PresumptionsPresumptions

Look at your legislation for specific Look at your legislation for specific presumptions that may be applicable.presumptions that may be applicable.

For the proponent: may give you shortcuts to For the proponent: may give you shortcuts to proof.proof.

For the opponent, be aware of a case being For the opponent, be aware of a case being made out, or important fact-in-issue that may made out, or important fact-in-issue that may be made out in the absence of you calling be made out in the absence of you calling evidence.evidence.

Presumptions: may exist in the Presumptions: may exist in the Constitution, legislation (including Constitution, legislation (including regulations, rules of court/tribunal, by-regulations, rules of court/tribunal, by-laws etc.) or common law.laws etc.) or common law.

Presumptions: 3 relevant Presumptions: 3 relevant questions to askquestions to ask

(a)(a) Permissive or Mandatory?Permissive or Mandatory?

(b)(b) Requiring proof of a basic fact to Requiring proof of a basic fact to engage?engage?

(c)(c) Conclusive or rebuttable? On what Conclusive or rebuttable? On what standard?standard?

Permissive or Permissive or mandatory?mandatory?

Presumptions: operate at the level of the trier of fact, Presumptions: operate at the level of the trier of fact, as directed by the trier of law.as directed by the trier of law.

Presumptions are nothing more than ready-made Presumptions are nothing more than ready-made inferences for the trier of fact. Presumptions are force-inferences for the trier of fact. Presumptions are force-fed to the trier of fact, they do not ask for them.fed to the trier of fact, they do not ask for them.

The relevant question here in this first classification is: The relevant question here in this first classification is: must the trier of fact draw the ready-made inference must the trier of fact draw the ready-made inference (mandatory), or do they have a choice (permissive)?(mandatory), or do they have a choice (permissive)?

Permissive PresumptionPermissive Presumption

Also called a presumption of fact.Also called a presumption of fact.

These are presumptions that may be These are presumptions that may be used by the TOF but need not.used by the TOF but need not.

They are given to the TOF to use as they They are given to the TOF to use as they see fit.see fit.

Permissive PresumptionsPermissive Presumptions

Are often called matters of common Are often called matters of common sense inferencessense inferences

E.G. Doctrine of recent E.G. Doctrine of recent possessionpossession

A common sense inference that a person A common sense inference that a person in the unexplained and recent possession in the unexplained and recent possession of stolen property is a thief, or at least of stolen property is a thief, or at least has knowledge of their nature.has knowledge of their nature.

e.g. Doctrine of Recent e.g. Doctrine of Recent PossessionPossession

Can assist the TOF to prove one or Can assist the TOF to prove one or both of:both of:

(a)(a) The identity of the thief of the stolen The identity of the thief of the stolen property (ie. prove identity in the property (ie. prove identity in the underlying substantive offence);underlying substantive offence);

(b)(b) Or proof of knowledge of the nature of Or proof of knowledge of the nature of the property obtained by crime.the property obtained by crime.

The doctrine requires proof of a basic The doctrine requires proof of a basic fact by the proponent: that the property at fact by the proponent: that the property at issue, and found in possession of the issue, and found in possession of the Defendant, was “recently” taken, stolen, Defendant, was “recently” taken, stolen, the subject of a robbery or fraud …the subject of a robbery or fraud …

““recency” is fact dependent, and often recency” is fact dependent, and often focuses on the “fungibility” of the property focuses on the “fungibility” of the property – ie. Cash, dvds, v. missiles – ie. Cash, dvds, v. missiles

The TOF is told that if they are satisfied The TOF is told that if they are satisfied that the Defendant is “recently” in that the Defendant is “recently” in possession of goods obtained by crime, possession of goods obtained by crime, that they that they maymay infer that the Defendant infer that the Defendant knew of their illegal origin, or that knew of their illegal origin, or that hehe was was the thief himself.the thief himself.

