Burden of Proof

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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".[1]

  1. ↑ R v Park, 1981 CanLII 56 (SCC), 122 DLR (3d) 1 (SCC), per Dickson J - voluntariness voir dire
    R v C(WB), 2000 CanLII 5659 (ON CA), 142 CCC (3d) 490, per Weiler JA, at paras 41 to 44

Burden of Persuasion

A "persuasive burden" is a legal question that asks "how the issue should be decided".[1]

Burden Upon the Accused

Section 11(d) of the Charter allocates the burden of persuasion upon the Crown at all times. The section states:

Proceedings in criminal and penal matters

11 Any person charged with an offence has the right
...

(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;

– CCRF

Note up: 11

This ultimate burden of proof is one that only applies to the total body of evidence, not each separate piece of evidence.[2]

  1. ↑ R v Fontaine, 2004 SCC 27 (CanLII), [2004] 1 SCR 702, per Fish J, at para 11 (“ An “evidential burden” is not a burden of proof. It determines whether an issue should be left to the trier of fact, while the “persuasive burden” determines how the issue should be decided.”)
  2. ↑ R v Bouvier, 1984 CanLII 3453 (ON CA), at pp. 264-265 (CCC), per 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.")
    R v Stewart, 1976 CanLII 202 (SCC), 31 CCC (2d) 497 (SCC), [1977] 2 SCR 748, per Pigeon J
    R v Morin, 1988 CanLII 8 (SCC), [1988] 2 SCR 345(complete citation pending)

Evidentiary Burden

An evidential burden is not technically a "burden of proof".[1] Nor is is a legal question. Rather it is a question of fact.[2] It is the burden to determine "whether an issue should be left to the trier of fact".[3]

An evidentiary burden will arise where there is a defence burden to prove that there is an "air of reality" for a particular defence to apply.[4]

It also arises in a question of whether either party can raise automatism or any other mental illness findings.[5]

In determining if the evidential burden is satisfied the judge must not "evaluate the quality, weight or reliability of the evidence".[6]

  1. ↑ R v Fontaine, 2004 SCC 27 (CanLII), [2004] 1 SCR 702, per Fish J, at para 11 (“ An “evidential burden” is not a burden of proof. It determines whether an issue should be left to the trier of fact, while the “persuasive burden” determines how the issue should be decided.”)
  2. ↑ Fontaine, ibid., at para 12 (“[evidential burden] is a matter of law; the second [persuasive burden], a question of fact. Accordingly, on a trial before judge and jury, the judge decides whether the evidential burden has been met. In answering that question, the judge does not evaluate the quality, weight or reliability of the evidence. The judge simply decides whether there is evidence upon which a properly instructed jury could reasonably decide the issue.”)
  3. ↑ Fontaine, ibid., at para 11
  4. ↑ R v Evaglok, 2010 NWTCA 12 (CanLII), per Vertes JA, at para 25
  5. ↑ Fontaine, supra, at para 10
  6. ↑ Fontaine, supra, at para 12

Tactical Burden

A tactical burden is not a term of law, but rather is descriptive of the nature of the opposing counsel's case.[1] 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.[2]

This "burden" does not offend the right to a presumption of innocence under s. 11(d) of the Charter.[3]

  1. ↑ R v Evaglok, 2010 NWTCA 12 (CanLII), per Vertes JA, at para 25 citing Paciocco, The Law of Evidence (5th ed.), at p. 531
  2. ↑ R v Darrach, 2000 SCC 46 (CanLII), [2000] 2 SCR 443, per Gonthier J
  3. ↑ Darrach, ibid.

"Might Reasonably Be True" Test

See also: Weighing Testimony of the Accused and 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".[1]

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"[2]

  1. ↑ R v Rattray, 2007 ONCA 164 (CanLII), per Gillese JA, at para 14
  2. ↑ Rattray, ibid., at para 13

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.[1]

The Charter also affirms this burden in s. 11(d):

11. Any person charged with an offence has the right...

(d) to be presumed innocent until proven guilty according to the law in a fair and public hearing by an independent and impartial tribunal;

– CCRF

Note up: 11

An ancillary principle to this right, the Crown must also make out a prima facie case before the accused must respond.[2]

Therefore the Crown has the burden of proving all the elements of the offence.[3] The onus of proving guilt never switches from the Crown to the accused.[4] The “accused bears no burden to explain why his accuser made the allegations against him”[5]

  1. ↑ Woolmington v Director of Public Prosecutions , [1935] AC 462 (UK)
    R v Appleby, 1971 CanLII 4 (SCC), [1972] SCR 303, per Ritchie J
    R v Proudlock, 1978 CanLII 15 (SCC), per Pigeon J, at para 6
    R v Manchuk, 1938 CanLII 6 (SCC), [1938] SCR 341, per Duff CJ, at p. 349
  2. ↑ R v Dubois, 1985 CanLII 10 (SCC), [1985] 2 SCR 350, per Lamer J, at pp. 357 to 258
  3. ↑ R v Lauer, 2011 PECA 5 (CanLII), per Murphy JA, at para 73 (“ One must keep in mind that, one of the most fundamental tenets in criminal law is that the Crown carries the burden of proving the elements of the offence beyond a reasonable doubt. The accused person is presumed innocent, and there is absolutely no onus or burden on the accused to prove his innocence. That burden remains on the Crown throughout the trial and never shifts. “)
  4. ↑ see R v Briand, 2010 NLCA 44 (CanLII), 258 CCC (3d) 416 (NLCA), per Harrington JA
  5. ↑ see R v JCH, 2011 NLCA 8 (CanLII), per Rowe JA, at para 18
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