Reverse onus

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A reverse onus clause is a provision within a statute that shifts the burden of proof on to the individual specified to disprove an element of the offence. Typically, this provision concerns a shift in burden onto a defendant in either a criminal offence or tort claim. For example, the automotive legislation in many countries provides that any driver who hits a pedestrian has the burden of establishing that they were not negligent.

[edit] Canada

Reverse onus clauses can be seen in the Canadian Criminal Code, where the accused must disprove an imposed presumption. These sorts of provisions are contentious as they almost always violate the presumption of innocence protected under section 11(d) of the Canadian Charter of Rights and Freedoms. The only way that that such a provision can survive Charter scrutiny is if it can be justified under section 1.

The Supreme Court of Canada has struck down a number of reverse onus provisions. The first and most famous of them was the striking down of section 8 of the Narcotics Control Act in the decision of R. v. Oakes. The Supreme Court in the decision of R. v. Laba (1994) struck down section 394(1) of the Criminal Code that required a person who sold or purchased rocks containing precious metals to prove that they did so lawfully.

In reaction to the number of shootings in Toronto and as part of his 2006 election campaign, Paul Martin proposed amending s. 515(1) of the Criminal Code so that there would be a reverse onus in bail proceedings for those accused with gun-related crimes.