Common Law Common Law Presumption of DeathPresumption of Death

Presumption of fact, common sense inferencePresumption of fact, common sense inference Upon proof of a basic fact that the person at Upon proof of a basic fact that the person at

issue has been absent for at least seven years issue has been absent for at least seven years and that the person is unheard of by persons and that the person is unheard of by persons who would likely have heardwho would likely have heard

If before seven years, must prove death in the If before seven years, must prove death in the ordinary course, but for statuteordinary course, but for statute

Consciousness of GuiltConsciousness of Guilt

Now “post-offence conduct”Now “post-offence conduct”

Upon proof of flight (basic fact), a TOF Upon proof of flight (basic fact), a TOF may draw the inference of identitymay draw the inference of identity

Drawing an inference of intent is more Drawing an inference of intent is more difficult where an offence has same difficult where an offence has same actus actus reusreus but different levels of but different levels of mens reamens rea

NoteNote

Presumptions of Fact do not allocate, as Presumptions of Fact do not allocate, as a matter of law, an evidential or legal a matter of law, an evidential or legal burden on the adversaryburden on the adversary

Although tactically, they may reasonably Although tactically, they may reasonably fear that if evidence is not called to fear that if evidence is not called to counter same, they risk losing the casecounter same, they risk losing the case

The Operation of a The Operation of a PresumptionPresumption

A presumption fills in the hole left open by an A presumption fills in the hole left open by an unproven fact in issue with something related, unproven fact in issue with something related, but not necessarily the same.but not necessarily the same.

For the doctrine of recent possession, it says to For the doctrine of recent possession, it says to the TOF, it is reasonable to fill in the blanks as the TOF, it is reasonable to fill in the blanks as to knowledge of the unlawful nature of the to knowledge of the unlawful nature of the goods, or the identity of the thief … with the goods, or the identity of the thief … with the identity of the possessor. If the possession is identity of the possessor. If the possession is recent, I invite you to find that either applies to recent, I invite you to find that either applies to this Defendant. this Defendant.

Mandatory PresumptionsMandatory Presumptions

MustMust, not , not maymay, be made by the TOF, be made by the TOF

Called presumptions of law Called presumptions of law because they because they must be mademust be made as a matter of law. as a matter of law.

Whether the presumption that must be Whether the presumption that must be made is rebuttable or not, is another made is rebuttable or not, is another question – ie. whether it can be set asidequestion – ie. whether it can be set aside

Rebuttable PresumptionsRebuttable Presumptions

The proponent of a rebuttable The proponent of a rebuttable presumption has the onus to prove the presumption has the onus to prove the basic fact.basic fact.

Once the basic fact is proven, the party Once the basic fact is proven, the party against whom the presumption operates against whom the presumption operates has either an evidential or legal burden to has either an evidential or legal burden to satisfy the legal consequence of the satisfy the legal consequence of the presumption.presumption.

QueryQuery

To what degree of proof need the proponent prove the To what degree of proof need the proponent prove the basic fact? Answer: to the same standard of proof that basic fact? Answer: to the same standard of proof that the proponent faces on the fact-in-issue.the proponent faces on the fact-in-issue.

IOW, this is just an alternative method of proving the IOW, this is just an alternative method of proving the fact-in-issue, it is not meant to alleviate one’s burden.fact-in-issue, it is not meant to alleviate one’s burden.

Therefore, proving a common betting house requires Therefore, proving a common betting house requires proof BRD. Just because the Crown can instead proof BRD. Just because the Crown can instead choose the method of proving the existence of a slot choose the method of proving the existence of a slot machine, this does not alleviate them of proof BRD – machine, this does not alleviate them of proof BRD – just of a different fact.just of a different fact.

NoteNote

The general rule in criminal matters is that the The general rule in criminal matters is that the basic fact must be proven beyond a basic fact must be proven beyond a reasonable doubt, or else the Crown would be reasonable doubt, or else the Crown would be able to avoid its burden of proof.able to avoid its burden of proof.

11(d) of the Charter also requires there to be a 11(d) of the Charter also requires there to be a rational connection between the basic fact and rational connection between the basic fact and the fact deemed proven in the absence of the fact deemed proven in the absence of evidence to the contrary.evidence to the contrary.

