Section 11(d) – Presumption of innocence
11. Any person 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;
Other Canadian legislation
The presumption of innocence is also protected by section 7 and section 11(e) of the Charter. (In addition, section 7 serves to protect analogous fair trial rights.) In certain circumstances in which both section 7 and section 11(d) violations are claimed, a finding that one provision has been infringed will necessarily entail a finding that the other has been infringed as well (R. v. Rose,  3 S.C.R. 262). Section 11(d) is also frequently considered in conjunction with the open court principle, which is protected under section 2(b) (R. v. Mentuck,  3 S.C.R. 442). A similar provision is also found in section 2(f) of the Canadian Bill of Rights. The Preamble of the Constitution Act, 1867 references judicial independence, an aspect of 11(d) (note that such protection under the Constitution is not greater than what is found in this paragraph (Therrien (Re),  2 S.C.R. 3).
International human rights instruments binding on Canada
Provisions similar to section 11(d) are found in subarticles 14(1) and 14(2) of the International Covenant on Civil and Political Rights.
Section 11(d) helps to ensure that only those who are guilty are ultimately condemned by the criminal justice system. Section 11(d) protects the innocent in two ways. First, section 11(d) guarantees the right of any person charged with an offence to be presumed innocent until proven guilty beyond a reasonable doubt. Second, section 11(d) guarantees that the process whereby the guilt of any accused will be proved, will be fair. An essential component of a fair process is that the trier of fact — whether judge or jury — be independent and impartial. (Dubois v. The Queen,  2 S.C.R. 350 at 357, R. v. Oakes,  1 S.C.R. 103 at paragraph 32).
1. Charged with an offence
See the discussion under the general section 11 heading. This provision only applies to courts and tribunals that determine the guilt of persons charged with criminal offences (Reference re Remuneration of Judges of the Provincial Court,  3 S.C.R. 3 at paragraph 84; Ell v. Alberta,  1 S.C.R. 857 at paragraph 18, Re Application Under section 83.28 of the Criminal Code,  2 S.C.R. 248 [Re section 83.28 of the Criminal Code]).
2. The presumption of innocence
The presumption of innocence entails two essential elements, namely (1) that an accused must be proven guilty beyond a reasonable doubt, and (2) that the Crown bears the burden of establishing such guilt (R. v. Oakes, supra).
Reverse onus: The general rule is that a provision that imposes on the accused the burden to disprove on "a balance of probabilities" (i.e., the persuasive burden) any factor affecting verdict violates the presumption of innocence. The imposition of a "persuasive burden" is usually indicated by the words "to prove" or "to establish". Such a requirement limits section 11(d) because it makes it possible for an accused who fails to discharge her burden to be convicted despite the existence of a reasonable doubt as to guilt (Oakes, supra; R. v. Whyte,  2 S.C.R. 3; R. v. Keegstra,  3 S.C.R. 697; R. v. Fisher, 17 OR (3d) 295 (Ont. C.A.), leave to appeal SCC refused,  S.C.C.A. No. 176). Whether "any factor affecting verdict" is an essential element of the offence, a collateral factor, an excuse, or a defence, does not mitigate the deleterious effect that the imposition of a reverse onus has on the presumption of innocence (Whyte, supra; Keegstra, supra; R. v. Chaulk,  3 S.C.R. 1303).
Where criminal liability is imposed for failure to possess a registration certificate, licence, etc. (e.g., the offence of possession of a firearm without a registration certificate), and the accused must establish that he actually holds the requisite licence, section 11(d) is not limited. This is because the existence or non-existence of the document is determinative of the issue of guilt. In these narrow circumstances, section 11(d) is not limited because the existence of a licence should always satisfy both standards of proof, i.e., if the accused demonstrates that the license exists, then he will have met his burden on a balance of probabilities. If the license does not exist, then the Crown will have discharged its burden beyond a reasonable doubt (R. v. Schwartz,  2 S.C.R. 443, Chaulk, supra).
