and so on. It is unreasonable and erroneous to impose such a burden on the prosecution.
The conclusion of the Superior Court giving respondent the benefit of the reasonable doubt cannot therefore be sustained: this conslusion is vitiated by a false premise regarding the material element of the offence as well as proof of the intentional element.
There remains the judgment of the Labour Court. The latter did not dispute that there was an intentional element in the offence with which
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respondent was charged. It appears to have assumed this, but not to have dwelt on its nature. The existence of the material element of the offence being proven beyond all reasonable doubt, the Labour Court concluded that the offence had been committed. As the trier of facts may do even in a criminal proceeding (Vézeau v. The Queen[27]), the Labour Court also drew conclusions unfavourable to respondent from the fact that he did not testify:
[TRANSLATION] In the case at bar the silence of the respondent is a fact which the Court cannot help being struck by, and drawing therefrom—in addition to the prosecution evidence, evidence which once again was beyond all reasonable doubt—conclusions adverse to respondent.
At first glance, the Labour Court took two distinct courses each of which led to the same conclusion. Its judgment appears to be, first, a decision disposing of a criminal matter in the traditional way, requiring that the prosecution prove actus reus and mens rea. However, it resembles even more a judgment disposing of a strict liability offence.
Let us examine the first approach. As the Labour Court did not deal specifically with the intentional element of the offence, it may be assumed that this is because it inferred its existence from proof of the material element, the silence of respondent and the circumstances.
At first sight it is difficult to distinguish this approach from that traditionally followed in criminal proceedings, and sometimes adapted to proceedings which are not criminal in the true sense of the word, as in R. v. Martin[28]. There the accused was charged with being on strike and thereby infringing ss. 57 and 58 of the Industrial Disputes Investigation Act, R.S.C. 1927, c. 112. Section 2(k) of this Act defined strike as follows:
(k) “strike” or “to go on strike,” without limiting the nature of its meaning, means the cessation of work by a body of employees acting in combination, or a concerted refusal or a refusal under a common
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understanding of any number of employees to continue to work for an employer, in consequence of a dispute, done as a means of compelling their employer, or to aid other employees in compelling their employer, to accept terms of employment;
Gillanders J. observed, at p. 395:
Dealing with the submission that there was no evidence that the accused went on strike, the relevant facts as set out in the stated case show in brief that the accused was a member of the Union mentioned, that immediately prior to the strike the company was requested on behalf of the members of the Union to recognize and deal with the Union but on this request no action was taken; that the accused with 500 or 600 employees left at 12 o’clock noon on June 4th and did not return to work until June the 13th. In a civil proceeding there would be no difficulty in drawing from these facts the inference that the accused went on strike, but it is urged in a proceeding of this nature that this is no evidence in law on which a conviction can be based; that it is not inconsistent with innocence and that this is a question of law. “Strike” or “to go on strike,” are defined in s. 2(k) of the Act. Taken with other surrounding circumstances the fact that this accused left at the same time as 500 or 600 employees of the plant, remained away during the same time and returned with these employees some days later, is, I think quite sufficient to support the conclusion that the accused ceased work, acting in combination with the others taking the same action, and on which to base a finding that he went on strike, as found by the Magistrate.
This passage was obiter, as the accused was acquitted on other grounds; but it is possible to interpret the Labour Court’s judgment in the case at bar as reasoning of the same nature. The evidence is perhaps not as strong as in Martin, but it cannot be said that it does not support the findings of the Labour Court.
Nonetheless, there are other indications in the judgment of the Labour Court suggesting that it treated the case as one of strict liability. It did this without saying so, but it must be borne in mind that the judgment was prior to that of this Court in R. v. Sault Ste. Marie (supra) and dates from a time when the distinction between criminal
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offences, strict liability offences and absolute liability offences had not necessarily been made or accepted.
First, the Labour Court noted, in its preliminary judgment of October 8, 1974, that the matter was not one of criminal but of penal law, and that commission of the offence did not carry with it ignominious consequences.
Additionally, the Labour Court used more than once in its final judgment a very characteristic expression, when it said, for example, at p. 448:
[TRANSLATION] …the fact of not providing his services when an unlawful strike was in progress at his employer’s place of business constitutes prima facie participation in that strike… (My underlining.)
