In the Canadian criminal justice system the law does not presume the guilt of an accused when a complainant makes an allegation.

The starting point for the conceptual analysis in every criminal case, even when the subject matter is emotionally charged, is that an accused person is presumed innocent of the allegation.

When an accused contests an allegation, the burden is on the prosecution to prove the claim. 

An allegation is not akin to a conviction. An allegation is a claim that has yet to be tested or scrutinized at a trial.

A Judge or a Jury will only enter a conviction if the prosecution proves the accused's guilt beyond a reasonable doubt after Defence counsel has had an opportunity to thoroughly cross-examine the witnesses for the prosecution and to tender any relevant Defence evidence.

It is easy for a client to become discouraged and to lose sight of the presumption of innocence given the negative attention that often accompanies an allegation before the client has even had an opportunity to respond to the claim in Court. 

Defence counsel must remind his or her client that the presumption of innocence applies in all cases, even when the subject matter of the allegation generates strong emotions.

References to consider:

  • Canadian Charter of Rights and Freedoms s. 11(d): "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."

 

  • R. v. Oakes, [1986] S.C.J. No. 7 at para. 29: "...An individual charged with a criminal offence faces grave social and personal consequences, including potential loss of physical liberty, subjection to social stigma and ostracism from the community, as well as other social, psychological and economic harms. In light of the gravity of these consequences, the presumption of innocence is crucial. It ensures that until the State proves an accused's guilt beyond all reasonable doubt, he or she is innocent. This is essential in a society committed to fairness and social justice..."  

 

  • R. v. Lifchus, [1997] S.C.J. No. 77 at para. 27: "...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..."

 

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