You will need to consider s. 25(1) in assessing legislation, a policy or a program where it:

  • creates or amends an offence that requires the accused to prove or establish the absence of an element of an offence;
  • creates or amends an offence that provides that an exception, qualification, proviso, exemption, excuse or other defence must be proved or established by an accused;
  • creates or amends an offence that contains a presumption of fact or law and puts the legal (persuasive) burden on the accused to rebut the presumption;
  • creates or amends an offence that contains a presumption of fact or law and puts the evidential burden on the accused to rebut the presumption;
  • creates or amends an offence that contains a presumption of fact or law operating against an accused which cannot be displaced;
  • creates or amends an offence that imposes criminal liability on an officer of a corporation solely by reference to his or her position in the corporation and requires the officer to make out a defence;
  • deals with the admissibility of evidence;
  • creates or amends a statutory defence relating to an element of the offence;
  • alters the criteria or conditions under which a person may apply for or be released on bail;
  • allows public officials to comment on the guilt of persons who have been charged.

These policy triggers are not comprehensive.