TNAG-2327-FCO40-3371-Hong-Kong-Bill-of-Rights-implementation-and-conferences-1991 — Page 46

Label: kbdulla LAGI K. MEUA, Athak Látsku si masuk satu atat de d

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Dickson C.J.C. agreed that there is a difference between defences

defences and the element of an offence but repeated the view he had expressed in both HOLMES and WHYTE.

...In the foregoing three Supreme Court of Canada decisions it is obvious that it was only in WHYTE that the reverse onus was held In that to violate S.11(d) of the Charter. case, clearly, the onus was directed to an

the offence.

and element of

In HOLMES SCHWARTZ the reverse onus provisions were held hot to violate S.11(d) and in those two cases the reverse onus plainly applied to a defence.

view, respectful my distinguish the cases in this manner and to accept the distinction drawn by McIntyre J. in SCHWARTZ between elements of the offence and defences is the only way in which the

of all three

be authority maintained."

In

cases

can

to

Tarnopolsky J.A. again in referring to the same cases said (at p.342):

"IN OAKES,

onus

a reverse onus

the court held that a reverse of the Narcotic provision in S.8 Control Act...violated the presumption of innocence...In HOLMES...the majority held that the phrase, "without lawful excuse, the proof of which lies upon him" did not create the which would require accused to prove his innocence... In dissent, Dickson C.J.c...took the position that the phrase, "without lawful excuse, the proof of which lies upon him", did extend to include

law common

(The) general

accused to prove balance of

section...required

those

this

excuses

burden of

excuses.

the

on

the

the

probabilities. The Chief Justice held that

violated proof presumption of innocence...because, at the end of

of the day, it was possible for an accused to be convicted despite a reasonable doubt as to his guilt. He observed that it is a basic principle of the common law that the accused is not required to prove defence, and asserted that this principle applies equally to defences that deny the existence of an essential element of the offence and to those that admit the actus reus and mens rea, but seek to excuse or to justify...

a

...Mr. Justice McIntyre acknowledged that an accused who relies on a common law excuse is

to raise generally only required

a

reasonable doubt, rather than to prove it on the balance of probabilities. Nevertheless, he stated, the presumption of innocence in S.11(d) would not be violated if the accused

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