Sunday, January 01, 2006

The legality of Paul Martin's reverse onus proposal

I discussed earlier the legality of Martin/McGuinty's reverse onus proposal.

I have since come across a Canadian examination of reverse onus portions of the criminal code in R. v. Laba.

The Court agreed that a reverse onus does violate the Charter. The only question, then, is whether or not a reverse onus proposal violates s.1 of the Charter:
The appellant conceded that the reverse onus provision in s. 394(1)(b) of the Criminal Code contravened the presumption of innocence guaranteed by s. 11(d) of the Charter and therefore Tarnopolsky J.A. examined only the question of whether the violation could be saved as a reasonable limit under s. 1 of the Charter.

And the Court's conclusion?

I (Sopinka) would answer the constitutional questions as follows:

1.Does s. 394(1)(b) of the Criminal Code, R.S.C., 1985, c. C-46, infringe s. 11(d) of the Canadian Charter of Rights and Freedoms?


2.If the answer to question 1 is in the affirmative, is s. 394(1)(b) of the Criminal Code a reasonable limit on the s. 11(d) Charter right, pursuant to s. 1 of the Charter?


As a consequence, pursuant to s. 52 of the Constitution Act, 1982, I would strike down the portion of s. 394(1)(b) which is unconstitutional by removing the portion which imposes the legal burden of proving ownership, agency or lawful authority upon the accused.

I suppose the question is, is a reverse onus in the case of a gun crime a fair limit on the Charter right of the presumption of innocence?

See also
"The portion of s. 515(10)(c) permitting detention "on any other just cause being shown" is unconstitutional. Because the impugned phrase confers an open-ended judicial discretion to refuse bail, it is inconsistent with both s. 11(e) of the Canadian Charter of Rights and Freedoms, which guarantees a right "not to be denied reasonable bail without just cause", and the presumption of innocence. It is a fundamental principle of justice that an individual cannot be detained by virtue of a vague legal provision. Parliament must lay out narrow and precise circumstances in which bail can be denied. The impugned phrase is not justified under s. 1 of the Charter. Its generality impels its failure of the proportionality branch of the Oakes test."


Anonymous said...

Sorry, but Laba has almost no relevance to the present reverse onus proposals.

Laba was decided in 1992 concerned a charging provision. We're talking about bail provisions.

Laba concerned section 394(1)(b) of the Criminal Code which is the charging provision. That is, because it is the provision that the Crown has the burden of proving the offence, the presumption of innocent bears heavily on the analysis, because innocence is truly at stake here.

Bail provisions are entirely different. As I pointed out previously, the Supreme Court of Canada has already found that reverse onus provisions in the bail context were constitution in Pearson.

Pearson was decided in 1992, only two years before Laba. Yet, Laba does not refer to Pearson at all. If you're right (and you're not) that the judges changed their mind after Pearson, the Court would have had to address Pearson. They didn't, because the only similarity between the two cases is there was a "reverse onus". Everything else is entirely different.

And Pearson was not a slim majority either. The Court upheld the bail reverse onus provisions 5-2.

Jonathan said...

What about Hall in 2002?

Jonathan said...

...Hall struck down a portion of the Code because its vagueness and judicial discretion offended section 11 of the Charter. According to Hall, and the Charter, "just cause" must be shown to deny bail, as set out in Hall. In such a case, the burden of proof rests on the Crown to prove just cause.

A reverse burden may be constitutional, admittedly, under very narrow terms. I think there is merit to both sides of the issue - yours and mine. However, I just think if it ever came to the supreme court, there is a reasonable shot that the reverse onus clause relating to a gun crime could be struck down.

Anonymous said...


I completely agree... it is certainly not a clear cut case either way.

Thanks for taking the time to read comments and actually acknowleding points against your position. Often, I find blogs can be quite ideological and tend to ignore or simply discount contrary positions taken by commentators.