Proof of Offences

A person charged with a criminal offence is presumed innocent. This presumption lasts until they plead guilty or are proven guilty in court. If an accused pleads not guilty, the Crown prosecutor must prove that the accused person is guilty at trial. The accused person does not have to prove that they are innocent.

If you are on trial, you can decide whether you want to call any witnesses and whether you want to testify. Deciding not to call evidence cannot be used a proof of your guilt. If you do decide to testify, the prosecutor can cross-examine you. This means that they get to ask you questions while you are under oath. Your answers to these questions will be considered in determining your guilt.

For a person to be convicted, the prosecutor must prove the offence beyond a reasonable doubt. The judge or jury, if there is one, cannot find the person guilty if they have a reasonable doubt about their guilt. They have a reasonable doubt if, after considering all the evidence, they are unsure whether the person committed the offence. To convict, the only sensible explanation must be that the person committed the offence.

For criminal offences, the prosecutor must prove that the person:

• engaged in the criminal behaviour or, in other words, committed a criminal act
• had the state of mind required for that crime or, in other words, intended to commit the criminal act

Both the act and the intention must be proven beyond a reasonable doubt.

For provincial offences, the prosecutor does not have to prove intention. They only need to prove that the illegal act was committed. For example, you could be found guilty of speeding if the court was satisfied beyond a reasonable doubt that you were driving above the speed limit. That is the only element that needs to be proven. Unlike criminal offences, the prosecutor does not need to also prove that you intended to speed. There is, however, a special defence to this type of offence called the due diligence defence.

The law sets out what actions amount to an offence. Both the person's behaviour and the circumstances under which it must take place are considered. The prosecutor must prove that what the accused did was prohibited by the law. For example, part of the criminal act for the offence of causing a disturbance is that is that it must be done in or near a public place.

Illegal behaviour usually involves something the accused person did, such as commit an assault or a threat. Sometimes, however, the illegal behaviour is something the accused person did not do when required to by law. This is called an omission. For example, it is a criminal offence to fail to provide food for your dependent children. Failing to assist a police officer who needs and asks for help is also a criminal offence.

The illegal behaviour must also be voluntary. Acts or omissions that are beyond a person's control are not voluntary. For example, a person who does something criminal while sleepwalking could be found to be not guilty. This is because the harmful actions were not done voluntarily. Similarly, if a person fell into a coma and did not provide food for their children, they could not be found guilty.

As mentioned above, one element of criminal offences is an intention to commit the offence. The state of mind of the person who committed a criminal act determines whether they have committed a crime or not. The prosecutor must prove that the accused person intended to commit the criminal act. A criminal state of mind can involve intention, recklessness or wilful blindness. You can also be found guilty of intentionally doing a negligent or dangerous act even if you did not intend the outcome.

For many crimes, the accused must have intended to do what they did. For example, the offence of theft requires that the accused person knowingly took something that was not theirs. A shopper who genuinely forgot to pay for something before leaving a store would not be guilty of theft. This is because they did not have a criminal intent.

In some cases, people are criminally responsible for the unintended results of their actions. Recklessness is when a person realizes that there is a certain risk involved, but commits the act anyway, regardless of the risk. For example, the charge of murder can result from either intentional or reckless behaviour. A person can be found guilty of murder even if they did not specifically intend to kill the victim if each of the following is true:

• the victim dies of injuries the accused caused
• the accused intended to cause bodily harm to the victim and knew it was likely to cause their death
• the accused was reckless concerning whether the victim died or not

Even if they did not intend to do something illegal, a person can be found guilty if they were wilfully blind to the fact that it was illegal. If someone suspects that what they are doing is a crime but fails to inquire further because they want to remain ignorant, they are being wilfully blind. For example, a person could buy property that they suspect is stolen. If they turn a blind eye to whether it was actually stolen, they could be found guilty of possessing stolen property.

Some crimes only require the person to be negligent. Negligence is failing to act the way a responsible person would act in the same circumstances. A person can be guilty of such an offence even if they did not actually intend the result.

A common example is the criminal offence of dangerous driving. If another person is injured or killed in a collision as a result of someone’s dangerous driving, they could be found guilty. This is the case even if they did not intend to cause the collision.