As with all of the human rights protected in the Charter, the right to be presumed innocent in s. 25(1) may be subject to reasonable limitations that can be demonstrably justified in a democratic society in accordance with s. 7 of the Charter. You should refer to Part 2 of these Charter Guidelines for further information on s. 7.


However, in this context you should note that in the UK, courts have held that reverse onus provisions are more likely to be consistent with human rights if they require the accused to prove an exception, proviso or excuse rather than disprove an element of the offence.233 (However, for offences heard summarily in Victoria, section 130 of the Magistrates’ Court Act 1989 provides that a defendant who wishes to rely on an exception, exemption, proviso, excuse or qualification has an evidential burden only in relation to that exception, proviso, excuse or qualification.) Similarly, provisions that place the evidential burden on the accused will be easier to justify than provisions that place the legal burden on the accused by requiring him or her to prove a fact. 234 Absolute liability offences, where the prosecution is not required to establish a fault element, or where the absence of fault is not a defence, may be difficult to justify. In the end, whether a reverse burden can be justified involves consideration of all the facts and circumstances and there is no rule of thumb for this process.235

 

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233 R v. DPP, ex parte Kebilene [2000] 2 AC 326.


234 R v. Lambert [2002] 2 AC 545.


235 Sheldrake v. Director of Public Prosecutions Attorney-General’s Reference (no 4 of 2002) [2005] 1 AC 264, 287.