Beyond a Reasonable Doubt

From Criminal Law Notebook
This page was last substantively updated or reviewed January 2020. (Rev. # 92322)

General Principles

See also: Standard of Proof

The standard of "beyond a reasonable doubt" (BARD) is a common law standard of proof in criminal matters.[1] This standard is exclusively used in criminal or quasi-criminal proceedings. This includes not only adult criminal trials, but also young offender cases, adult sentencing, and certain provincial penal offences.

In all criminal trials the Crown must prove each and every essential element beyond a reasonable doubt.[2]

The standard of "reasonable doubt" consists of a doubt based on reason and common sense which must be logically based upon the evidence or lack of evidence. It is not based on "sympathy or prejudice."[3]

Purpose and Constitutional Foundation

The standard as the ultimate burden of proof is "inextricably intertwined with that principle fundamental to all criminal trials, the presumption of innocence."[4] The burden should never shift to the accused.[5]

The presumption of innocence and the criminal standard of proof are mandated given that the accused faces "grave social and personal consequences" arising from conviction.[6]

Level of Certainty

Proof beyond a reasonable doubt "it does not involve proof to an absolute certainty; it is not proof beyond any doubt nor is it an imaginary or frivolous doubt."[7]

However, belief that the accused is "probably guilty" is not sufficient and must acquit.[8]

The burden of proof placed upon the Crown lies “much closer to absolute certainty than to a balance of probabilities.”[9] The standard is more "than proof that the accused is probably guilty" in which case the judge must acquit.[10]

To know something with "absolute certainty" is to "know something beyond the possibility of any doubt whatsoever."[11] This is not a standard recognized in law.[12]

Such as standard is "virtually impossible to prove" and "impossibly high" for the Crown to be held to such a standard. [13]

Relationship to Evidence

“[A] reasonable doubt does not need to be based on the evidence; it may arise from an absence of evidence or a simple failure of the evidence to persuade the trier of fact to the requisite level of beyond reasonable doubt.”[14]

The standard of BARD only applies to the evaluation of the evidence as a whole and not individual aspects of the evidence.[15] The standard should be applied for the purpose of determining whether individual elements are proven beyond a reasonable doubt.[16]

In cases where there is the uncorroborated testimony of the complainant, the BARD burden is one that has been described as "heavy" and "hard to discharge."[17] The reason for this is to ensure that "innocent people are never convicted."[18]

Inferences and Conjecture

Reasonable doubt must come as a rational conclusion from the evidence available and not as a basis of conjecture.[19]

Risk of Wrongful Conviction

A verdict of guilt must be considered carefully in order to protect the liberty of the accused and protect against a wrongful conviction.[20]

Jury Instructions

The standard should not be articulated in a way that would likely cause the standard to be applied subjectively.[21]

Assessing Evidence

When applying the BARD standard the judge must apply the same level of scrutiny to the Crown and defence evidence.[22]

Consequence of Reasonable Doubt

The finding of reasonable doubt "is not the same as deciding in any positive way that [the allegations] never happened."[23] It is simply a finding that the evidence is not of "sufficient clarity" to allow an acceptance of the essential facts to an "acceptable degree of certainty or comfort" sufficient to displace the presumption of innocence.[24]

History

The origins of reasonable doubt go back to the English Common law in 1780. The standard arose from a shift away from a standard based on Christian beliefs whereby an improper conviction would result in the juror "pawning" their soul. A pamphlet circulated to jurors at the time stated, "the Juryman who finds any other person guilty, is liable to the Vengeance of God upon his Family and Trade, Body and Soul, in this world and that to come." This religious standard resulted in a wide-spread dread of false convictions. A more secular standard would allow jurors to convict without putting their souls at risk[25]

