July 14, 1908 (10th Parliament, 4th Session)


Allen Bristol Aylesworth (Minister of Justice and Attorney General of Canada)



It may be said that he could readily prove his innocence.
I do not know that he could do it so readily. If indicted for this offence, he could go into the witness box and assert his honesty, but whether his assertion will be believed or disbelieved is another story. What you are proposing to do by this amendment is to put the burden of proving himself innocent upon the man who is accused of this particular offence. That is a very serious departure from the ordinary principles of the law. This clause is framed to make it an offence for the deputy returning officer to put upon any ballot paper a mark calculated to identify the voter with intent that the voter shall thereby he identified. The intent is the gist of the whole offence. If the intent is absent the charge falls to the ground. If it is a mark put on inadvertently, of course nobody is to be prosecuted. If it is not done with intent to identify the voter, there ought to be no prosecution. If it is done with intent to identify the voter, that intent may be honest, although in most cases I think it would be dishonest. But to prove dishonest intent, to prove intent to commit the offence struck at by the statute, it seems to me is a thing which ought to be upon the prosecution. Ordinarily it may be the surrounding circumstances Avill suffice to satisfy the jury of wrongful intent. But if they do not, if the surrounding circumstances as disclosed in the evidence leave the jury in doubt, ought we then to say that a man should be presumed guilty unless he is able to satisfy the jury or the judge that he was acting honestly ? I think not. I think we are going the full length when we penalize the man who does this with wrongful intent, and leave that intent to he established by the prosecution, just as it is established in other criminal cases.

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