To improve compliance with s. 25(1):

  • If you are developing a policy or legislation that creates or amends a criminal offence or criminal procedure, ensure so far as possible that it is consistent with the presumption of innocence.

 

  • If you are developing a policy or legislation that creates or amends a criminal offence which does not require the prosecution to prove all the elements of the offence, but places a burden on the accused, then consider the following criteria in deciding if the offence breaches s. 25(1):
    • the nature and context of the conduct you are attempting to regulate;
    • the nature and purpose of the offence;
    • the reason you want the accused to provide evidence or prove that they were not at fault. Is it very difficult for the prosecution to provide that evidence?
    • the ability of the accused to exonerate himself or herself. Is it difficult and impractical for the accused to establish a defence?
    • the severity of the penalty to be imposed;
    • the nature of the burden placed on the accused. Is it a legal or evidential burden? Does the accused have to prove a qualification, proviso or excuse (in which case the provision may be inconsistent with section 130 of the Magistrates’ Court Act) or is he or she required to prove an essential element of the offence?
  • If the offence cannot be justified on the above criteria, the provision may still be permissible if it is a reasonable limit on the right to the presumption of innocence, which can be demonstrably justified in a free and democratic society (under s. 7).