Canadian Law of Evidence/Measure of Proof
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[edit] Standard of Proof
The standard of proof asks to how convinced the trier of fact must be of some something. It is generally said that there are only two standards: "The Balance of Probabilities" and "Beyond a Reasonable Doubt". The US has a third standard known as "clear and convincing evdience" which is a middle ground between the two standards, however, this has never been officially adopted in Canada. When a proposition at issue in a case, such as an element of an offence, must be proven, the standard must be reached using the weight of the totality of evidence presented, not on each individual piece of evidence (R. v. Morin).
The "balance of probabilities" is described as being "more probable than not", or more technically, the chance of the proposition being true is more than 50%. This standard is known as the civil standard as it exclusively used in civil trial cases.
In the Continental Insurance case it was argued that the BoP standard was too restrictive and that there should be an intermediate standard such as "clear and convincing evidence" standard. The Supreme Court decided against it, stating "the more momentous and serious its consequences, the greater the caution and deliberation demanded, that is, the greater amount of cogent evidence before there can be any "satisfaction" about where the truth lies".
Defining "beyond a reasonable doubt" has been shown to be difficult. Typically it is said mean that the proposition has be proven to the extent that there is no "reasonable doubt" in the mind of a reasonable person. There can still be a doubt, but only to the extent that it would be "unreasonable" to assume the falsity of the proposition. Studies have shown that, in effect, the BARD standard equates to greater than 90% certainty. Nevertheless, courts strongly oppose to quantify the standard in such a way.
This standard is almost exclusively used in criminal trials. For example, it is used in young offender cases, sentencing, and provincial penal offences.
[edit] Sufficiency of Proof
Before any evidence gets to a trier of fact there is often a requirement to discharge an evidential burden for the trier of law (ie. the judge).
In a preliminary inquiry the Crown must show on the whole that the evidence they will present is sufficient to potentially convict the accused. The purpose of this initial evaluation is to avoid frivolous suiting being brought in that have no chance at success.
The leading case for the standard of proof needed before evidence can be put to the jury is U.S.A. v. Sheppard [1977] 2 S.C.R. 1067. The Court held that
- [The] which governs a trial Judge in decideing whether the evidence is sufficient to justify him in withdrawing the case from the jury, and this is to be determined according to whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilt.
In a case where some of the evidence the Crown is relying upon is not directly to the issue of the case, the Crown must satisfy the judge that "the evidnece, if believed, could reasonably support an inference of guilt." (R. v. Arcuri)
[edit] Burden of Proof
The burden of proof indicates who has the responsibility or onus to prove something.
Generally, there are two types of burdens. First, there is the "burden of pursuasion", 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.
