Section 11(d) - The Presumption of Innocence
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.”
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.” 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.” Section 11(d) enshrines this “sacrosanct” principle of criminal law in the Charter.
Furthermore, as the Court stated elsewhere in R v Oakes, section 11(d) contains “at a minimum” 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.
However, under section 11(d), an accused is not entitled to “the most favourable trial procedures imaginable.” 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.
Section 11(d) and Section 1
As with all rights contained in the Charter, section 11(d) can be limited under section 1. 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). 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.
 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].
 R v Wigglesworth,  SCJ No 71 at para 21, 2 SCR 541 [emphasis added].
 R v Oakes,  SCJ No 7, 1 SCR 103 at para 29 [Oakes].
 R v Brown, 2022 SCC 18 at para 145 [Brown].
 Oakes, supra note 3 at para 32.
 Brown, supra note 4 at para 99.
 R v JJ, 2022 SCC 28 at para 124 [JJ].
 Ibid at para 125.
 Charter, supra note 1, s 1.
 Oakes, supra note 3 at para 57.
 Brown, supra note 4 at para 166.