What is the burden of establishing a Charter violation?
British Columbia, Canada
The following excerpt is from R. v. Hardenstine, 2010 BCSC 899 (CanLII):
It is trite law that an accused has the burden of establishing a Charter breach on a balance of probabilities. An accused asserting a Charter remedy bears both the initial burden of presenting evidence that his or her Charter rights or freedoms have been infringed or denied, and the ultimate burden of proving that there has been a Charter violation: Collins v. The Queen (1987), 1987 CanLII 84 (SCC), 33 C.C.C. (3d) 1. If the evidence is not persuasive either way, the court must conclude that Charter rights were not infringed: Collins p. 13-4.
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