2. Criminal Law: Statutory Presumptions and the Presumption of Innocence Week of October 2, 2007

3. Basic Fact Presumptions Structure: If the Crown proves a basic fact (usually a component of the actus reus) another fact can be presumed (usually some aspect of the mens rea) Specified in the statutory provision UNLESS accused does something to rebut the presumption

4. Examples of Basic Fact Presumptions If the Crown proved that the accused broke and entered a dwelling, presumption that accused intended to commit an indictable offence If the accused possessed a narcotic, presumption that the accused intended to traffic If the accused occupied the seat of a car, presumption that the accused had care and control of the vehicle

5. Basic Fact Presumptions Often involve elements of the crime that are difficult for the Crown to prove like the purpose or ulterior motive of the accused Accused in a better position to raise evidence such to indicate eg. Had drugs for some other purpose eg broke into a house for some other reason

6. However, basic fact presumptions are problematic because… Pre-Charter they violate the common law presumption of innocence Parliament enacted statutory provisions that assist the Crown in proving its case, usually some element of the mens rea But that is consistent with the supremacy of Parliament

7. Types of Presumptions Presumptions with basic facts and presumptions without basic facts Basic fact presumptions may be permissive Mandatory basic fact presumptions require(in the absence of other evidence to displace the presumption) the trier of fact to find fact #2 if fact #1 is proved Irrebutable or rebuttable presumptions

8. How does the accused rebut the presumption? Depends on the type of presumption through statutory interpretation 2 types of presumptions imposing different burdens of the accused, either Evidentiary presumption OR Legal Presumption

9. Evidentiary Presumptions Requires accused to raise evidence to the contrary but not to disprove anything Such words as in the absence of evidence to the contrary signals that it is an evidentiary presumption Provide some evidence that is not disbelieved) displaces the presumption and the regular rules apply Example Section 348(1) of the Criminal Code (a) Makes it an offence to break and enter with the intent to commit an indictable offence Most people who break and enter have some criminal intention. However, this intention is very hard for the Crown to prove

10. Presumption assists the Crown S. 348(2) helps the Crown For the purposes of proceedings under this section, evidence that an accused broke and entered a place or attempted to break and enter a place is, in the absence of any evidence to the contrary, proof that he broke and entered or attempted to do so with intent to commit an indictable offence therein Therefore in the absence of evidence, the trier of fact is to find against the accused, contrary to the normal situation, where in the absence of evidence, the accused gets the benefit of the doubt

11. Legal Presumptions or Reverse Onuses If Crown proves basic fact, presumed fact will be presumed to exist unless the accused proves otherwise Heavier onus because accused must disprove presumed fact (here really putting the burden on the accused to prove innocence on one element of the offence) Clearly violates presumption of innocence Presumed innocent

12. Example: Section 8 of the former Narcotic Control Act Offence of Possession for the Purpose of Trafficking What is the basic fact? What is the presumed fact? How does accused overcome the presumption? What happens if the accused fails to overcome the presumption?

13. Pre-Charter Cases on Reverse Onus: Appleby Appleby: Charged with having care and control of a motor vehicle while ability to drive was impaired (s 222 now s 253) S. 224(1), now s.258 (a) where it is proved that the accused occupied the seat ordinarily occupied by the driver of a motor vehicle, he shall be deemed to have had the care or control of the vehicle unless he establishes that he did not enter or mount the vehicle for the purpose of setting it in motion What must Crown prove? What is presumed? How can accused rebut the presumption? Establish means prove on a balance of probabilities (not merely raise a reasonable doubt)

14. Pre-Charter Common-law presumption of innocence could be overuled by legislation Canadian Bill of Rights in existence, supposedly protected rights like the presumption of innocence Bill of Rights was a Federal statute and did not take precedence over other federal statutes Courts (including the Supreme Court of Canada) interpreted Bill very narrowly, did not intervene when law for a valid federal purpose

15. Charter specifically protects Presumption of Innocence (Section 11(d)) Everyone charged with an offence has the right to be presumed innocent until proven guilty in a fair and public hearing by an independent and impartial tribunal Subject to the state limiting rights under Section 1 of the Charter

16. Oakes Oakes charged with possession for the purposes of trafficking 8 grams of hash oil Once TJ made finding of fact that Oakes was in possession, accused challenged Section 8 of the Narcotic Control Act on the basis that it violated s. 11(d) of the Charter

17. Dickson CJC characterizes presumptions as: Evidentiary burden on the accused to raise sufficient evidence to bring into question the presumed fact Legal burden on the accused to disprove on a balance of probabilities the presumed fact Section 8 of the Narcotics Control Act is a basic fact presumption involving a mandatory presumption of law that shifts the legal burden to the accused

18. Content of the Presumption of Innocence p.2-25 1. Must be proven guilty beyond a reasonable doubt 2. It is the State that bears the burden of proof 3. Criminal prosecutions must be carried out in accordance with lawful procedures and fairness

19. General Principle of Section 11(d) Violation 2-27 If an accused bears the burden of disproving on a balance of probabilities an essential element of an offence, it would be possible for a conviction to occur despite the existence of a reasonable doubt. This would arise if the accused adduced sufficient evidence to raise a reasonable doubt as to his or her innocence but did not convince the jury on a balance of probabilities that the presumed fact was untrue.

