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Criminal - Standard of Proof

. R. v. Da Silva

In R. v. Da Silva (Ont CA, 2024) the Ontario Court of Appeal considered the criminal standard of proof:

[31] The trial judge correctly noted that, when weighing and assessing the evidence, he had to be satisfied of the appellant’s guilt beyond a reasonable doubt. He also referred to R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320, where the Supreme Court set out a suggested jury instruction on the standard of proof. The trial judge, quoting from para. 36 of Lifchus, said:

A reasonable doubt is not a doubt based upon sympathy or prejudice. Rather, it is based upon reason and common sense. It is logically connected to the evidence or absence of evidence. It does not involve proof to an absolute certainty. It is not proof beyond any doubt, nor is it an imaginary or frivolous doubt, and more is required than proof that the accused is probably guilty. A jury which concludes only that the accused is probably guilty must acquit. [Emphasis added.]

[32] In R. v. Norouzali (2003), 2003 CanLII 10348 (ON CA), 177 C.C.C. (3d) 383 (Ont. C.A.), Gillese J.A. for this court, specifically held that the failure to instruct a jury that they could convict only if they were sure of the accused’s guilt is not an omission that constitutes an error: at paras. 31-36. In so doing she quotes from para. 34 of Lifchus, where Cory J. stated:

It is only after proper instructions have been given as to the meaning of the expression “beyond a reasonable doubt” that a jury may be advised that they can convict if they are “certain” or “sure” that the accused is guilty. [Emphasis in original.]

[33] Justice Gillese therefore concluded, at paras. 34-35, that:

It is clear from the above passage that references to the word “sure” do not assist a jury in understanding the meaning of proof beyond a reasonable doubt. Rather, it is the meaning of reasonable doubt that a jury must consider before determining whether they are “sure” that the accused is guilty.

[W]hile Cory J. does include the reference [to “sure”] in his model charge, the introduction to that charge makes clear that a charge which is consistent with the principles set out will suffice regardless of the particular words used by the trial judge. [Citation omitted. Emphasis added.]

[34] This was a judge alone trial. The trial judge referred to the onus and burden on the Crown to prove the appellant’s guilt beyond a reasonable doubt and he correctly explained, quoting from Lifchus, what the term beyond a reasonable doubt meant. We see no error in his application of the burden of proof.