The Canadian Charter of Rights and Freedoms, section 11(d) guarantees Canadians the right to be presumed innocent. Specifically, anyone detained or charged with an offence has the right “to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal”. We could argue that the presumption of innocence is the most fundamental and important principle governing criminal proceedings in Canada. This underlying principle impacts every aspect of the legal process, beginning when someone is initially detained by police to their potential trial and sentencing. The presumption of innocence is the reason why an accused who is charged with a serious criminal offence must be appointed a lawyer if they are not financially able to retain counsel or represent themselves.

A landmark case, R. v. Lifchus, 1997, is frequently cited with respect to a person’s Charter right to a presumption of innocence. This case involved a defendant who was convicted on a charge of fraud but won the right to appeal their conviction because defense counsel successfully argued that the trial judge erred in her instructions to the jury regarding “proof beyond a reasonable doubt”. When explaining the burden of proof beyond a reasonable doubt to the jury, the trial judge used the words: “in their ordinary, natural every day sense”. But contrary to this explanation, ‘reasonable doubt’ has a specific meaning when used in a criminal law context and “jurors should not be invited to apply to the determination of guilt in a criminal trial the same standard of proof that they would apply to the decisions they are required to make in their everyday lives, or even to the most important of these decisions”.

A judge’s instructions to a jury must clearly communicate how the presumption of innocence must guide their decision-making. “The standard of proof beyond a reasonable doubt is vitally important since it is inextricably linked to that basic premise which is fundamental to all criminal trials: the presumption of innocence”. A jury should always be instructed that it is not a frivolous, subjective or sympathetic concept, but rather, it is a doubt based on reason and on all the evidence (or lack of evidence) provided. This means that the accused person enters a court proceeding presumed to be innocent and that presumption should remain until the Crown has submitted enough evidence to satisfy a jury beyond reasonable doubt that the accused person is guilty.

In protecting a person’s right to the presumption of innocence, it is not enough that the Crown proves that the accused is ‘probably’ guilty. Rather, a jury should be advised that they can convict an accused person only if they are sure or certain that the defendant is guilty. In R. v.Lifchus, the Court stated that an accurate explanation of the required burden of proof by a judge to the jury is essential to ensure a fair trial and the trial judge’s error in explaining this fundamental principle to the jurors was substantial grounds for an appeal in this case, as the verdict may not have been the same if the jurors were properly instructed.

The Supreme Court of Canada held, in R. v. Starr, that proof beyond a reasonable doubt falls much closer to absolute certainty than to proof on a balance of probabilities.

The presumption of innocence means that the burden of proof in a trial is on the prosecution not only in terms of proving a person guilty of a particular offence but also, with respect to sentencing. In R. v. Hill, 2012, the Ontario Superior Court asserted that the Crown must prove that the defendant is a ‘dangerous offender’ before sentencing him as such. This case concerned a man who had previously served sentences for two criminal convictions and was being charged with a third primary designated offence. The Crown was seeking to have the defendant designated as a ‘dangerous offender’, largely based on the presumption defined in the Tackling Violent Crime Act, section 753(1.1), which states that when someone is convicted of three primary designated offences with sentences of at least two years imprisonment for each offence, the offender is presumed to meet the criteria of a ‘dangerous offender’ unless proven otherwise. However, in R. v. Hill, the court concluded that section 753(1.1) infringes on a person’s fundamental rights guaranteed by the Charter, section 7. Also, given that the ‘dangerous offender’ indeterminate sentence is the harshest sentence in the Canadian criminal justice system, the court found that there are no valid grounds for placing the burden of proof on the defendant to show that, on a balance of probabilities, they do not meet the section 753 criteria.

The following guiding principles set out by the Supreme Court of Canada, in D.W. v. The Queen, clearly demonstrate the substantial onus on the Crown to prove their case beyond a reasonable doubt.

First, if you believe the evidence of the accused, obviously, you must acquit.

Secondly, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Thirdly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

If you are detained or arrested, contact the skilled and determined criminal defense lawyers at Kruse Law immediately. We will apply our considerable resources and experience to help get the charges against you dismissed and avoid conviction.

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