11(d)

The Presumption of Innocence

s. 11 Any person charged with an offence has the right …

(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal

Section 11(d) applies if you have been charged with an offence. There are three important components to this right, and they must occur together:

1. You must be presumed innocent until proven guilty;
2. You must have a fair and public hearing; and
3. You must be judged by an independent and impartial tribunal.

Innocent Until Proven Guilty

The presumption of innocence predates the Charter and is an important tenet of the Canadian criminal justice system. In an ideal system, only the guilty would be imprisoned and the innocent would go free. Section 11(d) attempts to uphold that ideal by placing the burden of proof on the Crown while they prosecute an accused.

There are three questions used to determine if you were presumed innocent:

1. Were you proven guilty beyond a reasonable doubt?
2. Did the state/government/Crown bear the burden of proof?
3. Was the prosecution carried out in accordance with lawful procedures and fairness? (R v Oakes, [1986] 1 SCR 103 at para 32).

The Crown must prove guilt beyond a reasonable doubt. A reasonable doubt means a doubt based on reason and common sense. It is a doubt that arises at the end of the case based not only on what the evidence tells you but also on what that evidence does not tell you. It is not a far-fetched or frivolous doubt. It is not a doubt based on sympathy or prejudice. Proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt.

Prior to the Charter, the presumption of innocence was frequently overridden by what are known as “reverse-onus” provisions, which required the accused to prove their innocence in certain cases. Many of these provisions were eliminated with the Charter, but some of them survived as a justifiable and reasonable limit (read more about these limits here). For example, in drinking and driving cases, you are presumed to have care and control of a vehicle if you are found behind the wheel of that vehicle. An accused must disprove this if they want to challenge this presumption. (R. v. Whyte, [1988] 2 SCR 3). This reverse onus provision is a reasonable limit on s. 11(d)’s guarantees.

A Fair and Public Hearing

A fair trial is one in which all proper procedure, including (for example) pre-trial disclosure and the preservation of evidence, are followed. It is important to a fair trial that an accused is informed of the charge or charges he or she must meet (R v GR, [2005] 2 SCR 371 at para 2). The Crown has an obligation to disclose prior to the trial any evidence it wishes to use and any evidence that might help the accused, even if the Crown does not intent to use it at trial (R v Stinchcombe, [1991] 3 SCR 326]). As well, a fair trial includes your right to present a full and complete defence (R. v. Seaboyer, [1991] 2 SCR 577)

A public hearing is one that is held in open court. This means that the public, including the media, are welcome to attend (Canadian Newspapers Co v Canada (Attorney General), [1988] 2 SCR 122 at para 25). However, some limited provisions allow for closed trials, such as when the issue involves important privacy interests or concerns (e.g. child sexual abuse cases).

It is possible to obtain a court order that prohibits the public or media from disseminating certain details of an otherwise public judicial procedure (known as a publication ban). A publication ban should only be ordered if it is necessary to prevent a serious risk to the proper administration of justice. If a serious risk to an individual’s fair trial rights exists, the courts should attempt to rely on reasonable alternative measures to prevent the risk. If these alternative measures do not remove the risk, the courts must determine whether the salutary effects of a publication ban outweighs the deleterious effect on the rights and interests of the parties and the public (R v Mentuck, 2001 SCC 76 at para 32)

Independent and Impartial Tribunal

One of the most important aspects of the court system is that there is the ability to make independent and impartial decisions. Both independence and impartiality are important to individual and public confidence in our administration of justice. Without this confidence, the system cannot expect to receive the public’s respect and acceptance that are fundamental to its effective functioning (Valente v The Queen, [1985] 2 SCR 673 at para 22).

Impartiality and independence are different, but overlapping requirements under section 11(d).

• Impartiality refers to the Court’s state of mind with regards to the issues and parties in a case. An adjudicator must be a neutral party — he or she cannot (nor can be seen to) favour one party over the other by reference to personal relationships or political or other affiliations. The test for a breach of impartiality is a reasonable apprehension of bias. If an informed person, viewing the matter realistically and practically would perceive a reasonable apprehension of bias, the adjudicator must recuse him or herself. Impartiality is often determined (at least in part) by examining whether any members of the court have a personal interest in the outcome of the case (Valente v The Queen, [1985] 2 SCR 673 at para 15).
• Independence refers not merely to the adjudicator’s state of mind in an individual case, but the judiciary’s status or relationship to others, particularly to the executive branch of government. They must be able to adjudicate cases without “fear or favour” resting in the balance. Judges must be able to make unpopular decisions without fear of reprisal. (Valente v The Queen, [1985] 2 SCR 673). Independence is safeguarded through providing three protections:
  • Security of tenure: The government cannot fire or discipline judges with whom they disagree. Disciplinary matters are handled through federal and provincial judicial counsels.
  • Financial security: Judges have a secure salary that is established by law (through compensation committees) and not be dependant on the executive branch of government.
  • Institutional independence: Judges ought to have control over their own administrative matters, such as judicial sitting dates and where judges must live.

The test for independence under section 11(d) is whether the tribunal may be reasonably perceived as independent. The perception must be whether the tribunal is subject to the essential objective conditions or guarantees of judicial independence (Valente v The Queen, [1985] 2 SCR 673 at para 22). The appearance of independence is essential in maintaining public confidence in the justice system.

For more information on independence and impartiality, see also: Ref re Remuneration of Judges of the Prov. Court of P.E.I.; Ref re Independence and Impartiality of Judges of the Prov. Court of P.E.I., [1997] 3 SCR 3.

If you think your rights under section 11(d) have been breached, click here for the second step in the analysis (s.1).