Criminal CodeCriminal Code

212.212. (1) Every one who (1) Every one who

((jj) lives wholly or in part on the avails of ) lives wholly or in part on the avails of prostitution of another person,prostitution of another person,

is guilty of an indictable offence and liable is guilty of an indictable offence and liable to imprisonment … to imprisonment …

(3) Evidence that a person lives with or is (3) Evidence that a person lives with or is habitually in the company of a prostitute habitually in the company of a prostitute or lives in a common bawdy-house is, in or lives in a common bawdy-house is, in the absence of evidence to the contrary, the absence of evidence to the contrary, proof that the person lives on the avails proof that the person lives on the avails of prostitution …of prostitution …

ProcessProcess

Therefore, (A) evidence that a person lives with or is Therefore, (A) evidence that a person lives with or is habitually in the company of a prostitute or lives in a habitually in the company of a prostitute or lives in a common bawdy-house common bawdy-house

is called by the proponent, who asks the TOL to direct the is called by the proponent, who asks the TOL to direct the TOF that if they find (A), TOF that if they find (A), the basic factthe basic fact

Then… in the absence of evidence to the contrary (which Then… in the absence of evidence to the contrary (which makes it rebuttable),makes it rebuttable),

They MUST find that (B) the person lives on the avails of They MUST find that (B) the person lives on the avails of prostitution.prostitution.

Proof of “A” (habitual association) therefore Proof of “A” (habitual association) therefore replaces the fact in issue (substantive element replaces the fact in issue (substantive element of offence, living on avails) “B”of offence, living on avails) “B”

This presumption is mandatory, rebuttable (it This presumption is mandatory, rebuttable (it can be set aside on evidence to contrary), and can be set aside on evidence to contrary), and requires proof of a basic fact –ie. habitual requires proof of a basic fact –ie. habitual association association

Query: what is the effect of Query: what is the effect of the opponent meeting its the opponent meeting its burden on rebuttal?burden on rebuttal?

IOW, does it mean the opposite is proved?IOW, does it mean the opposite is proved? No, absolutely not.No, absolutely not.

In a mandatory, yet rebuttable presumption, if In a mandatory, yet rebuttable presumption, if the opponent meets the standard of rebuttal, the opponent meets the standard of rebuttal, the presumption is spent the presumption is spent AND THE FACT IN AND THE FACT IN ISSUE MUST BE PROVEN IN THE ISSUE MUST BE PROVEN IN THE ORDINARY COURSE BY THE PARTY WITH ORDINARY COURSE BY THE PARTY WITH THE LEGAL BURDEN TO PROVE IT. NO THE LEGAL BURDEN TO PROVE IT. NO HELP FROM PRESUMPTION.HELP FROM PRESUMPTION.

For clarity, who is deciding For clarity, who is deciding whether the burdens of whether the burdens of proof of basic fact or proof of basic fact or rebuttal are met?rebuttal are met? The TOF.The TOF.

IOW, the substantive fact-in-issue is IOW, the substantive fact-in-issue is given to the TOF.given to the TOF.

They are then told about the presumption They are then told about the presumption that may assist them.that may assist them.

They will be told of the basic fact to be They will be told of the basic fact to be proven, and to what standard it needs to proven, and to what standard it needs to be proven.be proven.

ContinuedContinued

They will then be told if they find that fact They will then be told if they find that fact proven to the required standard of proof proven to the required standard of proof on the evidence before them which they on the evidence before them which they do accept and place weight on, then they do accept and place weight on, then they must find Fact B (must find Fact B (the fact in issue), the fact in issue), unlessunless they find that the opponent has they find that the opponent has satisfied them of what is required to satisfied them of what is required to prove rebuttal, again to the required prove rebuttal, again to the required standard of proof.standard of proof.

ContinuedContinued

The TOF is told, for example, if you find The TOF is told, for example, if you find that there is “some evidence” which you that there is “some evidence” which you do accept of the contrary, then you will do accept of the contrary, then you will dispense with the burden entirely, and dispense with the burden entirely, and decide the fact in issue without regard to decide the fact in issue without regard to the presumption, with the Burden of the presumption, with the Burden of Proof remaining on the proponent with Proof remaining on the proponent with the legal burden.the legal burden.

