Burden and Standard of Proof

Types of Evidence: Direct and Circumstantial

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  Can alternatively classify evidence as direct or circumstantial:
  
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    Direct: evidence, which if believed, establishes a material fact in issue (without any inferences needing to be drawn) – of course two different pieces of evidence may give contradictory direct evidence (e.g. one witness says the light was red, the other green, and if both equally believable the plaintiff in a civil case would lose since they have the burden of proof to show over 50% balance of probability – applies not just to testimony, but also to documentary evidence, such as a videotape showing it was green)
    
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      Evidence by a witness who has themselves perceived a fact in a case (“I saw the accused…”)
      
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      Trier of fact may then question the reliability of this evidence
      
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        Physical ability to perceive (eyesight, hearing, etc.)
        
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        Moral (motive to lie, character, etc.)
        
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    Circumstantial: evidence, even if believed, that still requires the trier of fact to make an inference to establish a fact in issue (i.e. they have to reason) e.g. witness didn’t see the color of the light (the probandum – the fact in issue) but they did see traffic moving northbound (the probans – a fact to prove the fact in issue) suggesting the light in that direction was green
    
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      Two step process: Even if the witnesses testimony is reliable, there is still the second difficulty of drawing an accurate inference
      
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      More tenuous than direct evidence. However, it is still very important and a great number of criminal cases are decided based on circumstantial evidence.
      

Evidential Burden

When is it an issue?

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  Most important is at the close of the case for the Crown/plaintiff – at this point, the defence may move to question the strength of the evidence brought by the plaintiff by bringing a defence.
  
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    Next stage: defence submitting a defence
    
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    May have to decided whether or not to put the accused on the stand
    

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  Preliminary inquiry – must make the decision whether or not to proceed to trial
  
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    Arcuri – did the crown meet the evidential burden out of the preliminary inquiry?
    
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  Extradition – judge at an extradition hearing must decide whether the person requesting the extradition has at least satisfied the evidential burden. (Sheppard)
  
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  Move for summary judgment (judgment without trial) – Rule 18
  
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  Affirmative Defence
  
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    Is there sufficient evidence to allow the affirmative defence to be put before the jury?
    

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  However, where there is direct evidence the traditional rule that the weighing of evidence is a matter for the jury may still prevail (Sheppard, Monteleone)
  

R. v. Arcuri (2001) (SCC)

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  Held: The question asked by a preliminary inquiry judge is the same as that asked by a trial judge considering a defence motion for a directed verdict, namely: whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty.
  
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    Test is the same whether the evidence is direct or circumstantial
    
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    When no direct evidence is presented, the question then becomes whether the remaining elements of the offence may reasonably be inferred from the circumstantial evidence.
    
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    Answering this question inevitably requires the judge to engage in a limited weighing of the evidence because with circumstantial evidence there is an inferential gap between the evidence and the matter to be established.
    

USA v. Sheppard (1977)

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  Facts: Involved an application for extradition. The primary evidence for the extradition was based on an affidavit from a convicted drug dealer who had purchased immunity. The extradition judge rejected the evidence as unworthy of belief and refused the extradition.
  
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  Held: The extradition judge overstepped his bounds in withdrawing the case from the jury – the weighing of the evidence is always a matter for the jury.
  

Monteleone v. R. (1987) (SCC) – Old Authority

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  Fact: Accused was charged with arson. Circumstantial evidence that he may or may not have started the fire intentionally. Judge gave a directed verdict of acquittal based on what he believed was a lack of evidence for arson (no evidence of financial difficulty or that he would substantially profit from the fire).
  

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  Held: It is not open to the judge in a jury trial to consider the weight of the evidence. This is the function of the jury and it should be left to them.
  

What is the test when the issue arises?

Basic test = whether there is any evidence upon which a reasonably instructed jury could properly convict and that the judge is not to weigh that evidence.

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  Focus on close of the Crown’s case and affirmative defence
  
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  Criminal: Whether there is any evidence upon which a reasonable jury properly instructed could convict? (Sheperd, Arcuri)
  
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    Not asking if the persuasive burden has been met, simply whether there is some evidence – not a matter of guilt or innocence. Not a question of whether the evidence is sufficient to convict, but whether the evidence exists.
    