20. The Problem Created by Presumptions If the jury has a reasonable doubt about guilt and still has to convict- that will violate s. 11(d) Statutory presumptions tell a jury how it has to find even if it has a doubt about finding that way Accused loses the benefit of the doubt A basic fact may rationally tend to prove a presumed fact but still not prove its existence beyond a reasonable doubt.

21. Oakes: Section 1 Analysis Section 1: The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to sucj reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society

22. Purpose of Section 1 2 purposes a) it guarantees the rights and freedoms that are set out in the Charter and b) it states explicitly the exclusive justificatory criteria against which limitations on those rights must be measured Section 1 tells us that rights and freedoms in Charter are not absolute- may be necessary to limit then in the name of collective goals of fundamental importance. but it takes a high standard of justification to limit a Charter

23. Section 1 Burden of Proof On party trying to uphold limitation (while the burden rests with the party asserting the Charter violation earlier) Standard of proof is civil standard, proof by a preponderance of probability (this is certainly less than beyond a reasonable doubt)

24. Oakes: Section 1 Test for Limiting Rights Ends: Is the objective the measures designed to serve important enough to warrant overiding a constitutionally protected right/freedom? Is it pressing and substantial? Means 1. Rational Connection 2. Minimal Impairment 3. Proportionality

25. Section 8 Narcotics Control Act Fails Section 1 test in Oakes Ends: Protecting Society from Ills of Drug Trafficking is pressing and substantial Means: 1. No internal rational connection between the basic fact of possession and the presumed fact of poss. For purp of trafficking (later cases look at connection with objective)

26. Why is Oakes important? Set very strict standard of justfication under s. 1 for all cases, signal that court taking rights very seriously Very expansive interpretation of presumption of innocence Indicates an activist court, willing to strike down major federal legislation

27. Whyte v. the Queen Facts Constitutionality of same issue raised in Appleby Section 234(1) Section 237(1)(a) Basic fact? Presumed fact? How to rebut Appleby: a legal burden on the accused to establish on BOP did not enter vehivle for the purpose of putting it in motion

28. But intention not an element of the offence Crown argued? The short answer to this argument is that the distinction between elements of the offence on other aspects of the charge is irrelevant to the s.11(d) inquiry. The real concern is not whether the accused must disprove an element or prove an excuse, but that an accused may be convicted while a reasonable doubt exists. When that possibility exists, there is a breach of the presumption of innocence.

29. Section 1 Who has onus? What is burden? What is test? Objective pressing and substantial?, major problem of drinking and drivng but quaer Means, (1) is there a rational connection? Internal rationality but quaere…

30. Section 1 (cont.) Impair rights as little as possible?..legislative compromise, difficult problem re intention in drinking/driving offences..quaere

31. Contribution of Whyte Extends scope of 11(d) it beyond elements of the offence to any matter essential to guilt More leeway to Crown under Section 1

32. Downey Post-Charter evidentiary presumption s. 195(2) provided: evidence that a person lives with or is habitually in the company of prostitute is, in the absence of evidence to the contrary, proof that the person lives on the avails of prostitution

33. R. v. Downey Basic fact Presumed fact How to rebut

34. Downey… Different than Oakes because….. Established that mandatory evidentiary presumptions violate presumption of innocence (here upheld as reasonable limit) to be determined under s.1 on a case by case basis

35. Summarizes case law Presumption of innocence infringed whenever conviction can occur despite reasonable doubt Where accused must prove or disprove an element of the offence or an excuse Legislation does not offend if proof of one element leads to proof of second fact BARD but not just a rational connection Permissive presumption does not violate Statutory presumptions can still be justified under s.1

36. In this case……….. If Crown does not show he was living off the avails and accused does not raise evidence to the contrary, jury to convict even if there is reasonable doubt If there is no evidence, the accused loses

37. Section 1 analysis Objective: target is to get at pimps parasitically living off a prostitutes earnings, prostitutes reluctant to testify, provision addressed at cruel and pervasive social evil Means: Rational connection satisfied Minimal Impairment: Parliament not required to choose absolutely least intrusive alternative, but whether could reasonably have chosen an alternative to achieve objective as effectively, no Proportionality: balance of social and individual interests