NoteNote

The words “Prima facie proof” in a statute The words “Prima facie proof” in a statute usually imply a mandatory, yet rebuttable usually imply a mandatory, yet rebuttable presumption.presumption.

So do the words “in the absence of So do the words “in the absence of evidence to the contrary”.evidence to the contrary”.

Sopinka 4.44Sopinka 4.44

All rebuttable presumptions compel a All rebuttable presumptions compel a finding of fact in the absence of contrary finding of fact in the absence of contrary evidence.evidence.

There are three potential ways to rebut There are three potential ways to rebut presumed fact:presumed fact: Raise a reasonable doubt as to its existenceRaise a reasonable doubt as to its existence Evidentiary burden to question its truthEvidentiary burden to question its truth Legal Burden to prove non-existence of Legal Burden to prove non-existence of

presumed fact on BOPpresumed fact on BOP

ConclusionConclusion

It is necessary to examine each It is necessary to examine each rebuttable presumption to determine how rebuttable presumption to determine how it operates and its legal consequence.it operates and its legal consequence.

Civil: RebuttableCivil: Rebuttable

4.46 In order to satisfy most presumptions in 4.46 In order to satisfy most presumptions in civil law, the opponent must prove the opposite civil law, the opponent must prove the opposite of the presumed fact on a BOP.of the presumed fact on a BOP.

There are exceptions, sometimes only “some There are exceptions, sometimes only “some evidence” must be called.evidence” must be called.

Same effect of opponent’s evidence meeting Same effect of opponent’s evidence meeting burden: presumption spent, fact in issue burden: presumption spent, fact in issue determined on the evidence available without determined on the evidence available without presumption. presumption.

Tobacco Damages and Health Tobacco Damages and Health Care Costs Recovery ActCare Costs Recovery ActRSBCRSBC

33  (1)  In an action under section 2 (1) for the recovery of the cost of health care   (1)  In an action under section 2 (1) for the recovery of the cost of health care benefits on an aggregate basis, subsection (2) applies if the government proves, benefits on an aggregate basis, subsection (2) applies if the government proves, on a balance of probabilities, that, in respect of a type of tobacco product, on a balance of probabilities, that, in respect of a type of tobacco product,

(a) the defendant breached a common law, equitable or statutory duty or obligation (a) the defendant breached a common law, equitable or statutory duty or obligation owed to persons in British Columbia who have been exposed or might become owed to persons in British Columbia who have been exposed or might become exposed to the type of tobacco product, exposed to the type of tobacco product,

(b) exposure to the type of tobacco product can cause or contribute to disease, and(b) exposure to the type of tobacco product can cause or contribute to disease, and(c) during all or part of the period of the breach referred to in paragraph (a), the type of (c) during all or part of the period of the breach referred to in paragraph (a), the type of

tobacco product, manufactured or promoted by the defendant, was offered for sale tobacco product, manufactured or promoted by the defendant, was offered for sale in British Columbia.in British Columbia.

(2)  Subject to subsections (1) and (4), the court must presume that(2)  Subject to subsections (1) and (4), the court must presume that(a) the population of insured persons who were exposed to the type of tobacco (a) the population of insured persons who were exposed to the type of tobacco

product, manufactured or promoted by the defendant, would not have been product, manufactured or promoted by the defendant, would not have been exposed to the product but for the breach referred to in subsection (1) (a), and exposed to the product but for the breach referred to in subsection (1) (a), and

(b) the exposure described in paragraph (a) caused or contributed to disease or the (b) the exposure described in paragraph (a) caused or contributed to disease or the risk of disease in a portion of the population described in paragraph (a). risk of disease in a portion of the population described in paragraph (a).

A (breach of common law duty) proves B A (breach of common law duty) proves B (causation and damage). (causation and damage).

Mandatory, conclusive (cannot be set Mandatory, conclusive (cannot be set aside), requires proof of basic fact A.aside), requires proof of basic fact A.

