La poursuite doit démontrer hors de tout raisonnable les éléments constitutifs de l'infraction et non chaque élément de preuve présenté indivivuellement

R. v. Jeffrey, 1993 ABCA 245 (CanLII)

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[18]                       The appellant argues that the Crown must prove irreconcilable separation beyond a reasonable doubt. Because s.7 of the Charterguarantees every accused a trial according to the principles of fundamental justice, no lesser standard of proof can obtain.

[19]                       A very basic principle of fundamental justice is that the standard of proof in a criminal proceeding is proof beyond a reasonable doubt However, proof beyond a reasonable doubt is only applicable to the elements of the offence and the ultimate issue. It is not applicable to each and every piece of evidence R. v. Morin (1988) 1988 CanLII 8 (SCC), 44 C.C.C. (3d) 193 (S.C.C.). If each and every piece of evidence does not have to answer to the criminal burden of proof, it is illogical to assert that the admissibility of such evidence must be proven by that standard.

[20]                       One instance in which admissibility does require proof of an issue beyond a reasonable doubt said by the appellant to support his position is the threshold test of the voluntary nature of a confession: Park v. The Queen (1981) 1981 CanLII 56 (SCC), 59 C.C.C. (2d) 385 (S.C.C.) R. v. Pickett (1975), 28 C.C.C. (2d) 297 (Ont. C.A.). However, a confession is substantively different from other kinds of evidence, since it goes directly to the ultimate issue of guilt or innocence, and, historically, by its very nature is suspect because of the form in which it comes to the court.

[21]                       In The Law of Evidence in Canada supra at 358 and 359 the authors discuss the possibility that the requirement for proof beyond a reasonable doubt of the voluntariness of a confession is an aberration when considered in the context of the standards applied for admissibility of other kinds of evidence.

"On a preliminary hearing and at trial, the Crown has the burden of proof to establish the voluntariness of a statement beyond a reasonable doubt However, it is debatable if this standard was always required. The standard of proof has been examined by the Task Force on Evidence, the English Criminal Law Revision Committee, and the Law Reform Commission of Canada, and also by superior courts in the many English speaking jurisdictions. The present law in Canada and the U.K. is that the prosecution must prove voluntariness beyond a reasonable doubt…This view is based on the reasoning that since a confession is potentially determinative of the issue of guilt or innocence, the criminal standard of proof should be maintained. The Task Force suggested that, in practice, this requirement did not appear to present an insurmountable burden on the Crown and also it had the salutary effect of protecting the rights of accused person.

The contrary position is that the standard for admissibility of a confession is out of step with the rules governing admissibility for other evidence. Because the test for admissibility of other factual matters is whether there is some evidence to go before the jury, the reasonable doubt standard for confessions is higher than the admissibility standard for other contested evidence. (Emphasis Supplied)

[22]                       In any case, the appellant's argument is directed to the issue of admissibility of evidence whereas the issue in this case is the competence of a witness.