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Evidence - Burden of Proof

. R. v. R.I.

In R. v. R.I. (Ont CA, 2024) the Court of Appeal considered (and allowed) an appeal where the criminal (persuasive) burden effectively shifted to the defendant, here where a defendant to sexual offences simply denied the allegations [ie. where the trial court "faulted him for failing to provide details or particulars to explain why the allegations against him were ridiculous"]:
[9] ... The trial judge stated, at para. 27:
The [appellant] testified briefly. He denied all allegations. He said that the allegations are not true, that they are ridiculous. He did not deal separately with the allegations of [E.L.] and [S.L.]. He said that he sometimes yelled at the complainants and that he occasionally lost his cool but said that none of those things that are alleged ever happened.
....

[20] We agree that the trial judge erred in appearing to place the persuasive burden on the appellant when he faulted him for failing to provide details or particulars to explain why the allegations against him were ridiculous. There is no burden on an accused to explain why a false accusation would have been made: R. v. S.S.S., 2021 ONCA 552, 406 C.C.C. (3d) 314, at para. 38. The trial judge noted that the appellant provided few details; however, it is not clear what further evidence the appellant could have provided, given that he was denying the alleged instances of abuse. Moreover, we agree with duty counsel that it appears that the trial judge may well have accepted the Crown’s submission during closing arguments that, if the trial judge were to believe the appellant, he would need to conclude that the complainants were not confused or mistaken, but were “outright lying” and that the case cried out for “some evidence” as to why false allegations would have been made.
. Voltage Holdings, LLC v. Doe #1

In Voltage Holdings, LLC v. Doe #1 (Fed CA, 2023) the Federal Court of Appeal extensively considers the related evidentiary issues of 'burden of proof' (both shifting 'persuasive/legal' and 'evidential') and shifting 'adverse inference', here in a copyright infringement default context:
V. Burdens of proof and adverse inferences

[38] A defendant’s failure to file a defence means that no allegations of fact in a pleading are admitted (Rule 184(1); Tatuyou, LLC v. H2Ocean Inc., 2020 FC 865, 176 C.P.R. (4th) 1 at para. 9 [Tatuyou]; NuWave Industries Inc. v. Trennen Industries Ltd., 2020 FC 867, 177 C.P.R. (4th) 1 at para. 16 [NuWave]). Therefore, the appellant, as plaintiff before the Federal Court, bore the legal or persuasive burden of leading sufficient evidence to prove the necessary elements of its claim on a balance of probabilities (Tatuyou at paras. 9, 25; NuWave at para. 16).

[39] The legal burden of proof, sometimes called the “persuasive burden” (see R. v. Morrison, 2019 SCC 15, [2019] 2 S.C.R. 3), never shifts, and the evidentiary building blocks by which it can be discharged may include affirmative evidence and adverse inferences. However it is discharged, the plaintiff in a civil case must prove its claims on a balance of probabilities with evidence that is “sufficiently clear, convincing and cogent” (Canada (Attorney General) v. Fairmont Hotels Inc., 2016 SCC 56, [2016] 2 S.C.R. 720 at para. 36; Nelson (City) v. Mowatt, 2017 SCC 8, [2017] 1 S.C.R. 138 at para. 40; F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41 at para. 46).

[40] The need for predictability in trial processes demands that the burden of proof be allocated according to rules of law and not ad hoc decisions by the trier of fact (Sidney N. Lederman, Michelle K. Fuerst & Hamish C. Stewart, Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 6th ed. (Toronto: LexisNexis, 2022) at 105). Thus, normally, no true “shifting” of any legal burden occurs in the course of an action. The plaintiff must lead evidence on the required elements of the case, and matters of affirmative defence must be proved by the defendant (J. Kenneth McEwan, Sopinka on the Trial of an Action, 4th ed. (Toronto: LexisNexis, 2020) at 84). Which party bears the legal or persuasive burden of proof in relation to a fact or issue is governed by the substantive law, and the burden is always on the party asserting a proposition or fact that is not self-evident (WIC Radio Ltd. v. Simpson, 2008 SCC 40, [2008] 2 S.C.R. 420 at para. 30; Robins v. National Trust Co., 1927 CanLII 469 (UK JCPC), [1927] A.C. 515, [1927] 2 D.L.R. 97 (P.C.) at 100-101).

