“If a legal rule requires a fact to be proved (a ‘fact in issue’), a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are zero and one. The fact either happened or it did not.
“If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of zero is returned and the fact is treated as not having happened. If he does discharge it, a value of one is returned and the fact is treated as having happened.”
The above words of Lord Hoffman in the English House of Lords decision in re B (2008) reflect the fact a court must decide, whether a fact that in issue was established or not. It must make a decision one way or the other.
In arriving at its decision, it must apply a standard of proof whether stated or not. “Standard of proof” may be defined as the minimum level which the evidence must attain for it to be established that a “fact in issue” has been proven. In this sense, in a civil case it has generally been accepted in the common law jurisdictions that it must be proved that it was more probable than not that the fact occurred.
In another sense, the term “standard of proof” could mean the quality of the evidence which is required to prove a particular fact.
It is submitted that it is largely as a result of the confusion of the two meanings of standard of proof that there are many civil cases in which language has been used in the courts to indicate that there are shifting standards of proof according to the nature of the allegations.
This pattern was particularly evident in English and Canadian cases prior to 2008 when the highest courts in both jurisdictions had to reaffirm that the only standard of proof in civil cases is proof on a balance of probabilities. The two cases were in re B (2008) and the Canadian Supreme Court case of F.H. vs McDougall (2008).
The different approaches to the issue of standards of proof were particularly evident in civil cases where criminal or morally blameworthy conduct was alleged. They were summarized by Rothstein J. who delivered the judgment of the Supreme Court of Canada as follows:
“1. The criminal standard of proof applies in civil cases, depending on the seriousness of the allegation;
2. An intermediate standard of proof between the civil standard and the criminal standard commensurate with the occasion applies to civil cases;
3. No heightened standard of proof applies in civil cases, but the evidence must be scrutinized with greater care where the allegation is serious;
4. No heightened standard of proof applies in civil cases, but evidence must be clear, convincing and cogent; and
5. No heightened standard of proof applies in civil cases, but the more probable the event, the stronger the evidence is needed to meet the balance of probabilities test.”
Rothstein J. then remarked: “Like the House of Lords, I think it is time to say, once and for all in Canada, there is only one civil standard of proof at common law and that is proof on a balance of probabilities.”
The difficulties of defining the standard of proof in civil cases in which the allegations are of a serious crime or would otherwise have serious consequences if proved, led Lord Hoffman, while attempting to provide clarity to the issue, to deliver himself of the following remarks in two consecutive sentences at paragraph 13 of his judgment in re B:
“I think that the time has come to say, once and for all, that there is only one civil standard of proof and that is proof that the fact in issue more probably occurred than not. I do not intend to disapprove any of the cases in what I have called the first category, but I agree . . . that clarity would be greatly enhanced if the courts said simply that although the proceedings were civil, the nature of the particular issue involved made it appropriate to apply the criminal standard.”
The first category refers to cases where the court has for one purpose classified the proceedings as civil, but nevertheless thought because of the serious consequences of the proceedings, the criminal standard of proof or something similar should be applied.
It is submitted that common sense dictates that the seriousness of the allegation and the consequences flowing from a particular finding are considerations which a court must take into account in arriving at whether a fact has been proved or not.
This is what Dixon J. said in the Australian case of Briginshaw vs Briginshaw (1938), where proof on a balance probabilities was agreed to be civil standard:
“The truth is that when law requires the proof of any act, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality . . . .
“The seriousness of the allegation made, the inherent likelihood of an occurrence if a given description, or the gravity of the consequences following from a particular finding are considerations which affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters, ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony or indirect inferences.”
It is discussion such as referred to herein that would have been helpful in assessing how the court arrived at its verdict on the factual issues in the Shanique Myrie case. What a missed opportunity!
• Cecil McCarthy is a Queen’s Counsel.
