Standards of Proof

“Some Evidence”: Examples R v. Charemski (1998) SCC The accused was charged with the murder of his estranged

wife. She was found dead in her London apartment. She was in the bathtub which was filled with scalding water, with her head lying close to the faucets. There was no evidence of a struggle. Everything was neat and in order.

Two medical experts examined the body and were unable to determine definitively whether she had died from natural causes or as a result of accident, suicide, or homicide. The medical evidence did indicate that there were hot water burns on the skin, but not the lungs.

Charemski The accused had arrived in London from Vancouver on the night in

question. There was no direct evidence placing him in the apartment. He denied having been there, but admitted that he had wanted to see his wife that night and that he had telephoned her from the lobby asking to come up, alleging that she had denied his request. He could not account for the time between his arrival at the building at 11:00 p.m. and his departure at 12:30 a.m.. The time of death was estimated as being between 11:00 p.m. and 1:00 a.m..

There was a joint life insurance policy worth $ 50 000, and evidence that he felt shamed by the affairs that his she had had. Further evidence indicated that the wife had dismissed her guests on the night in question while conversing with the accused on the phone after the accused had asked her whether she was alone. Police testified that three days after the death, before they had disclosed any details, the accused had told them that the wife had complained about falling asleep in the bath tub in the past, that she had almost drowned on a couple of occasions.

Charemski At the conclusion of the Crown's case, the

defence moved for a directed verdict of acquittal. The trial judge granted the motion, concluding that there was no evidence on the issue of causation, a gap which would preclude any reasonable jury from returning a guilty verdict. The Crown successfully appealed and a new trial was ordered. The accused appealed.

Held: The appeal was dismissed.

Charemski: MajorityThe test on a motion for a directed verdict is whether or not there is any evidence upon which a reasonable jury properly instructed could return a guilty verdict. Such a motion should not be granted in any case where there is admissible evidence which could, if believed, result in a conviction.

The Crown must adduce some evidence of culpability for every essential element of the offence. In a murder prosecution, the Crown must introduce evidence on the issues of identity, causation, the death of the victim and the requisite mental state. If the Crown fails to discharge the evidential burden on any of these issues, a verdict of acquittal should be directed.

Charemski: Majority Where the evidence is purely circumstantial, the

question of whether or not there is a rational explanation for that evidence other than the guilt of the accused is one for the jury, and not for the judge, to determine. It is not the function of the judge to weigh the evidence or to draw inferences of fact from it.

In this case, there was evidence of animus and financial motive from which a properly instructed jury could have inferred the requisite mental state. Identity was not disputed.

Charemski: Majority There was evidence from which a jury could infer opportunity: great effort to

travel from Vancouver to London to see her that night; that while he was on the phone with her that night, she directed her friends to leave after he inquired whether she was alone, and that he had failed to account for the 1 1/2hour period between the time of his arrival at her building and his departure therefrom, which period coincided with the approximate time of death.

There was also evidence that the accused had premature knowledge of the manner of his wife's death. Three days after her death, before police had disclosed any details, the accused told the police that she complained to him about falling asleep in the bath tub in the past and that she had almost drowned on a couple of occasions. The jury could have inferred that he knew of the manner of her death because he was present when she died and further because he caused her death.

Charemski: Majority While the forensic evidence was inconclusive with respect to

causation in the sense that there was no proof of homicide, forensic tests turned up no evidence consistent with death by natural causes, accident, drug overdose, or suicide. The location of the body provided evidence from which a jury could have inferred that she was the victim of foul play.

The Crown thus presented sufficient evidence from which a reasonable jury, properly instructed, could return a verdict of guilty, nowithstanding that the cause of death was unexplained. Both the position and condition of the body, and the indications of the accused's premature knowledge of the manner of death were circumstantial evidence pertaining to the cause of death.

Evidence of motive, opportunity, financial difficulty and possibility of gain could be considered as evidence going to prove the crime.

Charemski: Majority The trial judge should have sent the case to the

jury with the instruction that a finding of guilt could only be made where there was no other rational explanation for the circumstantial evidence but that the defendant committed the crime.

The Court of Appeal had not erred in setting aside the directed verdict and the appeal should therefore be dismissed.

Charemski: Minority The test on a motion for a directed verdict is

whether a properly instructed jury could reasonably convict on the evidence. A properly instructed jury acting reasonably is a jury that will convict only if it finds that the that the evidence establishes guilt beyond a reasonable doubt. To determine whether this could occur, the judge on the motion must ask whether some or all of the admissible evidence is legally sufficient to permit the jury to find guilt beyond a reasonable doubt.

