Strict Construction
This is similar to the notion of contra preferentum in Contract Law, which follows that the Court should adopt an interpretation most favourable to the accused. The seriousness of imposing criminal penalties demands that reasonable doubts be resolved in favour of the accused. Roach says that strict construction only applies if, after consulting the purposes of a statute, reasonable ambiguities remain in its meaning.
R. v. Pare (1987) SCC
This case involved a sexual assault on a young boy by a teenager, which culminated in murder. Two minutes elapsed between the assault and subsequent strangulation; however the child was held down during this period. The teenager was charged with first degree murder under CC214.5. Pare followed a strict construction argument and stated that the words “while committing” must be construed narrowly so as to elevate murder to first degree only if the assault and death occur simultaneously. The court interpreted the assault and murder as a “single transaction” or “continuous sequence of events” and found Pare guilty of first degree murder. Therefore, this was not a case for strict construction. Dickson J stated the importance of strict construction in Marcotte v. Canada in saying that when individual liberty is at stake, the accused should get the benefit of interpretation. R. v. Russell recently followed Pare.
III. EVIDENCE & PROOF
PRESUMPTIONS OF INNOCENCE:
The presumption of innocence is linked to the concept of reasonable doubt. The pre-Charter concept was defined in Woolmington (1935) Eng. CA, which followed that the presumption of innocence was breached whenever the accused was going to be convicted despite the existence of a reasonable doubt, which is a burden that must be proven by the Crown. “Throughout the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt.” The presumption of innocence is now engrained in our Constitution as s.11d of the Charter, which also promises a fair and public hearing before an independent and impartial tribunal. It also applies to any defenses raised. This concept is also found in international human rights doctrines.
REASONABLE DOUBT
Reasonable doubt must go beyond the civil standard and be derived from the evidence or absence thereof. Being beyond a reasonable doubt does not require absolute certainty. The following case surveys the concept of reasonable doubt:
R. v. Lifchus (1997) SCC
This case involved a judge who was said to have erred in instructing the jury on the meaning of the expression “beyond a reasonable doubt.” Cory J. found this phrase is a term of art. It is crucial that jurors fully understand the nature of the burden of proof that the law requires them to apply.
1. Reasonable doubt is connected to the presumption of innocence;
2. It is a burden that rests in the prosecution;
3. It is not a doubt based on sympathy or prejudice;
4. It is connected to the evidence or absence thereof;
5. It does not involve proof to an absolute certainty but requires more than that the accused is probably guilty;
BURDENS, PRESUMPTIONS & REVERSE ONUSES
Persuasive Burden of Proof
In the criminal context, this refers to the burden of the Crown to persuade the trier of fact of the guilt of the accused beyond a reasonable doubt. This also applies to some defenses that involve a reverse onus provision, such as automatism, which make it necessary for the accused to prove on a balance of probabilities that he was in such a state at the time the crime was committed.
Evidential Burden of Proof
The trier of fact is required to draw conclusions from the proof of a basic fact in the absence of evidence to the contrary. These can develop during trial and are much less strict than persuasive burdens. This burden may shift by pointing to evidence to establish an air of reality about something.
Mandatory Presumptions
Must be distinguished from the evidential burden. This is not a burden of proof.
Reverse Onus
Oakes v. R. (1996) SCC
This case dealt with a reverse onus provision under s.8 of the Narcotic Control Act, which stated that when an accused is in possession of a narcotic, he is presumed to be in possession for the purpose of trafficking. The Ont. CA said this was a violation of s.11.d of the Charter. Oakes argued that the presumption of innocence is an integral part of life, liberty and security of the person as found in s.7. S.11d of the Charter must have, at least, the following content:
1. An individual must be proven guilty beyond a reasonable doubt;
2. It is the state that bares the burden of proof;
3. Criminal prosecutions must be carried out in accordance with lawful procedures and fairness.
After setting out the Oakes Test, the Dickson CJ. determined that the impugned part of the Act failed the rational nexus component of the test and thus failed to be saved by s.1. Possession of a small amount of narcotics does not support the inference of trafficking. The SCC held that the reverse onus provision was a persuasive burden of proof that was contrary to s.11.d.
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