Presumed facts: Where a judge is required from the Crown’s proof of a fact to presume another fact, and the presumed fact does not flow inexorably from the proved fact, paragraph 11(d) is limited. In other words, a basic fact presumption will infringe s. 11(d) if proof of the basic fact is not capable, in itself, of satisfying the trier of fact beyond a reasonable doubt of the presumed fact (R. v. Morrison, 2019 SCC 15 at paragraph 56). This is because the Crown is relieved of its burden of proving each element of the offence beyond a reasonable doubt (R. v. Downey,  2 S.C.R. 10; R. v. Audet,  2 S.C.R. 171; R. v. Morrison, supra, at paragraph 56) and, as a result, an accused can be convicted even though the trier of fact has a reasonable doubt (R. v. Vaillancourt,  2 S.C.R. 636 at 654-56; Downey, supra at 21; R. v. St-Onge Lamoureux,  3 S.C.R. 187 at paragraph 24). Note: Special considerations under section 1 of the Charter in respect of such presumptions are discussed below.
Defences: The rule that an accused must raise sufficient evidence of a defence (i.e., meet the evidential burden) in order to justify presentation of that defence to a jury does not infringe section 11(d). The burden of proving all the elements of the offence beyond a reasonable doubt remains with the Crown. (R. v. Osolin,  4 S.C.R. 595, with respect to the "air of reality" test).
In Chaulk, supra, the Court held that the reverse onus imposed on the accused in relation to the presumption of sanity infringed section 11(d) but was justified under section 1. Chaulk was reconsidered in R. v. Ejigu, 2016 BCSC 1487 where the Court found that the reverse onus infringed section 11(d), as well as sections 7 and 15, but concluded that those limitations were justified under section 1.
Limiting the accused's ability to put forward an intoxication defence that could raise a reasonable doubt regarding whether the accused had the necessary mens rea limits section 11(d) (R. v. Daviault,  3 S.C.R. 63, R. v. Robinson,  1 S.C.R. 683).
Justifying further Crown disclosure: Requiring the accused to establish a basis for a disclosure request where the Crown disputes the existence of the item requested, does not limit section 11(d) (R. v. Chaplin,  1 S.C.R. 727).
Adverse inference from silence of the accused: Section 11(d) is unjustifiably limited where a judge draws an adverse inference from the failure of an accused to testify, because the Crown is thereby relieved of part of its burden to prove guilt beyond a reasonable doubt (R. v. Noble,  1 S.C.R. 874).
Regulatory offences: In a regulatory context, strict liability offences are frequently employed. A strict liability provision is one in which the accused is presumed to be negligent upon proof by the Crown that they committed the prohibited act. The Crown need not demonstrate any mens rea on the part of the accused with respect to the prohibited act. However, the accused can avoid liability by proving, on a balance of probabilities, that they exercised all due diligence in trying to prevent the commission of the prohibited act. Where imprisonment is available as a sanction for breach of a regulatory offence, the analysis under section 11(d) is identical to that applied in relation to criminal offences, i.e., the imposition of a persuasive burden on an accused in respect of any factor affecting verdict limits section 11(d)) (R. v. Wholesale Travel Group Inc.,  3 S.C.R. 154, R. v., Martin,  1 S.C.R. 838, R. v. Ellis-Don Ltd.,  1 S.C.R. 840). Note: Special considerations under section 1 of the Charter in respect of strict liability offences are discussed below.
3. Fair and public hearing
Public hearing: Section 11(d) guarantees an open court room and the right to have the media access the courtroom to report on the proceedings. The right to a fair trial is meant to allow public scrutiny of the trial process as (1) this ensures that the judicial system conducts fair trials, not mere show trials in which conviction is a foregone conclusion and (2) it can vindicate an accused person who is acquitted, particularly when the acquittal is surprising or shocking to the public (Mentuck, supra at paragraphs 53-54; Dagenais v. Canadian Broadcasting Corp.,  3 S.C.R. 835 at 883). The right to a public hearing is also protected by section 2(b), which protects the open court principle. For a discussion of the open court principle as it relates to publication bans or closed court proceedings see the entry on section 2(b).
Waiving the right to a fair trial: In a regulatory context, where there are sufficient procedural safeguards and no risk of imprisonment, an accused’s failure to pay a fine and appear at the time and place stipulated on the ticket can be taken as a waiver of the right to be presumed innocent and the right to a hearing, and so allow their lawful conviction in absentia (R. v. Richard,  3 S.C.R. 525).
(i) Procedural considerations
Pre-charge delay: Where pre-information or pre-indictment delay causes significant prejudice to an accused’s right to a fair trial, and the delay was caused by the police or the Crown for no good reason, section 11(d) may be available to provide relief (Carter v. The Queen,  1 S.C.R. 981).
