Sex Assault Acquittal Highlights Differences in Burden of Proof Between Criminal and Civil Claims

by John McKiggan

Burden of proof

A recent decision from the Supreme Court of Nova Scotia provides a clear example of the differences between the burden of proof in criminal charges as opposed to civil compensation claims and how that can affect victims of sexual assault.

Her Majesty the Queen v. A.L. is a decision of Justice J. Arnold. There is a publication ban on the identities of the parties so the summary of the information is, by necessity, somewhat vague.

Basically the alleged victim C.S. claimed that when she was 10 years old her mother started a relationship with A.L. A.L was in his late 40’s and was a successful businessman. C.S. and her mother eventually moved into A.L.’s house. C.S testified that, after moving into a A.L.’s home, he began to physically and sexual abuse her.

The court heard detailed testimony regarding the nature and location of the assaults.

The accused A.L. testified in his own defence and denied all of the allegations.

Arnold J. acquitted A.L. of all charges.

What was interesting to me as someone who represents victims of sexual abuse in civil compensation claims was the discussion about the burden of proof. Justice Arnold provided a clear explamation on the presumption of innocence and the burden of proof in criminal matters.

What is proof beyond reasonable doubt?

In criminal matters the Crown must prove its case beyond a reasonable doubt.

After referencing the Supreme Court of Canada’s analysis of the burden of proof in criminal matters Arnold J. stated, at paragraph 253:

“It is therefore not for a trier of fact to simply choose which version of the offence that it believes. The trier of fact must consider all of the evidence. In this case, I have to decide if I am satisfied beyond a reasonable doubt that A.L. committed the various crimes against C.S. over the time period she states the offences happened.”

Justice Arnold went on, at paragraph 254:

“In a case such as this, having heard the testimony of all witnesses, it is not necessarily difficult to achieve the civil standard “balance of probabilities”; however, probability in a criminal case is not the test. If a Judge in deciding any criminal matter determines only, “I think he’s probably guilty” and then registers a conviction, that decision will be wrong in law. Probability is never enough in a criminal matter. The standard in a criminal matter is that the Crown must prove the guilt of a accused person, in this case A.L., beyond a reasonable doubt- which lies somewhere b between probability and absolute certainty, but closer to absolute certainty.”

In acquitting A.L. Justice Arnold highlighted the difference in the burden of proof between civil compensation claims and criminal charges. At paragraph 265 he said:

“As I stated initially, if I was dealing with the civil standard of a balance of probabilities, I might find in favour of C.S. Should she pursue this matter civilly she might end up with a very different result then will be found by applying the criminal standard.”

Justice Arnold has pointed out the significant difference for sexual abuse survivors between criminal proceedings and civil compensation claims.

Proof on the balance of probabilities

In this video I explain the differences between the burden of proof in personal injury cases and in criminal cases.



In a civil compensation claim you only have to tip the scales of evidence just slightly in your favour. In other words, just slightly beyond the 50% mark.

That is what is known as proof on the balance of probabilities (the test applied in civil law suits) as opposed to proof beyond reasonable doubt (the test that is applied in criminal proceedings).

This is a sad and unfortunate result for C.S. who, based on the evidence presented at trial suffered a very difficult life and has had significant problems as a result.

A.L. was not convicted of the criminal charges brought against him. But one hopes that C.S. will consider all of the options available to her.

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