What is the burden of persuasion required for an appellant to persuade a court that her Charter rights or freedoms have been denied or denied?
Ontario, Canada
The following excerpt is from R. v. Miller, 2009 ONCJ 532 (CanLII):
[126] As noted in Regina v. Collins, 1987 CanLII 84 (SCC), 1987 1 S.C.R. 265 at page 277: “The appellant in my view bears the burden of persuading the court that her Charter rights or freedoms have been infringed or denied. That appears from the wording of s. 24(1) and s. 24(2) and most courts that have considered the issue have come to that conclusion. The appellant also bears the initial burden of presenting evidence. The standard of persuasion that is required is only the civil standard on the balance of probabilities and because of this allocation of the burden of persuasion it means only that in a case where the evidence does not establish whether or not the appellant’s rights were infringed the court must conclude that they were not.”
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