Reopening the Crown’s case: Where the accused has already begun to answer the Crown’s case, in order to respect an accused’s right to a fair trial the trial judge has but a narrow discretion to allow an application by the Crown to reopen its case. This discretion should only be exercised where (1) the conduct of the accused directly or indirectly contributed to the Crown’s failure to adduce the evidence before the close of its case, (2) the Crown’s omission or mistake relates to a non-controversial issue that was purely formal or technical and had nothing to do with the substance of the case or, potentially, (3) in closely analogous situations the Crown should only be permitted to reopen its case where no prejudice to the accused can be demonstrated (R. v. G.(S.G.),  2 S.C.R. 716 at paragraphs 33-35).
Limits on cross-examination: The right to cross-examine is protected by section 11(d) (Osolin, supra; R. v. Lyttle,  1 S.C.R. 193, R. v. N.S.,  3 S.C.R. 726). Unwarranted constraints on cross-examination may undermine the fairness of the trial (Lyttle, supra at paragraph 2; N.S., supra at paragraph 24). Being able to see a witness’s face is important to enable effective cross-examination and assessment of the credibility of a witness and will not be set aside absent compelling evidence (N.S., supra at paragraphs 24-27). Whether the ability to observe a witness’s face impacts trial fairness in any particular case will depend on the evidence that the witness is to provide. Where evidence is uncontested, credibility assessment and cross-examination are not in issue, so the accused’s right to a fair trial would not be impinged (N.S., supra at paragraph 28).
The trial judge must balance the rights of the accused to receive a fair trial with the need to prevent unethical cross-examination. Counsel may put questions to witnesses in cross-examination regarding matters that need not be proved independently, provided that counsel has a good faith basis for putting the question (Lyttle, supra).
Tactical pressure: There is a difference between the imposition of a burden of proof with regard to an offence, and the tactical need to respond when the Crown establishes a prima facie case. Where there is neither a legal obligation nor an evidentiary burden on the accused, the mere tactical pressure on the accused to participate in the trial to respond to that case does not offend the principle against self-incrimination or the right to a fair trial (R. v. Darrach,  2 S.C.R. 443 at paragraph 50).
(ii) Evidential considerations
Restrictions placed on the Crown’s ability to lead evidence of an accused’s prior criminal convictions (by section 12 of the Canada Evidence Act), combined with the trial judge’s discretion to exclude prejudicial evidence of prior convictions in appropriate circumstances, are adequate to ensure a fair trial (R. v. Corbett,  1 S.C.R. 670).
The fact that evidence obtained outside of Canada in a manner that would have constituted a violation of a Charter right had it been so obtained in Canada is admitted at trial does not per se violate an accused’s right to a fair trial. Whether its admission will be unfair depends on the circumstances of the particular case (R. v. Harrer,  3 S.C.R. 562, R. v. Terry,  2 S.C.R. 207).
Where a witness is unwilling to testify at trial, reading-in the witness’s evidence given at the preliminary inquiry does not jeopardize the fairness of the trial where the accused had an opportunity to cross-examine the witness at the preliminary inquiry (R. v. Potvin,  1 S.C.R. 525).
4. Independent and impartial tribunal
The concepts of "independence" and "impartiality" found in section 11(d) of the Charter, although obviously related, are separate and distinct values or requirements (Valente v. The Queen,  2 S.C.R. 673 at paragraph 15).
There is an individual as well as an institutional aspect to both impartiality and independence. Although institutional guarantees may satisfy the requirements of independence and impartiality, an individual adjudicator’s state of mind or her personal relationships may jeopardize her impartiality or independence. Conversely, although an individual judge may be beyond reproach, the institutional guarantees may lead the reasonable person to apprehend bias or lack of independence (R. v. Lippé,  2 S.C.R. 114).
Impartiality: Impartiality refers to a state of mind or attitude of the tribunal in relation to the issues and the parties in a particular case (Valente, supra at paragraph 15). Impartiality is not the same as neutrality. Impartiality connotes absence of bias, actual or reasonably apprehended, and relates to the mindset of the adjudicator. Bias has been found to flow from a number of attitudes as recognized by the courts, including a personal interest in the matter to be tried (R. v. Hubbert  O.J. No. 2595 (Ont. C.A.), aff’d SCC,  2 S.C.R. 267), prejudice arising from pretrial publicity or notoriety of the accused (R. v. Sherratt,  1 S.C.R. 509), and prejudice against members of the accused’s social or racial group (R. v. Williams,  1 S.C.R. 1128). Widespread bias has not been found to flow from the nature of the charged offence, such as against persons charged with sexual assault (R. v. Find,  1 S.C.R. 863 at paragraph 109).
