As the accused, you are innocent until proven guilty. It is the Crown’s responsibility to prove your guilt beyond a reasonable doubt. This means if the judge or jury has a reasonable doubt that you committed the crime, they cannot find you guilty. You do not need to prove your innocence – or anything. You may put forward a specific defence if you wish, but you are not required to do so. You may also try to convince the judge or jury that the Crown has not proven your guilt beyond a reasonable doubt, but, again, you are not required to do so. Or you may wish to do both.
- 4.1 Understand What the Crown Needs to Prove
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If you want to raise a reasonable doubt that the Crown has not proven your guilt, the first step is to understand what it is the Crown needs to prove.
In general, the Crown needs to prove:
- the time and date of the offence (these are usually not seriously in dispute);
- the location of the offence (e.g. it happened in X location, in which province / territory) (this too is not usually seriously in dispute);
- the identity of the accused (e.g. that it was, in fact, you who committed the offence); and
- the elements (essential parts) of the crime actually happened.
Time and location
The Crown must prove that the offence happened at a certain time and place. They can do this through witness testimony or documentary or other evidence, such as video surveillance footage marked with a date. If you raise a doubt, that you were not there at that time, the Crown will not be able to prove their case. To do this you might have a witness that can vouch you were somewhere else (an alibi).
For example, if the Crown is saying you damaged property on Main Street, Town X, on Sunday, February 5th, at a certain alleged time, and a doubt is raised about that by a witness saying that, at the alleged time, you were at work across town. However, there are certain rules regarding notice for an alibi defence - you must tell the Crown of any alibi defences before the trial, so they have a chance to check it out.
Identity
The Crown will need to prove that the person who committed the offence is, in fact, you. For instance, if they have eye witnesses, they will be asked to identify you in the courtroom as the same person they say committed the crime. Consider the strength of the evidence. Did they have a good clear vision of the crime or not (e.g. it was very dark or foggy or they were too far to really see). Maybe the witness needed glasses but were not wearing glasses that night. Or they only saw someone in a blue jacket and blond hair, but they did not see a face. You may question whether they have positively identified you. For example, if the video surveillance is blurry or only shows the back of someone’s head you can argue it is not enough to prove beyond a reasonable doubt that the person was you.
Elements of the charge
In order to show that you committed an offence, the Crown must prove that you did each of the things that make up the elements (essential parts) of the offence. Often, they must also show that you did it intentionally or with recklessness. Look up the law you are accused of breaking (often this is a charge in the Criminal Code of Canada or the Controlled Drugs and Substances Act, but it may also be under another federal or provincial statute). Then break down the elements of the charge.
For example (usually such a charge appears in provincial / territorial court, not superior court):
Assault (section 265(1)(a) of the Criminal Code of Canada) is:
- the intentional use, or threat of use, of force against another person directly or indirectly, without that person’s consent (agreement).
Elements: intention to apply force; threat of force or actual force applied; lack of consent.
Therefore, assault could be as minor as pushing someone out of the way or as serious as a violent punch. It also includes indirect contact such as throwing objects at someone.
Another example (again, such a charge usually appears in provincial / territorial court, not superior):
Let us examine a situation where you are charged with mischief (section 430 of the Criminal Code of Canada). The first thing you will want to do is look up the offence under the Criminal Code of Canada.
One definition of mischief is found in section 430(1)(a) of the Criminal Code of Canada), the relevant portions of which, read:
- Everyone commits mischief who willfully
(a) destroys or damages property;
Therefore, if you are charged with mischief, the Crown must prove 3 things:
- that you damaged or destroyed property;
- that property was someone else’s; and
- you did this intentionally.
For each of these elements you will want to consider what evidence the Crown has to prove it. Or is there a way to raise a reasonable doubt about any of these elements. For example, you may bring out evidence that the property was already damaged or that the property is actually yours.
Defences
You may want to consider if there are any specific defences (defences described in the statute or case law). For example, the defence of alibi discussed above. Other examples of specific defences are often more complex and require specific legal advice, and are, thus, beyond the scope of this handbook.
- 4.2 Strategy
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For each of the things the Crown must prove, think about how you may create a reasonable doubt. Remember that you don’t need to prove anything. The Crown must prove your guilt beyond a reasonable doubt. However, you may wish to have a strategy respecting how you might be able to raise a reasonable doubt. For example, can you raise a doubt that a witness used to identify you is not credible – is mistaken or might have a reason to blame you for something you did not do? Maybe you can raise a doubt that they are saying contradictory things in their statement. When you have a defence strategy, consider how you may raise a reasonable doubt.
Take a look at the example of being charged with mischief. These are some examples of strategies one could present to support a reasonable doubt about the Crown’s case. The defence’s strategy will depend on the facts of the case. Then fill out the Your Defence Strategy Worksheet.
Example: Charged with mischief
Crown’s case
Crown’s evidence
Your defence
Your evidence
Time and date
February 5th, 9:00 p.m.
Ms. Hopkin’s testimony: she saw someone smash the fence of house at 1240 Main Street, Town X, at 9:00 p.m. when she was walking home.
You were at work on February 5th
at 9:00 p.m.
Co-worker witness saw you working.
Your work timesheet.
Location
1240 Main Street, Town X
Ms. Hopkin’s testimony:
Police Officer called to scene.
You work far from there.
Co-worker witness gives address of your work.
Identification
It was you.
Ms. Hopkin’s testimony: She saw someone with blond hair 6ft with a blue jacket.
Ms. Hopkin is not reliable. It was dark and her memory is not so good.
Cross-examine
Get her to confirm that it was hard to see.
Her statement said she was not sure about hair colour, maybe blond.
Elements of charge
Damage to house, intentionally done.
Photograph of property damage. Eye Witness saw you drive into fence.
Property already damaged.
Or if you were there, it was not intentionally done; you needed to suddenly swerve out of the lane because a child jumped on the street.
Witness that can testify property was damaged in January. When neighbour accidently drove into fence. Witnesses saw this happen.
Or, the only way to avoid hitting a child was to hit the fence. No intent to damage property.
- 4.3 Your Defence Strategy Worksheet
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Fill in the worksheet considering what the Crown needs to prove, what evidence they have to prove the elements of the charge, your strategy to raise a reasonable doubt.
Crown’s case
Crown’s evidence
Your defence
Your evidence
Time and date
Location
Identification
Elements of charge