Burdens of Proof Burden of Proof: Which party has onus of presenting or establishing the case or issue Quantum of Proof: The degree or certainty to which something has to be proven Persuasive v Evidentiary Burdens Persuasive Burden: Ultimate Burden, Must prove every element Criminal Burden of Proof Crown must prove every element of offence beyond reasonable doubt S. 11(d) Charter says accused has presumption of evidence If there is a lack of evidence for elements? Motion for Directed verdict of acquittal; accused can elect to call no evidence or insufficient evidence motion (BC Rules 12-5(4)-(7) Civil Burden of Proof Under R. 9-6, can apply to Court after pleadings, for a summary judgment, if no issue, or matter of law, or only a matter of costs Under R. 12-5, can apply for motion of no-evidence (4) no risk to – defendant; or insufficient evidence (6) def. can’t call evidence after this – motion. Evidentiary Burden Raising Burden Within a Case – Civil Burden: always on plaintiff for case and issues Criminal: Trial has burden to prove case as a whole; Defense bears evidentiary burden of raising defence. If their evidence meets an of reality”; if it meets an “air of reality, goes back to Crown to prove beyond reasonable doubt. “air Air of Reality Judge decides: Is there an (Principles from R v Cinous) Could properly instructed jury, acting reasonably, acquit the accused on basis of claimed defence? assumes that the evidence of the claimed defence is true, in deciding if there is an air of reality In deciding whether there is an air of reality, or whether any other evidentiary burden is met, just must NOT weigh evidence or decide whether witnesses are credible In deciding whether evidentiary burden has been met, judge decides whether there is a real (not speculative) issues for jury to decide If decides whether air or reality is met, jury must decide how much weight to give it.
Burdens of Proof Burden of Proof: Which party has onus of presenting or establishing the case or issue Quantum of Proof: The degree or certainty to which something has to be proven Persuasive v Evidentiary Burdens Persuasive Burden: Ultimate Burden, Must prove every element Criminal Burden of Proof Crown must prove every element of offence beyond reasonable doubt S. 11(d) Charter says accused has presumption of evidence If there is a lack of evidence for elements? Motion for Directed verdict of acquittal; accused can elect to call no evidence or insufficient evidence motion (BC Rules 12-5(4)-(7) Civil Burden of Proof Under R. 9-6, can apply to Court after pleadings, for a summary judgment, if no issue, or matter of law, or only a matter of costs Under R. 12-5, can apply for motion of no-evidence (4) – no risk to defendant; or insufficient evidence (6) – def. can’t call evidence after this motion. Evidentiary Burden – Raising Burden Within a Case Civil Burden: always on plaintiff for case and issues Criminal: has burden to prove case as a whole; Defense bears evidentiary burden of raising defence. If their evidence meets an “air of reality”; if it meets an “air of reality, goes back to Crown to prove beyond reasonable doubt. Judge decides: Is there an Air of Reality (Principles from R v Cinous) Could properly instructed jury, acting reasonably, acquit the accused on basis of claimed defence? assumes that the evidence of the claimed defence is true, in deciding if there is an air of reality In deciding whether there is an air of reality, or whether any other evidentiary burden is met, just must NOT weigh evidence or decide whether witnesses are credible In deciding whether evidentiary burden has been met, judge decides whether there is a real (not speculative) issues for jury to decide If decides whether air or reality is met, jury must decide how much weight to give it. Trial