Charemski: Minority The trial judge applied the correct test and correctly concluded that

the evidence was not capable of supporting a guilty verdict.

The Crown must adduce sufficient evidence on the issue of identity, causation, and death of the victim and the requisite mental state to pass the hurdle of a motion for a directed acquittal. "Sufficient evidence" must mean sufficient evidence to sustain a verdict of guilt beyond a reasonable doubt; merely to refer to "sufficient evidence" is incomplete since "sufficient" always relates to the threshold of proof beyond a reasonable doubt. This must constantly be borne in mind when evaluating whether the evidence is capable of supporting the inferences necessary to establish the essential elements.

Charemski: Minority The Crown pathologists provided two other reasonable explanations for the death.

The evidence was thus incapable of supporting the inference beyond a reasonable doubt that the death was wrongful, and there was no way that a reasonable jury, properly instructed could have returned a guilty verdict.

Moreover, identity could not be established. The accused's presence in the building on the evening of the death did not show opportunity establishing identity. There was no evidence that he was granted admission to the deceased's apartment. In order to arrive at a conclusion of identity, it was therefore necessary to infer that because he was in the lobby, he must have been in the apartment. Such an inference could not reasonably be made.

Assuming a jury were ever able to reach this point, further difficulties would emerge. The fact that the accused would receive the life insurance proceeds at best tangentially suggested an intention to kill but the fact that the policy had been in force for many years and the absence of any financial need undermined any inference that could be drawn in that regard.

Arcuri (2001), Minority now Majority The accused was charged with first degree murder. At the

preliminary inquiry, the Crown's case was entirely circumstantial. The accused called two witnesses whose testimony was arguably exculpatory. The preliminary inquiry judge rejected the accused's contention that he was required to weigh the evidence and, after viewing the evidence as a whole, committed the accused to trial for second degree murder. The accused's application for certiorari was dismissed and that decision was affirmed by the Court of Appeal. The accused appealed. The issue on appeal was whether the preliminary inquiry judge, in assessing whether the evidence was sufficient to warrant committal to trial, erred in refusing to weigh the defence direct exculpatory evidence against the Crown's circumstantial inculpatory evidence.

Held: The appeal was dismissed.

Arcuri a preliminary inquiry judge must determine whether there is

sufficient evidence to permit a properly instructed jury, acting reasonably, to convict. The evidence must be weighed in the limited sense of assessing whether it is capable of supporting the inferences the Crown asks the jury to draw. This task does not require the preliminary inquiry judge to draw inferences from the facts or to assess credibility. Rather, he or she must, while recognizing the jury's right to draw justifiable inferences of fact and to assess credibility, consider whether the evidence taken as a whole could reasonably support a verdict of guilty.

Arcuri Under this test, the accused must be committed to trial where

there is admissible evidence which could, if believed, result in a conviction. The test is the same whether the evidence is direct or circumstantial, but the nature of the judge's task varies according to the type of evidence advanced. Where the Crown's case is based entirely on direct evidence, the only conclusion that needs to be reached is whether the evidence is true. Accordingly, if there is direct evidence as to every element of the offence charged, the accused must be committed to trial. Where the Crown does not present direct evidence as to every element of the offence, the question becomes whether the remaining elements may reasonably be inferred from the circumstantial evidence.

Arcuri This inevitably requires the judge to engage in a limited

weighing of the evidence because, with circumstantial evidence, there is by definition an inferential gap between the evidence and the matter to be established. The judge must therefore weigh the evidence, in the sense of assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw. The judge asks only whether the evidence, if believed, could reasonably support an inference of guilt. Notwithstanding certain confusing language in this Court's earlier decisions, the continuing validity of the traditional common law rule was reaffirmed.

Arcuri The task of the preliminary inquiry judge is essentially the

same where the defence tenders exculpatory evidence, be it direct or circumstantial. Where the Crown adduces direct evidence on all the elements of the offence, the case must proceed to trial, regardless of the existence of defence evidence, as the only conclusion that need be reached is whether the evidence is true. However, where the Crown's evidence consists of or includes circumstantial evidence, the judge must engage in a limited weighing of the whole of the evidence, including the defence evidence, to determine whether a reasonable jury, properly instructed, could return a verdict of guilty. Again, in performing this task, the judge does not draw inferences from facts; nor does he or she assess credibility.

Arcuri Rather, the judge's task is to determine whether, if

the Crown's evidence is believed, it would be reasonable for a properly instructed jury to infer guilt. This task of "limited weighing" never requires consideration of the inherent reliability of the evidence itself, but should be seen as an assessment of the reasonableness of the inferences to be drawn from the circumstantial evidence.

