Evidential and Legal Burdens

What are they? The evidential burden of proof is a preliminary matter to be decided by the TOL. It is a question of law. The application of this test determines what issues go to the TOF for determination.

The legal burden (or persuasive burden) of proof, is not a preliminary matter, but an ultimate matter. It is not a matter of law, but rather a matter of fact for the TOF. The TOF takes all of the admissible evidence and decides the case, with guidance as to whom (which party) has the legal burden of proof on an issue or the whole case.

Test for Evidential Burden? “some evidence, upon which a properly instructed jury, acting reasonably, could find for the party on that issue” This test demands that the party with the evidential burden point to some (admissible) evidence in the record, arising from examination in chief, cross-examination, admission or otherwise, upon which an issue can be sent to the TOF for determination.

The rule is saying: “not all matters will be sent to the jury, only those where there is some evidence for determination.” Just like any question of law, the TOL is not determining the facts, nor telling the TOF what to decide, the TOL is simply making a determination as to what exists in the evidence, and what determinations the jury could make without mere speculation, conjecture or perversity.

Evidential Burdens In determining whether an evidential burden is satisfied, the TOL is not weighing evidence. It is often said that the TOL is to take the case at its best for the party with the evidential burden, and decide whether there is “some evidence.”

What kind of Evidential Burdens? The party with the legal burden on an issue, as defined by the substantive law, by definition, faces an evidential burden thereon. IOW, for an ultimate determination to be made on the point by the TOF, “some evidence” must first be presented. And so, the substantive law defines what a party litigant must ultimately prove to succeed. On each of those points, some evidence must be produced, or the matter never gets to the jury.

As well … Even if the party litigant with the ultimate legal burden survives the test with some evidence on each point, the opponent party may face its own evidential burdens. Why? The law does not require a party proponent to negative each possible defence, excuse, justification etc. to a civil or criminal allegation. Just some positive evidence on each point required for verdict: ie. duty of care, standard of care, breach of standard of care, quantum etc.

Continued If the opponent party wants to create a new issue for determination, ie. contributory negligence, the proponent party need not originally negative it. Instead, it only becomes an issue once alleged by the opponent party, and “some evidence” is called thereon. IOW, the satisfaction of evidential burdens frame the issues for determination by the TOF.

How does this work in practice? Calls to the TOL to determine satisfaction of the evidential burden come at two potential points: At the close of the proponent’s case. Note that the proponent has the legal burden as well. At the close of the opponent’s case where they are asking the TOL to send certain issues arising from their case to the jury – ie. defences, excuses, justifications – all which the proponent was not required to negative.

At the close of the proponent’s case. At the close of the proponent’s case, they must have “some evidence” on every substantive point they are required to make out their case, failing which, the case goes no further. This call for determination comes from the opponent to the TOL for a “non-suit” or “directed verdict.”

At the close of the proponent’s case. The TOL hears from each side on such an application, considers the evidence called to date, including any inferences that could be drawn on the evidence, and rules, on the “some evidence” test, whether there is a case to go to the jury. If the proponent fails, the case is over for a criminal matter. In civil, there is authority for reserving the ruling until the end of all cases, proponent and opponent, and then ruling. Note that even if the ruling is delayed, it is devastating to (and conclusory of )the proponent’s case. They lose.

Note The “some evidence” test is not the only the test for directed verdicts, but also for Preliminary Inquiries, and for extradition matters.

At the close of the opponent’s case. In its case, but really anywhere in the record, the opponent will raise its own issues. They then ask the TOL to put their defence, excuse, justification, to the TOF along with the remainder of the case. For example, self-defence, again, which did not need to be negatived originally by the proponent.

At the close of the opponent’s case. The task for the TOL is the same. The TOL asks itself, is there evidence in the record upon which a properly instructed jury, acting reasonably, could find for the opponent party on this issue? If the answer is yes, the matter goes into the pile of matters for determination by the TOF.

The Legal Burden Is for the TOF to consider at the end of a case, all the evidence and argument is in, and they retire to deliberate. The Legal Burden tells us who needs to prove what at the end of a case. The Standard of Proof tells us to what degree they need to prove it.

Standards of Proof There are only two standards known to the ultimate burden of proof: Proof beyond a reasonable doubt (criminal). Proof on a balance of probabilities (civil).

Note: These are general rules, subject to statutory modification, and the limits of the constitution when it comes to criminal law, but there are instances where a criminal or regulatory defendant faces a matter he has to prove on a balance of probabilities.

In any event … In general, the Crown faces the legal burden of proof (on a BRD standard) on all issues of substance of the criminal charge. Because they face the legal burden, they also face the evidential burden on all these issues. Failure to produce “some evidence” on each substantive requirement means no opportunity to go to the jury.

The criminal Defendant faces an evidentiary burden to raise some evidence of all defences, excuses, justifications known to law. To the extent he succeeds, he does not (generally) face the legal burden on these issues. Rather, the Crown’s list of what has to be proven has just enlarged – e.g. now proving the lack of self-defence since it was raised by the defence who passed the evidential burden on the issue, the Crown needing to prove it BRD.

Criminal This has to do with the requirements of the common law and Constitution: ie. that the burden of proof rests on the Crown to prove guilt, the criminal Defendant need not prove innocence.

Civil In civil, its different, as there are no state implications or constitutional protections that are equivalent. So, in general, each civil party faces both an evidentiary, as well as a legal burden, on each of the issues it raises. The TOL determines on a some evidence standard, which are left to the jury.

Example: Civil vs. Criminal Crime: Assault; Tort: Assault Crown (criminal) must first satisfy an evidential burden on each element of the offence: non- consensual application of force. Identity. Jurisdiction of Court. Defence: raises issues, e.g. self-defence. Until raised on a some evidence standard, the Crown bears no burden of proof on the non- issue.

Example Having been successfully raised, the Crown bears the ultimate burden of proof on all issues. (subject to statutory modification) Civil. The Plaintiff provides some evidence of all elements: non-consensual application of force. Defendant raises justification of self-defence on some evidence standard.

Example TOF then told by TOL: the Plaintiff bears the burden of proof to establish on a balance of probabilities a non-consensual application of force. If you so find, then turn to the justification of self-defence raised by the Defendant. If he has satisfied you on a balance of probabilities that he was acting in self-defence, then you will find against the Plaintiff. If not, you will find for the Plaintiff.

Note TOL’s do not tell the TOF’s what they decided on matters of the evidential standard. The TOF is not present when such matters are argued. All the TOF hears is: “here are the issues for determination”, but not why or how they got there. This is to avoid swaying the TOF: ie. “as TOL, I found that there was some evidence of self-defence …”

Note Tactical burdens are a different creature and are not usefully described here.

Who/What sets burdens? The common law, statute law, the Constitution (e.g. 11(d) presumption of innocence).

How do we know in advance what our burdens are? Read the law in the area, including applicable statutes which can switch burdens beyond what you may expect them to be. It’s the only way to know, for example, whether you are relying on a substantive element, or a defence, justification, excuse.

What if the Law Doesn’t Tell Us who has the Burden? In criminal law, the presumption of innocence may govern. In general, the law also has a couple of tests: Is the matter being raised a substantive requirement of the tort/crime? If so, burden on the proponent. Or is the matter in the nature of a defence, excuse, justification? If so, more likely on the Defendant. Who possesses the peculiar means of proof on the issue? Ie. possession of licence – is the Defendant not in a better position to know? Or that “all reasonable steps were taken” on age?