Topic: Standards of Proof

Note: This is a “Topic” post, in which I will briefly cover a legal concept using a few leading cases. Topics will be found in their own category and may be updated in the future if necessary.

Introduction

It is common knowledge by this point that in order to convict someone in criminal court, the prosecution must prove its case “beyond a reasonable doubt.” These words are echoed in endless cases, news articles, and even popular courtroom dramas such as Law and Order.

Slightly less well-known is the civil standard of proof, in which the plaintiff (the party that initiated the case) must prove their case on a “balance of probabilities.” This is a lower standard of proof than beyond a reasonable doubt, which is appropriate given the potential outcomes of a civil trial versus a criminal trial.

The civil standard is used in a wide range of litigation, from Charter challenges, to personal injury cases, to tribunal hearings.

“Beyond a Reasonable Doubt”

The meaning of “beyond a reasonable doubt” in the context of the criminal law is best understood through jury instructions, since these are meant to be understood by the layperson. It also mirrors what the judge must consider when arriving at a decision on their own. The case in which the Supreme Court of Canada provided guidance on how to instruct a jury on the burden of proof was R v Lifchus, [1997] 3 SCR 320. The case was appealed because the judge told the jury that in order to find the defendant guilty, they had to find proof that he committed fraud beyond a reasonable doubt, stating “proof beyond a reasonable doubt” had its ordinary, natural, every day meaning. She said “doubt” and “reasonable” are “ordinary, every day words that…you understand.”

The Supreme Court said this instruction was unacceptable. The jury must clearly understand the meaning of the term “reasonable doubt.” It is of fundamental importance to the criminal justice system, and is closely linked to the presumption of innocence. It is one of the principal safeguards to ensure no innocent person is convicted. If jurors do not clearly understand the concept of the standard of proof that the Crown must meet to obtain a conviction, there cannot be a fair trial.

How should “reasonable doubt” be explained? We know already that saying the words mean nothing more than the “everyday sense” of the words is a mistake. The court provides further guidance on what the definition should and should not contain. As a non-exhaustive list about what should be said about proof beyond a reasonable doubt:

1. The standard of proof beyond a reasonable doubt is inextricably intertwined with that principle fundamental to all criminal trials, the presumption of innocence;
2. The burden of proof rests on the prosecution throughout the trial and the accused never has to prove they didn’t commit the offence [Note: the burden is on the accused to prove certain defences, such as self-defence or automatism, but this is another topic];
3. A reasonable doubt is not a doubt based upon sympathy or prejudice;
4. Rather, it is based upon reason and common sense;
5. It is logically connected to the evidence or absence of evidence.
6. It does not involve proof to an absolute certainty; it is not proof beyond any doubt nor is it an imaginary or frivolous doubt; and
7. More is required than proof that the accused is probably guilty — a jury which concludes only that the accused is probably guilty must acquit.

Certain other descriptions of the standard of proof must be avoided, for example:

1. Describing the term “reasonable doubt” as an ordinary expression which has no special meaning in the criminal law context;
2. Inviting jurors to apply the same standard of proof that they apply to important, or even the most important decisions in their own lives;
3. Equating proof “beyond a reasonable doubt” to proof “to a moral certainty”;
4. Qualifying the word “doubt” with adjectives other than “reasonable”, such as “serious,” “substantial” or “haunting”, which may mislead the jury; and
5. Instructing jurors that they may convict if they are “sure” that the accused is guilty, before providing them with a proper definition as to the meaning of the words “beyond a reasonable doubt”.

A charge consistent with these principles will be sufficient, according to the court, regardless of the particular words used by the trial judge.

“Balance of Probabilities”

In civil court cases the Canadian system uses the “balance of probabilities” standard to indicate when the plaintiff has proven their case. “Balance of probabilities” means the alleged events are more likely to have occurred than not, with 51 percent or greater certainty in the mind of the decision maker. The trial judge must scrutinize the relevant evidence with care to determine whether it is more likely than not that an alleged event occurred.

In FH v McDougall, 2008 SCC 53, the Supreme Court discussed how various approaches in civil cases have been used in different jurisdictions, particularly where “criminal or morally blameworthy” conduct is alleged to have occurred. It has been proposed, in these situations, that the criminal standard of proof should be used, or an intermediate standard of proof between a balance of probabilities and beyond a reasonable doubt.

The Supreme Court endorsed the approach that only one civil standard of proof exists at common law and that is proof on a balance of probabilities. Any alternatives should be rejected. They go on to explain why.

In civil cases, there is no presumption of innocence. As was said by Justice Sopinka et al. in The Law of Evidence in Canada (2nd ed. 1999): “Since society is indifferent to whether the plaintiff or the defendant wins a particular civil suit, it is unnecessary to protect against an erroneous result by requiring a standard of proof higher than a balance of probabilities.” There may be serious consequences to a finding of liability in a civil case, but the difference is that a civil case does not involve the government’s power to penalize or take away the liberty of the individual.

An intermediate standard of proof poses problems. The concept of “51 percent probability” is easy to understand for decision makers, but the concept of 60 percent or 70 percent probability is not. Findings of fact in court cases are binary – one or zero, true or false. The fact is either true or it is not. The only practical way to reach a factual conclusion in a civil case, according to the court, is to decide if it is more likely than not that the event occurred.

The court also states that no matter how serious the allegations, there is a consistent legal rule in all cases that the evidence must be scrutinized with care by the trial judge. Evidence must also always be sufficiently “clear, convincing and cogent” to satisfy the balance of probabilities test. There is no objective standard to measure sufficiency. This means the judge must use the best evidence available to make a decision. For example, when dealing with events that took place in the distant past with only testimony of the plaintiff and defendant, the judge still has the difficult task using this evidence to decide the outcome of the case.