TNAG-2327-FCO40-3371-Hong-Kong-Bill-of-Rights-implementation-and-conferences-1991 — Page 43

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penalty of life imprisonment unless he can rebut the presumption. This is...directly contrary to the presumption of innocence..."

In R v. VAILLANCOURT [1987] 39 CCC 118, Lamer J. in his judgment

said (at p.134):

the

Charter

at requires

that

an

"The presumption of innocence in S.11(d) of

least accused be presumed innocent until his guilt has been proven beyond

reasonable

a

doubt... Any provision creating an offence which allows for the conviction of an accused notwithstanding the existence of a reasonable doubt on any essential element infringes SS.7 and 11(d).

of

the

Clearly, this will occur where the provision

accused requires the

to disprove on

balance

an probabilities

essential element of the offence by requiring that he raise

just a reasonable the presumption of

more

than offends

the

doubt...what innocence is the fact that an accused may be convicted despite

existence of a reasonable doubt on an essential element of the offence, and I do not think that it matters whether this results from the existence of a reverse onus provision or from the elimination of the need to prove an essential element...the legislature, rather than simply eliminating any need to prove the essential element, may substitute proof of a different element. In my view, this will be constitutionally, valid only if upon

doubt reasonable

of the proof beyond substituted element it would be unreasonable for the trier of fact not to be satisfied beyond reasonable doubt of the existence of the essential element. If the trier of fact doubt as to the may have

reasonable a essential

notwithstanding proof

element

beyond a reasonable doubt of the substituted element, then the substitution infringes SS.7 and 11(d)."

The presumption of innocence was further considered in

The accused

42

CCC 97.

was

the case of R v. WHYTE [1988] charged with having care and control of a motor vehicle while his ability to drive was impaired by alcohol contrary to S.234 of the Criminal Code. S.237(1)(a) of the Criminal Code provides

accused occupied the where it is proved that

that

the

seat

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