Applying the Burden of Proof and Creating Connections to Communities

Abstract

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 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.