nonetheless is a very important consideration that must be taken
into account.
particular
а However, I think
decision as to whether
a
provision violates the presumption of
innocence
should not be considered in the same breath as a consideration
*
So to do would
regarding whether that provision is justifiable.
confuse the issue and would prevent a true consideration of
whether
there was
a
violation.
Whether
a violation
is
justifiable need only be considered if and when a provision is
found to be an infringement of the presumption.
two
essential elements.
1
As I have said, the offence under S.7 of the DDO has
S.46 is a section that not only
relieves the Crown from proving beyond reasonable doubt
essential element of "possession for the purpose of trafficking"
disprove the
Further the
(
but
the
the accused to
Or rebut
also requires
presumption thereunder of this essential element.
cases I have referred to under the consideration of S.46 and
especially the
case of Au Wai say that unless
succeeds in his rebuttal, a
of conviction
the accused
possession for
trafficking was virtually inevitable. Hence, I find that S. 46 falls squarely within the bounds of what all the Canadian cases held to be objectionable and I rule that S.46 is in violation of
A. 11 (1) of the BORO.
CONCLUSION
Having ruled that S.46 of the DDO is in breach of S.8 A.11 (1) of the BORO, it is necessary to consider whether there is any circumstance which enables S.46 to be salvaged from the devastating effect of a construction in accordance with S.3 of
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