Legal Word of the Day: “Evidentiary Burden”

“Evidentiary Burden” — Over the course of a hearing or trial, two burdens must be satisfied: the evidentiary burden, and the legal or persuasive burden.

The evidentiary burden refers to a party’s obligation to put forward some evidence for a fact or issue that warrants consideration by the trier of fact. This burden may shift between parties during a hearing or trial. In contrast, the legal or persuasive burden refers to the primary burden of proving a case or disproving a defence. The persuasive burden does not shift between parties.

In the Supreme Court of Canada decision, R v. Fontaine, 2004 SCC27, Justice Fish addresses the two burdens:

An “evidential burden” is not a burden of proof. It determines whether an issue should be left to the trier of fact, while the “persuasive burden” determines how the issue should be decided. These are fundamentally different questions. The first is a matter of law; the second, a question of fact. Accordingly, on a trial before judge and jury, the judge decides whether the evidential burden has been met. [original text underlined]

The standard of proof for the evidentiary burden is not the same as for the persuasive burden. Evidence is admissible as long as it is “properly before the trier of fact.” Its probative value outweighs its prejudicial effect, and there is no other reason to exclude it. In R v. Mondor, 2014 ONCJ 135, the Crown failed to satisfy its evidentiary burden. The Crown sought to admit business records for the truth of their contents, but the justice found the records inadmissible.

Related Information & Cases

Karen Fair is a paralegal, licensed by the Law Society of Upper Canada to provide paralegal services to the Ontario public.
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