You’ve come to our firm, you’ve retained us, you are charged with any type of criminal offence, you say to me “Mike, I’m innocent, I intend to plead not guilty”.
What is the test in Canada for proof, how does the Crown prove a case against you? Well first of all, in order to convict you, the Crown has to prove beyond a reasonable doubt, that you are guilty. What does that mean? Well first of all, if you are only probably guilty in the judge or jury’s mind, you should be acquitted. Probable guilt is not enough. It doesn’t have to be to absolute certainty though, but certainly, reasonable doubt is far closer to absolute certainty then it is to mere probability. So you can see what a powerful test that is. In many cases you can win a criminal trial case, just base on that reasonable doubt and in many cases you don’t even have to testify. It’s up to the Crown to prove, that’s your choice in conjunction with consulting with your lawyer, and whether you need to testify in a particular criminal case.
Now what if you do testify, how does the judge determine or the jury, credibility, your credibility in the crown’s case. Well it’s a three step test. And the first part of the test is this. You testify. If the judge and jury will say to themselves, “Do I believe the accused evidence?”. If the answer to that is “Yes, I believe them”. Then you are going to be acquitted. That’s hard to get to that point. Let’s face it. Politically, it’s difficult for judges to say that in open court. I’ve won many cases where they have, but you don’t need to get to that level, you just need to create reasonable doubt. But again, judges sometimes don’t want to anger a complainant by saying they believe the accused or her. So we go on to the second part of test. Does the evidence of the accused that is my testimony or evidence that I presented or other than my testimony or my other witnesses that I presented, does that create a reasonable doubt? If the answer to that is “yes”, you win. That’s great, you are not necessary believed, it doesn’t matter a wins a win.
Now the third part of the test is very powerful as well. I’ve often heard judges say, look, I don’t believe the accused, or you don’t necessarily believe the accused, but does their evidence leaves me with reasonable doubt, and the answer is “yes it does”. So judges will often say that, I don’t necessarily believe the accused but I am left with reasonable doubt. That’s a win. A wins a win a win, on branches one to three and that’s why you could win many criminal trials in Canada and especially when it’s your word versus the word of another complainant.