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In Canada, the prosecution is required to prove the guilt of a person beyond a reasonable doubt.  What is reasonable doubt?  The Supreme Court of Canada has held that proof beyond a reasonable doubt is more close to a certainty than the civil standard, a balance of probabilities.

In the R. v. Starr, [2000] 2 S.C.R. 144 Lx  Cn decision, the Supreme Court of Canada said:

" ... 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 R. v. Lifchus, [1997] 3 S.C.R. 320 Lx  Cn 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."

R. v. Lifchus, [1997] 3 SCR 320 Clii

Per Lamer C.J. and Sopinka, Cory, McLachlin, Iacobucci and Major JJ.:  A jury must be provided with an explanation of the expression “reasonable doubt”.  This expression, which is composed of words commonly used in everyday speech, has a specific meaning in the legal context. The trial judge must explain to the jury that the standard of proof beyond a reasonable doubt is inextricably intertwined with the presumption of innocence, the basic premise which is fundamental to all criminal trials, and that the burden of proof rests on the prosecution throughout the trial and never shifts to the accused.

The jury should be instructed that a reasonable doubt is not an imaginary or frivolous doubt, nor is it based upon sympathy or prejudice.  A reasonable doubt is a doubt based on reason and common sense which must logically be derived from the evidence or absence of evidence. While more is required than proof that the accused is probably guilty, a reasonable doubt does not involve proof to an absolute certainty.  Such a standard of proof is impossibly high.  

Certain references to the required standard of proof should be avoided.  A reasonable doubt should not be described as an ordinary expression which has no special meaning in the criminal law context, and jurors should not be invited to apply to the determination of guilt in a criminal trial the same standard of proof that they would apply to the decisions they are required to make in their everyday lives, or even to the most important of these decisions. Nor is it helpful to describe proof beyond a reasonable doubt simply as proof to a “moral certainty”. As well, the word “doubt” should not be qualified other than by way of the adjective “reasonable”.  To instruct a jury that a “reasonable doubt” is a “haunting” doubt, a “substantial” doubt or a “serious” doubt may have the effect of misleading the jury.  


Jim O'Neil, LL.B.

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