Presumption of belief in representation was contrary to principle of presumption of innocence

Supreme court | Criminal Law | Charter of Rights and Freedoms | Presumption of innocence [s. 11(d)]

Accused posted online advertisement, seeking underage girl to communicate with. Undercover police officer posed as 14-year-old girl, and answered ad. Accused asked whom he believed to be girl to touch herself sexually, and proposed that they meet to have sex. Accused was charged with child luring as result of communications. At trial, accused challenged constitutionality of applicable Criminal Code provisions. Accused claimed his presumption of innocence was violated under ss. 7 and 11(d) of Charter of Rights and Freedoms. Trial judge found Charter violation, but convicted accused on basis that he had not taken steps to ascertain girl’s age. Accused was sentenced to four months imprisonment and one year probation. Sentencing judge found that mandatory minimum sentence was disproportionate under s. 12 of Charter. Provincial court of appeal upheld findings of trial and sentencing judges. Crown appealed on findings related to Charter violations. Accused cross-appealed, claiming he was convicted on basis of objective fault violating his fundamental justice rights under Charter. Appeal allowed in part; cross-appeal allowed in part. Conviction set aside and new trial ordered. Applicable law infringed accused’s presumption of innocence rights under Charter. Violation was not saved by s. 1 of Charter. Fact that officer represented girl’s age to accused, did not mean that accused believed representation. Presumption of belief in representation was contrary to principle of presumption of innocence. In future, Crown would have to prove that accused in similar situation believed representation beyond reasonable doubt. Proper remedy was new trial, as opposed to acquittal being entered.

R. v. Morrison (2019), 2019 CarswellOnt 3710, 2019 CarswellOnt 3711, 2019 SCC 15, 2019 CSC 15, Wagner C.J.C., Abella J., Moldaver J., Karakatsanis J., Gascon J., Côté J., Brown J., Rowe J., and Martin J. (S.C.C.); reversed (2017), 2017 CarswellOnt 10363, 2017 ONCA 582, David Watt J.A., K. van Rensburg J.A., and G. Pardu J.A. (Ont. C.A.).

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