With appropriate institutional safeguards, in particular legislation regulating possible conflicts of interest, the fact that practising lawyers sit as part-time municipal court judges does not raise a reasonable apprehension of bias on an institutional level (Lippé, supra).
With respect to jurors, impartiality does not require that the juror’s mind be a blank slate. Nor does it require that the juror disregard all opinions, beliefs, knowledge and other accumulations of life experience (Find, supra at paragraph 43). Establishing a realistic potential for juror partiality requires satisfying the court that (1) a widespread bias exists in the community, and (2) that some jurors may be incapable of setting aside this bias despite the trial judge’s instructions. Prejudice capable of unfairly affecting the outcome of the specific case is required. What must be shown is a bias that could, as a matter of logic and experience, incline a juror to a certain party or conclusion in a manner that is unfair (Find, supra at paragraph 36).
Independence: Independence reflects or embodies the traditional constitutional value of judicial independence (Valente, supra). Independence is concerned with the nature of the relationship between the adjudicator and others. This relationship must be marked by a form of intellectual separation that allows the judge to render decisions based solely on the requirements of the law and justice. The legal standards governing judicial independence serve to institutionalize this separation (Mackin v. New Brunswick (Minister of Finance),  1 S.C.R. 405 at paragraph 37).
Judicial independence involves both individual and institutional relationships: the individual independence of a judge as reflected in such matters as security of tenure, and the institutional independence of the court or tribunal over which they preside as reflected in its institutional or administrative relationships to the executive and legislative branches of government (Valente, supra at paragraph 20).
As with impartiality, the test for independence is whether a reasonable and informed person viewing the relevant statutory provisions in their full historical context, would conclude that the court or tribunal is independent (Valente, supra at paragraph 22).
Judicial independence is essential to the achievement and proper functioning of a free, just and democratic society based on the principles of constitutionalism and the rule of law (Mackin, supra at paragraph 34). Judicial independence serves not as an end in itself, but as a means to ensure a reasonable perception of impartiality to safeguard our constitutional order and to maintain public confidence in the administration of justice (Valente, supra at paragraph 22, Reference re Remuneration of Judges of the Provincial Court, supra, Lippé, supra, Re section 83.28 of the Criminal Code, supra).
For a court to satisfy the guarantee of judicial independence contained in section 11(d), it must enjoy, at a minimum, the following characteristics: (a) security of tenure for its members; (b) financial security for its members, and; (c) independence over administrative matters crucial to its judicial functions (Valente, supra; Reference re Remuneration of Judges of the Provincial Court, supra; Mackin, supra; Conférence des juges de paix magistrats du Québec v. Quebec (Attorney General), 2016 SCC 39).
It should be noted however, that even where the essential conditions of judicial independence exist, and are reasonably seen to exist, judicial independence itself is not necessarily ensured. The critical question is whether the court is free, and reasonably seen to be free, to perform its adjudicative role without interference, including interference from the executive and legislative branches of government (British Columbia v. Imperial Tobacco Canada Ltd.,  2 S.C.R. 473 at paragraph 47; Re section 83.28 of the Criminal Code, supra).
The manner in which the essential conditions of independence may be satisfied varies in accordance with the nature of the court or tribunal and the interests at stake (Canadian Pacific Ltd. v. Matsqui Indian Band,  1 S.C.R. 3; Therrien, supra, Conférence des juges de paix magistrats du Québec, supra).
The level of security of tenure that is constitutionally required will depend on the specific context of the court or tribunal. While Superior Court judges are only removable on address of the House of Commons and the Senate per section 99 of the Constitution Act, 1867, security of tenure for Justices of the Peace is not lost where they can be removed from office on the advice of an independent Judicial Council (Ell v. Alberta, supra). However, judicial independence is lost where legislation abolishes the system of supernumerary judges in the provincial court and replaces it with a panel of retired judges, paid on a per diem basis (Mackin, supra).
Independence is lost where judge advocates, who are in fact part of the Executive, are appointed by the Executive to adjudicate General Court Martials (R. v. Généreux,  1 S.C.R. 259).