The expression “prima facie” in this context can mean only one thing: proof of the material element of the offence has the effect of discharging the burden of proof on the accused. The latter is accordingly required to prove, for example, that he had
a reasonable belief in facts which, if true, would have rendered the act innocent.
(Per Dickson J., speaking for this Court in Sault Ste. Marie, at p. 1316.)
Thus, if respondent had a reasonable basis for believing that there was no strike, he would not have committed the offence by refraining from working. However, without proof of that circumstance, the burden of which lay upon him, he had to be found guilty.
Finally, commenting on respondent’s silence, the Labour Court took care to emphasize at p. 448 that it considered the commission of the offence as already proven beyond reasonable doubt, quite apart from respondent’s silence:
[TRANSLATION] The case for the prosecution is not “strengthened” by the fact that respondent refrained from testifying, but as the essential elements of the offence have been established beyond reasonable doubt, the Court cannot give respondent the benefit of a reasonable doubt which was never raised.
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There seems to be only one way of interpreting this passage: the Labour Court did not proceed from respondent’s silence to a conclusion of guilt; this had already been done, conditionally, provided the defence did not submit any evidence; but respondent could have presented a defence leading to acquittal, which he did not do.
In effect, therefore, the Labour Court appears to have treated the offence with which respondent was charged like a strict liability offence, and in my opinion it properly did so for the following reasons.
1. This was an offence created by a provincial statute, and as Dickson J. observed in R. v. Sault Ste. Marie (supra), at p. 1327:
If it is valid provincial legislation (and no suggestion was made to the contrary), then it cannot possibly create an offence which is criminal in the true sense.
2. It is possible for the federal or provincial legislator to require that an offence which is not properly speaking criminal be nonetheless treated as such so far as proof is concerned; but this is an exceptional situation and the legislator must then clearly indicate his intention in this regard. In R. v. Sault Ste. Marie (supra), Dickson J. suggested an almost mechanical test for determining whether an offence of this nature should exceptionally be treated like a truly criminal offence. At p. 1326, he observed:
Offences which are criminal in the true sense fall in the first category. Public welfare offences would prima facie be in the second category. They are not subject to the presumption of full mens rea. An offence of this type would fall in the first category only if such words as “wilfully”, “with intent”, “knowingly”, or “intentionally” are contained in the statutory provision creating the offence.
In the case of the offence before the Court, the legislator has not explicitly indicated in this manner his intention to require proof of the intentional element by the prosecution.
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Moreover, the fact that an offence may contain an intentional element does not prevent it from being classified in the categories of strict liability or absolute liability offences: what was held in R. v. Sault Ste. Marie (supra), as I understand that decision, was not that strict liability and absolute liability offences do not contain an intentional element; rather, it was that the prosecution is not required to prove that element in order to obtain a verdict of guilt.
3. The offence is of a regulatory nature: striking is not unlawful in itself; it may or may not be, depending on what is contained in the detailed provisions of the Labour Code regarding the length of collective agreements, the notices that must be given and the time limits that must be observed. This offence corresponds to the general description given by Dickson J. in Sault Ste. Marie, at pp. 1302 and 1303, of offences which are not criminal:
…which are not criminal in any real sense, but are prohibited in the public interest. (Sherras v. De Rutzen) Although enforced as penal laws through the utilization of the machinery of the criminal law, the offences are in substance of a civil nature and might well be regarded as a branch of administrative law to which traditional principles of criminal law have but limited application.
It also corresponds to offences dealt with by Dixon J. when in Proudman v. Dayman[29], at p. 549, he refers to:
summary offences created by modern statutes, particularly those dealing with social and industrial regulation.
It is interesting to note, moreover, that the Superior Court has already held that a breach of s. 126 of the Labour Code does not constitute an offence involving mens rea in the criminal sense of that phrase: Montreal Hardware Mfs. Co. Ltd. v. Dupuis[30], at p. 511.
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4. Nothing in the wording of the offence or the type of regulation involved indicates that this may be an offence of absolute liability: R. v. Sault Ste. Marie (supra) at p. 1326.
