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Certain sections of the Criminal Code contain legal presumptions. These sections often contain words like “in the absence of evidence to the contrary” or “without lawful excuse”. These sections place a degree of responsibility upon the accused to explain the “state of affairs” in which you have found them. Often (but not always) these are possession offences.  Judges may (but are not required to) draw a negative inference if the accused cannot provide an adequate explanation at the time of the event.

Should presumptive questions be asked pre or post charter?

There is no clear answer to this question. As each case will be judged on its context.  The kinds of issues that should be articulated to make it easier for a judge to reach a conclusion would be things like

  • What facts were known to the police officer at the time they asked the question?
  • What was the nature of the questions asked? Informational or accusational?
  • How were the questions asked? Demanding or Requesting

Wording of the question

There is NO legal requirement for particular wording. Often presumptive questioning will not be a single question but a series of questions. In many situations the questions will be asked in everyday language. For example, “How did you come to be in possession of…” or “Well, where’s work from here, and when do you start?” ?

If you ask the suspect for an explanation and they choose not to make a statement, it will be wise to formalize the presumption, and make it clear to the accused that there may be a negative inference by refusing to provide a reasonable explanation. Perhaps with words something like…

You do not have to say anything but it may harm your defence if you do not mention, when asked, something which you later rely on in court.

Documenting the presumption

Take notes regarding the questions asked of the accused and the answers provided. Record them as close to the exact words as possible, as soon as possible.

In the report to Crown Counsel consider using a title of “presumptive questions” to draw Crowns attention to the statement, or the lack of response from the accused. This shows the Crown that you are aware of what a presumptive statement is and the legal issues surrounding them.

Crown will likely NOT lead a presumptive statement from the officer in court.  However, presumptive questioning provides Crown the opportunity to effectively and aggressively cross examine the accused should they try to offer up a “legal excuse” in court that was not answered when placed to the accused at the scene.