What is the presumption of innocence and burden of proof in a sexual assault or domestic assault case?
One question we hear a lot from our clients is, “How is it possible to win my criminal case?” Specifically, if you are charged with a criminal offence, such as a sexual assault or a domestic assault, why would you be believed over the complainant, other civilian witnesses and the police officers when you are in front of a judge or a jury?
The short answer is that in our Canadian judicial system, the accused is presumed to be innocent and the burden of proof is always on the Crown to prove a criminal charge beyond a reasonable doubt. The accused does not have to prove anything. So it’s not really question of the police or other witnesses being believed over our clients, or vice versa.
Here’s why: At the end of a case, when the judge makes his decision, he will often state, “I believe the complainant or the police officers, but I have a lingering doubt. The complainant and police officers may be mistaken. Maybe the complainant has a motive to lie. I have a reasonable doubt.” Proof of the accused being probably or likely guilt is not proof beyond a reasonable doubt. This is a common example of reasonable doubt, and as your defence lawyers, it’s up to us to build that scenario.
Basically, a judge must apply the burden of proof to the issue of credibility by using a series of questions which are set out in the Supreme Court of Canada decision in R. v. W. (D.). If the judge does not believe the evidence of the accused, but is left in a reasonable doubt about his or her guilt, he must acquit. Even if the judge is not left with reasonable doubt by the evidence of the accused, he may convict only if the rest of the evidence that he does accept proves guilt beyond a reasonable doubt. In other words, a judge could completely reject the evidence of an accused and still have a reasonable doubt.
Our firm has won hundreds of trials where our client testifies and the judge ultimately dismisses the charge by saying, for example, “I don’t necessarily believe your client. I tend to think he is lying and is probably guilty, and I believe the testimony of the Crown witnesses. However, I cannot completely reject your client’s evidence, and his testimony might reasonably be true. Therefore, I am left with a reasonable doubt.”
That is one of the ways our law firm consistently wins cases in court. As your lawyer, part of our job is to create reasonable doubt. We have honed our cross-examination skills through years of experience in the courtroom to give us that competitive advantage.