5. In the great majority of cases to which the prohibition applies, it would be virtually impossible for the prosecution to establish the existence of intent except through proof of the material factor. Let us think, for instance, of the following situation, which may happen hundreds or even thousands of times with many variations during an unlawful strike: an employee, unaware that there is strike, prepares to go to work; he learns on the radio than an unlawful strike has just spontaneously commenced at his employer’s place of business and he decides to stay home, because he is in agreement with the strike or because he does not want to break strikers’ solidarity. He is undoubtedly guilty of the offence of participating in an unlawful strike: he has committed the required act of refraining and he has the required intent. Nonetheless, it is practically certain that the offence will remain unpunished if the prosecution must prove anything but his having refrained from working, since only the employee knows his intent. If the prohibition is to be effective—and it must be assumed that the Act intends it to be—the only method is to reverse the burden of proof and impose on the accused the obligation of showing that he did not have the required intent and took reasonable steps to avoid committing the offence. This burden on the other hand will not weigh unduly on an accused who really has a defence; it should not be too difficult for him to prove, for example, that he had good reasons for not knowing there was a strike, that he had just been injured and could not go to work, or that he took all reasonable steps to go to work but was prevented from doing so by an unbreachable blockade: leaving aside the defence of impossibility, which the Court does not have to decide upon, such evidence could show that, although the accused refrained from providing his services, he did not do so with the intent of participating in the strike.
As it seems to me, the desire to create a fair balance between the practical necessity of penaliz-
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ing offences which have in fact been committed but are difficult or impossible to prove, and the risk of punishing an innocent party without leaving him even an option to present evidence in his defence, was the principal consideration motivating this Court when, in Sault Ste. Marie, it recognized the category of strict liability offences.
3. Non-participation by respondent in concerted action preceding the strike
In order to establish that the offence was committed, the prosecution had to prove that there had been a strike, and accordingly that there had been concerted action by a group of persons. This concerted action postulates that a number of individuals performed external acts by communicating with each other in order to reach agreement on the principle and procedure of the strike, the time it should begin, its probable duration, the form it should take and so on. There may have been secret councils for this purpose, as well as meetings and votes. The question is one of fact, and proof of that fact is a condition for success by the prosecution, whether or not the accused is connected with that fact. It may be difficult to prove such concerted action directly when the strike is unlawful, and the prosecution will often have to limit itself to indirect proof, as often happens in cases of conspiracy, where the agreement concluded with a common purpose is inferred from the behaviour of the parties: Paradis v. The King[31], at p. 168; R. v. Gagnon[32], at p. 638.
In the case at bar, the Labour Court referred to the meetings of representatives of the employer and of the union, including respondent, meetings which preceded the strike and during which representatives of the union predicted that the employer would have problems and alluded to the strike in the construction industry; it referred to the rumours of strikes current in the town of Chibougamau prior to June 27, 1974, and it noted that a majority of employees ceased working on that date. It concluded there had been a strike on June 27, and hence concerted action. This conclusion was not challenged in this Court. However, it is important to note that the Labour Court did not
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conclude that the accused was guilty because he participated in the concerted action preceding the strike.
The Superior Court approached the problem in a different way: it was of the view that the meetings between representatives of the employer and of the union, meetings which preceded the strike and in which respondent participated, did not establish the existence of a concerted action. The Superior Court accordingly appeared to indicate that there was no evidence of concerted action in which respondent had participated, and that this was a major weakness in the prosecution’s case. Moreover, this was the argument submitted by counsel for the respondent in his brief, when he said that [TRANSLATION] “the prosecution should present evidence that the accused participated in the agreement to cease work”.
In my view, this is an error. Participation in the concerted action preceding a strike is not in itself an offence provided for in s. 124 of the Labour Code—although it may perhaps be covered by ss. 128 and 129. It also does not constitute, in so far as a specific accused person is concerned, an essential element of the offence of participating in an unlawful strike. It is clearly necessary for the prosecution to prove the strike, and therefore, prior concerted action; but it does not have to prove that the accused was connected with such concerted action and participated in it. I will go further: even if it was positively established that the accused did not participate in the prior concerted action, and even if it was shown that the accused objected to the proposed strike and voted against it, he might still be found guilty of participating in the strike by refraining, at the same time as other employees, from providing services. Respondent was not charged “with participating in concerted action leading to a cessation of work by a group of employees”, but with “participating in a concerted cessation of work by a group of employees”. What is important is that respondent associated himself with the strike, not that he was one of its instigators. It is possible for a small number of persons to participate in prior concerted action and a large number to participate in the strike; the contrary is
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also conceivable. The difference is therefore an important one.