NoteNote

A conclusive presumption is nothing A conclusive presumption is nothing more than a rule of substantive law more than a rule of substantive law clothed in the language of presumptions: clothed in the language of presumptions: Sopinka 4.22Sopinka 4.22

Require Proof of Basic Require Proof of Basic Fact?Fact?

The presumption of innocence, found in The presumption of innocence, found in the Charter, is a the Charter, is a mandatorymandatory presumption, presumption, rebuttablerebuttable, which does , which does notnot require proof require proof of a basic fact.of a basic fact.

Most presumptions require proof of a Most presumptions require proof of a basic fact, but not all do.basic fact, but not all do.

Conclusive or Conclusive or Rebuttable?Rebuttable?

Keeping gaming or betting houseKeeping gaming or betting house

201.201. (1) Every one who keeps a common gaming house or common (1) Every one who keeps a common gaming house or common betting house is guilty of an indictable offence and liable to betting house is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.imprisonment for a term not exceeding two years.

(2) Every one who(2) Every one who

(a)(a) is found, without lawful excuse, in a common gaming house or is found, without lawful excuse, in a common gaming house or common betting house, orcommon betting house, or

(b)(b) as owner, landlord, lessor, tenant, occupier or agent, knowingly as owner, landlord, lessor, tenant, occupier or agent, knowingly permits a place to be let or used for the purposes of a common permits a place to be let or used for the purposes of a common gaming house or common betting housegaming house or common betting house

is guilty of an offence punishable on summary conviction.is guilty of an offence punishable on summary conviction.

198(2) For the purpose of proceedings 198(2) For the purpose of proceedings under this Part, a place that is found to under this Part, a place that is found to be equipped with a slot machine shall be be equipped with a slot machine shall be conclusively presumed to be a common conclusively presumed to be a common gaming house.gaming house.

The offence is keeping a common gaming The offence is keeping a common gaming house.house.

The Crown can prove The Crown can prove conclusivelyconclusively “common “common gaming house” (B) by instead proving the gaming house” (B) by instead proving the placement of a slot machine in the premise (A).placement of a slot machine in the premise (A).

Mandatory, proof of basic fact (slot machine), Mandatory, proof of basic fact (slot machine), non-rebuttable.non-rebuttable.

Note Sopinka 4.23Note Sopinka 4.23

Parliament could have achieved the Parliament could have achieved the same result by defining a common same result by defining a common betting house as a place equipped with a betting house as a place equipped with a slot machineslot machine

Sopinka asks: are conclusive Sopinka asks: are conclusive presumptions really presumptions at all? presumptions really presumptions at all? Or just deifnitions?Or just deifnitions?

Example: Criminal CodeExample: Criminal Code

258.258. (1) In any proceedings under subsection 255(1) in (1) In any proceedings under subsection 255(1) in respect of an offence committed under section 253 or respect of an offence committed under section 253 or in any proceedings under subsection 255(2) or (3),in any proceedings under subsection 255(2) or (3),

((aa) where it is proved that the accused occupied the seat ) where it is proved that the accused occupied the seat or position ordinarily occupied by a person who or position ordinarily occupied by a person who operates a motor vehicle …the accused shall be operates a motor vehicle …the accused shall be deemed to have had the care or control of the vehicle deemed to have had the care or control of the vehicle …unless the accused establishes that the accused did …unless the accused establishes that the accused did not occupy that seat or position for the purpose of not occupy that seat or position for the purpose of setting the vehicle …in motion…setting the vehicle …in motion…

Mandatory, proof of basic fact (occupation of Mandatory, proof of basic fact (occupation of driver’s seat), the TOF must find care and driver’s seat), the TOF must find care and control, unless the accused establishes control, unless the accused establishes otherwise – therefore rebuttableotherwise – therefore rebuttable

Note “establishes” represents a burden of proof Note “establishes” represents a burden of proof on the accused, with a standard of proof of on the accused, with a standard of proof of BOP. Whereas “evidence to contrary” BOP. Whereas “evidence to contrary” represents an evidentiary burden, and only represents an evidentiary burden, and only requires a defendant to raise reasonable requires a defendant to raise reasonable doubt.doubt.

