3. Burdens of Proof and Presumptions

Author:David M. Paciocco - Lee Stuesser
Profession:Justice of the Ontario Court of Justice - Professor of Law, Bond University

Page 529

3. 1) Introduction

The law relating to burdens of proof and presumptions is particularly complex because terminology is not used uniformly. Speaking generally, there is agreement that the term "burden of proof" is apt to describe

Page 530

who it is that has the obligation of satisfying the adjudicator on the factual matter in issue. The term "standard of proof" is understood to describe the degree to which she must convince the adjudicator in order to discharge her "burden." Despite this distinction, it is common to see the single term "burden of proof" used to describe both the burden of proof as defined here and the standard of proof. The term "presumption" is used with even less consistency. The labels that are employed below are not all universally accepted, but are nonetheless useful in describing the general concepts.

3. 2) Standards of Proof

Rules of law assign the relevant standards of proof. In a criminal case both the common law and the Charter require the Crown to prove the guilt of the accused beyond a reasonable doubt. In other words, the trier of fact can convict only if, at the end of the case on the basis of all admissible evidence, the trier of fact is left without a reasonable doubt on each of the elements of the alleged offence, in spite of any defences raised by the accused. Where one or more of the elements of the Crown case rest on circumstantial evidence, this standard requires that the only rational inference from the evidence shows guilt.48As fundamental as the concept of "reasonable doubt" is, our courts have had difficulty defining it. Jury misdirections have been common. This prompted the Supreme Court of Canada, in R. v. Lifchus,49to take the unusual step of providing a definition for the term, in the form of a model jury charge. The model charge is as follows:

The accused enters these proceedings presumed to be innocent. That presumption of innocence remains throughout the case until such time as the Crown has on the evidence put before you satisfied you beyond a reasonable doubt that the accused is guilty.

What does the expression "beyond a reasonable doubt" mean? The term "beyond a reasonable doubt" has been used for a very long time and is a part of our history and traditions of justice. It is so en-grained in our criminal law that some think it needs no explanation, yet something must be said regarding its meaning.

Page 531

A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence.

Even if you believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt.

On the other hand you must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so. Such a standard of proof is impossibly high.

In short if, based upon the evidence . . . you are sure that the accused committed the offence you should convict since this demonstrates that you are satisfied of his guilt beyond a reasonable doubt.50In the subsequent case of R. v. Starr the majority added the following:

[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. It will be of great assistance for a jury if the trial judge situates the reasonable doubt standard appropriately between these two standards.51Neither the Lifchus charge nor the Starr modification needs to be given verbatim by trial judges. Indeed, judges might have to depart from the Lifchus formula if a jury, through questions to the judge, indicates that it does not understand.52What is required in all cases is "substantial compliance."53Where deviations have occurred "[i]f the charge read as a whole makes it clear that the jury could not have been under any misapprehension as to the correct burden and standard of proof then the verdict ought not to be disturbed. If on the other hand, the charge read as a whole gives rise to a reasonable likelihood that the jury misapprehended the standard of proof, the verdict should be set aside."54

Page 532

Not surprisingly, jury directions have been upheld using this standard where judges failed to include information that was featured in the model directions.55While Lifchus and Starr will provide a firm point of departure, whether an appeal court finds the need to interfere where a charge is deficient will depend on "various contextual considerations which are germane" to whether there is a reasonable likelihood that the trier of fact misapprehended the standard56- things like the materiality of the failing given the issues in the case, or the balance of the directions that were furnished.57In a case where the accused testifies the burden on the Crown is not met simply because the trier of fact disbelieves the testimony of the accused. It is possible to have no doubt that the accused has lied or is wrong, but still to be left in doubt about whether the Crown has established each of the elements of the offence according to the required standard. An innocent accused may have lied to hide some other discreditable facts or out of fear that the truth may inaccurately appear incriminating. Or the accused may be honestly mistaken. By the same token, the Crown case is not made out simply because the testimony of a complainant is preferred to the testimony of the accused. The complainant’s testimony, or other evidence, must establish the allegation beyond a reasonable doubt. Indeed, in a jury trial the judge must direct the jury on these matters where the accused has testified and "credibility is a central or significant issue."58The suggested instruction, often referred to as the "W.(D.) warning," is as follows:

First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence

Page 533

which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.59This direction need not be articulated verbatim by judges. Appeal courts will not interfere with a result where in spite of the failure by a judge to intone this very formula, the jury could not have been under any mis-apprehension as to the correct burden.60It is enough if, in substance, the judge successfully communicates the general concepts relating to the standard and burden of proof, and cautions the jury "that a trial is not a contest of credibility between witnesses, and that they do not have to accept the defence evidence in full in order to acquit."61As for a judge alone trial, the judge is presumed to understand the law and need not slavishly follow this formula either. "In a case that turns on credibility . . . the . . . judge must direct his or her mind to the decisive question of whether the accused’s evidence . . . raises a reasonable doubt about guilt"62but so long as there is nothing in the record to suggest that the judge has failed to do so, appeal courts will not interfere.63In a civil case, the plaintiff must establish its allegation on the balance of probabilities. Some courts and commentators have urged that the intensity of this standard varies with the matter in issue. They urge that where allegations carry increased risk of moral stigma, such as fraud, professional negligence, or sexual misconduct, courts should exercise increased caution before finding for the plaintiff. In F.H. v. Mc-Dougall the Supreme Court of Canada rejected this approach, saying there is only one standard and that in all cases, "the trial judge must scrutinize the relevant evidence with care to determine whether it is more likely than not that an alleged event occurred."64There is no equivalent to the W.(D.) warning for civil cases. W.(D.) does not translate well to the balance of probabilities standard. In civil cases the plaintiff is entitled to win if their evidence is more credible than the defence evidence on all components of the cause of action, while the defendant will win if defence evidence is preferred to plaintiff evidence on a necessary element of the lawsuit.65

Page 534

3. 3) Burdens of Proof

As indicated, the "burden of proof" describes who has the obligation of satisfying the adjudicator on a matter in issue. The party who has the burden of proof must present its evidence first and will lose the issue if it does not discharge its burden. Since the Crown in a criminal case has the burden of proving the specific criminal allegation that has been made against the accused, it is called upon to present its evidence first. Moreover, at the end of the case, the evidence must, taken together, convince the trier of fact of the guilt of the accused to the standard of "proof beyond a reasonable doubt." If it does not, the accused must be acquitted.

The "presumption of innocence" contained in subsection 11(d) of the Charter has been interpreted as requiring that the burden of proof in a criminal case must be on the Crown, that the accused cannot be called...

To continue reading