R v. Kutynec, 1992 CanLII 7751 (OCA – Finlayson):

[16] As a basic proposition, an accused person asserting a Charter remedy bears both the initial burden of presenting evidence that his or her Charter rights or freedoms have been infringed or denied, and the ultimate burden of persuasion that there has been a Charter violation. If the evidence does not establish whether or not the accused’s rights were infringed, the court must conclude that they were not: see R. v. Collins, [1987] 1 S.C.R. 265, 33 C.C.C. (3d) 1, at p. 277 S.C.R., p. 13 C.C.C. It is obvious that counsel for the accused is not entitled to sit back, as he did in this instance, and hope that something will emerge from the Crown’s case to create a Charter argument or assist him in one he is already prepared to make. The onus is on the accused to demonstrate on a balance of probabilities that he is entitled to a Charter remedy and he must assert that entitlement at the earliest possible point in the trial. Otherwise, the Crown and the court are entitled to proceed on the basis that no Charter issue is involved in the case.