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| Patrick Ducharme |
On a Charter application, the applicant bears the legal burden of establishing a breach of a constitutional right on the civil standard of a balance of probabilities. On occasion the legal burden of proof will shift, for example, where the applicant alleges a breach of section 8 and it is established that the search in question was without warrant. Once established, there is a presumption of illegality and the burden shifts to the prosecution to establish the reasonableness of the search, despite the fact it was conducted without the authority of a judicial officer via the issuance of a search warrant.
The above is the an excerpt of Patrick J Ducharme's book, Canadian Criminal Procedure, available at Amazon or in bulk through MedicaLegal Publishing along with Criminal Trial Strategies.
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