View source for Burden of Proof

{{LevelZero}}{{HeaderEvidence}}
==General Principles==
The burden of proof indicates who has the responsibility or onus to prove something.

Generally, there are three types of burdens. First, there is the "burden of persuasion" (often called a "legal burden", "primary burden", or "major burden"), which is the requirement to prove the case or disprove the defence. Failure to discharge this burden results in the party losing the case. This type of evidence typically is said to impose a "onus of proof". Second, there is the ""evidential burden" (often called the "secondary burden", "burden of going forward",  or "minor burden"), which is the requirement of putting an issue before the court using the available evidence.  Finally, there is a "tactical burden", which is not a legal standard, but rather is descriptive of the strength of opposing counsel's case and the implication of what is needed to overcome it.

; Waiver of Burden for Admissibility
Opposing counsel may waive any requirements of proof that would necessitate a ''voir dire''. There is "[n]o particular words or formula" that need to be utter "to express the waiver and admission. All that is necessary is that the trial Judge be satisfied that counsel understand the matter and has made an informed decision".<ref>
''R v Park'', [http://canlii.ca/t/1txdg 1981 CanLII 56] (SCC), 122 DLR (3d) 1 (SCC){{perSCC|Dickson J}} - voluntariness voir dire<br>
''R v C(WB)'', [http://canlii.ca/t/1cx5m 2000 CanLII 5659] (ON CA){{perONCA|Weiler JA}}{{atsL|1cx5m|41| to 44}}<br>
</ref>

{{Reflist|2}}
===Burden of Persuasion===
A "persuasive burden" is a legal question that asks "how the issue should be decided".<ref>
''R v Fontaine'', [2004] 1 SCR 702, [http://canlii.ca/t/1gzjq 2004 SCC 27] (CanLII){{perSCC|Fish J}}{{atL|1gzjq|11}}
</ref>

; Burden Upon the Accused
Section 11(d) of the Charter allocates the burden of persuasion upon the Crown at all times. The section states:
{{quotation2|
; Proceedings in criminal and penal matters
11	 Any person charged with an offence has the right<br>...<br>
:(d)	to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;
|[http://canlii.ca/t/ldsx CCRF]
|{{NoteUpCCRF|11}}
}}

This ultimate burden of proof is one that only applies to the total body of evidence, not each separate piece of evidence.<ref>
''R v Bouvier'', [http://canlii.ca/t/gd8wq 1984 CanLII 3453] (ON CA){{atps|264-265}} (CCC){{perONCA|Martin JA}}}("The standard of proof beyond a reasonable doubt does not apply to the individual items of evidence, or the separate pieces of evidence which make up the Crown's case, but to the total body of evidence upon which the Crown relies to prove guilt...it applies equally where the case depends upon direct evidence or is made up of both direct and circumstantial evidence. ... a serious misdirection to instruct the jury that they must be satisfied beyond a reasonable doubt with respect to each of the separate pieces of evidence upon which the Crown relies to prove guilt.")<Br>
''R v Stewart'', (1976) 31 CCC (2d) 497 (SCC),  [1977] 2 SCR 748, [http://canlii.ca/t/1z6bm 1976 CanLII 202] (SCC){{perSCC|Pigeon J}}<br>
''R v Morin'', [1988] 2 SCR 345, [http://canlii.ca/t/1ftc2 1988 CanLII 8] (SCC)<Br>
</ref>

{{reflist|2}}

===Evidentiary Burden===
An evidential burden is not technically a "burden of proof".<ref>
''R v Fontaine'' [2004] 1 SCR 702, [http://canlii.ca/t/1gzjq 2004 SCC 27] (CanLII){{perSCC|Fish J}}{{atL|1gzjq|11}}
</ref>
Nor is is a legal question. Rather it is a question of fact.<ref>
{{ibid1|Fontaine}}{{atL|1gzjq|12}}<br>
</ref>
It is the burden to determine "whether an issue should be left to the trier of fact".<ref>
{{ibid1|Fontaine}}{{atL|1gzjq|11}}<br>
</ref>

An evidentiary burden will arise where there is a defence burden to prove that there is an "[[Air of Reality Test|air of reality]]" for a particular defence to apply.<ref>
{{CanLIIR|Evaglok|2dkjd|2010 NWTCA 12 (CanLII)}}{{perNWTCA|Vertes JA}}{{atL|2dkjd|25}}<br>
</ref>

