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A reverse onus clause is a provision within a
statute A statute is a formal written enactment of a legislative authority that governs the legal entities of a city, state, or country by way of consent. Typically, statutes command or prohibit something, or declare policy. Statutes are rules made by ...
that shifts the burden of proof onto the individual specified to disprove an element of the information. Typically, this particular provision concerns a shift in burden onto a defendant in either a
criminal offence In ordinary language, a crime is an unlawful act punishable by a state or other authority. The term ''crime'' does not, in modern criminal law, have any simple and universally accepted definition,Farmer, Lindsay: "Crime, definitions of", in Ca ...
or
tort A tort is a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Tort law can be contrasted with criminal law, which deals with criminal wrongs that are punishab ...
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.


Canada

Reverse onus clauses can be seen in the
Criminal Code A criminal code (or penal code) is a document that compiles all, or a significant amount of a particular jurisdiction's criminal law. Typically a criminal code will contain offences that are recognised in the jurisdiction, penalties that migh ...
, where the accused must disprove an imposed presumption. These sorts of provisions are contentious as they almost always violate the
presumption of innocence The presumption of innocence is a legal principle that every person accused of any crime is considered innocent until proven guilty. Under the presumption of innocence, the legal burden of proof is thus on the prosecution, which must prese ...
protected under section 11(d) of the
Canadian Charter of Rights and Freedoms The ''Canadian Charter of Rights and Freedoms'' (french: Charte canadienne des droits et libertés), often simply referred to as the ''Charter'' in Canada, is a bill of rights entrenched in the Constitution of Canada, forming the first part o ...
. The only way that such a provision can survive Charter scrutiny is if it can be justified under section 1. The
Supreme Court of Canada The Supreme Court of Canada (SCC; french: Cour suprême du Canada, CSC) is the highest court in the judicial system of Canada. It comprises nine justices, whose decisions are the ultimate application of Canadian law, and grants permission to ...
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 Toronto ( ; or ) is the capital city of the Canadian province of Ontario. With a recorded population of 2,794,356 in 2021, it is the most populous city in Canada and the fourth most populous city in North America. The city is the anc ...
and as part of his 2006 election campaign,
Paul Martin Paul Edgar Philippe Martin (born August 28, 1938), also known as Paul Martin Jr., is a Canadian lawyer and politician who served as the 21st prime minister of Canada and the leader of the Liberal Party of Canada from 2003 to 2006. The son o ...
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. To successfully prosecute
hit and run In traffic laws, a hit and run or a hit-and-run is the act of causing a traffic collision and not stopping afterwards. It is considered a supplemental crime in most jurisdictions. Additional obligation In many jurisdictions, there may be an ...
cases, the prosecution must prove, beyond a reasonable doubt, that the hit and run occurred. Yet there is a presumption that the person on trial, for a hit-and-run, fled the scene of a crash to avoid civil or criminal liability, if the remaining essential elements of the case can be proven beyond a reasonable doubt.


United Kingdom

The Criminal Finances Act 2017 enables a British court to issue an unexplained wealth order to compel someone to reveal the sources of their unexplained wealth. Individuals who fail to account can have their assets seized by the
National Crime Agency The National Crime Agency (NCA) is a national law enforcement agency in the United Kingdom. It is the UK's lead agency against organised crime; human, weapon and drug trafficking; cybercrime; and economic crime that goes across regional and in ...
. The law achieves its objectives of fighting money laundering by reversing the onus onto the suspect. English libel law is another example. Generally the claimant is required to prove that a statement was made by the defendant, and that it was defamatory – a relatively easy element to prove. The claimant is not required to prove that the content of the statement was false. The onus then shifts to the defendant to prove the truth of the statement which would be considered an affirmative defence.


Pakistan

In Pakistan, the National Accountability Ordinance, 1999 places the burden of proof on the accused in cases where the wealth of the accused is above and beyond his or her known sources of income. Once the
National Accountability Bureau The National Accountability Bureau ( ur, ; abbreviated NAB) is an autonomous and constitutionally established federal institution responsible to build efforts against corruption and prepare critical national economic intelligence assessments ...
, the federal agency responsible for prosecuting corruption and corrupt practices, establishes that an accused has amassed wealth above and beyond his or her known sources of income, the onus shifts to the accused to establish that his or her wealth has been gathered by legitimate means. The trial under this law takes place in special Accountability Courts established under the National Accountability Ordinance, 1999.


Jurisprudence

The concept of reverse onus is a shift in burden of proof with the presupposition that the applicant (usually
prosecution A prosecutor is a legal representative of the prosecution in states with either the common law adversarial system or the Civil law (legal system), civil law inquisitorial system. The prosecution is the legal party responsible for presenting the ...
) will be granted their application by the courts. The onus is on the respondent to make a reasonable application of
the rule of law The rule of law is the political philosophy that all citizens and institutions within a country, state, or community are accountable to the same laws, including lawmakers and leaders. The rule of law is defined in the ''Encyclopedia Britannic ...
with which the application is incompatible.


See also

*
Affirmative defense An affirmative defense to a civil lawsuit or criminal charge is a fact or set of facts other than those alleged by the plaintiff or prosecutor which, if proven by the defendant, defeats or mitigates the legal consequences of the defendant's ...
*
Presumption of innocence The presumption of innocence is a legal principle that every person accused of any crime is considered innocent until proven guilty. Under the presumption of innocence, the legal burden of proof is thus on the prosecution, which must prese ...


References

National Accountability Ordinance, 1999, Pakistan


Further reading


Justifications for reversing legal burden

Reverse-onus WHS laws

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(in German) {{DEFAULTSORT:Reverse Onus Evidence law