Subsection 11(d) of the Canadian Charter of Rights and Freedoms guarantees a person’s right “to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.”
- The defendant is presumed to be innocent. In other words, the prosecution bears the burden of proving that the defendant is guilty – the defendant does not have to prove their innocence.
- The presumption of innocence is further guaranteed by the requirement that the prosecution prove their case “beyond a reasonable doubt.” In other words, the prosecution must prove the offences and disprove most defences to a near-certainty – it is not enough that a person is possibly guilty or even probably guilty.
Under the Criminal Code, the type of offence determines the kind of trial that a person receives.
- In some cases, a defendant may receive a “judge-alone trial.” In these trials, the judge is responsible for making legal rulings and for finding the facts in the case.
- In other cases, the defendant has a right to a trial by “judge and jury.” In these trials, the judge is responsible for making legal rulings but twelve members of the community are responsible for finding the facts in the case.
Each trial proceeds in two stages – the prosecution’s case and the defendant’s case.
- In the first half of a trial, the prosecution leads all its witnesses and evidence. The defendant’s counsel is given the opportunity to test prosecution witnesses through cross-examination. If the prosecution’s case is weak, the defendant may seek a “directed verdict of acquittal” and prematurely end the case.
- In the second half of a trial, the defendant has the opportunity to call their own evidence, but there is no obligation to do so. The prosecution’s counsel is also given the opportunity to test the defendant’s witnesses through cross-examination.
At the end of the trial, the judge or the jury must weigh the evidence and determine whether the prosecution has displaced the presumption of innocence and proven guilt beyond a reasonable doubt.