(
J
ordinarily occupied by the driver he shall be deemed to have had the care or control of the vehicle unless he establishes that he
did not enter the vehicle for the purpose of setting it in
Relying on this presumption the accused was convicted. His appeal to the British Columbia Court of Appeal was dismissed
Dickson and he further appealed to the Supreme Court of Canada. C.J.C. in giving the judgment of the Supreme Court said (at
motion.
P. 109):
a
"The real concern is not whether the accused must disprove an element or prove an excuse, but that an accused may be convicted while
doubt reasonable
exists.. When that possibility exists, there is a breach of the presumption of innocence...It is the final effect of a provision on the verdict that is decisive. If an accused is required to
fact
of balance prove
to avoid conviction, the
the violates
presumption
some
probabilities provision
on
the
an
of
a
innocence because it permits a conviction in spite of a reasonable doubt in the mind of the trier of fact as to the guilt of the
The trial of accused.
accused in criminal matter cannot be divided neatly into stages, with the onus of proof on the accused at an intermediate stage and the ultimate onus on the Crown.
However, in the case of R v. HOLMES (1988) 44 CCC (3d) 497, there developed two schools of thought in relation to the presumption of innocence: they were considered in detail in the case of R v. WHOLESALE TRAVEL GROUP INC. (1989) 63 DLR (4th) 325 where all the important cases on the presumption of innocence were reviewed. Lacourciere J.A. in reviewing the three cases of R v. HOLMES (Supra), R v. WHYTE (supra) and R v. SCHWARTZ (1988)
45 CCC (3d) 97, said (at p.332):
"The constitutionality of assigning a burden of proof to an accused has been addressed by the Supreme Court of Canada in three recent
cases.
(1) R V
of
HOLMES...dealt with the offence house-breaking of possession
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