4. The defence of impossibility
It emerged from the evidence of the prosecution that, on the day of the strike, the road leading to the mine was blocked by interlocking vehicles, preventing all traffic from 6:30 a.m. onwards. However, the mine could be reached by another road and the blockage was in fact lifted at about 9:30 a.m. From 35 to 40 per cent of the employees required to work at that time reported at around noon. Respondent was required to work from 8:00 a.m. to 5:00 p.m. There is accordingly no basis for considering the defence of impossibility.
CONCLUSIONS
The offence with which respondent is charged is a strict liability offence. The material element of this offence was proven beyond any doubt. Respondent presented no evidence capable of exculpating him; he offered no defence. The Labour Court therefore properly found him guilty.
In my opinion the appeal should be allowed, the judgment of the Superior Court reversed as to the first count and the judgment of the Labour Court restored as to this count; the whole without costs in any Court.
The judgment of Dickson, Estey and Pratte JJ. was delivered by
DICKSON J. (dissenting)—The principal question in this appeal is the determination of the necessary elements of the offence, created by s. 124 of the Labour Code, which the prosecution must prove. Section 124 reads:
Any person declaring or instigating a strike or lock-out contrary to the provisions of this code, or participating therein, shall be liable, in the case of an employer, association or officer of representative of an association, to a fine of one hundred to one thousand dollars for each day or part of a day during which such strike or lock-out exists and, in all other cases, to a fine of ten to fifty dollars for each such day or part of a day.
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The respondent Roberge at the material time was president of Local 5186 of the United Metallurgists of America, accredited to represent the employees of Campbell Chibougamau Mines Ltd. In the course of the year 1974, while a collective agreement was in effect, the employees demanded that their salary levels be revised. An agreement for this purpose was entered into in March, 1974. Later in the year, by reason of an increase in the cost of living, further demands were made. Four meetings were held in June, 1974 between representatives of the company and those of the union in the course of which the union representatives demanded a readjustment of salaries of the order of $1 an hour. Moreover, they let it be known, during one of those meetings, that the company [TRANSLATION] “could foresee problems” if the demands of the union were not met.
A work stoppage occurred on June 27, 1974 and again over six days in July, during which times picket lines were set up and roads were blocked. Roberge did not present himself for work on any of those days, nor did he call the company to ask for permission to be absent.
Two charges were laid against Roberge by Strasser, General Manager of Campbell Chibougamau Mines, alleging that Roberge, an officer of the union, had participated in an illegal strike at the mine. One charge related to 27 June, 1974, the other to the six dates in July.
At trial, three preliminary objections were taken by Roberge. The first objection was addressed to the failure of Strasser to plead or prove that he constituted an “interested party” according to the terms of s. 131 of the Labour Code. The second objection took two forms—that s. 124 of the Code did not create any infraction and that the information did not state the nature of the illegality of the strike. I agree with Mr. Justice Beetz, whose reasons I have had the advantage of reading, that both of these objections are without merit. I also agree with Mr. Justice Beetz that the third objection, directed solely to the second count in the information, is well founded and that the second count should be struck out.
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With respect, however, I am unable to agree with Mr. Justice Beetz that the decision of this Court in R. v. Sault Ste. Marie[33], can be employed to shift the burden of proof of the mental element of intention, necessary to the commission of the offence, from the prosecution to the accused. Sault Ste. Marie was solely concerned with “responsibility for negligence” in the context of public welfare offences and the introduction of some notion of fault to what would otherwise be absolute liability offences. In that case it was noted at p. 1303 that the doctrine of the guilty mind, expressed in terms of intention of recklessness, but not negligence, is at the foundation of the law of crimes. In the case of true crimes, there is a presumption that a person should not be held liable for the wrongfulness of his act if that act is without mens rea. The categories of offences were recognized:
1. Offences in which mens rea, consisting of some positive state of mind such as intent, knowledge, or recklessness, must be proved by the prosecution either as an inference from the nature of the act committed, or by additional evidence.