[41] The evidential burden, in contrast, refers to a party’s obligation to establish, through sufficient evidence, the existence or non-existence of a particular fact or issue so that a particular argument is live before the Court (R. v. Schwartz, 1988 CanLII 11 (SCC), [1988] 2 S.C.R. 443, 55 D.L.R. (4th) 1 at 466-467 [Schwartz]). Unlike the party with the legal burden, the party with an evidential burden is not strictly required to convince the trier of fact of anything, since an issue can be put into play without being proven (Schwartz at 467). Thus, the use of the term “tactical burden” to describe the evidential burden has been criticized as evidential burdens are imposed by law and are not matters of tactics (Lederman at 101, citing G. Williams, Textbook of Criminal Law, 2d ed. (London: Stevens & Sons, 1983); R. v. Fontaine, 2004 SCC 27, [2004] 1 S.C.R. 702 at paras. 11-12).

[42] While legally discrete, shifting evidentiary burdens and adverse inferences are closely related and frequently used interchangeably. The failure to respond with exculpatory evidence to evidence led by a plaintiff may have consequences for a defendant. As the Supreme Court noted, “[i]t is not strictly accurate to speak of the burden shifting to the defendant when what is meant is that evidence adduced by the plaintiff may result in an inference being drawn adverse to the defendant” (Snell at 329-330). In this sense, the term “tactical burden” is apt, as it reflects the dynamic of the trial process. As Sopinka on the Trial of an Action notes, “the use of the term ‘burden of proof’ is merely a compendious way of summarizing the consequences of calling no evidence to rebut the evidence which gives rise to the inference” (McEwan at 84-85).

[43] The consequences of calling no evidence to rebut inculpatory evidence in the context of online copyright infringement are a major issue on this appeal; a review of prior adaptations to the typical burden of proof in civil matters assists in identifying these consequences, if any.

(1) Cook v. Lewis, 1951 CanLII 26 (SCC), [1951] S.C.R. 830, [1952] 1 D.L.R. 1 [Cook]

[44] No judge or lawyer can forget Cook v. Lewis, the classic case we learned as students in the first-year of law school. There, a plaintiff had been shot during a hunting accident but was unable at trial to prove which of the two defendants was responsible.

[45] The Supreme Court held that, on proof that the plaintiff had been injured by one of the hunters, the onus shifted to each hunter to then establish that their conduct had not been negligent. Cartwright J., writing for the majority, determined that where a trier of fact could not ascertain which particular defendant had caused the plaintiff’s injury, because either defendant could equally have been the cause of the injury, both should be held liable (Cook at 842). Rand J., in a concurring set of reasons later endorsed by the Supreme Court in Hollis v. Dow Corning Corp., 1995 CanLII 55 (SCC), [1995] 4 S.C.R. 634, 129 D.L.R. (4th) 609 [Hollis], explained the policy rationale for such a reversal of the onus of proof: he reasoned that the defendants had, by their own conduct, “made more difficult if not impossible the means of proving” the plaintiff’s case, and had “in effect, destroyed the victim’s power of proof” (Cook at 832).

(2) National Trust Co. Ltd. v. Wong Aviation Ltd. et al., 1969 CanLII 11 (SCC), [1969] S.C.R. 481, 3 D.L.R. (3d) 55 [National Trust]

