Charter + evidence 1

Presumptions

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  No basic fact/basic fact
  
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    No basic fact is a presumption without a needed factual basis (innocence, sanity); sanity can be defeated on balance of probabilities
    
  • 
    Basic fact is a presumption that follows from a fact being established; typically defined in statute
    
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  Permissive/Mandatory Presumptions
  
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    Permissive presumptions allow, but do not require, an inference be made to a presumed fact (you may, but don't have to, infer that someone possessing recently stolen property was the thief)
    
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    Mandatory presumptions require an inference to be made to a presumed fact (shifts burden from Crown to accused); generally defined in statute
    
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  Conclusive/Rebuttable Presumptions
  
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    Conclusive presumptions cannot be defeated by evidence
    
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    Rebuttable presumptions can be defeated by evidence; burden is on accused to defeat the presumption
    
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  Rebuttable Presumptions
  
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    Most presumptions are basic fact, mandatory, rebuttable (on proving a fact, an inference is drawn that, if the accused doesn't defeat it, will obtain)
    
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    Two standards can be used: balance of probabilities or evidence to the contrary
    
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      Evidence to the contrary just means raising a reasonable doubt
      
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      Balance of probabilities (signalled by use of term "establishes", meaning "to prove") burdens include disproving a part of the Crown's case, disproving collateral facts, proving an excuse or some other defence
      
      • 
        Still has to satisfy CTM burden, and decided by trier of fact
        
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  Rebuttable presumptions conflict with 11(d) Charter right to presumption of innocence
  
  • 
    Under 11(d), Crown has burden to prove case beyond reasonable doubt based on their evidence passing the CTM burden, following all rules of procedural fairness (incl Stinchcombe + no conscription of accused); if any doubt exists, acquittal should follow
    
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    But rebuttable presumptions can lead to convictions despite reasonable doubt if it means an inference is made and it isn't defeated
    
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    Reverse onuses are justified based on their necessity in establishing that a crime exists; must be balanced using Oakes test
    
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      But this is problematic because it still requires that the accused respond before the Crown's case is finished, and there is no proof of the inferred fact except for the basic fact
      
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  Proof of substituted fact: substituted facts are inferences that are necessarily substantiated by the proof of the basic fact, and thus there can be no reasonable doubt about the inference
  

Oakes test

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  Distinguish between legal and evidentiary burdens
  
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    Legal burdens: onus to prove or disprove a legal issue
    
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    Evidentiary burdens: onus to produce evidence to establish CTM burden for trier of law (raise a reasonable doubt, or establish balance of probabilities)
    
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    Accused should never have to meet a legal burden, but evidentiary burdens are okay
    
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  Infringements of 11(d) right to innocence are permissible only when "they are reasonable and demonstrably justified in a free and democratic society"
  
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  Person trying to justify a limitation on a Charter right has burden of proof
  
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  Charter s 1 burden of proof is balance of probabilities
  
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  Oakes Test
  
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    Step 1: the objective must be of sufficient importance to warrant overriding a constitutionally protected right or freedom
    
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    Step 2: the means chosen must be reasonable and demonstrably justified through a 3-part proportionality test
    
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      There must be a rational connection between the objective and the limitation - no arbitrary or unfair limitations
      
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      The limitation should impair the right or freedom as little as possible
      
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      The effects of the limitation must be proportional to the importance of the objective (the more serious the effects, the more important the objective)
      

Laba

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  Charter must be interpreted contextually, including considering historical, social, and economic factors, to do proper s. 1 analysis
  
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  Evidence should be considered as to the existence of a problem, but its primary purpose is establishing the objective of the provision
  
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  That something is in the Criminal Code is generally sufficient to mark an objective that meets the first step of the Oakes test (presence in CC = social repugnance)
  
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  No requirement that a presumption be internally rational to meet rational connection test; it merely must be a logical method to accomplish the objective in question
  
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  Where an evidentiary burden will suffice to accomplish an objective, imposing a legal burden cannot pass the Oakes test for minimal impairment and proportionality
  

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