Transcript Criminal Law: Presumptions

Criminal Law: Statutory Presumptions and
the Presumption of Innocence
Week of October 2, 2007
Basic Fact Presumptions
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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
Examples of Basic Fact Presumptions
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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
Basic Fact Presumptions
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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
However, basic fact presumptions are
problematic because…
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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
Types of Presumptions
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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
How does the accused rebut the
presumption?
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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
Evidentiary Presumptions
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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
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
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Legal Presumptions or Reverse Onuses
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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
Example: Section 8 of the former Narcotic
Control Act
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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?
Pre-Charter Cases on Reverse Onus:
Appleby
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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)
Pre-Charter
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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”
Charter specifically protects Presumption
of Innocence (Section 11(d))
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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
Oakes
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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
Dickson CJC characterizes presumptions
as:
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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
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
General Principle of Section 11(d)
Violation 2-27
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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.
The Problem Created by Presumptions
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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.
Oakes: Section 1 Analysis
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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
Purpose of Section 1
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2 purposes
a) it guarantees the rights and freedoms that are set out in the
Charter and
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b) it states explicitly the exclusive justificatory criteria against
which limitations on those rights must be measured
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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
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Section 1 Burden of Proof
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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)
Oakes: Section 1 Test for Limiting Rights
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Ends: Is the objective the measures designed to serve
important enough to warrant overiding a constitutionally
protected right/freedom? Is it “pressing and substantial”?
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Means
1. Rational Connection
2. Minimal Impairment
3. Proportionality
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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)
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Why is Oakes important?
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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
Whyte v. the Queen
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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
But intention not an element of
the offence
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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.”
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…
Section 1 (cont.)
 Impair
rights as little as
possible?..legislative compromise,
difficult problem re intention in
drinking/driving offences..quaere
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
Downey
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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
R. v. Downey
 Basic
fact
 Presumed fact
 How to rebut
Downey…
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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
Summarizes case law
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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
In this case………..
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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
Section 1 analysis
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Objective: target is to get at pimps parasitically living off a
prostitute’s 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