What is the Difference Between Criminal and Civil Prosecutions?


Unless you are a professional in the justice system, the difference between criminal and civil law is likely confusing. Many victims don’t realize that they have options through civil court to address an incident that has caused them physical, emotional or financial hardship, even when criminal charges are not laid. There are other avenues of recourse for people who feel that they have been a victim of a crime outside of the criminal justice system.

What Is a Criminal Matter?

In Canada, when something happens that is against the law, a Crown prosecutor makes the decision on whether to charge someone (the “defendant”) with a criminal offence. It is important to understand that while the prosecutor often communicates and engages with the victim as a part of the process, the prosecutor does not work for the victim or their family. They represent the community at large.

Prosecutors are public sector employees and they work within the Criminal Justice Branch, which acts independently from the government. The victim does not incur any costs if a prosecutor decides to take a case to trial. They do not pay the prosecutor or cover the court costs – that comes from the Crown counsel’s (prosecutor’s) budget. Depending on the situation, a prosecutor may seek out the feedback or input of the victim, but the decision of what to do ultimately rests with the prosecutor, who is accountable to the public.

Beyond a Reasonable Doubt

If the prosecutor decides to try a person accused of a crime, then the prosecutor must prove the defendant’s guilt, beyond a reasonable doubt, at the trial before a judge or jury. “Beyond a reasonable doubt” is a high standard to meet. The judge or jury has to be persuaded that there is a very high probability that the accused committed the crime. The person is convicted only if there is no other logical explanation except that he or she did what he or she is accused of doing. If the accused is convicted, he or she could go to jail, depending on the type of offence committed.

What Is a Civil Case?

In a civil case, also known as a lawsuit, the victim makes the decision of whether or not to take legal action against the person that they feel has harmed them physically, emotionally or financially. The victim can hire a lawyer or bring the case before the court themselves. If the victim chooses to work with a lawyer, in most cases, he or she is responsible for the legal fees and court costs.

In a civil trial, he or she (the victim or lawyer) must prove on the balance of probabilities that the defendant did what the victim has alleged. The standard of proof is much lower than in criminal court (which is beyond a reasonable doubt). The victim wins if he or she persuades the judge or jury that there is 51% or more probability that the defendant did what they are being accused of doing.

Winning a Civil Case vs. a Criminal Case

In a civil case, if the defendant is found at fault (or liable), the judge or jury will assess the impact of how the defendant’s actions hurt the victim and determine what damages were caused by the defendant to the victim. The victim’s damages are not assessed in criminal trials.

Lower Standard of Proof

The reason why the standard of proof is higher in criminal court is because the defendant could go to jail – and there is a need to ensure, as much as possible, that an innocent person is not convicted of a crime they did not commit. This means that some defendants will be found not guilty even though they did commit the crime. At the foundation of the criminal justice system is the belief that: “It is better that ten guilty persons escape than that one innocent suffer.”*

In civil cases, if found liable, the defendant has to pay money in the form of damages and/or may be ordered to stop doing a certain activity that is unlawful.  

O.J. Simpson Is an Example of a Criminal Case vs. a Civil Case

What happened in the ‘90s with O.J. Simpson is a useful and well-known example of the differences between criminal and civil cases. In the criminal trial, the prosecutor charged Mr. Simpson with the murder of Nicole Brown Simpson and Ron Goldman. The jury was not provided with enough evidence during the trial to find beyond a reasonable doubt that Mr. Simpson committed the murders. He was found not guilty in the criminal trial.

In the civil lawsuit, which occurred after the criminal trial, the families of Ms. Simpson and Mr. Goldman hired lawyers and sued Mr. Simpson for the deaths of their loved ones. The jury found Mr. Simpson liable, meaning they believed that there was at least a 51% chance that he murdered both Ms. Simpson and Mr. Goldman. Once he was found liable in the lawsuit, the jury assessed damages against him and he was ordered to pay this to the families.

At first glance, the outcomes may seem to be inconsistent – but they are not, once you appreciate that there is a different standard of proof in each case. If a defendant is convicted in criminal court, then he or she is automatically (in most cases) liable in civil court. The other side to this is that if the prosecutor decides not to try a case or the accused is found not guilty in criminal court, the accused can still be tried in civil court and potentially be found liable. 

How to Win a Civil Suit

Launching a lawsuit is complicated. Navigating court rules and understanding how to effectively work within the legal system can feel overwhelming. Depending on your needs, you can choose to represent yourself** or to hire a lawyer to provide you with advice, guidance and to represent you.

Often, when working with a lawyer, they will work to obtain a settlement prior to your court date. If not, they build your case and present it to the judge or jury in a professional manner. Lawyers are experienced in presenting in court. They understand the process, the nuances, and have the knowledge and expertise for what needs to be done.

Want to Know More?

The legal team at Vertlieb & Co is made up of seasoned lawyers with extensive experience in civil matters. From personal injury to fraud to online harassment, we have successfully represented our clients at every level of Court in Canada, up to and including the Supreme Court of Canada.

Contact us to learn more about your rights in a civil matter – info@vertlaw.ca