Tracing The Presumption of Innocence Through A Survey of Supreme Court of Canada Cases

In yesterday’s blog, the presumption of innocence, as a legal principle, was traced from its seemingly innocuous origins as a rule of evidence in civil cases to the status of a fundamental, constitutionally entrenched, principle of the criminal law. Today, I will detail how the presumption of innocence took on such elevated standing through a brief survey of early Charter and pre-Charter Supreme Court of Canada cases.

On a quick review of the Supreme Court of Canada cases discussing the presumption of innocence, it is the 1985 SCC reference case of Re B.C. Motor Vehicle Act, which explicitly crystallizes our present concept of the presumption of innocence as a fundamental principle of the criminal law and as a fundamental societal value. Justice Lamer described the presumption as not just a procedural tool but also as a substantive concept which “has both a societal and an individual aspect and is clearly fundamental; to our justice system.” The Charter’s influence in protecting such an expansive view of the presumption, thereby making the principle a right, is evident in other early post-Charter cases on the issue, such as the earlier case of Dubois in 1985, Oakes in 1986, and Whyte in 1988.

As an aside, it is no surprise that it is Justice Lamer who gives the presumption of innocence such an expansive and meaningful definition. Prior to his judicial appointments, Antonio Lamer was the Vice-Chairman of the Law Reform Commission of Canada (LRCC) in 1971 and Chairman thereof in April 1976 at a time when the LRCC was actively involved in shaping the jurisprudential landscape of the law.

In terms of pre-Charter, although Justice Estey, dissenting in the entrapment case of Amato in 1982, called the presumption of innocence a “fundamental doctrine,” there is little of this nomenclature in earlier cases. For example, in the 1969 Lampard case, the presumption of innocence is merely called “rebuttal,” hardly a powerful descriptor of the “cornerstone” of criminal law. Other pre-Amato cases characterize the presumption in the same manner: as a presumption, which ceases if the Crown can prove guilt beyond a reasonable doubt. Even in some earlier cases, the presumption is referred to as the “general presumption of innocence,” again a thoroughly unsatisfactory way of describing a constitutionally entrenched right. Interestingly, in all of these cases, the presumption is an adjunct to the burden of proof.

Finally, consistent with Fletcher’s theory of the origins of the presumption in English civil law, is the 1883 SCC case of McRae v. White. The case was one of unjust and fraudulent preference in an insolvency action. Although a civil suit, the case does have shades of fraudulent and therefore criminal intention, but the result is based upon a failure of the plaintiff to satisfy the onus as required by the Insolvency Act of 1875.

In other words, the plaintiff could not rebut the negative: that a man is presumed to fulfill his legal obligations. In this case, the defendant, in good faith, took on debt with the honest belief he would fulfill his obligations. The plaintiff was unable to establish otherwise. Admittedly, there is no mention of the actual phrase “presumption of innocence,” but the headline of the case reads “Insolvent Act of 1875—Unjust preference—Fraudulent preference—Presumption of innocence.”

Clearly, the presumption of innocence has matured into a much more powerful concept than originally imagined. This is so, at least in the legal arena. In my final posting on the issue, tomorrow I will discuss the international development of the presumption with an additional look at the historical non-legal usage of the concept.

Freedom Of Expression In The Classroom

This morning, the Alberta Court of Appeal will hear arguments on the Pridgen case. As discussed in yesterday's post, Pridgen rests on the issue of freedom of expression on campus and whether non-academic misconduct resulting from Facebook postings criticising an University professor was a justifiable restriction under the Charter. If, however, we tweak the case and re-imagine it, we come up with a different, yet related, freedom of expression dilemma: the expressive rights of teachers in a classroom.

The discussion will not refer to Keegstra or Ross, who through their expression promoted discrimination and hatred. Instead, the discussion will be about Mr. Morin, an untenured and untested teacher at a Prince Edward Island Junior High School. Mr. Morin's first year of teaching goes by smoothly and uneventfully and he is contracted to teach again. His second year, however, is much more controversial.

One evening, Mr. Morin watches a PBS documentary entitled "Thy Kingdom Come, Thy Will Be Done" and he is devastated. The raw documentary exposes the corrupt side of the fundamental Christian movement of the late 80s and its connection to American politics. Much of the documentary focuses on the scandal-ridden Jimmy Bakker, his wife Tammy Faye, and the PTL Church.

Mr. Morin sees a teaching opportunity in the documentary and decides to show the film to his grade 9 class in connection to a writing assignment on "What Religion Means To Different People." After the viewing of the documentary in class, the Principal receives complaints and directs Mr. Morin to stop the assignment. Mr. Morin will take his right to express himself in the classroom all the way to the highest Appeal Court in his province, and he will do it on his own and without the benefit of counsel.

The PEISCAD (PEI Appeal Court) agreed with Mr. Morin, although not unanimously. The majority of the Court, found expressive content in Morin's assignment, consistent with the Supreme Court of Canada's liberal interpretation of the freedom of expression under the Charter. Moreover, the right involves not only the teacher, who is expressing viewpoints in an effort to exchange and stimulate "opinions and ideas," but involves the students' right

in a democratic society to have access to free expression by their teachers - encouraging diversity, critical thinking, and vigorous debate ... students have a right to hear this expression and benefit from it...this right of students is fundamental to their being citizens in a truly democratic state and students of that states' educational system.

The right of a teacher, therefore, to express himself transcends the classroom and is elevated, thereby becoming a core concept of our society's fundamental values as reflected and protected by the Charter.

As we grow older and look back on our education, we recall those teachers who taught us without fear or prejudice. Thank you, Mr. Morin for reminding us.