Law 120 – Criminal Law – can silvana Lovera Professor Emma Cunliffe Table of Contents

Proving the Crime

Crown’s Burdens

Statute can shift the burden of proof: will always raise s. 11(d) issue/ always raise a constitutional problem as they could lead to a conviction despite the existence of a reasonable doubt (Oakes)

 2 types of Reverse Onus Provisions these will both be in the Code

Reverse Onus Burdens (ALWAYS RAISE A CHARTER ISSUE UNDER S 11 D. APPLY OAKES)

       E.g. the proof of one fact leads to the presumption of another, in ABSENCE OF EVIDENCE TO THE CONTRARY = evidentiary burden (raising a reasonable doubt) on AOR Cinous

       E.g. Everyone who without lawful justification or excuse, the PROOF which lies on him (PROOF= ON A BALANCE OF PROBABILITIES)

 2 types of Presumptions:

1) Mandatory Statutory Presumptions: trier of fact must draw a presumption

2) Permissive presumptions: allow, but don’t require, the trier of fact to infer the existence of one fact from the existence of another

BRD

If the explanation as a whole could reasonably be misunderstood by the jury then the explanation cannot be acceptable. There is no magical incantation; a few slips doesn’t negate the instruction, one has to look at the instruction in its entirety.

Judges should explain reasonable doubt as follows to jurors:

Judges should NOT say that RD:

1. 
   has ordinary connotations/not important decisions
   
2. 
   implies absolute certainty
   
3. 
   is based on moral certainty [ppl use it differently than was used earlier]
   

1. 
   is based on reason and common sense [nothing else]
   
2. 
   Can’t be based on sympathy
   
3. 
   Can’t be imaginary or frivoulous
   
4. 
   is logically connected to evidence or absence of evidence
   

CREDIBILITY

R. v. JHS. [2008] SCC

• 
  A convicted of sexual assault. Rules related to credibility.
  
• 
  WD Rules instructing Jury on Reasonable Doubt:
  
  • 
    1) If you believe the evidence of A, you must acquit.
    
  • 
    2) If you do not believe the evidence of A but are left with a reasonable doubt by it, you must acquit.
    
  • 
    3) Even if you are not left in doubt by the evidence of A, you must asked whether on the basis of the evidence which you accept, you are convinced BRD by the evidence of the guilt of the A.
    
  • 
    4) If the jury does not know who to believe, they must acquit (JHS adds).
    
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  The Threshold for appellant reversal: could jury have been under misapprehension for the correct burden and standard of proof to apply. If jury under misapprehensionmust be reversal
  
• 
  Different standard than Lifchus for credibility – if the jury could have been under any misapprehension, a new trial is ordered. There is no magical incantation; the jury charge is read as a whole.
  

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