Presumption of Guilt

How come they treat me as if I am guilty when I am presumed innocent until proven otherwise?

By reading this page you will know what less then 1 in 1,000 know, and what many attorneys and Judges only think they know.

In an argument a presumption is what someone owns. Think of an argument as a scale. If both sides of the scale are equal the one that owns the presumption wins. A presumption can be a presumption of debt, a presumption of title and so on. As a defendant you own the "presumption of innocence".

Many confuse presumption with assumption or assertion. An assumption is a position that is not proven but because of the circumstances can be considered correct. An assertion is a claim made justifying the assumption. If challenged by the owner of the presumption, the Burden of proving the assertion is placed upon the party making the assertion. Failure to prove the assertion results in the owner of the presumption prevailing in the dispute.

In an arrest the person making the arrest warrants to the court (makes a type of guarantee) that there is a warrant (a link between a claim and evidence) to prove an assertion. In other words the arresting officer essentially swears to the court that there is sufficient evidence to prove his assertion that you are guilty.

If you do not challenge the assertion then you accept as fact the elements of the assertion and give up your ownership of the presumption. By pleading Not Guilty you are challenging the prosecutions assumption which is based on  assertion of guilt. Your presumption will prevail unless the party making the assertion can provide the link between the evidence presented and its claim. Without evidence a claim can not be proven and your presumption prevails.

Your presumption of innocence does not mean that the court believes you are innocent. On the contrary the court believes you are guilty because a warrantee has been made by a responsible party to the court that that they can make the link between proof and claim to outweigh your presumption.

Until such time when the assertion is tested your presumption prevails and you are innocent. However, since the prosecution has given its assurance, the court will assume you as being guilty even though you are presumed innocent. The court can place restrictions on you until such time when the prosecution has opportunity to present its evidence to prove its assertion.

The prosecutions assertion is not timeless. By making the assertion it also warrants that it has all the evidence it needs and needs no more evidence to prevail over your presumption. The prosecution assures the court that is ready for trial at a place and time of the courts choosing. To prevent indefinite delays as to the trial there are statute of limitations, time expiring points where if the assertion is not tested in a timely manner, it goes away. In that event the presumption prevails.

In short, the court will assume you are a criminal because of the warrantee made by the prosecution. The fact that you own your presumption of innocence and in fact are innocent is what the prosecution must overcome to gain a conviction.

It is not that you are innocent until proven guilty as many believe. It is that you are assumed guilty because of the assertion made and instead of testing your protestation of innocence it is frequently ignored by a prosecution absorbed in the challenge of proving its case through the presumption of guilt.

Since you own the presumption of innocence you should have nothing to prove, but when you are treated as if you are guilty, the burden that should be upon the party making the assertion is shifted by overwhelming grief, hatred and bias. When you are the only suspect, the inability to assist the police is called "the failure to cooperate" and every move you make is viewed under the prism of callous disregard for the victim. Under these circumstances, the prosecution invents a motive, not because the police know "why" a victim was murdered but because it is necessary to convince the public that they have focused on the right suspect.

The courts need to do a better job recognizing the fact that the presumption of innocence is yours, and Robert Baltovich has become the posterchild of their widespread failure.

If the presumption is innocence you do not have to prove innocence as it is a given. The Burden of proving otherwise is upon the party making the assertion, but in the case of Robert Baltovich, the burden shifted. Indeed, if everybody did not understand the fact that his lawyers essentially proved that Paul Bernardo murdered Elizabeth Bain, he would still be in jail today.

The Robert Baltovich case proves that the court not only assumes you are guilty but it also considers your presumption of innocence as nothing more than an inconvenience. Having failed to recognize the fact that the presumption of innocence belongs to Robert Baltovich, the court system failed to safeguard the rights of an innocent man. Moreover, police and prosecutors denied the opportunity to prove that Paul Bernardo murdered Elizabeth Bain and that is not surprising. If they can't even recognize the presumption of innocence, why should anybody think they have the capacity to prove guilt?

At Baltovich's Ontario Court of Appeal hearing in 2004, judge John O'Driscoll belittled the defence and bolstered the Crown. It is time to set the record straight.