Mandatory Basic Fact Presumptions: The Reality of Misrepresentation Over the Internet

The Presumption of Innocence


Section 11(d) of the Charter protects the presumption of innocence. It provides:

11. Any person charged with an offence has the right…

(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.

A statutory presumption infringes s. 11(d) if its effect is that an accused can be convicted even though the trier of fact has a reasonable doubt as to the accused’s guilt:

R. v. St-Onge Lamoureaux, 2012 SCC 57 (CanLII), [2012] 3 S.C.R. 187, at para. 24;

R. v. Vaillancourt, 1987 CanLII 2 (SCC), [1987] 2 S.C.R. 636, at pp. 654-656.

Mandatory basic fact presumptions –the “inexorable connection” test

A mandatory basic fact presumption substitutes proof of the basic fact for proof of an element of the offence.

The s. 11(d) Charter concern with a mandatory basic fact presumption is that, in allowing the Crown to prove only the basic fact instead of an element of an offence beyond a reasonable doubt, it may permit the accused to be convicted even though a reasonable doubt about guilt exists.

But this concern will be avoided if proving the substituted fact would be equivalent to proving the element of the offence beyond a reasonable doubt. That will happen if proof of the element follows inexorably from proof of the fact.

See Vaillancourt, at p. 655;

R. v. Whyte, 1988 CanLII 47 (SCC), [1988] 2 S.C.R. 3, at pp. 18-19;

Cochrane v. Ontario (Attorney General), 2008 ONCA 718 (CanLII), 92 O.R. (3d) 321, at paras. 62-64;

R. v. Downey, 1992 CanLII 109 (SCC), at p. 29: “A statutory presumption will be valid if the proof of the substituted fact leads inexorably to the proof of the other. However, the statutory presumption will infringe s. 11(d) if it requires the trier of fact to convict in spite of a reasonable doubt.”

For instance, a mandatory presumption in the Code that the basic fact that a person is habitually in the company of a prostitute is proof that the person lives on the avails of prostitution infringed s. 11(d) because it did not follow inexorably from the basic fact that the accused lived on the avails.

See R. v. Downey.

Applying the inexorable connection test in R. v. Morrison, 2017 ONCA 582 (CanLII), the Court of Appeal for Ontario struck down the presumption of belief provision in section 172.1(3) of the Code (child luring). The mere fact that one represents oneself as being underage does not inexorably lead to the recipient of that fact believing it.

R. v. Morrison, at para. 59.

No surprises there.  But the Court’s reasoning is particularly interesting as it is informed by the Court’s stated recognition that “representations on the internet are notoriously unreliable,” and there is simply no expectation that representations made during internet conversations about sexual matters will be accurate or that a participant will be honest about his or her personal attributes.

R. v. Morrison, at para. 60.

See also, R. v. Pengelley, 2010 ONSC 5488 (CanLII), 261 C.C.C. (3d) 93, at para. 17.



The reality of misrepresentation over the internet is now so notorious that courts may not always need specific proof of it.



Stuart O’Connell, O’Connell Law Group, www.leadersinalaw.ca




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