2. Offences in which there is no necessity for the prosecution to prove the existence of mens rea; the doing of the prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care. This involves consideration of what a reasonable man would have done in the circumstances. The defence will be available if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event. These offences may properly be called offences of strict liability. Mr. Justice Estey so referred to them in Hickey’s case.
3. Offences of absolute liability where it is not open to the accused to exculpate himself by showing that he was free of fault.
Offences which are criminal in the true sense fall in the first category. Public welfare offences would prima facie be in the second category. They are not subject to the presumption of full mens rea. An offence of this type
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would fall in the first category only if such words as “wilfully”, “with intent”, “knowingly”, or “intentionally” are contained in the statutory provision creating the offence (at pp. 1325‑6).
There are two means whereby a given offence may fall into the first, or mens rea category: (i) if it is branded as an offence “criminal in the true sense”, or (ii) if it is a public welfare offence and there is something in the words of the enactment, or in the structure of the offence, to warrant displacing the offence from its prima facie location in the second category. In the first case, there is a presumption of mens rea. In the latter, there is no presumption, but the possibility of mens rea being directed where appropriate words are employed by the provincial Legislature.
A province may validly introduce mens rea as an element of a penal offence that is within constitutional competence, although the offence so created shall not be deemed a “crime”. In the case of In re McNutt[34], Duff J. made it clear that a provincial Legislature might pass statutes creating prohibitions and imposing duties in the public interest and attaching to them penal sanctions, yet the provincial Legislature would be incompetent to pass an enactment which in itself could have the effect of making a given act or omission a crime in the eyes of the law.
In Sault Ste. Marie, the following appears:
If it is valid provincial legislation (and no suggestion was made to the contrary), then it cannot possibly create an offence which is criminal in the true sense (at p. 1327).
That sentence should not be read out of context. The reference in the sentence to “criminal in the true sense” is referable only to “criminal” in the constitutional sense. A province cannot create an offence which is a “crime” and thus, by reason of the Constitution, the mere creation of an offence does not import full mens rea as a matter of course. That is the meaning of the expression “presumption of mens rea”. This constitutional
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principle should not be taken to mean, however, that a province may not create an offence requiring mens rea, for it is equally clear that there is no necessary limitation upon the provincial power to create offences which require mens rea. The only constitutional limitation upon the creation of provincial offences is that the offence must be for the purpose of enforcing a valid provincial law. In the case at bar, there can be no question that the Labour Code is valid provincial legislation for the purpose of regulating labour relations in the province. There is no suggestion that the provincial Legislature is intruding upon the criminal law powers of the federal government. It is therefore, in my view, incorrect to treat the mere existence of the offence in a provincial statute as, of itself, leading inexorably to the conclusion that the offence is one of strict liability.
The offence in the present case is created in a provincial statute and must therefore be considered a public welfare offence as described in Sault Ste. Marie. Because the offence so created is not a “crime”, no presumption of mens rea applies. Prima facie, then, the offence falls into the category of strict liability. That is the first stage of the inquiry.
The second stage requires the Court to look to the language employed by the legislator and the nature of the act prohibited for the purpose of determining whether there is anything in the offence-creating provision that expressly or impliedly requires mens rea as an essential element of the offence. It is true that no express words—such as “wilfully”, “with intent”, “knowingly”, or “intentionally”—are found in s. 124 of the Labour Code. It is also true that in Sault Ste. Marie it was said that a public welfare offence would fall into the first category, i.e. those in which mens rea must be proved by the prosecution, only if such words were contained in the statutory provision creating the offence. The use of the word “only” may well be too restrictive. The presence of words such as “wilfully” is conclusive in moving an offence into the first category of mens rea offences. But the presence of these words in the
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offence-creating provision should not, I think, be regarded as exhaustive of the situations where a public welfare offence may require mens rea. There are many offences which impliedly require mens rea by the very wording of the offence-creating provision, or by the nature of the act prohibited. Perhaps the best example of this is the gamut of unfair labour practices found in labour legislation. Most of these practices, for which penal prosecution may be permitted, speak of “coercion” or “intimidation” or “interference”, clearly countenancing the offender desiring the consequences of his act or foreseeing the consequences of his act (“intention” or “recklessness”), and not a lack of foresight of those consequences (“negligence”). It is obvious that the words such as “knowingly” or “with intent” are unnecessary when one considers the juxtaposition of words involved—that an employer must “knowingly” or “wilfully” or “intentionally” or “with intent” “intimidate” an employee to cease to be a union member.
