Does an Evidential Burden Contravene the Charter?
[226] Before deciding whether s. 19 (1) contravenes the Charter, as claimed by the applicant, it is necessary to comment on the extent to which an evidential burden may violate the Charter. In R. v. Oakes, 1986 CanLII 46 (S.C.C.), [1986] 1 S.C.R. 103 the court considered a burden that was placed on the accused to disprove the presumption on the balance of probabilities. Does a burden that merely requires an accused to raise a reasonable doubt contravene s. 11 (d)? [227] In R. v. Osolin, the Supreme Court of Canada concluded that a mere evidential burden did not contravene the Charter. In that case, there was a burden on the accused to point to evidence or adduce sufficient evidence to raise the common law defence of mistake of fact. The Crown, however, still had to establish all the essential elements of the offence. [228] In R. v. Downey, the Supreme Court of Canada found that an evidential burden did contravene the Charter (subject to s. 1). At issue was a Criminal Code provision tha
