**)
a prosecution...the
"In
beyond a elements of
Crown must prove doubt reasonable
the various the offence...The defence of truth, to be established by the accused on the balance
balance of probalities, is thus only
considered
components
reasonable
proves the beyond a
if the Crown
the offence)
Alberta doubt...the
(of
doubt
Court
of
Appeal...viewed as crucial the possibility that an accused can be convicted of wilfully hatred though there promoting
exists a
reasonable
that the statements communicated are true...As the defence places an onus on the accused to prove truth on the balance of probalities...(it was found)
infringe (the presumption
to innocence)...it presumption
is
the
clear
that
of
the
of innocence is infringed whenever the accused is liable to be convicted despite
existence of a reasonable doubt as to guilt in the mind of the trier of fact...it matters not that the defence of truth may be intended to play a minor role in
from providing relief conviction. What is of essence is not the "essential nature" of the crime, but that the trier of fact will have to convict even where there is a reasonable doubt as to the truth of an accused's statement."
1
McLachlin J. in giving the minority judgment said (at page 108
et seq):
"if
"Where the Crown proves beyond a reasonable doubt that the accused wilfully promoted hatred...the accused will escape liability he establishes that the statements communicated were true"...it is clear that the accused. the burden of proof lies on The question is whether this violated the presumption of innocence... By placing the burden of establishing that truth
it
has contravened
the
on the basic
accused, principle that the accused need not prove a defence...I conclude that (it) violates (the presumption of innocence)."
THE ANALYSIS
From the above cases, it can be seen that the European court, the Privy Council and the Canadian appellate courts took
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