“Air of Reality” Test Often used to describe criminal Defendant’s

evidential burden to raise issue Nothing different from “some evidence” test. Although the TOL now has an additional function”

– the usual task (a) “is there some evidence on the issue upon which a jury, properly instructed, acting reasonably … and (b) is the defence/issue raised one known to law on these facts

“Air of Reality” Only defences capable of raising a

reasonable doubt are left for TOF. Speculative, fanciful; and far-fetched

defences lacking an evidential foundation would tend to confuse the jury, lengthen trials and invite perverse verdicts.

Sopinka p. 201 E.g. MMA after killing her former common law

with a gun, the accused reloaded and took a taxi to the house of the common law’s new lover.

The accused entered and opened fire. When all bullets were discharged, a knife was used to stab the victim.

Held: self-defence will not be put to the jury.

Or no basis in law … For example, the defence of necessity is

not open to an accused where he knowingly engages in the prohibited activity due to disagreement with the law.

Even if the disagreement with the law is logical, credible, rational, and supported by independent evidence, necessity cannot go to the jury: R. v. Morgentaler

Defining Balance of Probabilities An ultimate, persuasive or legal burden.

Normally associated to the civil law.

Represents the level of satisfaction that a TOF must reach to find for a party or issue who bears the ultimate burden on a BOP.

Note The TOL will tell the TOF:

One party or the other bears the Burden of Proof on an issue.

To what standard of proof they must prove it.

Defining Balance of Probabilities “we think it more probable than not”

The TOF must find the existence of the contested fact more likely than its non-existence.

On What Basis? Not on the volume of evidence, nor the

number of witnesses for one side or another. Instead, the totality of, and quality of, the evidence for consideration.

Query

Are there different levels of proof on a balance of probabilities for, let’s say, civil allegations of crimes such as fraud? How about other serious allegations such as adultery?

A: there was, but now there is not. There are only two legal standards of proof. There is no third.

Why did this arise? E.g. Briginshaw v. Briginshaw note 135. 1938 “The seriousness of an allegation made, the

inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.”

We have seen it in the past described as the need for … “clear, convincing and cogent proof.”

Per SCC in Continental Insurance Company v. Dalton Cartage Co. [1982]:“Where there is an allegation of conduct that is morally

blameworthy or that could have a criminal or penal aspect and the allegation is made in civil litigation, the relevant burden of proof remains proof on a balance of probabilities.”

Solved? No. Laskin J. went on to say that the TOF could

consider the cogency of the evidence and was entitled to scrutinize the evidence with greater care if there were serious allegations to be established.

He cited Lord Denning:

Denning “The case may be proved by a preponderance of

probability, but there may be degrees of probability within that standard. The degree depends on the subject–matter. A civil court, when considering a charge of fraud, will naturally require a higher standard of probability than that which it would require if considering whether negligence were established. It does not adopt so high a degree as a criminal court, even when considering a charge of a criminal nature, but still it does require a degree of probability which is commensurate with the occasion.”

But … Laskin J, said, this is not equivalent to

having degrees of BOP.

“The question in all cases is what evidence with what weight that is accorded to it will move the court to conclude that proof on a balance of probabilities has been established.”

??? Does this make sense? Should it be the case? It is an argument to be made. One that is

still available. It seems to suggest that a higher quality of

evidence is necessary for serious allegations.

Other occasions to carefully scrutinize the evidence …

Wills – e.g. where there is evidence of lower mental function on the part of the testator, and the drafter of the new will is also the main beneficiary. This is after “suspicious circumstances” were raised.

5.57 refers.

The criminal standard of proof has clearly been rejected for such cases.

5.61 The totality of the surrounding circumstances, including the nature of the act or omission, the seriousness of the allegations, the gravity of the consequences, and the inherent probability or improbability of the occurrence of the event are relevant factors when weighing the evidence to determine if a party has satisfied the burden of proof.

Continued For example, the TOF may require more

cogent or stronger evidence to prove the occurrence of an unlikely or improbable event, such as an allegation that the insured committed arson, than it would for an allegation of negligence in a motor vehicle collision.

Settled in McDougall (2008) SCC? Single civil standard: BOP Context plays a role in applying standard of proof Must keep in mind seriousness of the issues, and

improbability of the events alleged, but they do not change the SOP

Rejected that different levels of certainty are to be applied depending on seriousness

Rejected that the clear and cogent test must be satisfied in some factual scenarios to meet BOP

Continued No Rule of Law as to when “improbability”

of event must be taken into account But improbability always something to be

considered on BOP as to whether a fact is more likely than not.

