Supreme Court of Canada Reaffirms Presumption of Innocence

[treveller]

There was a section of the Criminal Code that provided for an assumption of guilt when the police officer running a sting says they are underage. Now the Crown has to prove the target believed the officer was under age. It will be interesting to see how this plays out with the recent Vancouver PD stings. There may also be some useful info here for law abiding clients who enjoy the company of young adult SPs.

Newspaper articles are near useless for this kind of legal info. Here is the real info.

https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/17618/index.do

And some quotes from the court decision;

Put simply, as a matter of law, an accused cannot be convicted merely for failing to establish a defence; rather, a conviction will be sustained only where the Crown is able to negate a properly raised defence and show, on the evidence as a whole, that all of the essential elements of the offence in question have been proved beyond a reasonable doubt.

...the Crown cannot secure a conviction by proving that the accused failed to take reasonable steps to ascertain the other person’s age once a representation as to age was made. Instead, the Crown must prove beyond a reasonable doubt that the accused believed the other person was underage.

 

[appleomac]

There are many instances in the Criminal Code that "violates" the presumption of innocence. It's referred to as reverse onus and it's a pretty contentious issue. That said, some are surprised to learn that in Canada, reverse onus can be legally permissible as our Constitution contains a reasonable limits clause: the reasonable limits clause is contained in Section 1 of the Charter. In short; you can challenge a provision in the Criminal Code on the basis that it violates a provision in the Charter: the Supreme Court can even agree that said provision violates the Charter, however, the Supreme Court at the same time can rule that such violation is "saved" by Sec 1 reasonable limits. Basically, "rights" are not necessarily absolute - most people have a hard time wrapping their heads around that fact. The simplest example; try arguing that your conviction for yelling "bomb" at an airport violates your freedom of expression. The court will agree that your freedom to express yourself has been violated, but that such violation is a reasonable limitation on your Charter right to expression given the public safety concerns for yelling such a thing in a crowded airport.

 

[felixthecat]

The simplest example; try arguing that your conviction for yelling "bomb" at an airport violates your freedom of expression. The court will agree that your freedom to express yourself has been violated, but that such violation is a reasonable limitation on your Charter right to expression given the public safety concerns for yelling such a thing in a crowded airport.

Good point. In this case, the accused could say he was 60% sure or 90% sure he's roleplaying with an adult woman. It sounds like a reasonable doubt, but if we allow this explanation, it seems we as society fail to protect little girls from predators in the remaining 10% or whatever situations.

The accused was intelligent enough to appeal and get his future re-trial. It does not look good he didn't even try to establish she's older than 14 she claimed.

'The respondent, Douglas Morrison, posted an advertisement in the “Casual Encounters” section of Craigslist, with the title “Daddy looking for his little girl – m4w – 45 (Brampton)”. A police officer, posing as a 14-year-old girl named “Mia”, responded to the ad. In conversations taking place over the span of more than two months, Mr. Morrison invited “Mia” to touch herself sexually and proposed that they meet to engage in sexual activity. These communications led to Mr. Morrison being charged with child luring under s. 172.1(1) (b) of the Code. That provision prohibits communicating, by means of telecommunication, with a person who is, or who the accused believes is, under the age of 16 for the purpose of facilitating the commission of certain designated offences against that person — here, the offence of invitation to sexual touching directed at a person under the age of 16'