“Ei incumbit probation quidicit, nonqui negat”
– the burden of proof is on he who declares, not on he who denies
In the Canadian criminal justice system, everyone charged with an offence has the right to be presumed innocent until proven guilty. This cornerstone of Canadian criminal law is also one that is recognized around the world – for instance, the United Nations Universal Declaration of Human Rights states in Article 11, “Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.”
A Cornerstone of Canadian Criminal Law
In Canada – the specific clause is Section 11(d) of the Canadian Charter of Rights and Freedoms:
- (d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;
What does this mean for some accused of a crime? It emphasizes that the burden of proof is with the prosecution, also referred to as the Crown. The word “proven” refers to guilt “beyond a reasonable doubt” which is a very high standard. In Canada, Justice Cory of the Supreme Court of Canada stated it very eloquently in R. v. Lifchus (1997):
Even if you believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt. On the other hand you must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so. Such a standard of proof is impossibly high.
The Burden of Proof is with the Crown
This very high standard puts the burden of proof on the Crown and they must provide clear and compelling evidence – such that guilt is shown beyond a reasonable doubt. This is important to remember, especially in cases where someone is falsely accused or caught in the wrong place at the wrong time. If you are charged with any offence, you should consult with a lawyer to determine your strategy to prove your innocence.