TNAG-2327-FCO40-3371-Hong-Kong-Bill-of-Rights-implementation-and-conferences-1991 — Page 42

The trial judge having

found the appellant in possession of the drug ruled that the provision in S.8 violated the guarantee to the presumption of of the Canadian Charter of Rights and innocence in S.11(d)

Freedoms and that it was therefore invalid.

Charter provides that:

narcotic for the purpose of trafficking.

S.11(d) of the

"Any-person charged with an offence has the right...(d) to be presumed innocent until proven guilty according to law in a fair and public hearing...".

1

The

The Crown's appeal to the Ontario Court of Appeal was dismissed. The Crown appealed further to the Supreme Court of Canada. Supreme Court held that S.8 contained a reverse onus provision in which a mandatory presumption of law arises against the accused. Therefore, it was inconsistent with the guarantee to

Dickson C.J.C. in the presumption of innocence in S.11(d). giving judgment of the court said (at p.343):

in

of

"In general one must, I think, conclude that a provision which requires an accused to disprove on a balance of probabilities the existence of a presumed fact, which is an

element of the offence important question, violates the presumption innocence...If an accused bears the burden of disproving on a balance of probabilities an essential element of an offence, it would be

to occur conviction possible for a despite the existence of a reasonable doubt.

if the This would arise

accused adduced sufficient evidence to raise a reasonable doubt as to his...innocence but did convince probabilities that the presumed fact untrue. This would violate the presumption of innocence...S.8 of the Narcotic Control Act, I am in no doubt whatsoever...violates S.11(d) of the Charter by requiring balance the accused

prove on probabilities that he was not in possession

for trafficking. of the narcotic for accused) is compelled by S.8 to prove he is not guilty of the offence of trafficking. He is thus denied his right to be presumed

to subject innocent

the

the

to

and

оп jury

the

balance

not

of

was

the of

(The

potential

1

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