It also arises in a question of whether either party can raise [[Automatism|automatism]] or any other mental illness findings.<ref>
{{supra1|Fontaine}}{{atL|1gzjq|10}}<br>
</ref>

In determining if the evidential burden is satisfied the judge must not "evaluate the quality, weight or reliability of the evidence".<ref>
{{supra1|Fontaine}}{{atL|1gzjq|12}}<br>
</ref>

{{Reflist|2}}

===Tactical Burden===
A tactical burden is not a term of law, but rather is descriptive of the nature of the opposing counsel's case.<ref>
''R v Evaglok'', [http://canlii.ca/t/2dkjd 2010 NWTCA 12] (CanLII){{perNWTCA|Vertes JA}}{{atL|2dkjd|25}} citing Paciocco, The Law of Evidence (5th ed.){{atp|531}}<br>
</ref>
A tactical burden exists where the Crown has established a prima facie case such at in order to raise a doubt the defence may need to respond by calling evidence.<ref>
''R v Darrach'', [2000] 2 SCR 443, [http://canlii.ca/t/523t 2000 SCC 46] (CanLII){{perSCC|Gonthier J}}
</ref>

This "burden" does not offend the right to a presumption of innocence under s. 11(d) of the Charter.<ref>
{{ibid1|Darrach}}
</ref>

{{reflist|2}}

=="Might Reasonably Be True" Test==
{{seealso|Weighing Testimony of the Accused|Recent Possession}}

The "might reasonably be true" test arises from the doctrine of recent possession which is based on the premise that the accused risks conviction for certain offences "unless he or she furnishes a plausible explanation".<ref>
''R v Rattray'', [http://canlii.ca/t/1qtpx 2007 ONCA 164] (CanLII){{perONCA|Gillese JA}}{{atL|1qtpx|14}}<br>
</ref>

The "might reasonably be true" test should not be applied in credibility cases "dealing with contradictory evidence...where the presumption of innocence, and none other, applies." The test amounts to "imposing an affirmative obligation on the defence to either introduce evidence disproving guilt...and undermines the presumption of innocence"<ref>
{{ibid1|Rattray}}{{atL|1qtpx|13}}<br>
</ref>

{{reflist|2}}

==Presumption of Innocence==
It is well established at common law that all persons are entitled to the legal presumption of innocence for all charges they are not convicted for.<ref>
''Woolmington v Director of Public Prosecutions'', [1935] AC 462 <br>
''R v Appleby'', [1972] SCR 303, [http://canlii.ca/t/1nfms 1971 CanLII 4] (SCC){{perSCC|Ritchie J}}<br>
''R v Proudlock'', [http://canlii.ca/t/1mktb 1978 CanLII 15] (SCC), [1979] 1 SCR 525{{perSCC|Pigeon J}}{{atL|1mktb|6}}<br>
''R v Manchuk'', [1938] SCR 341, [http://canlii.ca/t/1ttqg 1938 CanLII 6] (SCC){{perSCC|Duff CJ}}{{atp|349}}<br>
</ref>

The Charter also affirms this burden in s. 11(d):
{{quotation1|
11. Any person charged with an offence has the right...<br>
:(d) to be presumed innocent until proven guilty according to the law in a fair and public hearing by an independent and impartial tribunal;
|[http://canlii.ca/t/8q7l CCRF]
}}

An ancillary principle to this right, the Crown must also make out a ''prima facie'' case before the accused must respond.<ref>
''R v Dubois'', [1985] 2 SCR 350, [http://canlii.ca/t/1ftw5 1985 CanLII 10] (SCC){{perSCC|Lamer J}}, at pp. 357 to 258<br>
</ref>

Therefore the Crown has the burden of proving all the elements of the offence.<ref>
''R v Lauer'', [http://canlii.ca/t/fkdt0 2011 PECA 5] (CanLII){{perPEICA|Murphy JA}}{{atL|fkdt0|73}}</ref>
The onus of proving guilt never switches from the Crown to the accused.<ref>
see ''R v Briand'', [http://canlii.ca/t/2bkzb 2010 NLCA 44] (CanLII), (2010), 258 CCC (3d) 416 (N.L.C.A.){{perNLCA|Harrington JA}}</ref>The “accused bears no burden to explain why his accuser made the allegations against him”<ref>
see ''R v JCH'', [http://canlii.ca/t/2f83d 2011 NLCA 8] (CanLII){{perNLCA|Rowe JA}}{{atL|2f83d|18}}</ref> 

{{reflist|2}}