C
*
↑
were required to prove an excuse on the balance of probabilities.
The difference between the positions taken by Dickson C.J.C. and McIntyre J. appears to lie in their understanding of what it means for the trier of fact to be left with a reasonable doubt as to guilt. For McIntyre J., it is only the essential elements of the offence which must be proved beyond a reasonable doubt. Provided that the trier is convinced beyond a reasonable doubt of those elements, the presumption of innocence is-protected. Since common law excuses arise only after the offence has been proved beyond a reasonable doubt, placing the burden on the accused to prove on the balance of probabilities does not offend the Charter...
Throughout its decision, from OAKES to SCHWARTZ, the Supreme Court of Canada has held consistently that a statutory provision which makes it possible for an accused to be convicted despite the existence of a reasonable doubt in the mind of the trier as to the guilt of the accused violates the presumption on innocence in S.11(d) of the Charter..."
Finally, in the most recent case of R v. KEEGSTRA
(1991) 61 CCC (3d) 1, the accused was charged with the offence
of wilfully promoting hatred against an identifiable group.
Alberta
One
The
the
Crown
of the statutory defences provided that the accused shall not be
convicted "if he establishes that the statement communicated
were true" The accused was convicted at trial and on appeal
argued, inter alia, that the reversal of the burden of proof for
the truth defence violated the presumption of innocence.
and allowed his appeal of Appeal
appealed against that decision to the Supreme Court of Canada where there was a split of the learned judges into four allowing
and three dismissing the appeal. However, every single judge
found that the reversal of the burden of proof provision did
Dickson C.J.C. who gave violate the presumption of innocence.
Court
the judgment for the majority said (at page 67 et seq):
1
21