Applying the Burden of Proof and Creating Connections to Communities
19.3 Constitutional Forum 119-124
6 Pages Posted: 11 Dec 2017
Date Written: 2011
One of the questions that lies at the heart of the Insite case is this: what kind of connections should exist between the law and the people it governs? In this short comment, I explore of one of the ways this question informs the treatment of evidence and proof by focusing on the section 7 aspect of the case and the question of arbitrariness. With the goal of inviting discussion, I suggest that in cases involving the constitutional rights of marginalized individuals and communities, the concept of the "burden of proof" can provide a way to help understand what is at stake, and what criteria we might use to relate the burden of proof to values of equality and justice.
Keywords: constitutional law, evidence law, PHS v Canada (AG), safe injection site, community knowledge
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