What needs to be proven before I can get convicted of an offence?

By Last Updated: June 18, 2024

In order for someone to be convicted of a criminal offence in Canada, the Crown prosecutor must prove beyond a reasonable doubt that the accused is guilty of both the actus reus and mens rea of the alleged offence.

The actus reus of an offence refers to the actual criminal action, while the mens rea refers to the intent to commit the criminal act. For example, in a case of murder, the actus reus would be made out if the Crown Prosecutor can prove that the accused took the physical actions that led to the victim’s death. The mens rea will be made out if the Crown can show that the accused person meant to kill the victim. For most offences, both the actus reus and mens rea must be proven beyond a reasonable doubt.

However, there are special types of offences called strict liability and absolute liability offences that do not have a mens rea element. These types of offences are typically regulatory offences that relate to the protection of the environment, public health, or highway traffic. With these offences, all that the Crown Prosecutor needs to do in order to secure a conviction is prove that you are guilty of the actus reus of the offence, or the actual criminal act. Whether or not you meant to do it will have no bearing on the proceedings.

No matter the offence, the Crown Prosecutor must prove that the accused is guilty of the essential elements of the offence beyond a reasonable doubt. The legal standard of beyond a reasonable doubt must be met before guilt can be found in any criminal case. This standard does not require absolute certainty that the accused is guilty of the crime, but it does require more than a reasonable probability (50%  + 1) that the accused is guilty. In any case where there is good reason to doubt that the accused is guilty, the accused must be acquitted.

You can be convicted of an offence on circumstantial evidence alone!

Contrary to what some people mistakenly believe, it is possible to be found guilty of an offence where the evidence against you is purely circumstantial.

To clarify, direct evidence is evidence that clearly implicates you in the crime without the need to make additional inferences. For example, a video recording of you stealing property would be direct evidence of your guilt of theft. By contrast, circumstantial evidence is evidence that requires an inference to be made before leading to the conclusion that you are implicated in a crime. For example, is the police find a knife that was used to stab someone with the victim’s blood and your fingerprints on it, the knife and your prints can serve as circumstantial evidence of your guilt of  murder. While there might not be anything that clearly shows you committing the crime, there is some evidence (your prints) tying you to the weapon and to the crime. Where there is a substantial amount of compelling circumstantial evidence pointing to your guilt, you can be convicted of the crime.

However, in order to make a compelling case against you on the basis of purely circumstantial evidence the Crown Prosecutor must meet a high legal burden. In particular, he or she will need to demonstrate that the circumstantial evidence against you has no other rational explanation than that you are the person guilty of the offence.

If you have been charged with a crime contact one of our criminal defence lawyers immediately, even if the evidence against you is only circumstantial. We can closely review your disclosure and use legal arguments founded in the Charter of Rights and Freedoms and rules of evidence to prevent incriminating evidence from being presented against you at trial.

About The Author

Michael Oykhman

Managing Partner

Michael Oykhman is a senior lawyer and founder of Strategic Criminal Defence, a full-service criminal law firm with central law offices across Western Canada and Ontario.

My professional experience consists of countless court appearances and thousands of successful defences and satisfied clients. Over the last 10 years, I have worked to build a law office where all the lawyers share our collective experience, resources, and passion to help people. Our team approach to legal representation is client–rather than only law–centred. We look for opportunities to add value to our clients through strategic thinking and creative solutions.

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