r v wholesale travel group inc

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Supreme Court of Canada

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• Court of Appeal (Ontario)

R. v. Wholesale Travel Group Inc. and Chedore, (1989) 35 O.A.C. 331 (CA)

R. v. Wholesale Travel Group Inc. (1989), 35 O.A.C. 331 (CA)

MLB headnote and full text

Her Majesty The Queen (respondent) v. The Wholesale Travel Group Inc. (appellant) and Colin Chedore

Indexed As: R. v. Wholesale Travel Group Inc. and Chedore

Ontario Court of Appeal

Lacourcière, Zuber and Tarnopolsky, JJ.A.

November 23, 1989.

Chedore and Wholesale Travel were jointly charged with five counts of false or misleading advertising contrary to s. 36(1)(a) of the Competition Act. The accused pleaded not guilty. Before evidence was heard, the trial judge ruled that ss. 36(1) and 37.3(2) violated ss. 7 and 11(d) of the Charter of Rights and Freedoms and were, accordingly, of no force and effect. The trial judge dismissed the charges. The Crown appealed.

The Ontario High Court allowed the appeal. The court held that the impugned sections did not violate the Charter, and remitted the case to the Provincial Court for trial. Wholesale Travel applied for, and obtained, leave to appeal.

The Ontario Court of Appeal, Zuber, J.A., dissenting in part, allowed the appeal in part. The court held that ss. 37.3(2)(c) and (d) violated s. 7 of the Charter and were of no force and effect. The court held that ss. 37.3(2)(a) and (b), in combination with the words "if he establishes that" in s. 37(3)(2), violated the presumption of innocence under s. 11(d). The court stated that ss. 37.3(2)(a) and (b) were constitutionally valid if the offending words "if he establishes that" were struck from s. 37.3(2). The court ordered a new trial.

Civil Rights - Topic 4943

Presumption of innocence - Evidence and proof - Burden of proof in criminal cases - Section 36(1)(a) of the Competition Act created the offence of false or misleading advertising - Section 37.3(2)(a) and (b) provided the accused with the defence of due diligence - Section 37.3(2) provided that no person shall be convicted of an offence under s. 36 "if he establishes that" he exercised due diligence - The Ontario Court of Appeal stated that "establishes" required proof on a balance of probabilities - The court stated that a statutory provision that permitted conviction despite a reasonable doubt as to guilt violated the presumption of innocence in s. 11(d) of the Charter - The court held that ss. 37.3(2)(a) and (b) violated s. 11(d), where the accused must "establish" that he exercised due diligence to prevent the false or misleading representation to the public - The court severed the words "if he establishes that" from s. 37.3(2) and held that, absent those words, ss. 37.3(2)(a) and (b) were constitutionally valid.

Civil Rights - Topic 8305

Canadian Charter of Rights and Freedoms - Application of - Persons protected - A corporation charged with false advertising claimed that certain provisions of the Competition Act violated s. 7 of the Charter - The Crown claimed that a corporation had no s. 7 Charter rights - The Ontario Court of Appeal stated that "while a corporation cannot rely upon s. 7 in circumstances such as an application for a declaration that a law is invalid, it cannot be convicted under a law that violates s. 7. Once charged with an offence, a corporation is entitled to submit the legislation under which it is charged is unconstitutional because it infringes the right to life, liberty and security of a human being, and thus violates s. 7 of the Charter" - See paragraphs 9 to 11.

Civil Rights - Topic 8380.14

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Severance of portion of statute or section - [See Civil Rights - Topic 4943 above].

Civil Rights - Topic 8546

Canadian Charter of Rights and Freedoms - Interpretation - Life, liberty and security of the person - Section 36(1)(a) of the Competition Act made false or misleading advertising an offence - Sections 37.3(2)(c) and (d) provided that no one shall be convicted under s. 36 if he (c) took reasonable measures to notify persons affected of the error and (d) took the measures forthwith - The Ontario Court of Appeal stated that ss. 36(1)(a) and 37.3(2)(c) and (d) imposed a positive obligation to make a retraction as a precondition of the defence of due diligence; an accused who failed to make a retraction could be convicted under s. 36(1)(a) notwithstanding he acted with due diligence - The court stated that since the defence of due diligence was not "always ... open to an accused who risks imprisonment", ss. 37.3(2)(c) and (d) violated s. 7 - See paragraphs 12 to 15.

Trade Regulation - Topic 645

Competition - Advertising - False or misleading advertising - [See Civil Rights - Topic 4943 above].

Competition - Advertising - False or misleading advertising - [See Civil Rights - Topic 8546 above].

