Beyond a Reasonable Doubt

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General Principles

See also: Standard of Proof

The standard of "beyond a reasonable doubt" (BARD) is a common law standard of proof in criminal matters.[1] This standard is exclusively used in criminal or quasi-criminal proceedings. This includes not only adult criminal trials, but also young offender cases, adult sentencing, and certain provincial penal offences.

In all criminal trials the Crown must prove each and every essential element beyond a reasonable doubt.[2]

The standard of "reasonable doubt" consists of a doubt based on reason and common sense which must be logically based upon the evidence or lack of evidence. It is not based on "sympathy or prejudice". [3]

Constitutional Foundation

The standard as the ultimate burden of proof is "inextricably intertwined with that principle fundamental to all criminal trials, the presumption of innocence".[4] The burden should never shift to the accused.[5]


Level of Certainty

Proof beyond a reasonable doubt "it does not involve proof to an absolute certainty; it is not proof beyond any doubt nor is it an imaginary or frivolous doubt."[6]

However, belief that the accused is "probably guilty" is not sufficient and must acquit.[7]

The burden of proof placed upon the Crown lies “much closer to absolute certainty than to a balance of probabilities.”[8] The standard is more "than proof that the accused is probably guilty" in which case the judge must acquit.[9]

To know something with "absolute certainty" is to "know something beyond the possibility of any doubt whatsoever". [10]

Such as standard is "virtually impossible to prove" and "impossibly high" for the Crown to be held to such a standard. [11]

Relationship to Evidence

“[A] reasonable doubt does not need to be based on the evidence; it may arise from an absence of evidence or a simple failure of the evidence to persuade the trier of fact to the requisite level of beyond reasonable doubt.”[12]

The standard of BARD only applies to the evaluation of the evidence as a whole and not individual aspects of the evidence.[13] The standard should be applied for the purpose of determining whether individual elements are proven beyond a reasonable doubt.[14]

Inferences and Conjecture

Reasonable doubt must come as a rational conclusion from the evidence available and not as a basis of conjecture.[15]


Risk of Wrongful Conviction

A verdict of guilt must be considered carefully in order to protect the liberty of the accused and protect against a wrongful conviction.[16]

Jury Instructions

The standard should not be articulated in a way that would likely cause the standard to be applied subjectively.[17]

Consequence of Reasonable Doubt

The finding of reasonable doubt "is not the same as deciding in any positive way that [the allegations] never happened."[18] It is simply a finding that the evidence is not of "sufficient clarity" to allow an acceptance of the essential facts to an "acceptable degree of certainty or comfort" sufficient to displace the presumption of innocence.[19]

  1. ↑ affirmed under the English common law of England in Woolmington v D.P.P., [1935] A.C. 462 at 481-82 (H.L.)
  2. ↑ R v Vaillancourt, [1987] 2 SCR 636, 1987 CanLII 2 (SCC), per Lamer J
  3. ↑ R v Lifchus, 1997 CanLII 319 (SCC), [1997] 3 SCR 320, per Cory J (9:0), at para 36
    See also: In R v JMH, 2011 SCC 45 (CanLII), per Cromwell J (9:0) at para 39 ( “a reasonable doubt does not need to be based on the evidence; it may arise from an absence of evidence or a simple failure of the evidence to persuade the trier of fact to the requisite level of beyond reasonable doubt.”)
  4. ↑ Lifchus, supra, at para 36
  5. ↑ Lifchus, supra, at para 36
  6. ↑ Lifchus, supra, at para 31, 36
  7. ↑ Lifchus, supra, at para 36
  8. ↑ R v Starr, 2000 SCC 40 (CanLII), per Iacobucci J (5:4) at para 242
  9. ↑ Lifchus, supra at 36
  10. ↑ R v Layton, 2008 MBCA 118 (CanLII), per Hamilton JA (2:1)
  11. ↑ Lifchus, supra, at para 39
  12. ↑ JMH, supra
  13. ↑ R v Stewart, 1976 CanLII 202, [1977] 2 SCR 748, per Pigeon J (6:3) at 759-61
    R v Morin, 1988 CanLII 8, [1988] 2 SCR 345 at 354, 44 CCC (3d) 193, per Sopinka J
    R v White, 1998 CanLII 789, [1998] 2 SCR 72, 125 CCC (3d) 385, per Major J (7:0) at paras 38-41
  14. ↑ R v McKay, 2017 SKCA 4 (CanLII), per Whitmore JA (3:0) at para 18 ("The standard of proof, being beyond a reasonable doubt, is not to be applied to individual pieces of evidence. Rather, it is to be applied to the evidence as a whole for the purpose of determining whether each of the necessary elements of an offence has been established.")
  15. ↑ R v Wild, 1970 CanLII 148 (SCC), [1971] SCR 101 at 113
  16. ↑ R v W(R), 1992 CanLII 56 (SCC), [1992] 2 SCR 122, per McLachlin J (6:0) in context of child witnesses ("Protecting the liberty of the accused and guarding against the injustice of the conviction of an innocent person require a solid foundation for a verdict of guilt")
  17. ↑ R v Stubbs, 2013 ONCA 514 (CanLII), per Watt JA (3:0), at para 99
    R v Bisson, 1998 CanLII 810 (SCC), [1998] 1 SCR 306, per Cory J (7:0) at p. 311 (SCR)
  18. ↑ R v Ghomeshi, 2016 ONCJ 155 (CanLII), per Horkins J, at para 140
  19. ↑ Ghomeshi, ibid. at para 140 and 141

