Section 11(d) - The Presumption of Innocence

Zachary Fischer, Student Researcher
August 22, 2022
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Section 11 of the Charter of Rights and Freedoms contains a list of rights provided to any person charged with a criminal offence. Subsection (d) protects the right “to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.”[1]

The rights contained under section 11 are engaged once a person has been charged criminally or when “conviction in respect of [an] offence may lead to a true penal consequence.”[2] This means that section 11 may be engaged by some regulatory or disciplinary offences.

The Content of Section 11(d)

As the Supreme Court put it in R v Oakes: “The presumption of innocence is a hallowed principle lying at the very heart of criminal law … confirm[ing] our faith in humankind; it reflects our belief that individuals are decent and law-abiding members of the community until proven otherwise.”[3] Section 11(d) enshrines this “sacrosanct” principle of criminal law in the Charter.[4]

Furthermore, as the Court stated elsewhere in R v Oakes, section 11(d) contains “at a minimum”[5] three criteria:

1) That the accused is proven guilty beyond a reasonable doubt. To satisfy this criterion, each essential element of the offence — including the actus reus and the mens rea — must be proved beyond a reasonable doubt.

2) That the state bears the burden of proving an individual’s guilt.

3) That criminal prosecutions are conducted with due process.[7]

However, under section 11(d), an accused is not entitled to “the most favourable trial procedures imaginable.”[8] As the Supreme Court put it in R v JJ, trial fairness must not only consider the accused but also the complainant and the wider community.[9]

Section 11(d) and Section 1

As with all rights contained in the Charter, section 11(d) can be limited under section 1.[10] For instance, section 1 has been used to uphold some criminal law provisions that impose a reverse onus on the accused. Such provisions, which require the accused to rebut a presumption that stems from a proven fact, are generally considered to be violations of section 11(d) (and must therefore be justified under section 1).[11] A key example of this is the law struck down in R v Oakes, which assumed that possession of narcotics was proof of an intent to traffic them unless an accused could prove otherwise.

Crucially, when conducting a section 1 analysis, the Supreme Court of Canada has recognized that section 11(d) carries significant weight. This means, in short, that a breach of the section 11(d) right will not be easily justified in terms of the collective interests that are normally considered as part of a section 1 analysis.[12]

 

[1] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, s 11 [Charter].

[2] R v Wigglesworth, [1987] SCJ No 71 at para 21, 2 SCR 541 [emphasis added].

[3] R v Oakes, [1986] SCJ No 7, 1 SCR 103 at para 29 [Oakes].

[4] R v Brown, 2022 SCC 18 at para 145 [Brown].

[5] Oakes, supra note 3 at para 32.

[6] Brown, supra note 4 at para 99.

[7] R v JJ, 2022 SCC 28 at para 124 [JJ].

[8]  Ibid at para 125.

[9] Ibid.

[10] Charter, supra note 1, s 1.

[11] Oakes, supra note 3 at para 57.

[12] Brown, supra note 4 at para 166.

 

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