ExamplesExamples

Family Law ActFamily Law ActPresumption of parentagePresumption of parentage88(1)(1)  For all purposes of the law of Alberta, unless the contrary is   For all purposes of the law of Alberta, unless the contrary is

proven on a balance of probabilities, a male person is presumed proven on a balance of probabilities, a male person is presumed to be the biological father of a child in any of the following to be the biological father of a child in any of the following circumstances:circumstances:

(d)(d) the male person cohabited with the mother of the child for 12 the male person cohabited with the mother of the child for 12 consecutive months during which time the child was born and has consecutive months during which time the child was born and has acknowledged that he is the father of the child;acknowledged that he is the father of the child;

(f)(f) the male person is registered as the father of the child at the joint the male person is registered as the father of the child at the joint request of himself and the mother of the child under the request of himself and the mother of the child under the Vital Vital Statistics ActStatistics Act or under similar legislation in a province or territory or under similar legislation in a province or territory other than Alberta;other than Alberta;

Copyright ActCopyright Act

34.134.1 (1) In any proceedings for infringement of copyright (1) In any proceedings for infringement of copyright in which the defendant puts in issue either the in which the defendant puts in issue either the existence of the copyright or the title of the plaintiff existence of the copyright or the title of the plaintiff thereto,thereto,

((aa) copyright shall be presumed, unless the contrary is ) copyright shall be presumed, unless the contrary is proved, to subsist in the work, performer’s proved, to subsist in the work, performer’s performance, sound recording or communication performance, sound recording or communication signal, as the case may be; andsignal, as the case may be; and

((bb) the author, performer, maker or broadcaster, as the ) the author, performer, maker or broadcaster, as the case may be, shall, unless the contrary is proved, be case may be, shall, unless the contrary is proved, be presumed to be the owner of the copyright.presumed to be the owner of the copyright.

Copyright ActCopyright Act

34.1(a)(b) are mandatory presumptions, 34.1(a)(b) are mandatory presumptions, ones that shall be made by the TOFones that shall be made by the TOF

It does not require proof of a basic factIt does not require proof of a basic fact It is rebuttable, on a BOPIt is rebuttable, on a BOP

Nuisance By-law, City of Nuisance By-law, City of EdmontonEdmonton

OwnerOwner a person who:a person who:i)i) holds out to be the person having the powers and holds out to be the person having the powers and authority of ownership or who currently exercises the powers and authority of ownership or who currently exercises the powers and authority of ownership over the Propertyauthority of ownership over the Propertyii)ii) is registered as owner of the Property under the Land is registered as owner of the Property under the Land Titles Act,Titles Act,iii)iii) has purchased or otherwise acquired the Property, has purchased or otherwise acquired the Property, whether directly from a previous owner or from another purchaser whether directly from a previous owner or from another purchaser and has not yet registered ownership, orand has not yet registered ownership, oriv)iv) the person listed as owner of the Property on the current the person listed as owner of the Property on the current assessment roll.assessment roll.For the purposes of this Bylaw a Property may have more than For the purposes of this Bylaw a Property may have more than one Owner.one Owner.

Point: Definitions can Point: Definitions can be/can operate as be/can operate as PresumptionsPresumptions

Ie. upon proof of a basic fact – who is on Ie. upon proof of a basic fact – who is on title – ownership will be presumed, must title – ownership will be presumed, must be presumed (mandatory), conclusivelybe presumed (mandatory), conclusively

Fair Trading ActFair Trading Act

169   Evidence that169   Evidence that                          (a)    a person entered into one (a)    a person entered into one

transaction in a business or transaction in a business or activity, oractivity, or                  (b)    a person set out in a letter, (b)    a person set out in a letter, advertisement, card or other document advertisement, card or other document

issued by or under the authority of the issued by or under the authority of the person person that the person is carrying on a that the person is carrying on a business or business or activityactivityis proof, in the absence of evidence to the contrary, is proof, in the absence of evidence to the contrary, that the person was carrying on that business or that the person was carrying on that business or activity.activity.