Prima Facie and the Reversal of Onus



May 6, 2011

One important aspect of modern judicial systems is the presumption of innocence. In order to force punishment or restitution on a defendant in criminal proceedings, the burden of proof falls onto the prosecution. prima facie evidence to even begin a trial.

Without sufficient proof of guilt, the defendant remains innocent without having to lift a finger. Indeed, the prosecution must establish what is known as Prima facie is Latin for “at first glance”, and in legal terms refers to the amount of initial evidence that must be brought forward by the prosecution before any response from the defence is required.

In human rights law, the presumption of innocence is only nominally maintained. Through successive decisions at the tribunal level, and a landmark decision at the Supreme Court of Canada (OHRC and O’Malley vs Simpson-Sears), the burden of proof for a complainant to establish evidence was whittled away to almost nothing. In the O’Malley case, the Supreme Court acknowledged that it had no legislative mandate to make the changes it did. But it went ahead and did so anyway, referring to a controversial landmark American Supreme Court decision as their authority to do so.

So how does the presumption of innocence work in human rights discrimination complaints today? The complainant only has to establish a case of discrimination, after which the defendant is presumed guilty and must prove its innocence. A case in a human rights complaint over employment discrimination only needs to prove three things:

1) Is the complainant a member of a “protected group”?

2) Did he or she suffer adverse treatment?

3) Is it reasonable to infer that some protected characteristic of the complainant was a factor in the adverse treatment?

Numbers 1 and 2 are easy to prove. As stated in the Earle case, anyone who is a man or a woman is a member of a “protected group”. That includes roughly 100% of the population. “Adverse treatment” could be something as innocuous as not being promoted or given a raise when the complainant felt that he or she should have been. In other words, everyone is experiencing adverse treatment all the time if they aren’t getting exactly what they want from their employment relationship.

So the only thing that remains is to dig up some dirt on the employer to infer that some form of bigotry may have been a factor in the adverse treatment. A recent decision shows us how easy this is.

Clint Stephenson was let go from his job due to poor performance. The Tribunal quickly satisfied the first two requirements for a case: First, Mr. Stephenson was black (a “protected group”). Second, Mr. Stephenson was fired (adverse treatment).

And third, Stephenson’s employer had once made a borderline racist comment within his earshot about a completely unrelated matter. No first-hand corroborating evidence was presented of this statement; it was accepted only on the word of the complainant alone.

Case closed, please pay $15,000. See how easy this thing is?

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