Burdens of Proof and Presumptions Flashcards
Describe the burden of proof in crim and in civil
BOTH are LEGAL BURDENS
● Burden of persuasion - must persuade trier of fact to standard of proof based on evidence
● Criminal: proof of elements of offence BRD. Crown must often disprove defenses BRD.
○ Subject to exceptions ex:
■ automatism proved by accused on BOP
■ Expediency (chaulk)
■ Accused in best position to give evidence/ particularly within knowledge of accused (stone)
● Civil: cause of action proved on BOP
● Burden of Proof does not vary based on context or potential for harm (MacDougall)
What does BRD mean?
● Grounded in evidence, not sympathy or prejudice. More than probability, less than certainty. Logically derived from evidence (lifchus)
● The W.D Direction to be given to jury from judge (but doesnt have to be exact):
○ (1) if believe accused, acquit (2) if dont believe but left with RD, aquit (3) if not in doubt and dont believe, must still look at all evidence to see if BRD guilty.
■ Criticized for oversimplification
● BRD must be applied to all of evidence in the aggregate (not individual pieces)
● BRD is part of 11d presumed innocence
Compare direct vs circumstantial evidence
● Direct evidence: if believed, provides direct proof of facts (ex i saw him do it)
● Circumstantial evidence: evidence of antecedent facts, also provides proof of other facts if trier makes reasonable suggested inferences (ex fingerprints on gun)
○ Must be reasonable inference
○ If there are no antecedent facts to support the inference, or if inference is unreasonable, then impermissible
○ Rule in Hodges Case (no longer a legal rule in canada):Circumstances must be consistent with crim and inconsistent with other rational conclusions
○ NOW we just ask if trier of fact is satisfied on all of evidence BRD that accused is guilty
What is a tactical burden
Practical incentives to lead evidence in support of your case (usually if other side’s case is strong)
What is an evidentiary burden
● Burden to adduce evidence of facts in support of an issue in order to have that issue put before trier of fact. Usually from party calling issue but can also come from crown.
● Judge decides if there is enough evidence of fact to support an issue so that it be considered.
● If sufficient evidence, Judge will instruct trier of fact on the issue.
● Trier decides whether evidence proves the issue satisfactorily.
● Example: Air of Reality threshold (crim defences). Doesnt need to be reasonable, just have air of reality. If so, trier will consider it and its reasonableness.
○ State can and has often insisted that some defences be reasonable (ex consent in sexual assault).
Tests for entering a dying declaration into evidence (ie prelim findings of fact in order to have admitted):
1) Deceased had a settled and hopeless expectation of almost immediate death
2) Statement was about circumstances of the death
3) Statement would have been admissible if the deceased had been able to testify
4) Offence involves homicide of the deceased
Preliminary findings of fact in order to have evidence admitted must be proved on this standard
BOP
Exceptions:
■ Admission of a confession by accused requires proof of voluntariness BRD
■ Admission of a statement by a young accused requires proof that legal reqs of YCJA were met BRD
Prima Facie Case rule in Criminal Cases
Test: whether there is enough evidence which, if believed, a properly instructed trier of fact could convict on
■ If there is not enough, or if no evidence on an essential element of offence, not met.
○ Prima facie case rule can be invoked in crim case at 2 points:
○ 1) Prelim inquiry - where judge decides whether accused will be committed for trial for an indictable offence - crown must establish enough evidence for jury to reasonably convict
○ 2) At close of crowns case before defence proceeds with case. Defense can apply for a directed verdict of acquittal. If succeeds in a jury case, judge will withdraw the case from the jury and enter acquittal.
■ Since 2013, directed verdict must be awarded where identification evidence would necessarily leave reasonable doubt in the mind of a reasonable juror
○ Credibility is not an issue at this point - just a threshold - no weighting
○ For extradition hearings, authority has discretion not to consider evidence that is manifestly unreliable (ferras)
Prima Facie Case in Civil
Test: where there is no genuine issue of material fact requiring trial
○ Two points where can be invoked in civil:
○ 1) summary judgement → usually after plf and defense have filed pleadings but before trial. Amounts to denying natural justice right for dfd to present their case (hard to get summary judgement, needs absolutely no possible defence) - so weak that it is not worth bringing to trial.
○ 2) Dfd can make a non-suit motion at close of plf case. 2 types:
■ If dfd brings forward, judge will rule on civil case right then and there without dfd calling a defence
■ If absolute absence of evidence on an essential element of cause of action, no requirement for defence to make an election about whether or not to call evidence. This type of non suit motion will not prejudice dfd right to call evidence after plf case (thus safer)
What is a presumption and how is it rebutted
● Presumptions allow trier of fact to reach a conclusion either with no evidence or where legal rule states it must be inferred
● Presumptions can be rebuttable or irrebuttable. Accused can rebut by:
○ Raising reasonable doubt as to its existence
■ There is an evidentiary burden on accused to adduce sufficient evidence to bring into question the truth of the presumption
■ Accused has legal or persuasive burden to prove on BOP that it doesnt apply
Standard of proof for reverse onus where statute is silent
BOP
Types of presumptions
Presumptions allow trier of fact to reach a conclusion either with no evidence or where legal rule states it must be inferred. If rebuttable, it is rebutted on BOP. There is both an evidentiary burden and legal burden on accused.
Types:
1) False Presumptions
● Conclusive findings of fact that are not subject to rebuttal, no matter what other party does (ex sleeping w minor)
2) True Presumptions
● Affirms certain facts are to be deemed true, subject to what is done by the party against whom the presumption operates
● Mandatory for trier of fact
○ Ex. if this then deemed that
● Sometimes true presumptions place a legal burden on the other party (other party must disprove presumption on BOP)
○ Presumption of sanity
● Sometimes it places an evidentiary burden on other party (presumed true unless proven otherwise)
○ Presumed living off avails of prostitution if habitually in company of prostitute (now repealed)
3) Justifiable Inferences
● Allows trier to make certain inferences upon proof of preliminary facts.
● Inference is permissive, not mandatory, for trier of fact.
○ Ex trier may infer that a person intends the natural and probable consequence of their actions
Where might a law allow crim conviction with reasonable doubt and will it violate charter?
● If law allows conviction with reasonable doubt it prima facie violates charter presumption of innocence.
○ If requires defence to disprove offence on BOP
○ If requires defence to prove a defence
○ If requires presumption of a material fact (unless evidentiary burden is discharged)
○ If requires presumption of a collateral right it CAN violate charter where possible effect is to lead to conviction despite reasonable doubt
○ NOT in violation of charter if proof of prereq facts leads inexorably to proof of the presumed fact (ie logical connection is so tight that no other scenario can be contemplated)
○ can be upheld under s1
Describe strict Liability Offenses
● Where adequate enforcement depends on prosecution, or social danger is serious, absolute liability is OK
● Legislature must make clear that guilt will follow merely from proof of prescribed act.
○ Consider: regulatory pattern adopted by legislature, subject matter of legislation (public welfare), importance of penalty, precision of language → to determine whether absolute liability should apply
● Allows accused to prove on BOP that they took all reasonable steps and thus innocent
Burdens in charter litigation
● Burden is on person alleging right is infringed on BOP
● S1 is BOP applied rigorously. Evidence must be cogent and persuasive. High degree of probability needed
● s24(2) application to exclude evidence is on BOP for both charter violation and standard for exclusion.
