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Legal presumptions: Trail markers in our justice system | William Poulos

Tuesday, February 16, 2021 @ 2:32 PM | By William Poulos

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William Poulos
Legal presumptions are located throughout our vast legal forests. They are referred to in statute and case law. They act as trail markers for participants entering the legal forests providing a heads-up on what parties can expect.

The beauty of presumptions from a justice perspective is that they are not absolute. They are rebuttable, leaving it open for the courts to have a more comprehensive perspective to ensure justice is done. It is easy to get lost in our vast legal forests and more so for self-represented litigants who may enter a forest for the first time.

Presumptions are helpful markers setting expectations so parties can decide how far into the forest or down the trail they wish to go or what they need to focus on. They provide helpful markers on case preparation. Some will go all the way to trial not worried about the presumptions and bolstered in their view that they have enough evidence to rebut one or more of them. In other cases, the trail may be cut short by discontinuance, settlement or court order.

Our criminal law is one example of a vast forest where presumptions mark legal trails and set expectations as to what the parties can expect. Some examples include the presumption of innocence until proven guilty; warrantless searches are presumptively unreasonable; confessions made during a Mr. Big investigation are presumptively inadmissible; the strong presumption in favour of counsel’s competence; the presumption of judicial integrity, fairness, impartiality.

Further examples include: similar fact evidence and prior discreditable conduct are presumptively inadmissible; the presumption of diminished moral blameworthiness or culpability of the young person; that every person is presumed not to suffer from mental disorder so as to be exempt from personal liability; the presumption that jurors will follow instructions; and, last but not least, the presumptive ceilings for cases to be tried within a reasonable time.

It is hard not to go down a legal trail without at some point viewing a presumption trail marker. Other presumptions we have seen in various legal trails include the marker that a successful party is presumptively entitled to costs; the presumption that all court orders should be respected and complied with; the strong presumption of the validity of contingency fee arrangements; the presumption of non-compensable prejudice after exceptional, inordinate delay; the presumption of undue influence; the presumption of resulting trust; the presumption of harmony, coherence and consistency between statutes dealing with the same subject matter; and the general presumption against implied repeal of legislation.

Administrative law also benefits from trail markers; for example, the presumptive penalty of revocation of the licence to practise law for knowing participation in fraud.

In light of the few examples of presumptions highlighted above, certain observations follow. Many presumptions have served for a long time (for example, the presumption of innocence until proven guilty, the presumption that court orders should be respected). Many are tied to evidence (for example, similar fact evidence and prior discreditable conduct are presumptively inadmissible).

Others are tied to the conduct of the participants in the justice system (for example, the presumption of judicial integrity and the presumption in favour of counsel’s competence). Others gain their strength in time (for example, the presumption of non-compensable prejudice).

However, all appear to have common traits as well. They provide heads-up to participants as to what can be expected in a particular legal trail and participants can accordingly govern their behaviour. For example, a Crown attorney may decide to not lay a charge or withdraw it when the evidence is not there to rebut the presumption of innocence. Participants may invest thousands of dollars travelling the legal trails knowing that if they get the court order they are seeking, there is a presumption all court orders should be complied with and respected.

Presumptions as markers can provide guidance and some certainty in these vast legal forests. The fact that many have been around for a long time points to their utility in helping to serve the ends of justice.

But should we be open to reconsidering certain presumptions when the circumstances permit to facilitate justice? Should the categories of presumptions remain open, leaving it to statute drafters or incremental common law changes to refine these markers if that means better serving the ends of justice?

Should these trail markers be taken down completely and replaced with new ones or perhaps just worded differently based on changing circumstances? Should we interfere with any, if they are serving the administration of justice?

It is not the purpose of this brief article to answer all these questions. However, it would appear that presumptions also reflect our society’s aspirations, values or circumstances and to the extent those change, there may be a need to revisit certain presumptions when the circumstances dictate, or maybe even recognize more, if this serves the ends of justice.

One recent example may suffice to show that on occasion we may have to not necessarily tear down these trail markers but recognize how they are applied may change in modern times. In Friends of Toronto Public Cemeteries Inc. v. Public Guardian and Trustee 2020 ONCA 282 at para. 102, leave to appeal to the Supreme Court dismissed with costs, the Ontario Court of Appeal confirmed that there is a general presumption against implied repeal and acknowledged that the strength of this presumption varies according to the context.

The court further agreed that, in modern times, the presumption against implied repeal is stronger given standards of legislative drafting are high. We may not have to tear down these trail markers but on occasion add a touch of paint to them to reflect how they should be applied in modern times.

There will always be presumptions we will never want to change and are serving our justice system properly, for example, the presumption of innocence until proven guilty. However, not all presumptions are carved in stone and some trail markers may need modification down the road to keep pace with our changing times.

With changing times, future situations may also call for the recognition of additional presumptions. The ongoing confidence in our administration of justice will be tied to our ongoing flexibility to make whatever changes or revisions or additions that need to be made to insert appropriate markers in our vast legal forests to ensure the needs of justice are met.

All participants in the administration of justice have an obligation to preserve our legal forests and their many trails to serve the ends of justice and assist the many participants each year that travel these trails. With our creativity and a focus on serving the public we can keep our legal trails as clear as possible so people know exactly what to expect and can decide how far they want to venture down these trails, if at all.

People enter our legal forests often not knowing what to expect. Presumptions assist to guide and educate them as to what can be expected on a certain legal trail. They may not like the presumption they face or it may benefit them but, either way, they have a heads up as to what is lurking down the legal trail.

William Poulos has practised civil litigation for over 30 years and is a sole practitioner in Kingston, Ont.

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