[46] The impact of evidentiary voids created by defendants is also observed in bailment cases. In National Trust, the Supreme Court adopted the following rationale for imposing a burden on the defendant bailee (at 489):
Lord Justice Atkin explains the grounds upon which the principle [governing the burden of proof in bailment cases] is founded, and I quote his language as follows: “The bailee knows all about it; he must explain. He and his servants are the persons in charge; the bailor has no opportunity of knowing what happened. These considerations, coupled with the duty to take care, result in the obligation on the bailee to show that that duty has been discharged.”
[47] The Supreme Court in National Trust stressed that this rule of evidence, which effectively requires a defendant or bailee to prove a negative (that they were not negligent in handling the bailor’s chattel), should only be invoked in circumstances where all considerations stipulated by Lord Atkin apply (National Trust at 489). Ritchie J. wrote that he “[did] not think it desirable, except in the clearest of cases, for a question of liability to be determined on the sole ground that the strict rules of evidence regarding the shifting of the onus of proof have not been complied with” (National Trust at 491). This led to the Supreme Court’s later observation in Snell that the legal burden may be reversed if the rationale for its original allocation—that the party asserting an issue is in the best position to prove it—is absent.

(3) Snell v. Farrell, 1990 CanLII 70 (SCC), [1990] 2 S.C.R. 311, 72 D.L.R. (4th) 289

[48] In Snell, Sopinka J. noted that the allocation of the burden of proof is a flexible concept. He confirmed that the Supreme Court “has not hesitated to alter the incidence of the ultimate burden of proof when the underlying rationale for its allocation is absent in a particular case”, referring to National Trust and Cook (Snell at 321). A defendant’s unique opportunity of knowledge with respect to the facts to be proved may open the door to an adverse inference being drawn, and “very little affirmative evidence on the part of the plaintiff will justify the drawing of an inference of causation in the absence of evidence to the contrary” (Snell at 328-329, 335-336).

[49] The Supreme Court then went on to distinguish the case before it from Cook, where the reversal of the burden of proof was justified as the defendants’ own tortious conduct had destroyed the plaintiff’s means of proof. In Cook, the Supreme Court held, the injury was not caused by “neutral conduct”; it was therefore “quite a different matter” to reverse the burden of proof where the injury may very well be due to factors “unconnected to the defendant and not the fault of anyone” (Snell at 327). The Supreme Court continued, noting that while it was not accurate to describe the burden as shifting to the defendant, the plaintiff may nevertheless adduce sufficient evidence to warrant an adverse inference against the defendant (Snell at 329-330):
Whether an inference is or is not drawn is a matter of weighing evidence. The defendant runs the risk of an adverse inference in the absence of evidence to the contrary. This is sometimes referred to as imposing on the defendant a provisional or tactical burden… In my opinion, this is not a true burden of proof, and use of an additional label to describe what is an ordinary step in the fact-finding process is unwarranted.
(4) Rainbow Industrial Caterers Ltd. v. Canadian National Railway Co., 1991 CanLII 27 (SCC), [1991] 3 S.C.R. 3 [Rainbow Caterers]

[50] In Rainbow Caterers, the Supreme Court reiterated that the legal burden is not immutable, citing National Trust and Snell. The Supreme Court framed the evidentiary procedure applicable to the matter on the basis of which party had advanced which issue (Rainbow Caterers at 15):
Once the loss occasioned by the transaction is established, the plaintiff has discharged the burden of proof with respect to damages. A defendant who alleges that a plaintiff would have entered into a transaction on different terms sets up a new issue. It is an issue that requires the court to speculate as to what would have happened in a hypothetical situation. It is an area in which it is usually impossible to adduce concrete evidence. In the absence of evidence to support a finding on this issue, should the plaintiff or defendant bear the risk of non-persuasion? Must the plaintiff negate all speculative hypotheses about his position if the defendant had not committed a tort or must the tortfeasor who sets up this hypothetical situation establish it?
[51] The Supreme Court found that it was for the defendant to make out its case on an issue set up by it, to temper the quantification of damages as proved by the plaintiff. It observed that “[v]alid policy reasons will be sufficient to reverse the ordinary incidence of proof”, and that the matter before it warranted such a reversal; the defendant had asked the court to arrive at a conclusion opposite that asserted by the plaintiff regarding what would have occurred in the hypothetical world, and therefore bore the burden of displacing the plaintiff’s assertion of the state of affairs as they had previously existed (Rainbow Caterers at 15-16).

