13. Criminal Liability

Burden of Proof

In a criminal case, the defendant is presumed to be innocent unless he or she is proven guilty.

This presumption of innocence means that the government must prove the case against the defendant before it can impose punishment. If the government cannot prove its case, then the person charged with the crime must be acquitted. This means that the defendant will be released, and he or she may not be tried for that crime again. This important protection from ‘double jeopardy’ is guaranteed by the Canadian Charter of Rights and Freedom (CCRF): “Any person charged with an offence has the right, if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again.” (Section 11(h) of the CCRF – https://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/check/art11h.html)

The prosecution has the burden to prove its case beyond a reasonable doubt. This means that the evidence must be so compelling that no reasonable doubt exists as to the defendant’s guilt. The defendant does not have to prove anything, because the burden is on the government to prove its case. It is useful to think of the criminal standard of proof—beyond a reasonable doubt—as 95 percent certainty, with 5 percent doubt. Perhaps there is some doubt about the precise time of day or the victim’s exact words to the defendant. However, there is no doubt about the essential elements of the crime, such as the defendant’s identity as the perpetrator of the crime, his or her mens rea, and the actus reus.

Burden of Proof in Criminal Trials

Compare this to the standard of proof in a civil trial, which requires the plaintiff to prove the case only by a preponderance of the evidence. This means that the evidence to support the plaintiff’s civil case is greater than the evidence that does not. Preponderance of the evidence could mean 51 percent in favor of the plaintiff’s case, and 49 percent in doubt. Therefore, it is much more difficult to prosecute a criminal defendant than to bring a successful civil claim. Since a criminal action and a civil action may be brought against a defendant for the same incident, these differences in burdens of proof can result in verdicts that seem, at first glance, to contradict each other.

Burden of Proof in Civil Trials

This extra burden reflects the fact that the defendant in a criminal case stands to lose much more than a defendant in a civil case. Although no one wants to lose assets in a civil case, the loss of liberty through imprisonment is a more significant loss. Therefore, more protections are given to a criminal defendant than are given to defendants in civil proceedings. Because so much is at stake in a criminal case, our Constitutional due process requirements are very high for defendants in criminal proceedings. Section 11 (d) of the CCRF states that: “Any person charged with an offense has the right to be presumed innocent until proven guilty according to the law in a fair and public hearing by an independent and impartial tribunal.”

Due process procedures vary depending on the type of penalty that can be levied against someone. For example, in a civil case, the due process requirements might simply be appropriate notice and an opportunity to be heard. If the government intends to revoke a professional license, then the defendant might receive notice by way of a letter, and the opportunity to be heard might exist by way of written appeal. In a criminal case, however, the due process requirements are higher. For example, a criminal defendant is entitled to confront all witnesses against him or her, and to see the evidence the prosecution intends to introduce at trial. More protections must be in place because a criminal case carries the potential for the most serious penalties.


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Business Law and Ethics Canadian Edition Copyright © 2023 by Craig Ervine is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License, except where otherwise noted.

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