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penalty of life imprisonment unless he can rebut the presumption. This is...directly contrary to the presumption of innocence..."
In R v. VAILLANCOURT [1987] 39 CCC 118, Lamer J. in his judgment
said (at p.134):
the
Charter
at requires
that
an
"The presumption of innocence in S.11(d) of
least accused be presumed innocent until his guilt has been proven beyond
reasonable
a
doubt... Any provision creating an offence which allows for the conviction of an accused notwithstanding the existence of a reasonable doubt on any essential element infringes SS.7 and 11(d).
of
the
Clearly, this will occur where the provision
accused requires the
to disprove on
balance
an probabilities
essential element of the offence by requiring that he raise
just a reasonable the presumption of
more
than offends
the
doubt...what innocence is the fact that an accused may be convicted despite
existence of a reasonable doubt on an essential element of the offence, and I do not think that it matters whether this results from the existence of a reverse onus provision or from the elimination of the need to prove an essential element...the legislature, rather than simply eliminating any need to prove the essential element, may substitute proof of a different element. In my view, this will be constitutionally, valid only if upon
doubt reasonable
of the proof beyond substituted element it would be unreasonable for the trier of fact not to be satisfied beyond reasonable doubt of the existence of the essential element. If the trier of fact doubt as to the may have
reasonable a essential
notwithstanding proof
element
beyond a reasonable doubt of the substituted element, then the substitution infringes SS.7 and 11(d)."
The presumption of innocence was further considered in
The accused
42
CCC 97.
was
the case of R v. WHYTE [1988] charged with having care and control of a motor vehicle while his ability to drive was impaired by alcohol contrary to S.234 of the Criminal Code. S.237(1)(a) of the Criminal Code provides
accused occupied the where it is proved that
that
the
seat
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