The opening scene of the classic courtroom drama, 12 Angry Men, transports its viewers into a bustling New York City courthouse. After briefly wandering throughout the building, the first-person camera eventually enters Courtroom 228. Inside the courtroom, an unnamed judge is in the midst of delivering his final instructions to a 12-man jury about to begin its deliberations in a first-degree murder trial:

…you've listened to a long and complex case, murder in the first degree. Premeditated murder is the most serious charge tried in our criminal courts. You've listened to the testimony, you've had the law read to you and interpreted as it applies in this case, it's now your duty to sit down and try to separate the facts from the fancy. One man is dead, another man's life is at stake, if there's a reasonable doubt in your minds as to the guilt of the accused…then you must bring me a verdict of "Not Guilty". If, however, there's no reasonable doubt, then you must, in good conscience, find the accused "Guilty". However you decide, your verdict must be unanimous. In the event that you find the accused "Guilty", the bench will not entertain a recommendation for mercy…

Although the fictitous judge’s instructions are representative of Hollywood’s (often fantastical) portrayal of criminal law, his words correctly articulate the standard of proof required to secure a criminal conviction: beyond a reasonable doubt. And while the majority of us have been made familiar with this standard through film and television, what does the law itself actually have to say about this evidentiary threshold? Or, put differently, what does ‘reasonable doubt’ actually mean in Canadian criminal law?

In answering this question, we can begin our discussion with the Canadian Charter of Rights and Freedoms. Section 11(d) of the Charter guarantees the right of any person charged with a criminal offence “to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.” In one of its most historic and significant decisions, R v Oakes, the Supreme Court of Canada interpreted section 11(d) to contain (at a minimum) the following criteria: (1) that the accused individual must be proven guilty beyond a reasonable doubt; (2) the burden of proof is placed on the shoulders of the State; and (3) that criminal prosecutions must be carried out in a manner that accords with lawful procedures and fairness (para 32). The standard of beyond a reasonable doubt, thus, is intimately connected to one of the central pillars of our liberal constitutional order: the right to be presumed innocent until proven guilty.

Much like the fictitious American judge quoted above, Canadian judges are also required to instruct juries on the meaning of these legal concepts. However, given the level of philosophical abstraction and – possibly – the interference of popular culture’s sensationalized articulation of legal principles, Canadian judges have, at times, struggled with this task. These struggles have resulted in a number of cases’ elevation to the Supreme Court for reasons relating to trial judges’ provision of improper instruction to juries. Accordingly, the Supreme Court has seen fit to provide more thorough instruction on the ‘beyond a reasonable doubt’ standard and how it ought to correctly be explained to juries. In R v Lifchus, Justice Cory penned a list of points that should be made by trial judges while instructing juries on the meaning of the standard:

∙   the standard of proof beyond a reasonable doubt is inextricably intertwined with that principle fundamental to all criminal trials, the presumption of innocence;

∙   the burden of proof rests on the prosecution throughout the trial and never shifts to the accused;

∙   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 (para 36).

Several years after its decision in Lifchus, the Supreme Court would again offer instruction to trial judges on the concept in R v Starr:

[A]n effective way to define the reasonable doubt standard for a jury is to explain that it falls much closer to absolute certainty than to proof on a balance of probabilities. As stated in Lifchus, a trial judge is required to explain that something less than absolute certainty is required, and that something more than probable guilt is required, in order for the jury to convict. … It will be of great assistance for a jury if the trial judge situates the reasonable doubt standard appropriately between these two standards. The additional instructions to the jury set out in Lifchus as to the meaning and appropriate manner of determining the existence of a reasonable doubt serve to define the space between absolute certainty and proof beyond a reasonable doubt” (para 242).

The standard of ‘beyond a reasonable doubt,’ therefore, occupies a peculiar position. A jury is not asked to be absolutely certain of an accused’s guilt because such a conclusion would, of course, be both logically and physically impossible. Rather, they are asked to reach a level of certainty where they believe that the accused is beyond ‘probably guilty’ or ‘likely guilty’ of the offence. If left with the belief that the accused is ‘probably guilty’ or ‘likely guilty’, the jury must acquit the accused person.

But is this an acceptable standard?

Unlike civil proceedings where parties quarrel over money and reputation, criminal proceedings pit individuals against the repressive machinery of the state, manifested in its power to strip them of their liberty interest. Given that our constitutional order, by design, staunchly protects individual liberty from state encroachment, the evidentiary burden in proceedings that stand to negatively impact this liberty must be equally significant. In this context, therefore, it becomes easier to understand why the evidentiary burden placed on the shoulders of the Crown to secure a criminal conviction is closer to absolute certainty (an impossible degree of certainty) than it is to only probable certainty. While I understand that thinking in such philosophical or abstract terms can, at times, lead to confusion and various other forms of human error (as evidenced by the numerous Supreme Court cases addressing this legal principle), such a high standard of proof works to bring us as close as we can reasonably get to absolute certainty. To this end, I subscribe to Blackstone’s classic common law maxim: it is better that 10 guilty persons escape than one innocent suffer (p. 358).