Cases Noticed:

R. v. City of Sault Ste. Marie, [1978] 2 S.C.R. 1299; 21 N.R. 295, refd to. [paras. 8, 52].

Irwin Toy Ltd. v. Québec (Procureur général), [1989] 1 S.C.R. 927; 94 N.R. 167; 24 Q.A.C. 2, dist. [para. 9].

R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; 58 N.R. 81; 60 A.R. 161; 18 C.C.C.(3d) 385; 18 D.L.R.(4th) 321; [1985] 3 W.W.R. 481; 13 C.R.R. 64, appld. [para. 9].

R. v. Metro News Ltd. (1986), 16 O.A.C. 319; 32 D.L.R.(4th) 321 (C.A.), refd to. [para. 11].

Reference Re Section 94(2) of the Motor Vehicle Act (B.C.), [1985] 2 S.C.R. 486; 63 N.R. 266, consd. [paras. 12, 55].

R. v. Vaillancourt, [1987] 2 S.C.R. 636; 81 N.R. 115; 10 Q.A.C. 161, refd to. [paras. 12, 55].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335; 24 C.C.C.(3d) 321; 50 C.R.(3d) 1; 26 D.L.R.(4th) 200, refd to. [para. 21].

R. v. Holmes, [1988] 1 S.C.R. 914; 85 N.R. 21; 27 O.A.C. 321, consd. [para. 23].

R. v. Whyte, [1988] 1 S.C.R. 3; 86 N.R. 328, consd. [paras. 23, 43].

R. v. Schwartz, [1988] 2 S.C.R. 443; 88 N.R. 90; 56 Man.R.(2d) 92, consd. [paras. 23, 43].

R. v. Conrad (1983), 61 N.S.R.(2d) 121; 133 A.P.R. 121; 8 C.C.C.(3d) 482 (C.A.), refd to. [para. 32].

R. v. Lock (1974), 4 O.R.(2d) 178, refd to. [para. 35].

Woolmington v. Director of Public Prosecutions, [1935] A.C. 462, refd to. [para. 35].

R. v. Appleby, [1972] S.C.R. 303, refd to. [para. 37].

R. v. Ireco Canada II Inc. and Biamonte (1988), 29 O.A.C. 161; 43 C.C.C.(3d) 482 (C.A.), refd to. [para. 40].

Caledonian Railway Co. v. Walker's Trustees (1882), 7 App. Cas. 259, refd to. [para. 71].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 1, sect. 7, sect. 11(d) [para. 4].

Competition Act, R.S.C. 1970, c. C-23, sect. 36(1)(a), sect. 37.3(2) [para. 3].

Constitution Act, 1982, sect. 52(1) [para. 4].

Criminal Code, R.S.C. 1970, c. C-34, sect. 89(1), sect. 106.7(1) [para. 67]; sect. 237(1)(a) [para. 64]; sect. 309(1) [para. 60].

Thomas Dunne, Q.C., and Kevin McLoughlin, for the appellant;

R.W. Hubbard and R.J. Frater, for the respondent.

This appeal was heard on June 19 and 20, 1989, before Lacourcière, Zuber and Tarnopolsky, JJ.A., of the Ontario Court of Appeal.

The judgment of the Court of Appeal was released on November 23, 1989, and the following opinions were filed:

Tarnopolsky, J.A. - see paragraphs 1 to 41;

Lacourcière, J.A. - see paragraphs 42 to 43;

Zuber, J.A., dissenting in part - see paragraphs 44 to 75.

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• U of T Faculty of Law

R. v. Wholesale Travel Group Inc

[1991] 3 s.c.r. 154.

SCC Reasons for Judgment

About: R v Wholesale Travel Group Inc

R v Wholesale Travel Group Inc [1991] 3 S.C.R. 154, is a leading Supreme Court of Canada case on the distinction between "true crime" and regulatory offences.

R v Wholesale Travel Group Inc.

• Edit source

Wholesale Travel was charged with false advertising under s.36(1) (now s.60)(2) ) of the Competition Act . They stated that they were offering vacation packages "at wholesale prices" when in fact they were charging more to customers than they had to pay for the vacations. The statutory punishments for the offence were a fine of up to $25,000 and five years in prison. There were also lengthy statutory defences defined, which included exculpating oneself by showing that they acted reasonably in the circumstances. Wholesale Travel appeals on an order for trial from the Court of Appeal.

• Do regulatory schemes which impose strict liability breach ss.7 and 11(d) of the Charter ?

Decision [ ]

Appeal Dismissed.

