Simon's Megalomaniacal Legal Resources

Criminal - Standard of Proof

. R. v. C.P.

In R. v. C.P. (Ont CA, 2026) the Ontario Court of Appeal considered Crown appeal arguments that the trial judge erroneously assessed reasonable doubt on a piecemeal evidentiary basis:

2. The trial judge did not consider the evidence piecemeal or apply the reasonable doubt standard to individual pieces of evidence

[31] Second, the Crown argues the trial judge considered the evidence piecemeal – in isolation – and that he applied the reasonable doubt standard to individual pieces of evidence, contrary to the principles enunciated in cases such as R. v. Morin, 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345, and R. v. Rudge, 2011 ONCA 791, 108 O.R. (3d) 161, at para. 63, 65, and 67-68, leave to appeal to refused, [2012] S.C.C.A. No. 64. We did not call on amicus to respond to this ground of appeal.

[32] Once again, the resolution of this issue does not turn on any disagreement about the governing law. Rather, it turns on whether the trial judge’s reasons demonstrate the errors contended for by the Crown. We are not persuaded that the trial judge considered individual pieces of the evidence in isolation or applied the reasonable doubt standard to individual pieces of evidence.

[33] I begin by observing that the reasons for judgment contain detailed self-instructions on the presumption of innocence, the Crown’s burden of proof beyond a reasonable doubt, and how that burden applies to issues of credibility and reliability. Importantly, the trial judge specifically instructed himself that “the beyond a reasonable doubt standard does not apply to individual pieces of evidence, but instead is considered once the evidence can be viewed as a whole”, and referenced the governing authority of Morin.

[34] The Crown relied on several areas in its written submissions to argue that the trial judge considered the evidence piecemeal and applied the reasonable doubt standard to individual pieces of evidence. I have considered all of the areas argued by the Crown, but I focus my reasons on the two areas the Crown emphasized in oral submissions.

[35] One Crown witness at trial was a woman who saw the respondent and the complainant in a hotel elevator and observed what she perceived to be sexualized contact between them that was not appropriate for a father and daughter. The Crown argues that the trial judge considered the evidence of this witness piecemeal and failed to consider it in the context of the evidence as a whole.

[36] I disagree. The trial judge considered this witness’s evidence in the context of other evidence and found it did not support the complainant’s evidence. In particular, the trial judge noted that the complainant testified that she and the respondent did not engage in inappropriate displays of affection in public. The trial judge’s reasoning with respect to the evidence of this witness makes clear that he did not consider the evidence piecemeal because he considered her evidence in the context of the complainant’s evidence. While the Crown may disagree with the trial judge’s conclusions, his reasons show that he did not consider the evidence piecemeal.

[37] The Crown also argued that the trial judge applied the reasonable doubt standard to an individual piece of evidence because, in considering whether the respondent’s silence in the face of a sexualized text by the complainant constituted an adoptive admission by silence, the trial judge concluded that guilt was “not the only reasonable inference that can be drawn from the [respondent’s] lack of response.”

[38] I do not accept that this reference, when read in the context of the reasons as a whole, shows the trial judge applying the reasonable doubt standard to an individual piece of evidence. The trial judge’s reference to there being other reasonable inferences for the respondent’s silence in the face of the complainant’s text was simply the trial judge explaining why he was not prepared to treat the respondent’s silence in reaction to the text as an adoptive admission.

. R. v. M.L.

In R. v. M.L. (Ont CA, 2026) the Ontario Court of Appeal dismissed a criminal appeal, this brought against a "sexual assault" jury conviction.

Here the court considers the application of the W.D. case "to ensure that jurors understand the relationship between findings of credibility in the context of conflicting evidence on a vital issue and the Crown’s burden of proof":

[14] The purpose of a W.(D.) instruction is to ensure that jurors understand the relationship between findings of credibility in the context of conflicting evidence on a vital issue and the Crown’s burden of proof. The trial judge’s final instructions achieve this by conveying to the jury that when there is conflicting evidence, the question is whether they are left with a reasonable doubt about the accused’s guilt on the whole of the evidence.

[15] In our view, the jury would have well understood the “appropriate burden and standard of proof”: R. v. Barrett, 2016 ONCA 12, 346 O.A.C. 1, at paras. 13-14; see also R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5, at para. 6; R. v. Morin, 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345, at pp. 361-62. There is no basis for appellate intervention.

. R. v. J.E.

In R. v. J.E. (Ont CA, 2024) the Ontario Court of Appeal allowed a criminal conviction appeal for sexual interference.

Here the court clarifies what the criminal standard of proof applies to:

[19] First, the criminal standard of proof beyond a reasonable doubt does not apply to individual items of evidence: see e.g., R. v. Morin, 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345, at pp. 354, 359; R. v. Miller (1991), 1991 CanLII 2704 (ON CA), 5 O.R. (3d) 678 (C.A.), at pp. 699-701. The trial judge improperly siloed A.R.’s evidence, and seems to have then given her testimony no further consideration because he was not satisfied beyond a reasonable doubt that it was true.

[20] Second, the high criminal standard of proof applies only to the Crown’s case against the accused, and more particularly to the essential elements of the charged offences. The defence was not required to prove any contested facts even on a balance of probabilities, let alone beyond a reasonable doubt. The trial judge, however, repeatedly indicated that he was discounting A.R.’s testimony because he was “left with doubt” or not satisfied beyond a reasonable doubt about her credibility.

. R. v. R.H.

In R. v. R.H. (Ont CA, 2024) the Ontario Court of Appeal considered the criminal standard of proof, here in a non-jury trial:

The trial judge correctly instructed himself on the presumption of innocence, the Crown’s burden of proof beyond a reasonable doubt, the principles from R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, regarding the application of the reasonable doubt standard to issues of credibility, and the meaning of reasonable doubt as discussed in R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320. He also referred to this court’s decision in J.J.R.D.

. 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.