  1. ↑ affirmed under the English common law of England in Woolmington v DPP , [1935] A.C. 462 (HL) (UK) at 481-82
  2. ↑ R v Vaillancourt, 1987 CanLII 2 (SCC), [1987] 2 SCR 636, per Lamer J
  3. ↑ R v Lifchus, 1997 CanLII 319 (SCC), [1997] 3 SCR 320, per Cory J (9:0), at para 36
    See also: In R v JMH, 2011 SCC 45 (CanLII), [2011] 3 SCR 197, per Cromwell J (9:0), at para 39 ( “a reasonable doubt does not need to be based on the evidence; it may arise from an absence of evidence or a simple failure of the evidence to persuade the trier of fact to the requisite level of beyond reasonable doubt.”)
  4. ↑ Lifchus, supra, at para 36
  5. ↑ Lifchus, supra, at para 36
  6. ↑ R v Oakes, 1986 CanLII 46 (SCC), [1986] 1 SCR 103 (SCC), per Dickson CJ ("The presumption of innocence protects the fundamental liberty and human dignity of any and every person accused by the State of criminal conduct. An individual charged with a criminal offence faces grave social and personal consequences, including potential loss of physical liberty, subjection to social stigma and ostracism from the community, as well as other social, psychological and economic harms. In light of the gravity of these consequences, the presumption of innocence is crucial. It ensures that until the State proves an accused's guilt beyond all reasonable doubt, he or she is innocent. This is essential in a society committed to fairness and social justice.")
  7. ↑ Lifchus, supra, at para 31, 1fqzt36
  8. ↑ Lifchus, supra, at para 36
  9. ↑ R v Starr, 2000 SCC 40 (CanLII), [2000] 2 SCR 144, per Iacobucci J (5:4), at para 242 ("...an effective way to define the reasonable doubt standard for a jury is to explain that it falls much closer to absolute certainty than to proof on a balance of probabilities. ...a trial judge is required to explain that something less than absolute certainty is required, and that something more than probable guilt is required, in order for the jury to convict. ... The additional instructions to the jury set out in Lifchus as to the meaning and appropriate manner of determining the existence of a reasonable doubt serve to define the space between absolute certainty and proof beyond a reasonable doubt. ")
  10. ↑ Lifchus, supra, at para 36
  11. ↑ R v Layton, 2008 MBCA 118 (CanLII), 238 CCC (3d) 70, per Hamilton JA (2:1)
  12. ↑ R v Thies J.B. (Leading Seaman), 2014 CM 3006 (CanLII), at para 43 ("Absolute certainty is a standard of proof that does not exist in law. The prosecution only has the burden of proving the guilt of an accused person, in this case Leading Seaman Thies, beyond a reasonable doubt. To put it in perspective, if the Court is convinced or would have been convinced that the accused is probably or likely guilty, then the accused would have been acquitted since proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt.")
  13. ↑ Lifchus, supra, at para 39
  14. ↑ JMH, supra
  15. ↑ R v Stewart, 1976 CanLII 202, [1977] 2 SCR 748, per Pigeon J (6:3) at 759-61
    R v Morin, 1988 CanLII 8, [1988] 2 SCR 345 at 354, 44 CCC (3d) 193, per Sopinka J
    R v White, 1998 CanLII 789, [1998] 2 SCR 72, 125 CCC (3d) 385, per Major J (7:0), at paras 38 to 41
  16. ↑ R v McKay, 2017 SKCA 4 (CanLII), 136 WCB (2d) 310, per Whitmore JA (3:0), at para 18 ("The standard of proof, being beyond a reasonable doubt, is not to be applied to individual pieces of evidence. Rather, it is to be applied to the evidence as a whole for the purpose of determining whether each of the necessary elements of an offence has been established.")
  17. ↑ R v Nyznik, 2017 ONSC 4392 (CanLII), 350 CCC (3d) 335, per Molloy J, at para 16 (" In many cases, the only evidence implicating a person accused of sexual assault will be the testimony of the complainant. There will usually be no other eye-witnesses. There will often be no physical or other corroborative evidence. For that reason, a judge is frequently required to scrutinize the testimony of a complainant to determine whether, based on that evidence alone, the guilt of an accused has been proven beyond a reasonable doubt. That is a heavy burden, and one that is hard to discharge on the word of one person") R v Jackson, 2019 NSSC 202 (CanLII), per Brothers J, at para 150
  18. ↑ Nyznik, supra, at para 16
  19. ↑ R v Wild, 1970 CanLII 148 (SCC), [1971] SCR 101 at 113
  20. ↑ R v W(R), 1992 CanLII 56 (SCC), [1992] 2 SCR 122, per McLachlin J (6:0) in context of child witnesses ("Protecting the liberty of the accused and guarding against the injustice of the conviction of an innocent person require a solid foundation for a verdict of guilt")
  21. ↑ R v Stubbs, 2013 ONCA 514 (CanLII), 300 CCC (3d) 181, per Watt JA (3:0), at para 99
    R v Bisson, 1998 CanLII 810 (SCC), 121 CCC (3d) 449, per Cory J (7:0), at p. 311 (SCR)
  22. ↑ R v Johnstone, 2019 ABQB 965 (CanLII), per Renke J, at para 11
    R v Wanihadie, 2019 ABCA 402 (CanLII), 99 Alta LR (6th) 56, at paras 33 to 36, per curiam
    R v Howe, 2005 CanLII 253, 192 CCC (3d) 480; [2005] OJ No 39 (ONCA), per Doherty JA, at paras 59 to 64
    R v Norman, 1993 CanLII 3387, 87 CCC (3d) 153, [1993] OJ No 2802 (ONCA), per Finlayson JA at 24 - 25
    R v Schell, 2013 ABCA 4 (CanLII), 293 CCC (3d) 400, per curiam, at para 34
    R v MJB, 2015 ABCA 146 (CanLII), 331 CCC (3d) 295, per curiam (2:1), at para 33
    R v McGown, 2016 ONCA 575 (CanLII), 341 CCC (3d) 53, per Cronk JA, at para 96
  23. ↑ R v Ghomeshi, 2016 ONCJ 155 (CanLII), 27 CR (7th) 17, per Horkins J, at para 140
  24. ↑ Ghomeshi, ibid., at paras 140 and 141
  25. ↑ James Q. Whitman, The Origins of Reasonable Doubt: Theological Roots of the Criminal Trial, Yale University Press (2008) [1]

