Burden Of Proof Flashcards
What are the 3 main concepts of the burden of proof?
1 persuasive burden (prosecution)
2 evidential burden (defence)
3 persuasive burden (defence)
Persuasive burden (prosecution)
- PB in criminal trial is on the crown
- any issue in dispute, the crown has to prove or disprove and will not win if less than beyond a reasonable doubt
- Trier of fact (judge or jury) gets to decide if beyond reasonable doubt was met
Evidential Burden (defence)
-Imposed in certain circumstances on the defence
-defence must “raise the issue” (ie self defence) - evidence brought by defence must meet level of “air of reality” on Balance of Probabilities in order to trigger crown responsibility to prove its absence (beyond a reasonable doubt)
-If defence does not meet air of reality threshold, they fail
-Decided by trier of law (judge)
-Examples: common law (some mens rea elements (eg mistaken belief in consent); defences such as self-defence, necessity, duress
-Statutory Law: “mandatory presumptions”
Persuasive Burden (Defence)
- reverse onus - persuasive onus on the defence (extremely rare)
-by default will favour the queen
-must go beyond air of reality–> crosses balance of probabilities
-the phrase “establishes that” = proves. If the accused must prove, it imposes a reverse onus on the defence (not the norm for the defence)
-“establishes that” = “proves that” (oaks test) - whenever we impose a burden of proof on a party if means that they have the burden of persuasion (standard of proof will be Balance of Probabilities)
Legal Rules for burden and standard of proof
Common Law:
Woolmington v DPP
House of Lords case: reaffirmed innocence until proven guilty
Facts: Mad that bride left. Went over with a shotgun to threaten to kill himself but ended up gun discharged and killing her.
Analysis: He was aquitted (lacked mens Rea) of murder on appeal. It is the duty of the prosecution to prove the prisoner’s guilt BRD (burden of proof). Any reasonable doubt will be to the benefit of the accused and result in an acquittal from murder and have a lesser charge of manslaughter.
Legal Rules for burden and standard of proof
Charter of Rights and Freedoms -11(d)
Any person charged with an offence has the right to be resumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal
R v Oaks (1986)
SCC-11D violation? presumption of innocence until proven guilty.
Facts: accused of selling narcotics. Caught with Hashish oil and 6 hundred some dollars (stated it was a government check he had cashed and the hashish was for personal use).
Narcotic Control Act (repealed): “If the accused fails to establish…he shall be convicted”
judge Dickson for a unanimous court found Oaks rights had been violated as he had been presumed guilty.
Dickson found violation not justified under 2 step process
1. there must be pressing and substantial objective
2. the means must be proportional (rationally connected to the objective, minimal impairment of rights, and proportionally between the infringement and objective)
Analysis: 11(d) protects the right to be presumed innocent in a way that required the Crown to prove on every element of an offence
-Crown can prove possession on a Beyond Reasonable Doubt standard - once that is done, will prove that it is for distribution (unless the defence can prove that it is not for trafficking) –> prove X prove Y ….UNLESS defence.
-Dickson J states this is NOT ok: If an accused bears the burden of disproving on a Balance of Probabilities an essential element of an offence, it would be possible for a conviction to occur despite the existence of a reasonable doubt. This would arise if the accused adduced sufficient evidence to raise a reasonable doubt as to his or her innocence but did not convince the jury on a balance of probabilities that the presumed fact was untrue.
Section 1 of Charter
the section of the charter that confirms the rights in the charter are guaranteed.
This section is also known as the reasonable limits clause or limitations clause as it legally allows the government to limit and individuals charter rights.
Generally has been used to limit conduct such as child porn (R v Sharpe), hate speech (R v Keegstra, and obscenity (R V Butler).
When government has limited an individuals right, the onus is on the crown to show, on a balance of probabilities first, that the limitation was prescribed by law namely, that the law is attuned to values of accessibility and intelligibility and that it is justified in a free and democratic society (justifiable purpose and proportional).
Oakes Test
primary test to determine if purpose is demonstrably justifiable in a free an democratic society
Charter infringement can be justified under section 1 where the party seeking to justify that infringement can demonstrate that:
- The law creating the infringement has a pressing and substantial objective
- the means chosen are proportionate in that: a) they are rationally connected to the law’s objective b) they limit the Charter right in question as little as reasonably possible in order to achieve the law’s objective and c) the law’s salutary effects are proportionate to its delerious effecs on the affected Charter rights.
Test was written by Chief Justice Dickson and is applied one the claimant has proven that one of the provisions of the Charter has been violated
Onus is on the crown to pass the Oakes Test
Evidential burden (defence) is…
1 imposed in certain circumstances on defence
2 defence must raise the issue (ex self defence). Evidence brought by defence must meet “air of reality” on balance of probabilities in order to trigger crown responsibility to prove its absence beyond a reasonable doubt
3 food
Does the imposition of an evedential burden on the accused violate the presumption of innocence under s 11 (d) of the Charter?
No
evidential burden is reserved to the common law examples of evidentiary
R V Downey (1992)
Facts: CC s. 212(3) [repealed] “…evidence that a person lives with or is habitually in the company of prostitutes…is, in the
absence of evidence to the contrary, proof that a person lives on the avails of prostitution” (aim to target exploitation)
Analysis: Crown must prove the normal way that the accused either lives with or is habitually in the company of prostitutes
(BRD) → assumption that person is living off the avails
- This gives the Crown a leg up b/c don’t have to prove exploitation
- but “evidence to the contrary” does not mean the accused has to prove that he is not a pimp, just has to raise the
issue → “does it meet the air of reality threshold?” - person will not be convicted where there is a reasonable doubt as to whether person is guilty or not
R v Morison (2019) SCC
Ratio: mandatory presumptions are bad; mandatory presumptions violate 11(d) because they exist
Facts:
Child luring case: claimed he thought they were role playing and that she was overage
CC, s. 172.1(3) “evidence that the person was represented to the accused as
being [under age] is, in the absence of evidence to the contrary, proof that the accused
believed that the person was under that age”
Analysis: “because proof of a representation as to age does not lead inexorably to the
existence of the essential element that the accused believe the other person was
underage – even absent evidence to the contrary…the presumption violates the
presumption of innocence under s 11(d) of the Charter”
- evidence to the contrary means the same thing as “air of reality”
Can the Infringement be saved under s. 1 of the Charter? No.
- the presumption under s. 172.1(3) fails the minimal impairment test
◦ absence of the presumption would not undermine the prosecution of the child luring offence
◦ deletrious effects outweigh salutary effects
Standard of Proof
STANDARD OF PROOF
Beyond a Reasonable Doubt: Jury Instruction (Lifchus, Starr) – judges need to explain BRD in a specific way to jurors:
1. Specific Legal Meaning
2. More than Probable Guilt
3. Not absolute certainty, but close to it
Application
Elements vs Evidence: Crown usually be required to prove multiple elements of offence – must meet BRD standard on all
Defences: can present reverse onuses
Jury Unanimity: Crown must prove the satisfaction of all jurors that elements of offence have been committed by the
accused
