Understanding Criminal Defence in Ontario: A–Z Guide

What Does Criminal Defence Mean Under Ontario Law?

A Criminal Defence Lawyer helps ensure that the rights of those accused of committing criminal offences are protected. The charge is simply an accusation; it does not constitute any evidence that the person committed the offence. The Crown needs to prove all the elements of the crime beyond a reasonable doubt. The accused does not need to prove his/her innocence.

Most criminal offences are legislated through federal statutes, which include the Criminal Code of Canada. Ontario enforces criminal law using its court system, crown attorneys, and police force.

The Canadian Charter of Rights and Freedoms provides for the right to a fair trial, the right to be presumed innocent until proven guilty, and the right to be free from unreasonable search and seizure.

Criminal offences are different from provincial offences. Theft is a criminal offence, whereas traffic violations fall under the Highway Traffic Act of Ontario.

How Are Criminal Offences Classified in Ontario?

Criminal offences fall into three categories:

Classification	What it means
Summary conviction	Generally less serious offences, usually heard by a judge in the Ontario Court of Justice without a jury.
Indictable	Generally more serious offences, such as robbery or murder. Court and trial options depend on the charge.
Hybrid	Offences the Crown can prosecute summarily or by indictment, including simple assault and theft under $5,000.

For the majority of summary offences under the Criminal Code, the default maximum punishment is two years less a day in jail, a $5,000 fine, or both, unless otherwise specified.

Indictable offences do not usually have a set limitation period for charging. In some cases, the defendant can elect the mode of trial, while in others there are court-specific limitations.

For hybrid offences, the choice made by the Crown impacts the procedure and the possible penalties. The title of the charge itself is not enough to determine how it will be handled.

What Must the Crown Prove?

Most criminal offences require proof of two elements:

Actus reus: The prohibited act, omission, or circumstances.
Mens rea: The required mental state, such as intention, knowledge, or recklessness.

For instance, an individual who picks up another client’s bag that looks exactly like his own does not mean that it is an act of theft. The crown has to prove the mens rea. Similarly, a bad business deal does not constitute fraud. The prosecution has to prove that the defendant committed an act of dishonesty.

Can You Be Responsible for Another Person’s Crime?

You can be charged with criminal liability if you assist or advise a person in committing an offense.

For instance, acting as a lookout during a theft may result in liability of the individual even if he did not steal anything.

But presence at the crime scene, being known to the individual or witnessing the crime will not automatically imply guilt.

The Crown has to prove that all elements were met.

Liability may be also derived from counseling the offense or taking part in a common plan.

Can You Be Charged If the Offence Was Never Completed?

Yes. Criminal responsibility can arise before a planned offence is completed:

Attempt: Intending to commit an offence and taking steps beyond mere preparation.
Conspiracy: Reaching an agreement to commit an offence with the required intention.
Counselling: Encouraging or urging another person to commit an offence, even where it is not carried out, if the legal requirements are met.

Thinking about a crime is not the same as attempting it. A casual discussion or knowledge of someone else’s plan does not automatically establish conspiracy.

The distinction depends on what was intended, agreed upon, and done.

What Legal Defences May Apply?

A defence depends on the charge and evidence. Recognized defences include:

Defence	When it may apply
Self-defence	A person reasonably believes force is being used or threatened, acts defensively, and responds reasonably.
Defence of property	A person acts reasonably to protect property in circumstances covered by the law.
Mistake of fact	An honest factual mistake prevents proof of the required mental element.
Duress	Threats compel a person to commit an offence and the strict legal requirements are met.
Necessity	Imminent peril leaves no reasonable legal alternative, and the response is proportionate.

Self-defence and defence of property are limited. There is consideration by the court of the nature of the danger faced, the intent behind self-defence, and the circumstances surrounding it.

A defence can also differ greatly from a denial of facts advanced by the prosecution. Asserting that an event did not happen is far from saying the event took place but is a justified one.

What Evidence Can Be Used at Trial?

The evidence must be relevant and should meet the criteria for admissibility. Although the evidence is relevant, it may be ruled inadmissible.

Hearsay means a statement outside the courtroom offered as proof of the truth of the statement, and it is generally not admissible unless an exception exists.

Electronic evidence consists of messages, emails, and screen shots and must be authenticated because the evidence must show that the document is indeed what it claims to be. Authentication does not necessarily mean that the evidence is true or accurate.

Opinion of an expert witness has to meet certain criteria for the evidence to be admissible in a court of law. Attorney-client privilege covers confidential communications between an attorney and the client for legal advice.

Admissibility and weight are different. Admissibility has to do with whether the evidence is admissible while weight has to do with the degree of persuasiveness of the evidence.

What Rights Does an Accused Person Have at Trial?

Charter protections include:

The presumption of innocence.
A fair hearing before an independent and impartial court.
The right not to be forced to testify at their own trial.
An interpreter where required because of language barriers or deafness.
A jury trial where the constitutional and statutory rules provide for one.

Choosing not to testify is not itself proof of guilt. The Crown remains responsible for proving the charge beyond a reasonable doubt.

Criminal proceedings are generally public, although publication bans and other lawful restrictions may apply.

Can You Appeal a Criminal Conviction in Ontario?

Appeal is a process of taking a case to a superior court for the purpose of intervention for some specific reason. Appeal is not always a retrial of a case.

Summary conviction appeals are usually heard by the Ontario Superior Court of Justice. Appeals against convictions through indictment are usually heard by the Ontario Court of Appeal.

Some examples of reasons include: legal error, unreasonable verdict, miscarriage of justice or a ruling on evidence that had an impact on the result of the case. Sentence appeal could include material error and demonstrably unfit sentence.

The outcome of an appeal process might be dismissal of appeal, quashing of the conviction, ordering a new trial, acquittal or imposing of another sentence. Only in special cases would fresh evidence be admitted into the process of the appeal.

Deadline will depend on the type of the appeal. Most criminal appeals to Ontario Court of Appeal have a deadline of 30 days after the judgment or the sentence.

Understanding Criminal Defence in Ontario: A–Z Guide

What Does Criminal Defence Mean Under Ontario Law?

How Are Criminal Offences Classified in Ontario?

What Must the Crown Prove?

Can You Be Responsible for Another Person’s Crime?

Can You Be Charged If the Offence Was Never Completed?

What Legal Defences May Apply?

What Evidence Can Be Used at Trial?

What Rights Does an Accused Person Have at Trial?

Can You Appeal a Criminal Conviction in Ontario?

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