Use of Illustrations in Articulating the Standard

Examples and illustrations are permissible in describing the standard of BARD as long as it does not takeaway the right to reach their own conclusions.[1] However, the use of illustrations or examples in articulating the standard of BARD is "fraught with difficulty."[2] The use of examples tends to lower the standard to that of a balance of probabilities and encourage a subjective standard.[3]

By giving illustrations it risks creating the impression that the decision "can be made on the same basis as would any decision made in the course of their daily routines", which tends to move the standard closer to one of "probability."[4] It also creates excessive subjectivity in interpretation, where consideration will vary based on each person's life experience.[5]

  1. ↑ R v Stavroff, 1979 CanLII 52 (SCC), [1980] 1 SCR 411, per McIntyre J (7:0) including p. 416 (SCR)
  2. ↑ R v Stubbs, 2013 ONCA 514 (CanLII), 300 CCC (3d) 181, per Watt JA (3:0), at para 98
    R v Bisson, 1998 CanLII 810 (SCC), [1998] 1 SCR 306, per Cory J (7:0), at para 6 ("No matter how carefully they may be crafted, examples of what may constitute proof beyond a reasonable doubt can give rise to difficulties")
  3. ↑ Stubbs, supra, at para 99
  4. ↑ Bisson, supra, at para 6
  5. ↑ Bisson, supra, at para 6

Raising a Doubt

See also: Inferences

A reasonable doubt cannot be based on "speculation or conjecture."[1]

The Crown has no burden to "negativing every conjecture to which circumstantial evidence might be consistent with the innocence of the accused."[2]

"Bero" defence

The absence of evidence due to the police's failure to take investigative steps will sometimes be an important consideration in whether the Crown has proven its case beyond a reasonable doubt.[3]

The defence is permitted to elicit evidence from witnesses of potential inadequacies in the investigation. Oversights in an investigation "can be particularly important where no defence evidence is called."[4]

  1. ↑ R v Henderson, 2012 NSCA 53 (CanLII), 1003 APR 164, per Saunders JA (3:0), at para 40
    R v White, 1994 NSCA 77 (NSCA), 89 CCC (3d) 336, per Chipman JA (3:0)
    R v Eastgaard, 2011 ABCA 152 (CanLII), 276 CCC (3d) 432, per curiam (2:1), at para 22, aff’d 2012 SCC 11 (CanLII), per McLachlin CJ (7:0)
  2. ↑ R v Tahirsylaj, 2015 BCCA 7 (CanLII), per Bennett JA (3:0), at para 39
    R v Paul, 1975 CanLII 185 (SCC), 27 CCC (2d) 1 (SCC), [1977] 1 SCR 181, 64 DLR (3d) 491, per Ritchie J (6:3) at 6 (CCC)
  3. ↑ R v Bero, 2000 CanLII 16956 (ON CA), 151 CCC (3d) 545, per Doherty JA (3:0), at paras 56 to 58
  4. ↑ R v Gyimah, 2010 ONSC 4055 (CanLII), per Healey J, at para 20 Bero, supra

See Also

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