It is one thing to suggest that there is no presumption of mens rea applicable to provincial penal offences as public welfare offences. It is another thing entirely to treat that lack of presumption as if it were conclusive against mens rea in all but exceptional circumstances. Presumptions afford nothing more than means of defining the elements of a case and allocating the burden of proving those elements as between the parties. The “presumption of mens rea” simply represents the criminal law’s method of defining the elements of the offence, i.e. a mental element of intention or recklessness, and allocating the burden of proving that mental element to the prosecution. An absence of that presumption merely means that the courts must work a little harder in considering the two questions: (i) what are the elements of the offence as worded and (ii) upon who rests the burden of proving each of those elements?
Is there anything in the wording of s. 124 of the Labour Code that expressly or impliedly requires mens rea, i.e. a subjective mental element? As Mr. Justice Beetz observes in his reasons, s. 124 creates
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three possible offences—(i) declaring, (ii) instigating, or (iii) participating in, an illegal strike. To declare or to instigate an illegal strike requires intention, a subjective desire of the consequences. Similarly, one would think that “participation” also calls for intention. “Strike” is defined in s. 1(h) of the Code: “the concerted cessation of work by a group of employees”. Section 124 can be recast for our purposes, by including the statutory definition of a strike and cutting out the irrelevant parts, to read as follows:
Any person …participating in a concerted cessation of work by a group of employees contrary to the provisions of this code shall be liable… to a fine…
In considering the elements of the offence it is of prime importance to recognize the distinction between the elements of collective action and those of individual action, for it is manifest that we are here concerned with individual responsibility for participation in an illegal strike and not collective responsibility. On the collective level, these are the necessary elements of the offence:
(1) a cessation of work by a group of employees
(2) that the cessation was concerted
(3) that the concerted cessation of work was illegal under the provisions of the Labour Code
On the individual level, these are the necessary elements:
(4) a cessation of work by the individual employee at the same time that the group of employees ceased to work
(5) an intention on the part of the individual employee to cease working in concert with that group of employees
and, since Roberge is charged in his capacity as officer of the union (for purposes of attracting the higher penalty),
(6) the status of the employee as an officer.
If one were to attempt to divide these elements into the material and mental elements, elements (1), (3), (4), and (6) would fall into the realm of material elements and elements (2) and (5) into that of mental elements.
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That there is a mental elements of intention implicit in the very notion of a strike is generally accepted, but most of the writing in the area deals solely with the collective intention of the strikers, the element of concerted action found in (2) above. In their book, Droit du travail en vigueur au Québec (1971), Gagnon, LeBel and Verge discuss the definition of strike. After describing the material elements, they conclude at p. 199:
[TRANSLATION] In addition to these material elements the notion of strike presupposes mental elements, such as the intention and common purpose to strike. The latter two elements indicate that a strike is a psychological event as well. It occurs as the result of a common intent: this is the strikers’ determination to suspend performance of their contract of employment and of the obligations resulting from it.
Gagnon, LeBel and Verge draw extensively upon the definitive French work in this area, Hélène Sinay’s La grève (1966), the sixth volume of Camerlynck’s Traité de droit du travail. In chapter IV, the author deals with the definition of a strike in French law. In considering this definition, one must keep in mind the constitutional recognition of the right to strike in France, as well as the emphasis upon the individual contract of employment. Sinay defines a strike at p. 133:
[TRANSLATION] A strike is a collective and concerted refusal to work, demonstrating the employee’s intent to set aside for the time being their contract, in order to ensure the success of their claims.
