Persuasive Burden: requires meeting a standard of proof
Generally the party asserting a fact has the burden of proof to establish that fact
Standard of proof:
Formally in civil cases: balance of probabilities
Formally in criminal cases: Crown has onus of establishing the case beyond a reasonable doubt.
However, there is no absolute standard and degrees of satisfaction may vary along a continuum dependant on all the circumstances and consequences of a particular case. In practice the standard can vary:
e.g. higher in a civil case with serious stigma such as fraud or sexual abuse
e.g. lower in minor criminal cases such as minor traffic offence
Jury Instruction on the Meaning of “Beyond a Reasonable Doubt”
R. v. Lifchus (1997) (SCC)
Facts: The trial judge instructed the jury that “beyond a reasonable doubt” was to be interpreted “in their ordinary, natural, everyday sense.” The accused was convicted of fraud.
Court of Appeal: Trial judge had erred in instructing the jury in the meaning of “beyond a reasonable doubt” as an ordinary expression. New trial ordered.
Held: Suggested a “model charge” which could provide necessary instruction as to the meaning of the phrase “beyond a reasonable doubt”
“Even if you believe the accused is probably guilty or likely guilty, this 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 on the evidence before the court, 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.”
R. v. Starr (2000) (SCC)
Facts: Accused was convicted of two counts of first degree murder. As in Lifchus, the reasonable doubt instruction given to the jury was called into question.
Held: Iacobucci offered the following advice:
“A jury must be instructed that the standard of proof in a criminal trial is higher than the probability standard used in making everyday decisions in civil trials.”
Inappropriate to define the standard of proof through examples from daily life – not easily quantifiable, cannot be explained by analogy
Criminal standard of proof has special significance unique to criminal trials
“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.”
“As stated in Lifchus, 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 jury to convict.”
R. v. W. (D.) (1991) (SCC) – Quoted in Lifchus to develop sample charge
Facts: At trial, the accused was convicted of sexual assault. On appeal, it was objected that the trial judge erred in framing the core issue to the jury as whether they believed the complainant or whether they believed the appellant.
Held: A trial judge may instruct the jury on the question of credibility along these lines:
A reasonable doubt is not an imaginary or frivlous doubt, must bnot be based on sympathy or prejudice, but rather based on reason and common sense:
(1) If you believe the evidence of the accused, obviously you must acquit.
(2) If you do not believe the testimony of the accused, but you are left in reasonable doubt by it, you must acquit.
(3) Even if you are not left in doubt by the evidence of the accused, you must ask whether you are convinced beyond a reasonable doubt by the evidence of the guilt of the accused.
Where there are two competing versions, the jury can’t be told which to believe – R v. W. (D.)
R. v. Morin (1988) (SCC)
Facts: Accused acquitted on charge of first degree murder. Argued that he was not the killer, but in the alternative, if he was the killer that he was not guilty by reason of insanity. Trial judge invited the jury to apply the criminal standard of proof beyond a reasonable doubt to individual pieces of evidence.
Court of Appeal: Ordered a new trial.
Held: Confirmed the order for a new trial:
Trial judge erred in instructing the jury to apply the reasonable doubt standard to each individual piece of evidence.
“Proof beyond a reasonable doubt does not apply to the individual items of evidence of the separate pieces of evidence in the case, but to the total body of evidence upon which the Crown relies to prove guilt.
R. v. Quercia (1990) (Ont. C.A.)
Facts: Accused was charged with aggravated sexual assault. At trial, he was convicted entirely on the basis of an eyewitness account by the victim.
Issue: Was the verdict unreasonable.
Held:
The trial judge had properly and thoroughly instructed the jury on the lack of reliability of eyewitness testimony.
Verdict was unreasonable since the evidence identifying the appellant was significantly flawed and standing alone could not justify a conviction.
R. v. Munoz (2006) (Ont. S.C.J.)
Facts: Two accused charged with trying to kill one of the accused’s wife. There was no direct evidence implicating the accused.
Reasoning: Discusses the distinction before deductive and inductive logic:
Process of inference drawing involves inductive reasoning which derives conclusions based on the uniformity of prior human experience – the conclusion flows from an interpretation of that evidence derived from experience.
A conclusion that may, not must be drawn in the circumstances
A trier of fact may draw factual inferences from the evidence. The inference must however, be ones which can be reasonably and logically drawn from a fact or group of facts established by the evidence.
Inductive reasoning is a two step process:
Basis for the inference must be established from the objective facts
Then the inference must be drawn
Very difficult to establish if the evidential burden has been met without considering the persuasive burden.