Reasons [ ]

Cory J reaffirms the decision of R v Sault Ste. Marie . This is obviously a strict liability offence for all of the reasons set out in the previous case. Therefore, the Crown does not need to prove mens rea in order to get a conviction; however, the defendant can be acquitted if they can show that they acted reasonably in the circumstances (among the other things required for the statutory defence).

The Court unanimously held that that the "timely retraction" provisions of s. 37.3(2)(c) and (d) of the Act did infringe s.7 and could not be saved under s.1 .

The Court however was divided on whether a reversal of onus onto the accused in s. 37.3(2) was constitutional. The majority (Lamer with LaForest, Sopinka, Gonthier, McLachlin, Stevenson, and Iacobucci) held that the reverse onus infringed s. 11(d) of the Charter. However, only four of the seven held that it could not be saved under s.1 . Since the remaining two judges (L'Heureux-Dube and Cory) found the reversal of onus did not violate s.11(d) , a majority was had by those that argued a reversal of onus was constitutionally justifiable by a 5 to 4 margin.

• Public welfare offences are generally strict liability offences, meaning that the Crown does not need to prove mens rea , but the defendant can be acquitted if they prove that they acted reasonably in the circumstances.
• If the offence has a statutory defence that is similar to this requirement then it falls under the heading of strict liability offences, and the Crown does not need to prove mens rea for a conviction.
• Corporations can challenge the constitutional validity of sections of the Code or other statutes even if the sections that are infringed deal with the rights of individuals.
• Laws that are found to be unconstitutional do not apply to anyone – including corporations.
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• 38D684AE-F1B9-42EF-B33C-750ED00D8B3D Article

Is Presuming Guilt for Regulatory Offences still Constitutional but Wrong?: R v Wholesale Travel Group Inc and Section 1 of the Charter of Rights and Freedoms 20 Years After

• January 1, 2012

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Regulatory v. Criminal Offences

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R v Wholesale Travel Group Inc explained

R v Wholesale Travel Group Inc [1991] 3 S.C.R. 154, is a leading Supreme Court of Canada case on the distinction between "true crime" and regulatory offences.

Wholesale Travel sold vacation packages which it advertised as being at "wholesale prices" when, in fact, they were not wholesale prices at all. The company was charged with five counts of false or misleading advertising contrary to s. 36(1)(a) [now s. 60(2)] of the Competition Act . [1] The charge was a hybrid offence that could be either an indictment consisting of a fine at the discretion of the court and to imprisonment for five years or to both, or a summary conviction consisting of a fine of $25,000 and a prison term for one year or both. [2]

At trial, the judge held that ss. 36 and 37.3, which allowed for a due diligence defence, were in violation of ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms. The Crown's appeal for a dismissal was allowed and the case was resubmitted for trial. At appeal, the Court of Appeal for Ontario upheld the order for a trial. The accused applied to the Supreme Court of Canada and was rejected the first time but was accepted on a second appeal.

The issue before the Court was whether s. 37.3(2) of the Competition Act violated s. 7 of the Charter (which safeguards the "security of the person").

The Court unanimously held that offences for which the mens rea is not necessary (as in cases of reglementary offences (See R v Sault Ste-Marie (City of) ) do not violate s. 7 of the Charter when a due diligence defence demonstrated by preponderance of evidence (s. 37.3(2)(a) and (b)) is available, but that the "timely retraction" provisions of s. 37.3(2)(c) and (d) did infringe s. 7 and could not be saved under s.1.

The Court however was divided on whether a reversal of onus onto the accused in s. 37.3(2) was constitutional. The majority (Lamer with LaForest, Sopinka, Gonthier, McLachlin, Stevenson, and Iacobucci) held that the reverse onus infringed s.11(d) of the Charter. However, only four of the seven held that it could not be saved under s. 1. Since the remaining 2 judges (L'Heureux-Dube and Cory) found the reversal of onus did not violate s. 11(d), a majority was had by those that argued a reversal of onus was constitutionally justifiable by a 5 to 4 margin.

Note that the counsel for Wholesale Travel Group Inc. was led by Ian Binnie who would be promoted to the Supreme Court a few years later.

External links

• Wholesale Travel's website
• Competition Bureau Canada

Sources Cited

• Stuart, Don. "Canadian Criminal Law 11th Edition" . Carswell Publishing, 2009, p.383.

This article is licensed under the GNU Free Documentation License . It uses material from the Wikipedia article " R v Wholesale Travel Group Inc ".

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R. v. Fitzpatrick, 1995 CanLII 44 (SCC), [1995] 4 SCR 154

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