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Criminal & DUI Lawyers, including:
Three Former Crown Prosecutors

Defending Domestic Assault Cases

Video Transcript

I’m glad you could join me today. I’m here today to talk to you about defending a domestic assault matter. A client comes into my office and he’s here, she says, “Look I didn’t do this. I’ve been falsely accused”. How can we defend that? First and foremost we need to get a hold of all of the police reports, the video statement of the alleged victim. Every scintilla of evidence that the crime has, we need to get a hold of that and we need to look at that in the context of our client’s version of events. My job as a lawyer is to try and create a reasonable doubt in a courtroom, that’s how you win cases by creating improbabilities, inconsistencies, looking at motives to lie. There’s so many motives to lie in a domestic assault case, for example. Clients tell me all the time that whether it’s a man or woman, who’s the victim, the laying of charge gets the other person booted out of the house, gets control of the kids, the finances. These are the types of things we have to look at. Also, worse is the spouse trying to get back at the person because they’ve been unfaithful. For example, this is the job of the lawyer to look at the evidence. Look for this improbabilities and inconsistencies leading up to the trial. We also need to get our client very well prepared to testify. This takes hours and it’s an art form whether a person’s telling the truth, lying or somewhere in between. Unfortunately, that’s got a little to do with how they come across in the court room, whether they’re gonna win their case. Sometimes the most truthful witness in the world can appear to be totally incredible because they’re so nervous and they can’t keep their story straight. Our job as a lawyer is to prepare it, to prepare them for an examination chief and to withstand that cross examination by a very experienced Crown attorney. If the client who’s told us he’s innocent, he or she is innocent is able to bring that a game to court they can win their case. They can create reasonable doubt and that’s our job to get them there. Now, the most important thing to understand is that the burden of proof is in the accused’s favor in Canada in a criminal case. So if an accused testifies, for example, the judge, he or she has to look at the accused’s credibility and look to see if there’s reasonable doubt and that’s a three step process. The Supreme Court of Canada has laid it down, it’s called the WD Test. I’d like to review that with you, the three steps. The first step is this, the judge has to ask himself or herself if I believe the evidence of the accused, I must find him or her not guilty, that’s the step one so the judge may not believe them. So you go on to step 2, even if I don’t believe the evidence of the accused, if I’m left with a reasonable doubt by it, I must acquit. That’s a very powerful arsenal tool in a defense lawyer’s playbook. That’s called reasonable doubt. Now the third step is even better. The third step if the WD Test is this, even if I completely reject the evidence of the accused. So I find that the accused is a complete liar. So the judge then has to go on and examine the rest of the evidence. Now this is the complainant’s evidence, the evidence that ask is there a reasonable doubt, sometimes, in a case in which the accused is totally incredible. The complainant also, not that credible or the judge is only fairly certain, maybe problematic, they just can’t bring themselves to completely find beyond reasonable doubt. Are they sure it happened? You see, proof beyond reasonable doubt is far closer to complete certainty that it is the balance of probability. You have to be sure and that’s why we can win domestic assault cases. Client comes to the office says he didn’t do it. My job ethically as a lawyer is to bring everything I can to win that case and I can assure you, if you retain our firm that’s what we’re going to try and do in every case and within the bounds of ethics and in the bounds of law.

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