Under Canadian Criminal law, a person who is charged with a criminal offence is ”presumed to be innocent until proven guilty”. The “presumption of innocence” is an important part of the foundation of the Canadian judicial system. This is widely known as the fundamental principal or “golden thread” of Canadian criminal law that is related to the burden of proof. Simply defined, the burden of proof describes requirement that the Crown must provide sufficient evidence in court to convince a legal authority (usually judge or jury) that their side of the case brought forward is conclusively proven to be true and accurate.

In criminal law the burden of proof lies completely with the Crown. There is no doubt that it is a heavy and onerous burden and completely favours the accused. The Crown has to prove beyond a reasonable doubt that the accused has committed a crime. A defendant does not have to prove that he or she is innocent because the presumption of innocence in favour of the accused is always the underlying assumption afforded to all individuals unless and until the prosecution is able to prove the case against them beyond a reasonable doubt. Reasonable doubt refers to a conclusion of the mind that you would apply to yourself in everyday life when faced with the direct and circumstantial facts allowing you to basically say you are “sure or certain” and you are left with no “reasonable doubt”. The phrase “beyond a reasonable doubt” does not mean 100% absolute certainty. However, it is far closer to being absolutely certain than the lower level test civil lawsuit burden of balance of probability (i.e. in a civil law suit, the judge or jury merely decides which side is more likely telling the truth). In a criminal case, the scales of justice must be tipped all the way down beyond a reasonable doubt to a moreal certainty before a conviction results.

There are some exceptions where the defendant bears the burden of proof. Reverse onus is a clause which shifts the burden of proof to the accused in both criminal and civil proceedings. Here, it is up to the accused to prove his or her innocence; for example, in certain civil cases involving motor vehicle accidents. The defendant usually has to prove that he was not negligent in the incident. This provision has had led to many controversial debates because in certain situations, it has been found to infringe upon and violate the basic right of the presumption of innocence.

In a famous ruling in the case of R. v. Oakes, this matter was taken to the Supreme Court of Canada with a ruling in the accused’s favor. Mr. Oakes was found in possession of a number of vials of cannabis as well over six hundred dollars in cash. Section eight of the Narcotic Control Act (which presumes that if you are found to be in possession of narcotics that it leads to the conclusion that your intention is for trafficking purposes) was found to violate section eleven of the Canadian Charter of Rights and Freedoms (which offers everyone the presumption of innocence). It is a double edged sword that aims to serve the law as well as maintain the rights of citizens. The old axiom that “it is better to let 1000 guilty men go free, than to convict one innocent man” directly flows from the presumption of innocence and burden of proof.

Another example of a lesser burden of proof in a criminal case is where the accused seeks to establish that their Charter rights have been infringed and evidence such as a statement, confession, hand gun, drugs or other contraband or an intoxilyzer breath test should be excluded under s.24(2) of the Charter. In most pre-trial Charter applications the burden of proof is on the accused to establish the Charter breach to a balance of probability. One exception is a s. 8 unreasonable search and seizure Charter application where the Crown has the burden of proof of establishing the search of the accused was based on reasonable and probable grounds to a balance of probability.

It is very important that the evidence gathered and presented for a criminal case is accurate and truthful and conclusively proves beyond a reasonable doubt that a person is guilty. The consequences of a judge or jury making a mistake and not properly applying the burden of proof are often dire for both the accused and the Crown. If a judge or jury fails to properly apply the presumption of innocence or burden of proof, an offender can potentially be wrongfully convicted and could receive serious jail time and/or restrictions on their civil liberties and the prosecution can face a costly civil case as well as lose the faith of the very citizens that they are trying to protect.

There are two main facets of a criminal case; the criminal act and the criminal intent. The criminal act pertains to the specific crime that the accused is being charged. The reasoning behind the committing of the act can arise intentionally or purposely, from negligence or from recklessness or willful blindness. Inaction or omissions during the committing of a crime can also occasionally lead to a successful prosecution in certain circumstances.

Criminal intent is a conscious and deliberate decision to harm or infringe against someone’s freedom. This state of mind can range from premeditation to a spontaneous act of violence. Both a criminal act and any criminal intent must also be proven beyond a reasonable doubt. The defence lawyers at Kruse Law Firm zealously ensure that the presumption of innocence, the burden of proof and the correct procedures are always followed to maximize your chances of success at trial. Knowing your legal rights is half the battle. Ensuring that you have knowledgeable and experienced representation that can fight for those rights is the next step. Call us toll-free at Kruse Law. Tell us your side of the case and let us handle the rest.

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