Lesson Plan 3: Onus of Proof in Criminal Cases

Question 1

What Charter section is Life, Liberty, and Security of Person?

Answer 1

s.7

Question 2

What are the principles of fundamental justice?

Answer 2

1. presumption of innocence and the Crown’s burden to prove guilt BARD
2. Nullem Crimen Principle
3. conduct must have sufficient connection to the interests of the prosecuting state to support prosecution by that state (jurisdiction)
4. accused must be sufficiently morally blameworthy to warrant conviction & punishment

Question 3

What does the Crown bear the burden of proof of showing BARD?

Answer 3

1. Jurisdiction
2. Identity of the accused
3. Actus Reus (including Causation)
4. Mens Rea

Question 4

Tactical Burden?

Answer 4

The strategy employed by each side trying to prove their case (prosecution & defense)

Not determined by law.

Refers to the practical burden (not legal burden that falls on a party when adverse evidence is presented by an opponent

Question 5

What is the key takeaway from R v Woolmington?

Answer 5

Golden Thread Case: establishes the presumption of innocence –> it’s on the Crown to prove the accused’s guilt on each element of an offence BEYOND A REASONABLE DOUBT

Question 6

What are the judge’s responsibilities & what cases do they come from?

Answer 6

1. Explicitly explain the concept of the word BARD to the jury in a way that clarifies the legal meaning of each word (Lifchus)
2. Jury deliberations aren’t a credibility contest –> if any reasonable doubt, must acquit (R v W.D)
3. If the jury is confused, judge has to explain the concept in terms beyond just repeating what they’ve said (R v Layton)

Question 7

6 Types of Applicable Presumptions

Answer 7

1. No basic fact –> don’t have to prove anything, just assumed at law
2. Basic fact –> if basic fact is proven, some other fact is presumed (usually statutory)
3. Perimissive (inferences)
4. Mandatory presumptions
5. Conclusive presumptions
6. Rebuttable presumptions

Question 8

No Basic Fact Presumptions

Answer 8

1. Presumption of innocence –> Crown has burden of rebutting this presumption by proving case BARD
2. Presumption of sanity –> accused is presumed sane unless proven BOP that their mental state was disturbed

Question 9

Basic Fact Presumptions

Answer 9

• if accused is occupying driver’s seat, they’re deemed to have control of vehicle UNLESS established they weren’t actually sitting there to set the vehicle in motion

Question 10

Permissive Presumptions

Answer 10

Ones allowing, but not requiring, an inference to a presumed fact

Example: if accused is found in unexplained possession of stole property, an inference MAY be drawn that they have guilty knowledge required for conviction of theft/possession

Question 11

Mandatory Presumptions

Answer 11

One that requires, as a rule of law, the presumption of a presumed fact

Mostly statutory

Question 12

Conclusive Presumptions

Answer 12

Cannot be rebutted by evidence

rare, as they likely violate s.11(d) –> presumption of innocence

Question 13

Rebuttable Presumption

Answer 13

Requires proof of a basic fact, but can only be rebutted with evidence tendered by the accused

Question 14

What is Charter s.1?

Answer 14

Charter guarantees the rights & freedoms set out only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

Question 15

Legal Burden of Proof?

Answer 15

DURING a criminal prosecution, it’s on the Crown to prove the accused’s guilt BARD. So, they have to prove the following BARD:
1. jurisdiction
2. identity
3. AR (the act itself + causation if applicable)
4. MR (some form of intention)

Question 16

Case-to-Meet Burden?

Answer 16

BEFORE the trial, during the PRETRIAL, the Crown must have SOME EVIDENCE to prove the following:
1. jursidiction
2. identity
3. AR (the act itself + causation if applicable)
4. MR (some form of intention)

Question 17

Tactical Burden?

Answer 17

Not determined by law, but more so the legal strategy of a party when adverse evidence is entered by the other party.

Question 18

What case deals with the judge & credibility contest?

Answer 18

R v WD

Question 19

What are the appropriate instructions from the judge on the issue of credibility to the jury?

Answer 19

1. if you believe the evidence of the accused, you must acquit
2. if you don’t believe the testimony of the accused, but you’re left in reasonable doubt about it, acquit
3. even if you’re not left in reasonable doubt by the evidence of the accused, ask whether you’re convinced BARD of the evidence of the accused

Question 20

From what case does the fact that the judge must always explain BARD to the jury come from?

Answer 20

R v Lifchus

Question 21

From what case does the idea that a judge must clarify questions on BARD/etc. for the jury?

Answer 21

R v Layton