Practice highlights

Criminal Law

The Criminal Code of Canada contains numerous different offences of which an individual may be charged.

One important thing to remember about criminal law is that each offense consists of different essential elements. To be found guilty of a crime, the prosecution must prove each of those essential elements beyond a reasonable doubt.  Only then the court can find you guilty.  In other words, it is not you who must prove your innocence, it is the prosecution who must prove your guilt.  Maybe guilty or probably guilty is not enough.  Only guilty beyond a reasonable doubt will do.  And then, there are also so-called affirmative defenses that may apply in a given case, i.e., even if you did what the Crown says you did, your actions may be justified under the law.


Let’s take a case of a common assault.  Simply put, an assault is an intentional application of force to another person without such a person’s consent.  You and I have an argument, I lose it and punch you in the face – that is an assault.  What if we have an argument and you tell me “let’s go, man, show me what you got” and then I punch you – is that an assault?  Not necessarily, it looks like a consensual fight to me, so one of the essential elements – the absence of consent – is lacking.  And what if I pushed you, clearly without your consent, but it was because I did not see you were standing there?  Well, then I had no intention to apply any force towards you, so another essential element is lacking – intentional (as opposed to accidental) application of force.  And what if you punched me first and I punched you back?  Well, this may be classified as self-defense in the right circumstances, one of those affirmative defenses where my actions may be justified.


How does the prosecution prove the elements of the offense?  By evidence, of course.  The evidence, in turn, is divided into two main categories – direct evidence and circumstantial evidence.  Eyewitness testimony is an example of direct evidence, while DNA or fingerprints may serve as circumstantial evidence.  The evidence can also be divided into two other main categories – inculpatory evidence which tends to prove your guilt and exculpatory evidence which tends to point away from it.


The job of a criminal lawyer therefore is to raise reasonable doubt by bringing to light evidence that tends to exonerate you, pointing at the insufficiency of evidence refuting or discrediting direct evidence, undermining or providing an innocent explanation for circumstantial evidence, or any combination of the above.


For example, let’s say that several witnesses give statements that implicate you in the commission of a crime, however, several other witnesses (or even just one other witness) indicate you were not the guy.  It is your lawyer’s job to make sure that the latter witnesses’ testimony is presented to the judge at trial.  Even within the same witness’ evidence, some things may be inculpatory while others may be exculpatory.  Your lawyer must make sure that the exculpatory parts of such evidence come out at trial to raise a reasonable doubt.


Alternatively, imagine that a witness claims that you have committed a crime, but this witness has a criminal record for crimes of dishonesty, such as theft or fraud.  Or this witness gave a prior statement to the police which is inconsistent with the evidence he or she provided to the court at trial.  Or this witness has a grudge against you and has a motive to fabricate evidence.  Either of the above undermines the credibility and reliability of this witness’ testimony. 

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On the other hand, let’s say your DNA is found in an apartment which is the scene of the crime.  That is certainly an important piece of circumstantial evidence, unless, of course, you frequented this apartment for entirely innocent purposes which would significantly undermine the weight of such evidence in proving your guilt.

Every detail of the case must be scrupulously analyzed to find weaknesses in the prosecution’s evidence and raise a reasonable doubt as to your guilt.  Remember, not guilty does not mean innocent, it means not guilty beyond a reasonable doubt.

The other important thing to remember about the criminal law is that each accused has certain rights under the Canadian Charter of Rights and Freedoms which must be respected, and the evidence obtained in violation of those rights may be excluded.  In other words, if the evidence that clearly points to your guilt was obtained in breach of your Charter rights is excluded, the judge cannot take it into account when deciding whether or not the prosecution proved your guilt beyond a reasonable doubt.

For example, if you are charged with an offense of driving with excess alcohol level (’80 Over), the crucial evidence the prosecution needs to prove your guilt are the results of your breathalyzer tests.  Under the Charter, you have the right to consult a lawyer prior to providing breath samples.  If you requested to exercise this right and the police failed to afford you an opportunity to consult a lawyer, you can seek exclusion of the results of your breath tests from evidence.  If your request is granted, the prosecution has no evidence to prove your guilt and the charge should be dismissed.

Another example – you are charged with possession of drugs for the purpose of trafficking.  The case is based on the police finding a large number of drugs in your vehicle.  Each person has the right to be free from unreasonable search and seizure under the Charter.  Before searching your car, the police must have reasonable and probable grounds to do so.  If such grounds are lacking, the search may be found unlawful.  If so, the evidence found (the drugs) can be excluded.  If that happens, you cannot be found guilty of possession of drugs for purpose of trafficking or any other purpose for that matter because there are no drugs, they have been excluded.

Accordingly, an experienced criminal lawyer must examine all the circumstances of the case to determine whether any breaches of your rights had occurred and whether any evidence can be excluded as a result because this can mean the difference between conviction and acquittal.

Some violations may result in the case being “thrown out” even without a trial.  For instance, every accused has the right to be tried within a reasonable time.  If this right is violated, the charges should have stayed.

All the foregoing demonstrates a couple of things.  First, it is not as simple as it looks.  Just because you have been charged, does not mean you will be found guilty.  However, secondly, it takes an experienced criminal lawyer to examine every avenue of defense, whether factual or constitutional, to undermine the prosecution’s case and get an acquittal.

In some cases, of course, the evidence against you is overwhelming and the risk of going to trial is just too great.  In many other cases, people prefer the certainty of a negotiated resolution to uncertainty and expense of trial.  That is when the plea-bargaining process comes into play.  It requires an experienced negotiator to make a good deal.  In the criminal law context, this may mean withdrawal of charges upon restitution, completion of anger management counseling, charitable donation, etc., or entering into a peace bond which results in withdrawal of charges upon your consent to abide by certain conditions for a specified period of time, or avoiding the criminal record by pleading guilty for an absolute or conditional discharge, or avoiding incarceration by pleading guilty and having the passing of sentence suspended and many other things depending on circumstances of your particular case.  More often than not, the more experienced and respected your lawyer is, the better chance you have at obtaining the best possible deal.

Every case requires meticulous scrutiny by an experienced professional to leave no stone unturned in defending your interests which I have been doing for my clients for over 20 years.