This proposed definition involves two kinds of factors: material factors—the actual fact of ceasing or slowing down work, and the existence of a group of employees suspending or relaxing their efforts—and psychological factors—“the animus” and “common purpose” to strike (at p. 136).
On the subject of intention, Sinay, at p. 140, describes it with some precision:
[TRANSLATION] It is not enough to cease working, even if several persons do so, in order thereby to be regarded as on strike. There must also be “the animus” of a striker. This is the intent to set aside his contract, by making a change in daily on-the-job behaviour, and the knowledge that it will be disruptive.
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Three further propositions are set out:
[TRANSLATION] (a) “The animus of the striker is characterized essentially by the intent to set aside the contract”; (b) “This intent to set aside the contract necessarily implies an element of conflict”; (c) “The intent to set aside the contract does not necessarily imply a wrongful intent, but consciousness of the loss that may be suffered by the employer.”
In common with Mr. Justice Beetz, I am satisfied that both a material and an intentional element, on the individual level, are necessary elements of the offence of participating in an illegal strike. The material element of the offence is constituted by the breach of the employee’s obligations under the collective agreement, i.e. the provision of his labour services to the employer, as he is obliged to do according to the terms of a collective agreement which is binding in its application to the individual employee. The mental element is one of intention, i.e. that the employee withhold his services with the intention of joining the concerted cessation of his fellow employees. The individual’s cessation of work must take place with the intention of taking part in, and supporting, the concerted action of his fellow employees.
If one accepts that the offence under s. 124 of the Labour Code has, as one of its components, an intentional element, the result is to negate not only a finding of absolute liability, but also a finding of strict liability. Once one has found an intentional element necessary to the commission of the offence, negligence becomes irrelevant, for the offence then falls into the first category, that of mens rea offences. Strict liability offences are offences of negligence. Just as negligence is irrelevant to the issue of intention in criminal responsibility, so also is intention irrelevant to “responsibility for negligence”.
Passing then to the matter of reversal of the burden of proof, in my view Sault Ste. Marie is not available for that purpose. It would, indeed, be ironic if that decision, which embodies a principle for the benefit of the accused on a public welfare offence, by the introduction of a defence of reasonable care to avoid the strictures of absolute liability, were to be used to justify the rejection of any
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need for proof of mens rea by the prosecution and the shifting of the burden of proof to the accused for an offence which would seem to require mens rea. In Sault Ste. Marie it was held not to be unfair to place upon the defendant the burden, or one might perhaps better say the “right and opportunity”, of proving that his conduct did not fall below the objective standard of a reasonable man in the circumstances. It did not seem unfair to impose such a burden when the offence would otherwise be characterized as one of absolute liability and the accused would have no defence whatever. On the other hand, it certainly does seem unfair to reverse the burden of proof where there are strong indications that the offence would otherwise fall within the first category of mens rea offences. There is nothing in the language of s. 124 to support such a reversal of the burden of proof. Further, where the provincial Legislature has wished to effect such a reversal, it has been clearly stated in respect of other matters. Consider the present wording of s. 16 of the Labour Code:
16. If it is shown to the satisfaction of the labour commissioner seized of the matter that the employee exercises a right accorded to him by this code, there shall be a presumption in his favour that he was dismissed, suspended or transferred because he exercised such right, and the burden of proof that the employee was dismissed, suspended or transferred for another good and sufficient reason shall be upon the employer.
Where intention is required as an element of the offence, one would think that the burden of proof should only be shifted to the accused when the legislation clearly directs such a shift.
In R. v. Chapin[35], mere difficulty of enforcement was considered “hardly enough to dislodge the offence from the category of strict liability” and, in my view, the same approach ought to be taken where the debate is between a mens rea offence and strict liability. Mere difficulty of enforcement cannot justify the shifting of a burden of proof of the mental element to the accused, for
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if that were the case one could easily justify doing away with the presumption of mens rea and the presumption of innocence in criminal law proper. As in all criminal or penal prosecutions, there must be, at the close of the case for the prosecution, sufficient evidence on all the essential elements of the offence which must be ultimately proved by the prosecution, such that a reasonable trier of fact, on all the evidence and properly instructed, could find the accused guilty beyond a reasonable doubt. Briefly, there must be sufficient evidence to get beyond no case to answer or a directed verdict. Again, as in all criminal or penal prosecution, even if there is sufficient evidence to get beyond a directed verdict, the prosecution must prove all those same elements beyond a reasonable doubt in order to obtain a conviction. The burden of proof rests upon the prosecution throughout, no matter that this offence might initially be characterized as a public welfare offence, for the offence has been found to fall within the category of a mens rea offence.
