Law 309 Evidence Introduction 5

Reverse Onus Presumptions

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  Reverse onus presumptions impose a legal burden where opposing party must disprove a presumed fact on the balance of probabilities
  
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    E.g. Motor vehicle offences – person found in drivers seat is assumed to have care and control of a vehicle unless accused can establish they were not.
    
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    Problem: all reverse onus provisions that apply against the accused are prima facie in violation of the Charter s.11(d) assumption of innocence because there may be enough evidence to raise a reasonable doubt about existence of a presumed fact, but not enough to disprove it on the balance of probabilities (although often saved by s.1)
    
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      E.g. Oakes, R. v. (1986) (S.C.C.): Narcotics Control Act s.8 said that a person found in possession of narcotics was presumed to be in possession for purpose of trafficking. S.C.C. held this provision was unconstitutional (violated s.11(d) and not saved by s.1). Now, Crown must prove this presumption with evidence.
      

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  Facts: Accused was charged with having care and control of a vehicle while his ability to drive was impaired by alcohol.
  
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  Reasoning: Before the Charter, an accused could be convicted even if there was a reasonable doubt, but only because the Bill of Rights was a statute. Parliament could expressly enact a persuasive burden on the accused.
  
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  Comment: Similarly, in Woolmington v. Director of Public Prosecutions (1935) (HL) (another pre-Charter case), the court found that there was a presumption of innocence unless there is a statutory provision on the contrary.
  

Post Charter: Oakes Test – sets out the Charter approach to the reverse onus problem

Oakes Test

The Court presents a two step test to justify a limitation under s. 1:

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  It must be "objectively relate to concerns which are pressing and substantial in a free and democratic society"
  
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  Must be shown "that the means chosen are reasonable and demonstrably justified" – proportionality test (see below)
  

Proportionality test:

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  Was provision carefully designed to achieve the objective i.e. is provision rationally connected to the objective?
  
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  The provision should impair the right or freedom in question as little as possible
  
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  The effects of the provision should be proportional to the objective.
  

R. v. Whyte (1988) (SCC)

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  “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” – which is a breach of the presumption of innocence.”
  
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  “If an accused is required to prove some fact on the balance of probabilities to avoid conviction, the provision violates the presumption of innocence because it permits a conviction in spite of a reasonable doubt…”
  

If the Charter is to mean anything, any statute that convicts people to which there must be a reasonable doubt, must be in violation of the Charter

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  However, violations may be justified under the Oakes test
  

Chaulk, R. v. (1990) (S.C.C.)

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  Facts: Chaulk entered house, stole, and killed the occupant. He suffered from a paranoid psychosis and believed he was above the law. A week after the killing, he confessed.
  
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  Issue: Does the presumption of sanity embodied in s. 16(2) (used to be 16(4) at the time of this trial) violate s.11(d) of the Charter, the presumption of innocence?
  
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  Decision (Lamer):
  
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    Yes, s.16 (2) shift of burden violates Charter s.11(d) (since it requires accused to prove insanity/mental disorder on the balance of probabilities, which may permit a conviction in spite of a reasonable doubt in the mind of the trier of fact as to the sanity of the accused)
    
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  However, s.16(2) is justified by s. 1. Passes the Oakes test:
  
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    The objective of s.16(2) is to avoid placing an impossible burden of proof on the Crown (i.e. Crown would have a nearly impossible burden of demonstrating that every accused was not insane/mentally disordered). This is sufficiently important to warrant limiting constitutionally protected rights
    
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    Parliament has chosen from a range of means that impair s. 11(d) as little as possible.
    
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    Finally, there is proportionality between the effects of the measure and the objective.
    

Provisions may be struck down if they violate the presumption of innocence:

R. v. Laba (1994) (SCC)

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  Reasoning: The SCC decided that s. 394(1)(b) of the Criminal Code violated s. 11(d) of the Charter and could not be save under s. 1.
  
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  Found that simply striking out the offending words “unless he establishes that” in the provision was insufficient. Instead, they decided to write into the provision that guilt would be mandated “in the absence of evidence which raised a reasonable doubt.”
  
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  In other words, they read in the evidential burden where they had struck out the persuasive burden
  

R. v. Curtis (1998) (Ont. CA)

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  The wording of s. 215(2) of the Criminal Code contained the reverse onus clause “the proof of which lies upon him.”
  
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  SCC found that this violated s. 11(d)
  
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  Reverse onus clause was declared to be of no force and effect – essentially excising the offending provision.
  

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