1
(
(2)
P
the
tools...I agree with Tarnopolsky J.A. that two distinct views of presumption of innocence emerged in the judgments in this case...Dickson C.J.C...did not dispute that there was a distinction between elements of an offence and defences.
However,
he of
to
contended that the presumption innocence in S.11(d) applies everything which affects the ultimate verdict, including defences.
to
a
In contrast, McIntyre J. asserted that S.11(d) simply requires the Crown
prove beyond reasonable doubt all essential elements of the offence, without the benefit of presumptions. Once the offence has been proven, the accused may still obtain an acquittal by presenting a valid justification or However, S.11(d). does regulate the burden
excuse.
which
not
an
accused may be called upon to satisfy in order
to
benefit of a defence...
claim the
a
is
R v. WHYTE...dealt with the deeming provision in S.237(1) of the Criminal Code...Dickson C.J.C. wrote for unanimous court which held that S.11(d) was violated...Structually, this provision (in S.237(1)) is quite different from the one at issue in HOLMES...s.237(1)(a) did not provide a positive defence to an accused...it "legislates a presumption against an accused".
The difference important. It has been carefully noted by McIntyre J. in HOLMES: "This is not a case such as... R v. OAKES...which permitted upon conviction for one offence (possession of a narcotic) conviction for a completely different offence (possession for the purpose of trafficking) unless the accused disproved the intent to traffic."
a
(3)
In R V.
in
a SCHWARTZ...by
clear
majority, the Supreme Court of Canada held that there
s.11(d)
of the
was no breach
Charter.
of
The
judgment...draws a clear distinction
between elements of an offence and
distinguished on the ground that
defences.
deals
with
offence...In
of
but
it
an
WHYTE is cited
an
element
dissenting
reasons,
19
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