Burdens of proof in a blended voir dire

R. v. Boston, 2013 ONCA 498 deals with the complexities of burdens of proof in a blended voir dire. Even though all the evidence is heard at once it is essential to keep the different decisions separate and decide them according to the relevant legal principles. This author considers the difficulties such that it may be better to avoid blended voir dires generally:

[23]       In a Charter application, the burden of proof is on the defence to establish a breach on a balance of probabilities.  In a criminal trial, the burden of proof is on the Crown to establish the guilt of the accused beyond a reasonable doubt.

[24]       In a trial with a blended voir dire, the trial judge is still required to separate the burdens and apply the appropriate onus in disposing of both the Charter application and the trial proper.

[25]       To determine whether the appellant's guilt had been established, the trial judge was still required to consider whether, on all of the evidence, the elements of the offences charged had been proven beyond a reasonable doubt. From the paragraph quoted above and the balance of her reasons, I am not satisfied that this is the approach the trial judge took. As this court stated in R. v. Bucik, 2011 ONCA 546, 87 C.R. (6th) 309, at para. 33: "[t]he lesson from R. v. W. (D.), [1991] 1 S.C.R. 742, is that assessments of the credibility or reliability of exculpatory evidence in a criminal case do not raise either/or choices, but must reflect the application of the burden of proof placed on the Crown to prove its case beyond a reasonable doubt" (emphasis added).

[26]       Even though she completely rejected Ms. Braithwaite's evidence on the voir dire, the trial judge should have made it clear that, at the voir dire stage of the proceedings, the defence had not discharged its onus in establishing a Charterbreach.

[27]       Having found that there was no Charter breach, in applying the evidence from the voir dire to the trial proper, the trial judge was then required to ask herself whether, on all the evidence, she was satisfied that the Crown had discharged its onus in establishing the guilt of the accused on the offences charged, beyond a reasonable doubt. In failing to do so, the trial judge committed a legal error.

[28]        I cannot conclude from her reasons that she properly undertook this exercise and applied the correct burden of proof in order to convict the appellant of the offences charged.