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Charter - Presumption of Innocence [s.11(d)]

. R. v. D.N.

In R. v. D.N. (Ont CA, 2023) the Court of Appeal allowed a Charter s.11(d) ["presumption of innocence"] challenge regarding several CCC sexual offence [ss.171.1(3) ("Making sexually explicit material available to child") and 172.2(3) ("Agreement or arrangement — sexual offence against child")] evidentiary presumptions:
(1) Are the Presumptions contained in ss. 171.1(3) and 172.2(3) of the Criminal Code unconstitutional?

[33] As I have said, the child exploitation offences of which the appellant was convicted each contain an identical element requiring either that the victim be under a specified age or that the accused believes the victim is under the specified age. For example, s. 172.1(1)(a), one of the child luring subsections, reads as follows:
Every person commits an offence who, by a means of telecommunication, communicates with

(a) a person who is, or who the accused believes is, under the age of 18 years, for the purpose of facilitating the commission of an offence with respect to that person under subsection 153(1), section 155, 163.1, 170, 171 or 279.011 or subsection 279.02(2), 279.03(2), 286.1(2), 286.2(2) or 286.3(2). [Emphasis added.]
[34] Similarly, each of the child exploitation offence provisions contains an identical presumption designed to assist the Crown with proof of the accused’s belief in the age of the victim, where the Crown is not in a position to prove the victim’s actual age. Section 172.1(3), the Presumption in relation to child luring, which the Supreme Court of Canada ruled unconstitutional, reads as follows:
Evidence that the person referred to in paragraph 1 (a), (b), or (c) was represented to the accused as being under the age of eighteen years, sixteen years or fourteen years, as the case may be, is, in the absence of evidence to the contrary, proof that the accused believed that the person was under that age. [Emphasis added.]
[35] Sections 171.1(3) and 172.2(3) contain identical language to s. 172.1(3) save that the specified ages are set out in numeric form.

[36] As indicated above, the Crown does not oppose the appellant raising this issue for the first time on appeal and this court concluding that the Presumptions in ss. 171.1(3) and 172.2(3) violate s. 11(d) of the Charter. Further, the Crown does not contend that these Presumptions can be saved under s. 1 of the Charter.

[37] I see no principled basis to distinguish s. 172.1(3), the provision struck down in Morrison, from the Presumptions at issue in this case. The language in the Presumptions at issue in this case is identical to s. 172.1(3). Moreover, the Presumptions all have the same effect. They allow the Crown to obtain a conviction despite the existence of a reasonable doubt because the fact that a representation of age was made to an accused does not inexorably lead to the conclusion that the accused believed that conclusion: Morrison, at paras. 51, 56.

[38] Accordingly, I find that ss. 171.1(3) and 172.2(3) infringe s. 11(d) of the Charter and cannot be saved under s. 1.


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Last modified: 28-08-23
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