Canadian criminal justice: Defending against charges

In Canada, the word “defence” can be used to refer to several different ideas in the criminal justice system.

A person who is accused of an offence is sometimes called “the defendant” and their legal team can be referred to as “the defence.”

The word “defence” is also used to refer to the legal strategy – “the defence” – used to challenge a prosecution. This legal strategy can include one or more of the following.

• The defendant may defend against their charges by having the charges stayed under the Canadian Charter of Rights and Freedoms or under the common law.

For example, charges may be stayed if  the offences were committed due to "entrapment" by the authorities or if there has been an unreasonable delay in bringing the case to trial under subsection 11(b) of the Charter.

• The defendant may defend against their charges by having essential evidence excluded from the prosecution under the Charter or under the law of evidence.

For example, the defendant may be acquitted because their confession to police was thrown out of evidence or because the prosecution was not allowed to present hearsay evidence to the court.

• The defendant may also defend against their charges by denying the allegation – either by denying that the alleged facts happened, arguing that the alleged facts do not meet the legal test for an offence, or by denying that they were the perpetrator of the offence. The defendant does not need to actually disprove the allegation – it is sufficient if they leave the judge or jury with a reasonable doubt about the allegation.

For example, the defendant may be acquitted because the prosecution’s witnesses were shown to be lying or mistaken about important details or because the circumstantial evidence did not clearly prove guilt.

• The defendant may also defend against their charges by advancing a positive legal defence against the charge – these are legal rules that excuse or justify otherwise criminal conduct.

For example, the defendant may be acquitted on the basis that they committed an assault in self-defence or under duress.

Nothing prevents the defendant from advancing more than one defence strategy, even if the defences seem contradictory.

For example, if the prosecution shows a video of two people fighting each other, the defendant might argue that “I am not one of the people in that video – but if I was, then the video shows that I would have been acting in self-defence.”

Some defences are obvious from the moment that the defendant is charged with an offence. However, in many cases, defences will not be obvious until full disclosure has been obtained from the prosecution, until a defence investigation has been completed, until the case has proceeded through the administrative phase, or until all the witnesses have testified.

Our defence team takes a comprehensive approach to defending against criminal charges – we explore all options with our clients to ensure that their interests are fully protected against criminal allegations.

Contact the lawyer of your choice for a free consultation.

This blog post is part of our Canadian criminal justice series – we hope that these blog posts will shed some light on the Canadian criminal justice system for clients and potential clients, members of the community, and law students. Feel free to e-mail us at info@sjhdlaw.ca to propose any changes or updates.