The Reasonable Doubt Standard Onus of proof inextricably linked to

presumption of innocence.

SCC: reasonable doubt must be defined for TOF for there to be a fair trial.

Lifchus The TOL must also remind the TOF that

this burden of proof always rests on the prosecution and never shifts.

That a reasonable doubt is not one based on sympathy or prejudice, but upon reason and common sense which is logically connected to the evidence or lack of evidence.

Lifchus continued That a reasonable doubt is not an

imaginary or frivolous doubt and that the Crown need not prove the offence to an absolute certainty, since such a degree of proof is unlikely to ever be achieved.

Also that the civil standard is never to be applied, and that a probability of guilt must result in an acquittal.

To be Avoided in the Jury Charge on Reasonable Doubt describing the term "reasonable doubt" as an ordinary expression

which has no special meaning in the criminal law context;

inviting jurors to apply to the task before them the same standard of proof that they apply to important, or even the most important, decisions in their own lives;

equating proof "beyond a reasonable doubt" to proof "to a moral certainty

qualifying the word "doubt" with adjectives other than "reasonable", such as "serious", "substantial" or "haunting", which may mislead the jury; and

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".

Suggested/Model Charge 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 engrained in our criminal law that some think it needs no explanation, yet something must be said regarding its meaning.

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.

Suggested/Model Charge 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 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.

This is not a magic incantation that needs to be repeated word for word. It is nothing more than a suggested form that would not be faulted if it were used. Any form of instruction that complied with the applicable principles and avoided the pitfalls referred to would be satisfactory.

Further, it is possible that an error in the instructions as to the standard of proof may not constitute a reversible error. It was observed in R. v. W. (D.), [1991] 1 S.C.R. 742 (S.C.C.), at p. 758, that the verdict ought not be disturbed "if the charge, when 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 to apply". On the other hand, if the charge as a whole gives rise to the reasonable likelihood that the jury misapprehended the standard of proof, then as a general rule the verdict will have to be set aside and a new trial directed.

Judge’s Charge in Lifchus When I use the words "proof beyond a reasonable doubt", I use those

words in their ordinary, natural every day sense. There isn't one of you who hasn't said, gosh I've got a doubt about such and so. Perfectly every day word. There isn't one of you who doesn't have a notion of reasonable. That, too, is a perfectly ordinary concept.

. On your review of the evidence if you are left with a doubt as to whether the Crown has proved one of those essential elements and if that doubt is a reasonable one then the accused must be acquitted of the evidence.

On the other hand, if having reviewed all of the evidence, you are not left with a reasonable doubt as to whether any of those essential elements have been proved, in other words if you are satisfied beyond that point of reasonable doubt, the accused must be convicted. The words "doubt" the words "reasonable" are ordinary, every day words that I am sure you understand.

Held Use of “ordinary” language fatal.

Note Starr suggests that a jury be told that

reasonable doubt is a lot closer to absolute certainty than BOP.

Where a TOF has a question about the meaning of reasonable doubt, even more care is required. Their question shows us where they are stuck.

Note The reasonable doubt standard is not to be

applied to individual pieces of evidence: R. v. Morin.

The BRD standard is to be applied to all of the evidence and to the facts in issue that need to be resolved.

Reasonable Doubt and Credibility: W.(D.)

The issue: if, in a criminal trial, the Crown says to the TOF “believe my witnesses” and the Defence says to the TOF “believe my witnesses”, and the case is then put them by the TOL as a case of “decide who you believe”, several legal errors can take place.

The Issue It is not about choosing one and rejecting

another. The law is clear: a TOF can accept part,

none, or all of witness’ evidence. Further, telling a TOF that it need choose

one side or the other, is forgetting to tell them what to do if they cannot choose sides.

The Issue Since the Defendant does not need to

“prove” anything (the Crown has the burden of proof which never shifts), then his evidence or witnesses need not be believed or chosen, they may, or anything else in the record for that matter, raise a reasonable doubt.

And so … A TOF is to be charged, in a credibility case that:

If you believe the accused or his witnesses, you must acquit.

If you do not believe the evidence of the accused or his witnesses, but you are left in a reasonable doubt by it, you must acquit.

Even if you are not left in doubt by the evidence of the accused or his witnesses, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt as to guilt.

Note Applies to judge alone trials too Not a magic incantation, will be reviewed overall

to see if spirit maintained Does not apply to civil law: McDougall In criminal applied whenever the accused’s

evidence disputes the occurrence of a criminal act or denies an essential element

Does not apply where accused has onus or where the standard of proof facing him is BOP: e.g. mental disorder