Last modified on 9 November 2013, at 05:49

Canadian Criminal Evidence/Burden of Proof

General PrinciplesEdit

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.

Presumption of InnocenceEdit

It is well established in law that all persons are entitled to the legal presumption of innocence for all charges they are not convicted for.[1]

Therefore the Crown has the burden of proving all the elements of the offence.[2] The onus of proving guilt never switches from the Crown to the accused.[3]The “accused bears no burden to explain why his accuser made the allegations against him”[4]

  1. Woolmington v. Director of Public Prosecutions, [1935] AC 462
    R. v. Appleby, [1972] SCR 303 [1]
    R. v. Proudlock, [1979] 1 SCR 525 at para. 6
  2. R. v. Lauer, 2011 PECA 5 at para. 73
  3. see R. v. Briand (2010), 258 C.C.C. (3d) 416 (N.L.C.A.)
  4. see R. v. J.C.H., 2011 NLCA 8 at para 18