Uncovering the Presumption of Factual Innocence in Canadian Law
The presumption of innocence has long been regarded as a hallmark of our justice system. Rhetoric abounds and finding a more celebrated legal doctrine is difficult. For most in the legalprofession, the presumption of innocence represents the procedural requirement that the Crown prove all elements of an offence. Yet, aside from its procedural and evidentiary protections, does the presumption of innocence offer any protection at the pre-charge phase of the criminal justice process? Specifically, for the majority of Canadians who have never been, or never will be charged with an offence, does the presumption of innocence offer any protection? Regrettably, Canadian law fails to explain how the presumption of innocence animates the pre-charge phase of the criminaljustice system, but rather contents itself merely to assert its relevance. The following paper offers a theoretical conception of the "pre-charge presumption of innocence". In an attempt to demonstrate its application and relevance, this theoretical model will be applied to an emerging technique of police investigation known as the DNA sweep.