Presumption of Innocence: Difference between revisions

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At common law, all prosecutions start with a presumption of the accused's innocence.
At common law, all prosecutions start with a presumption of the accused's innocence.
<ref>
<ref>
R v Bourque, 69 W.W.R. 145, [1969] 4 CCC 358 (BCCA), [http://canlii.ca/t/htv7k 1969 CanLII 981] (BC CA){{perBCCA| JA}}<br>
R v Bourque, 69 W.W.R. 145, [1969] 4 CCC 358 (BCCA), [http://canlii.ca/t/htv7k 1969 CanLII 981] (BC CA){{perBCCA|Branca JA}}<br>
R v Wiltshire (1881), 6 Q.B.D. 366, 14 Cox C.C. 541 (C.C.R.){{NOCANLII}}<br>
R v Wiltshire (1881), 6 Q.B.D. 366, 14 Cox C.C. 541 (C.C.R.){{NOCANLII}}<br>
Oakes, [1986] 1 SCR 103, [http://canlii.ca/t/1ftv6 1986 CanLII 46] (SCC){{perSCC|Dickson CJ}}, at para 30
Oakes, [1986] 1 SCR 103, [http://canlii.ca/t/1ftv6 1986 CanLII 46] (SCC){{perSCC|Dickson CJ}}, at para 30
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The presumption of innocence requires that the Crown has the onus of proving all essential elements of proof beyond a reasonable doubt.<ref>
The presumption of innocence requires that the Crown has the onus of proving all essential elements of proof beyond a reasonable doubt.<ref>
R v Ewanchuk, [http://canlii.ca/t/1fqpm 1999 CanLII 711] (SCC), [1999] 1 S.C.R. 330{{perSCC| J}}<br>
R v Ewanchuk, [http://canlii.ca/t/1fqpm 1999 CanLII 711] (SCC), [1999] 1 S.C.R. 330{{perSCC|Major J}}<br>
R v Chase, [http://canlii.ca/t/1ftlr 1987 CanLII 23] (SCC), [1987] 2 S.C.R. 293{{perSCC| J}}<Br>
R v Chase, [http://canlii.ca/t/1ftlr 1987 CanLII 23] (SCC), [1987] 2 S.C.R. 293{{perSCC|McIntyre J}}<Br>
R v S(PL), [http://canlii.ca/t/1fskq 1991 CanLII 103] (SCC), [1991] 1 S.C.R. 909{{perSCC| J}}<br>
R v S(PL), [http://canlii.ca/t/1fskq 1991 CanLII 103] (SCC), [1991] 1 S.C.R. 909{{perSCC|Sopinka J}}<br>
</ref>
</ref>


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The purpose of the presumption is to protect fundamental liberty and human dignity of the accused.<ref>
The purpose of the presumption is to protect fundamental liberty and human dignity of the accused.<ref>
R v Oakes, [http://canlii.ca/t/1ftv6 1986 CanLII 46] (SCC), [1986] 1 SCR 103{{perSCC| J}} ("...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. ...")</ref>
R v Oakes, [http://canlii.ca/t/1ftv6 1986 CanLII 46] (SCC), [1986] 1 SCR 103{{perSCC|Dickson CJ}} ("...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. ...")</ref>
The person faces "grave social and personal consequences" from the law and so needs protection.<ref>
The person faces "grave social and personal consequences" from the law and so needs protection.<ref>
Oakes{{ibid}}<br>
Oakes{{ibid}}<br>
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'''Statutory Presumptions'''<br>
'''Statutory Presumptions'''<br>
Consideration of whether a statutory presumption is constitutional should include consideration of whether:<Ref>
Consideration of whether a statutory presumption is constitutional should include consideration of whether:<Ref>
R v St. Onge Lamoureux, [http://canlii.ca/t/ftl1g 2012 SCC 57] (CanLII){{perSCC| J}} at para 31<Br>
R v St. Onge Lamoureux, [http://canlii.ca/t/ftl1g 2012 SCC 57] (CanLII){{perSCC|Deschamps J}} at para 31<Br>
</ref>
</ref>
# importance of the legislative objective,  
# importance of the legislative objective,  

Revision as of 23:00, 25 December 2018

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, 69 W.W.R. 145, [1969] 4 CCC 358 (BCCA), 1969 CanLII 981 (BC CA), per Branca JA
    R v Wiltshire (1881), 6 Q.B.D. 366, 14 Cox C.C. 541 (C.C.R.)(*no CanLII links)
    Oakes, [1986] 1 SCR 103, 1986 CanLII 46 (SCC), per Dickson CJ, at para 30
  2. ↑ Oakes, ibid. at para 29
  3. ↑ R v Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330, per Major J
    R v Chase, 1987 CanLII 23 (SCC), [1987] 2 S.C.R. 293, per McIntyre J
    R v S(PL), 1991 CanLII 103 (SCC), [1991] 1 S.C.R. 909, per Sopinka J
  4. ↑ R v Osolin, 1993 CanLII 54 (SCC), [1993] 4 S.C.R. 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:

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;


– CCRF

The purpose of the presumption is to protect 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]

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 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.

...
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.


– CCC

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.[4]

Statutory Presumptions
Consideration of whether a statutory presumption is constitutional should include consideration of whether:[5]

  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] 1 SCR 103, 1986 CanLII 46 (SCC), per Dickson CJ, at para 29
  2. ↑ R v Oakes, 1986 CanLII 46 (SCC), [1986] 1 SCR 103, per Dickson CJ ("...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. ↑ Oakes, supra at para 32
  5. ↑ R v St. Onge Lamoureux, 2012 SCC 57 (CanLII), per Deschamps J at para 31
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