The institutional dimension of the financial security guarantee has three elements: 1) remuneration cannot be changed without recourse to an independent, effective, and objective body; 2) there are to be no negotiations between the judiciary and the executive or legislature regarding remuneration; and 3) any reduction to remuneration cannot take it below a basic minimum level of remuneration required for the office of a judge (Conférence des juges de paix magistrats du Québec, supra; Mackin, supra; Provincial Court Judges’ Assn. of New Brunswick v. New Brunswick (Minister of Justice), Ontario Judges’ Assn. v. Ontario (Management Board), Bodner v. Alberta, Conférence des juges du Québec v. Quebec (Attorney General), Minc v. Quebec (Attorney General),  2 S.C.R. 286 [Provincial Court Judges’ Assn.]. While the recommendations of these bodies are not binding on governments, the government must provide legitimate reasons for varying or rejecting recommendations. The three stage analysis for review of a government response asks (1) whether the government has articulated a legitimate reason for departing from the commission’s recommendations; (2) whether the government’s reasons rely upon a reasonable factual foundation; and (3) viewed globally, whether the commission process has been respected and whether the purposes of the commission — preserving judicial independence and depoliticizing the setting of judicial remuneration — have been achieved (Provincial Court Judges’ Assn., supra).
A review of remuneration by an independent committee is required for any new judicial office, although it can be done retroactively within a reasonable period of time after the appointment of judges into the new office. The “reasonable time” period for retroactive review will reflect the time required to implement the reform, to establish the appropriate review committee, and to ensure proper participation by the new judicial officers. It will generally be measured in months, not in years. However, when creating a new judicial office, the Government may not change the remuneration of sitting judges until after the committee review (Conférence des juges de paix magistrats du Québec, supra).
Section 1 considerations specific to this section
Presumed facts: As indicated above, where a judge is required, from the Crown’s proof of a fact, to presume another fact, and the presumed fact does not flow inexorably from the proved fact, section 11(d) is limited. Any such limitation must be justified under section 1.
If the accused need only rebut the presumed fact by adducing or pointing to evidence which, if accepted, would be capable of raising a reasonable doubt the provision will be more easily justified under section 1. This is because it is unlikely that an innocent person will be unable to point to or present some evidence which raises a reasonable doubt as to his guilt. It is more difficult to satisfy the section 1 test where a persuasive burden is imposed on the accused to rebut the presumed fact by proof on a balance of probabilities (Downey, supra; R. v. Laba,  3 S.C.R. 965).
The means available to the accused to rebut the presumption are relevant at the stage of justifying the infringement under section 1. Whether a statutory presumption can be justified under section 1 depends on several factors, including the importance of the legislative objective, how difficult it would be for the Crown to prove the substituted fact beyond a reasonable doubt, whether it is possible, and how easy it is, for the accused to rebut the presumption, and scientific advances that may provide the necessary link between the proved fact and the substituted fact (St-Onge Lamoureux, supra at paragraphs 30-31). To satisfy the minimal impairment standard, the Crown has to establish that absent the presumption, the offence cannot operate effectively (R. v. Morrison, supra, at paragraph 69).
Regulatory offences: Strict liability offences in the regulatory context have been generally upheld under section 1 when the following is true (Wholesale, supra; Martin, supra; Ellis-Don, supra):
- the offence serves a pressing and substantial objective in support of a regulatory/public welfare scheme of fundamental importance to Canadian society;
- the nature of the regulatory offence is such that the relevant facts as to the accused’s due diligence are within the peculiar knowledge of the accused;
- an evidential burden as opposed to a persuasive burden would not provide as effective an inducement for those engaged in the regulated activity to comply strictly with the regulatory scheme, including the adoption of proper procedures and record keeping;
- by choosing to participate in a regulated activity, an individual will be taken to have accepted consequential responsibilities, including the responsibility to establish, on a balance of probabilities, the exercise of reasonable care or due diligence.
Judicial independence: Due to the vital role played by judicial independence in the Canadian constitutional structure, the standard application of section 1 cannot alone justify an infringement of that independence. An infringement of judicial independence can only be justified where there are “dire and exceptional financial emergencies caused by extraordinary circumstances such as the outbreak of war or imminent bankruptcy”, and a Government must present convincing evidence to justify the infringement (Mackin, supra at paragraphs 72 and 73; Conférence des juges de paix magistrats du Québec, supra).
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