In a criminal case, the government, in Canada represented by the Crown, compels a person to stand trial in its jurisdiction. The onus is on the prosecution to prove the accused person guilty beyond a reasonable doubt.
If found guilty, the accused will usually be sentenced to probation, a fine or jail time or a combination of the three.
Some common offences, their elements and possible defences are discussed below. The defence of denying that the incident took place is common to all offences.
Assault consists of the application (or sometimes the threat thereof) of force to another person without his consent. If there is serious injury, the offence is Assault causing Bodily Harm. The most common defence is Self Defence. The force used in defending oneself must be proportional to the feared harm coming from the complaintant. Consent is not a defence where bodily harm is involved as reiterated recently by the Court of Appeal in the rough sex case of Welch. In the case of Sexual Assault, reasonable belief in the complainant's consent may be a defence.
In drug and other contraband cases, the defence of entrapment is available where the law enforcement officer has persistently importuned on the accused to procure the contraband.
Drunk driving is a very common matter before the courts due to the prevalance of drinking and driving in our society. These charges are often strenuously resisted by accused due to the mandatory minimum one year driver's licence suspension for a first offence. If the charge is impaired driving, the observations of the investigating officer can be challenged by close cross-examination. If a breathalyzer has been used, there are several ways to challenge its reading. The most common is to track the accused's drinking and to show that, given the rate of the elimination of alcohol from his body, he may not have been impaired at the time of driving. Mr. Muttart has enjoyed a very good rate of success with these cases.
The advent of the Charter of Rights and
Freedoms has meant that the rights of accused persons to be advised of
the reason for their arrest, their right to speak to a lawyer, their right
to know the case against them and to be tried within a reasonable time
are much better protected. In addition, Parliament's right to render
certain activities illegal has been curtailed.