In Canada, criminal and civil trials are treated quite differently from one another. A criminal case arises when a person has committed an offense under the Criminal Code and the government brings action against the accused. In contrast, a civil trial occurs when a victim brings action against a defendant for a private wrongdoing. Because these types of trials are separate and distinct from each other, the standard of proof in each is also different.
The standard of proof in criminal trials is ‘beyond a reasonable doubt’, and the burden of proof rests on the prosecution. This essentially means that a person is presumed innocent unless the prosecutor can prove beyond a reasonable doubt that the accused is guilty of the crime in question. The standard of proof for criminal trials is intentionally very high because the accused’s rights are at risk, since an accused may be stripped of his/her liberty and sentenced to jail time if found guilty. The Supreme Court of Canada summarized the meaning of ‘beyond a reasonable doubt’, and how it ought to be explained to juries, in R. v. Lifchus, 1997 SCC 319 (CanLII). The court noted in this case that “the standard of proof [in criminal trials] is higher than… proof based upon a balance of probabilities yet less than proof to an absolute certainty” (para 14). The Supreme Court emphasized here that though proof beyond a reasonable doubt does not necessarily require that a judge and/or jury be absolutely certain that the accused committed the offense, this standard still requires more than mere probable guilt.
This is also why a finding of not-guilty by a judge or jury in a criminal trial is not the same as a finding of innocence. A judge can believe someone is likely to have committed the crime (more than 50% chance), but still not be satisfied that the prosecution has proved the case to the required standard.
For civil cases, such as breach of contract, the party bringing the action (plaintiff/claimaint) generally bears the burden of proof. The defendant in a civil trial may be found liable merely if it is more likely than not that the plaintiff’s version of events is truthful. This standard is referred to as a ‘balance of probabilities’ because ultimately the judge need only be 51% certain that the alleged wrong was committed by the defendant in the manner described by the plaintiff. This is a much lower standard of proof than in criminal trials because the defendant’s rights are not generally at stake. Most commonly, if the defendant is found liable for the civil wrong committed, the defendant will merely owe the plaintiff monetary damages. Historically there was a number of subcategories where a higher standard was considered in civil cases, with phrases such as “high burden” or “convincing evidence” being used. However, the Supreme Court of Canada clarified in F.H. v. McDougall, 2008 SCC 53 that “there is only one civil standard of proof at common law and that is proof on a balance of probabilities”.
In some situations, it is possible for a person to commit one act and become both a defendant in a civil trial and an accused in a criminal trial. For example, assault is both a crime under Canada’s Criminal Code and a common law personal injury tort. Because of this, a person who commits an assault may be criminally prosecuted by the government as well as civilly sued by the victim of the assault. The results at each trial, in these types of situations, may be different. Since the standard of proof is so high in criminal trials, it is plausible that the prosecution could be unable to meet the standard of beyond a reasonable doubt. In a civil trial regarding the same person and the same act, however, the victim may more easily be able to prove their version of the events on a balance of probabilities. In this situation, a person could be found not guilty in a criminal trial yet liable under a civil action. One example of this would be the O.J. Simpson murder trial, where he was not convicted on the criminal charges, but subsequently found liable for 33.5 million dollars in a civil trial.
Civil and criminal trials arise in different ways, have different consequences, and are generally treated as being distinct from one another. For these reasons, among others, the standards of proof that are required in each type of trial also differ from one another. In short, the standard of proof in criminal trials is much higher than in civil trials.