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  Civil: Calvin Forest Products v. Tembec Inc. (2006) (OCA) – similar
  
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    Whether the inference that the plaintiff seeks in his or her favour could be drawn from the evidence adduced, if the trier of fact chose to accept it.
    

Laufer v. Bucklaschuk (1999) (Man. CA)

Two forms of non-suit:

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  Case one: Crown or plaintiff have brought no evidence for a certain charge – there is no evidence that could lead a jury to convict – impossible to convict
  
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  Case two: There is some evidence, but it’s so weak that there is no way that the jury could convict on it.
  

To what extent can the judge weigh the evidence in these circumstances?

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  Sheppard (extradition case) – trial judge should not weigh the reliability of the evidence at all
  
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  Arcuri – the court conceded that its impossible for the trial judge to not engage in a limited weighing of the evidence. Supreme Court is hinting at allowing a limited amount of weighing, although they are very sensitive to the contention that this interferes with the role of the jury.
  
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  Here the relationship between direct and circumstantial evidence become important:
  
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    If the Crown has adduced direct evidence of guilt, then there is not much room for weighing evidence.
    
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    But if the evidence is circumstantial, and you assume its true, you still have to address if the properly instructed jury would draw an inference – difficult to do without weighing the evidence
    

In essence, in this test you are asking whether based on this evidence it’s possible that it could be used to establish guilt beyond a reasonable doubt – essentially bleeding into the persuasive burden.

Affirmative Defences

Cinous – Majority discusses the basic features of the air of reality test and maintains fairly staunchly that there should be no promulgation of different rules for different circumstances.

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  The air of reality test – does this defence have an air of reality – this adds an objective test to the evidential burden.
  
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    Supreme Court claims that the air of reality test is the same as the regular evidential burden test, although some would argue that the air of reality test is in fact more rigorous.
    

R. v. Cinous (2002) (SCC)

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  Facts: Accused was charged with first degree murder. He preemptively shot and killed another man who he feared might later have killed him, though there was no present danger at the time of the murder. The accused claimed self-defence.
  
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  Issue: Whether there is an air of reality to the defence of self-defence in this case.
  
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  Reasoning:
  
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    There are two principles in the air of reality test:
    
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      (1) A trial judge must put to the jury all defenses that arise on the facts, whether or no they are specifically raised by the accused.
      
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      (2) A trial judge has a positive duty to keep from the jury defenses lacking an evidential foundation.
      
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    The question for the trial judge is whether the evidence discloses a real issue to be decided by the jury, and not how the jury should ultimately decide the issue.
    
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      It is an question of law whether the defence should be put before the jury
      
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      Weak defenses should be withdrawn from the jury (in contrast to Fontaine, which states that there should be no weighing of the evidence by the judge)
      

R. v. Fontaine (2004) (SCC)

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  Facts: Accused charged with first degree murder. Claimed the defence of mental disorder automatism. Trial judge refused to put this defence before the jury.
  
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  Held: Trial judge had erred in not putting the defence before the jury.
  
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    If there is any basis on which the jury could be persuaded, the defence must be put to them.
    
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    Weighing is not part of assessing whether the evidentiary burden has been met.
    

What is the proper procedure?

Difference between criminal and civil cases:

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  Criminal: the judge must rule on a directed verdict for acquittal at that time that the motion is brought and cannot postpone the decision
  
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    Rowbotham - the SCC modified the common law rule that if there is a jury trial, only the jury can convict or acquit. Instead, a trial judge who makes a motion for directed acquittal may now themselves acquit the accused.
    
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    However, the judge may not direct the jury to convict.
    
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  Civil cases: if you make a motion for a non-suit, you are electing to call no evidence.
  
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    Non-suit: defendant makes an application for judgment at the close of the plaintiff’s case on the ground that the plaintiff has failed to make out a case for the defendant to answer.
    

R. v. Rowbotham (1994) (SCC)

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  Facts: Trial judge directed the jury to acquit the accused. The jury returned to say that some of them still believed that the accused was guilty.
  
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  Held: Common law procedure with respect to directed verdicts should be modified:
  
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    Trial judge should now say “as a matter of law, I am withdrawing the case from you and I am entering the verdict I would otherwise direct you to give as a matter of law.”
    

After Morgentaler, the Criminal Code was amended so that where an appeal court overturns the acquittal by a jury, a new trial must be called.

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