Presumptions

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Introduction

A presumption is a reasoning process whereby to some degree, proof of one fact (including the proven absence of a fact) is taken as evidence of another fact. For example, A is an adult, so it is presumed that A is legally competent.

There is a common law presumption of doli incapax, presuming children under the age of 14 are incapable of being criminally liable. This presumption is affirmed within the Youth Criminal Justice Act.

Evidence to the Contrary

See also: Breath Sample Evidence#Evidence to the Contrary

Anywhere in the Criminal Code which directs a factual inference unless there is "any evidence to the contrary" (ETTC), is a mandatory presumption.

For example under s. 354(2), an obliterated serial number of a vehicle directs the inference of knowledge that the item was stolen. Where there is no evidence presented to the contrary, the court has no discretion and must conclude knowledge.[1]

Evidence to the contrary "is evidence which is not rejected and which raises a reasonable doubt as to the existence of the presumed fact."[2] However, any evidence that is rejected or disbelieved is not ETTC.[3]

The judge should look at ETTC not as evidence that must be accepted but only as evidence that is capable of raising a doubt.[4]

There is not persuasive or ultimate burden created by the ETTC standard on a balance of probabilities.[5]

Accepted evidence that shows an absence of intent on an essential element for impaired driving, is ETTC.[6]

These code provisions will tend to violate s. 11(b) Charter rights by shifting the burden onto the accused. However, can remain in force under s.1 as a reasonable limitation.[7]

Effect of Satisfying ETTC
Where the accused establishes ETTC, the burden then is upon the prosecution to prove the element beyond a reasonable doubt.[8]

Offences with an ETTC Provision
The phrase "evidence to the contrary" is present in several offences:[9]

  1. R v Boyle, 1983 CanLII 1804 (ON CA), (1983), 5 CCC (3d) 193 (Ont. C.A.)
  2. R v Boyle
  3. R v Proudlock, 1978 CanLII 15 (SCC), [1979] 1 S.C.R. 525 at p. 30
    R v Nolet (Charette) (1980), 4 M.V.R. 265 at p. 269, per Martin JA
    R v Clarke, 2003 ABPC 26 (CanLII), at para 17
  4. R v Tallon, 1992 ABCA 322 (CanLII), (1992) 135 A.R. 146
    R v Heisler, supra
    Clarke at para 17
  5. R v Proudlock [1979] 1 SCR 525, 1978 CanLII 15 (SCC) per Pigeon, J. at page 28
    R v Dubois, 1990 CanLII 2776 (QC CA), (1990) 62 CCC (3d) 90 per Fish, J.A. at page 92
    R v Gibson, 1992 CanLII 2750 (SK CA), (1992) 72 CCC (3d) 28 per Bayda, C.J.S. at page 38
    R v Heisler, (1995) M.V.R. (3d) 305(*no link) per curiam at page 307
    R v Oldhauser, (1998) A.J. No. 1323(*no link) per Berger, J.A. at paras 3 and 6
  6. Nolet, supra at p. 269
    R v Campbell (1974), 17 C.C.C. (2d) 320 (Ont. C.A.)
  7. e.g. R v Downey, 1992 CanLII 109 (SCC), [1992] 2 SCR 10
  8. Proudlock, supra
    Campbell, supra
    Nolet, supra
  9. see also Fines

Reverse Onuses

Where a presumption places a reverse onus upon the defence, the burden must always be on a balance of probabilities.[1]

Constitutionality of a Reverse Onus Presumption
A reverse onus is invalid where the presumption (generally statutory) establishes a fact that is not reasonable inferred from the proven facts.[2] However, it may still stand where it is justified under s. 1 of the Charter.[3]

Reverse Onuses that have been upheld:

  • presumption of knowledge when in possession of stolen property[4]
  1. R v Tupper, 1967 CanLII 14 (SCC), [1967] SCR 589
    R v Appleby, 1971 CanLII 4 (SCC), [1972] SCR 303
  2. R v Oakes, 1983 CanLII 1850 (ON CA), (1983) 2 CCC (3d) 339 (ONCA)
  3. See Constitutional Challenges to Legislation
  4. R v Russell (1983), 4 CCC (3d) 460 (NSCA)(*no link) - presumption does not violate s. 11(d)

Common Law Presumptions

A person who possesses stolen property is presumed to have knowledge of its source.[1]

A person impaired by drugs is presumed to be voluntarily impaired unless evidence establishes otherwise.[2]

There is no legal presumption that those testifying in criminal trials are telling the truth.[3]

  1. Kowlyk, 1988 CanLII 50 (SCC), [1988] 2 SCR 59, [1998] S.C.J. No. 66
    R v Russell (1983), 4 CCC (3d) 460 (NSCA)(*no link) - presumption does not violate s. 11(d)
  2. R v King, [1962] SCR 746, 1962 CanLII 16 (SCC)
  3. R v Luciano, 2011 ONCA 89 (CanLII)

Presumption of Regularity

See also: Rule Against Collateral Attacks on Court Orders

The presumption of regularity (omnia presumuntur rite esse acta) in the legal doctrine that creates a presumption that bypasses proof regarding the accuracy and creation of documents and the correctness of actions of public officials.

The presumption of regularity states that a person who acts in a public role is presumed to be entitled to do so.[1] It also creates a rebuttable presumption that official documents, including court documents or public records, are accurate[2]

For the presumption of regularity to be invoked there should exist the following:[3]

  1. the matter is more or less in the past, and incapable of easily procured evidence;
  2. it involves a mere formality, or detail of required procedure, in the routine of a litigation or of a public officer's action;
  3. it involves to some extent the security of apparently vested rights, so that the presumption will serve to prevent an unwholesome uncertainty;
  4. that the circumstances of the particular case add some element of probability.

The presumption applies to the endorsements on an information.[4]

  1. R v Bowell (1975), 27 CCC (2d) 311(*no link)
  2. R v Mayan, 2014 MBQB 58 (CanLII) at paras 15 to 19
  3. R v Molina, 2008 ONCA 212 (CanLII) at para 12 citing Wigmore
  4. R c LO, 2008 ONCA 830 (CanLII) at para 5

Statutory Presumptions

With the presumption of sanity, the defence must prove lack of sanity on a balance of probabilities.[1]The same standard applies if raised by the Crown.[2]

  1. R v Hebert, 1954 CanLII 48 (SCC), [1955] SCR 120
    R v Smyth, [1941] SCR 17 (*no link)
  2. R v Simpson (1977), 35 CCC (2d) 337, 1977 CanLII 1142 (ON CA)

Constitutional Presumptions

See Also