Use of Illustrations in Articulating the Standard

Examples and illustrations are permissible in describing the standard of BARD as long as it does not takeaway the right to reach their own conclusions.[1] However, the use of illustrations or examples in articulating the standard of BARD is "fraught with difficulty".[2] The use of examples tends to lower the standard to that of a balance of probabilities and encourage a subjective standard.[3]

By giving illustrations it risks creating the impression that the decision "can be made on the same basis as would any decision made in the course of their daily routines", which tends to move the standard closer to one of "probability".[4] It also creates excessive subjectivity in interpretation, where consideration will vary based on each person's life experience.[5]

  1. ↑ R v Stavroff, 1979 CanLII 52 (SCC), [1980] 1 SCR 411, per McIntyre J (7:0) including p. 416 (SCR)
  2. ↑ R v Stubbs, 2013 ONCA 514 (CanLII), per Watt JA (3:0), at para 98
    R v Bisson, [1998] 1 SCR 306, 1998 CanLII 810 (SCC), per Cory J (7:0) at para 6 ("No matter how carefully they may be crafted, examples of what may constitute proof beyond a reasonable doubt can give rise to difficulties")
  3. ↑ Stubbs, supra, at para 99
  4. ↑ Bisson, supra, at para 6
  5. ↑ Bisson, supra, at para 6

Raising a Doubt

See also: Inferences

A reasonable doubt cannot be based on "speculation or conjecture".[1]

The Crown has no burden to "negativing every conjecture to which circumstantial evidence might be consistent with the innocence of the accused."[2]

"Bero" defence

The absence of evidence due to the police's failure to take investigative steps will sometimes be an important consideration in whether the Crown has proven its case beyond a reasonable doubt.[3]

The defence is permitted to elicit evidence from witnesses of potential inadequacies in the investigation. Oversights in an investigation "can be particularly important where no defence evidence is called."[4]

  1. ↑ R v Henderson, 2012 NSCA 53 (CanLII), per Saunders JA (3:0), at para 40
    R v White, 1994 CanLII 4004 (NS CA), per Chipman JA (3:0)
    R v Eastgaard, 2011 ABCA 152 (CanLII), per curiam (2:1) at para 22, aff’d 2012 SCC 11 (CanLII), per McLachlin CJ (7:0)
  2. ↑ R v Tahirsylaj, 2015 BCCA 7 (CanLII), per Bennett JA (3:0), at para 39
    R v Paul (1975), 1975 CanLII 185 (SCC), 27 CCC (2d) 1 (SCC), at 6, (1975), [1977] 1 SCR 181, 64 DLR (3d) 491 (SCC), per Ritchie J (6:3)
  3. ↑ R v Bero, 2000 CanLII 16956 (ON CA), (2000), 151 CCC (3d) 545 (Ont.C.A.), per Doherty JA (3:0) at paras 56 to 58
  4. ↑ R v Gyimah, 2010 ONSC 4055 (CanLII), per Healey J, at para 20 Bero

See Also

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