In rejecting the motion for nonsuit, Melançon J., of the Labour Court, appears to have proceeded as if only the material elements of the offence had to be proved by the prosecution. I cannot find any attention given by him to the question of an individual intentional element in the offence. Certainly he directs himself properly on the “concerted” nature of the cessation of work, but that goes to a finding of an illegal strike, one of the collective elements of the offence. As Melançon J. himself stated, the prosecution simply proved that Roberge did not provide his services on the date in question at the same time that other fellow employees were on illegal strike. In the result, the Tribunal convicted Roberge on both counts in the information. In the Superior Court, on appeal, Mr. Justice McNicoll considered the motion for nonsuit and dismissed it in these terms:
[TRANSLATION] As the undersigned finds that the presiding judge properly concluded that there was not a total absence of evidence justifying a motion for non-
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suit, and gave reasons for his decision which are found complete, I do not think I need consider the matter further, and
PROCEEDING TO RENDER JUDGMENT on this appeal by trial de novo, I consider the motion for non-suit reiterated by the accused-appellant is without basis and must accordingly be DISMISSED.
Thus the Superior Court has also rejected the motion, but for the same reasons given by Melançon J.
Mr. Justice McNicoll reiterated the finding of Melançon J. that there was no evidence of the accused’s presence at the blockade on the road leading to the mine, or in picketing, nor [TRANSLATION] “any activity suggesting that he was participating in a strike, namely, a concerted work stoppage”. The Superior Court judge noted that not even knowledge of the strike was proved by the prosecution. One can suspect and conjecture as to Roberge’s knowledge and behind-the-scenes participation, but there is, as McNicoll J. observed, a total absence of evidence on this score in the record. We are left with nothing more than a mere abstention from work at the time as an illegal strike and some vague suggestion of “rumours” and union instigation. Although we are concerned in this case with an officer of the union, it must not be overlooked that the same principles apply to any employee who is not an officer of a union and who is absent from work on the day of an illegal strike. Does he thereby expose himself to a charge of participation in an illegal strike?
There is much to be said for the view that there was no evidence of intention led by the prosecution and thus the Tribunal should have granted the motion of non-lieu of the defendant. Alternatively, one could take the view that McNicoll J. may have erred in applying the rule in Hodge’s case to the sole issue of intention, but that his error was not of sufficient importance, on the facts and evidence in this case, to warrant overturning his result. He did find that a reasonable doubt had been raised. Accepting that an intentional element is an ingredient of the offence, to be proved by the prosecution, no trier of fact, properly instructed,
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could come to any other conclusion.
Whether one holds the view that the motion of non-lieu should have been granted or the alternative view that a reasonable doubt had been raised as to the participation of Roberge in the illegal strike, the appeal must fail.
In the result, I would dismiss the appeal with costs in all courts.
Appeal allowed without costs, DICKSON, ESTEY and PRATTE JJ. dissenting.
Solicitors for the appellant: Ogilvie, Cope, Porteous, Montgomery, Renault, Clarke & Kirkpatrick, Montreal.
Solicitors for the respondent: Trudel, Nadeau, Létourneau, Lesage & Cleary, Montreal.
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[2] [1965] R.D.T. 56.
[3] [1973] T.T. 320.
[4] [1973] T.T. 365.
[5] [1973] T.T. 370.
[6] [1975] R.D.T. 575.
[7] [1975] T.T. 348.
[8] [1976] T.T. 183.
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[10] [1977] T.T. 113.
[11] [1978] 2 S.C.R. 1299.
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[14] (1972), 8 C.C.C. (2d) 546.
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[16] [1977] 1 S.C.R. x.
[17] [1947] Que. K.B. 331.
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[31] [1934] S.C.R. 165.
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