(5) Hollis v. Dow Corning Corp., 1995 CanLII 55 (SCC), [1995] 4 S.C.R. 634, 129 D.L.R. (4th) 609

[52] In Hollis, the Supreme Court determined that a manufacturer of breast implants had a duty to warn physicians of risks associated with the implants.

[53] The appellant in Hollis struggled with an evidentiary hurdle similar to that facing the appellant in the present matter. While the appellant’s “power of proof” had not been destroyed as it had been in Cook, it nevertheless was “seriously undermined” by the manufacturer’s insistence that she prove a hypothetical series of events: that her physician would have relayed to her all warnings from the manufacturer, had he indeed received information from the manufacturer regarding the risks of ruptured implants (Hollis at 683).

[54] Although the physician’s conduct may have itself contributed to the breach of the appellant’s right to informed consent, the Supreme Court did not require the appellant to definitively eliminate every other possible cause of her injury before holding the manufacturer liable. The Supreme Court decided that it was not for the plaintiff, Ms. Hollis, to prove that her doctor would have passed on the warning to her; she was in a position of “informational inequality” with respect to this issue, and had clearly “played no part in creating the set of causal conditions leading to her injury” (Hollis at 683).

(6) Benhaim v. St-Germain, 2016 SCC 48, [2016] 2 S.C.R. 352

[55] The Supreme Court in Benhaim dealt with a similar tension between the evidence required of a plaintiff on the one hand, and the limitations on the evidence made available by a defendant on the other. In Benhaim, the Supreme Court determined that, although a physician’s negligence had undermined the plaintiff’s ability to prove causation in a medical liability case, the trial judge was not obligated to draw an adverse inference against the defendant (Benhaim at paras. 41-42). In cases where the plaintiff’s quest for evidence is frustrated by the defendant’s negligence, “an adverse inference of causation may discharge the plaintiff’s burden of proving causation”, but “[t]hose circumstance do not trigger such an inference” (Benhaim at para. 42, emphasis in original). The Supreme Court highlighted the permissive language that figures in case law describing trial judges’ exercise of their discretion to draw adverse inferences (Benhaim at paras. 43, 52).

[56] The Supreme Court concluded that uncertainty or speculation about a defendant’s evidence is insufficient to warrant the drawing of an adverse inference (Benhaim at para. 44). Instead, decisions to draw an adverse inference must be based on “an evaluation of all of the evidence”, including the weaknesses in the plaintiff’s own evidence (Benhaim at para. 44). To approach the decision in any other way, where an adverse inference is triggered only by a scarcity of evidence, would have “the same effect as impermissibly reversing the burden of proof” (Benhaim at paras. 44, 68). The Supreme Court found that such an approach, in the context of the medical liability case before it, “risks turning defendant professionals into insurers” (Benhaim at para. 68).

[57] A review of burdens of proof and adverse inferences arguably pulls in favour of the appellant’s position. Taken together, Cook, National Trust, Snell, Rainbow Caterers, Hollis, and Benhaim show that the allocation of the burden of proof must be responsive to the parties, their respective abilities to procure or access critical evidence, and the issues raised in the matter. They also show that inferences may be drawn where a plaintiff cannot reasonably be expected to prove every aspect of their injury.

[58] These overarching themes collide, however, with the reality that copyright law is statutory, and that both “infringement” and “authorization” are statutory terms whose scope and content has been judicially defined (CCH at paras. 9 and 38; SOCAN at para. 82; ESA at paras. 71, 104-107; Compo Co. Ltd. v. Blue Crest Music et al., 1979 CanLII 6 (SCC), [1980] 1 S.C.R. 357, 105 D.L.R. (3d) 249 at 372-273). In this way, CCH, SOCAN, Rogers and ESA establish minimum evidentiary requirements of a successful claim of infringement. More specifically, this jurisprudence does two things: it prescribes certain facts that must be established to prove infringement, and it allows for the drawing of adverse inferences of infringement based on the overall state of the evidence.
The court continues at paras 59-85 to usefully apply these principles to this evidentiarily plaintiff-difficult case.

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Last modified: 16-03-24
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