Presumption of Innocence

From Criminal Law Notebook
This page was last substantively updated or reviewed January 2015. (Rev. # 83044)

General Principles

See also: Presumptions and Principles of Fundamental Justice

At common law, all prosecutions start with a presumption of the accused's innocence. [1]

The presumption is said to be a "hallowed principle lying at the very heart of criminal law".[2]

The presumption of innocence requires that the Crown has the onus of proving all essential elements of proof beyond a reasonable doubt.[3]

Relationship to Right of Cross-examination

The right to cross examine a witness is necessary for trial fairness and is "closely linked to the presumption of innocence".[4]

  1. R v Bourque, 1969 CanLII 981 (BCCA), , 69 WWR 145, [1969] 4 CCC 358 (BCCA), per Branca JA
    R v Wiltshire (1881), 6 Q.B.D. 366, 14 Cox C.C. 541 (C.C.R.) (UK)
    R v Oakes, 1986 CanLII 46 (SCC), [1986] 1 SCR 103, per Dickson CJ, at para 30
  2. Oakes, ibid., at para 29
  3. R v Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 SCR 330, per Major J
    R v Chase, 1987 CanLII 23 (SCC), [1987] 2 SCR 293, per McIntyre J
    R v PLS, 1991 CanLII 103 (SCC), [1991] 1 SCR 909, per Sopinka J
  4. R v Osolin, 1993 CanLII 54 (SCC), [1993] 4 SCR 595, per Cory J

Constitutional Right

The right to a presumption of innocence is expressly protected in s. 11(d). It is also implicated in the rights under s. 7 of the Charter to rights of life, liberty and security of the person.[1]

Under section 11 of the Charter:

Proceedings in criminal and penal matters

11. Any person charged with an offence has the right

(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;


The purpose of the presumption is to protect the fundamental liberty and human dignity of the accused.[2] The person faces "grave social and personal consequences" from the law and so needs protection.[3]

The principle is an essential element to a system founded in the rule of law.[4]

Section 6 of the Criminal Code states:

Presumption of innocence

6 (1) Where an enactment creates an offence and authorizes a punishment to be imposed in respect of that offence,

(a) a person shall be deemed not to be guilty of the offence until he is convicted or discharged under section 730 [order of discharge] of the offence; and
(b) a person who is convicted or discharged under section 730 of the offence is not liable to any punishment in respect thereof other than the punishment prescribed by this Act or by the enactment that creates the offence.

[omitted (2) and (3)]
R.S., 1985, c. C-46, s. 6; R.S., 1985, c. 27 (1st Supp.), s. 4, c. 1 (4th Supp.), s. 18(F); 1995, c. 22, s. 10.


Note up: 6

From the right to the presumption flows the right to be convicted on when the offence has been proven beyond a reasonable doubt and the obligation on the Crown to bear the burden of proof.[5]

Statutory Presumptions

Consideration of whether a statutory presumption is constitutional should include consideration of whether:[6]

  1. importance of the legislative objective,
  2. how difficult it would be for the prosecution to prove the substituted fact beyond a reasonable doubt,
  3. whether it is possible, and how easy it is, for the accused to rebut the presumption, and,
  4. scientific advances
  1. R v Oakes, 1986 CanLII 46 (SCC), [1986] 1 SCR 103, per Dickson CJ, at para 29
  2. Oakes, ibid. ("...The presumption of innocence protects the fundamental liberty and human dignity of any and every person accused by the State of criminal conduct. An individual charged with a criminal offence faces grave social and personal consequences, including potential loss of physical liberty, subjection to social stigma and ostracism from the community, as well as other social, psychological and economic harms. ...")
  3. Oakes, ibid.
  4. Reference Re Motor Vehicle Act (British Columbia) s. 94(2), 1985 CanLII 81 (SCC), [1985] 2 SCR 486, per Lamer J ("It has from time immemorial been part of our system of laws that the innocent not be punished. This principle has long been recognized as an essential element of a system for the administration of justice which is founded upon a belief in the dignity and worth of the human person and on the rule of law.")
  5. Oakes, supra, at para 32
  6. R v St-Onge Lamoureux, 2012 SCC 57 (CanLII), [2012] 3 SCR 187, per Deschamps J, at para 31