Label: kbdulla LAGI K. MEUA, Athak Látsku si masuk satu atat de d
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Dickson C.J.C. agreed that there is a difference between defences
defences and the element of an offence but repeated the view he had expressed in both HOLMES and WHYTE.
...In the foregoing three Supreme Court of Canada decisions it is obvious that it was only in WHYTE that the reverse onus was held In that to violate S.11(d) of the Charter. case, clearly, the onus was directed to an
the offence.
and element of
In HOLMES SCHWARTZ the reverse onus provisions were held hot to violate S.11(d) and in those two cases the reverse onus plainly applied to a defence.
view, respectful my distinguish the cases in this manner and to accept the distinction drawn by McIntyre J. in SCHWARTZ between elements of the offence and defences is the only way in which the
of all three
be authority maintained."
In
cases
can
to
Tarnopolsky J.A. again in referring to the same cases said (at p.342):
"IN OAKES,
onus
a reverse onus
the court held that a reverse of the Narcotic provision in S.8 Control Act...violated the presumption of innocence...In HOLMES...the majority held that the phrase, "without lawful excuse, the proof of which lies upon him" did not create the which would require accused to prove his innocence... In dissent, Dickson C.J.c...took the position that the phrase, "without lawful excuse, the proof of which lies upon him", did extend to include
law common
(The) general
accused to prove balance of
section...required
those
this
excuses
burden of
excuses.
the
on
the
the
probabilities. The Chief Justice held that
violated proof presumption of innocence...because, at the end of
of the day, it was possible for an accused to be convicted despite a reasonable doubt as to his guilt. He observed that it is a basic principle of the common law that the accused is not required to prove defence, and asserted that this principle applies equally to defences that deny the existence of an essential element of the offence and to those that admit the actus reus and mens rea, but seek to excuse or to justify...
a
...Mr. Justice McIntyre acknowledged that an accused who relies on a common law excuse is
to raise generally only required
a
reasonable doubt, rather than to prove it on the balance of probabilities. Nevertheless, he stated, the presumption of innocence in S.11(d) would not be violated if the accused
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