Criminal Defence Strategies in Canada

For anyone facing a criminal charge in Canada, it’s absolutely essential to be able to strategize a viable criminal defence in order to better your chances of success during your trial.

It’s not enough to simply say, “I didn’t do it,” or otherwise claim innocence, no matter how truthful the sentiment may be – you and your criminal defence lawyer must convince the court that your sentiment is valid and can be proven as such, or, that the Crown prosecution’s evidence and narrative regarding your case are flawed.

In preparation for your trial and your criminal defence, learning about the most common criminal defence strategies in Canada is key.


The word “alibi” is derived from the Latin word “elsewhere” – the purpose of your alibi defence is to assert that you as the accused could not have committed the crime due to being elsewhere at the time.

During trial, the alibi defence revolves around subjective evidence rather than objective evidence, as it can usually preclude the case from ever reaching trial. For example, police can easily verify a bank robbery suspect’s claim that they were seeing their probation officer at the time of the crime.

In order to be effective – and to encourage dismissal of your charges pre-trial – a viable alibi defence should be presented to the court as early as possible. While alibi disclosure should be made early to provide police time to investigate your claim, the Canadian Supreme Court rules that an untimely disclosure during trial does not invalidate it – instead, as per R. v. Cleghorn [1995] S.C.R. 175, the high court holds that improper or untimely disclosure “can only weaken alibi evidence; it cannot exclude it.”

Raising of Reasonable Doubt

This defence is most often carried out to raise doubts about the validity of the evidence against you and the overall narrative of your charges. The more doubts a criminal defence lawyer can raise, the harder it becomes for the Crown to secure a conviction.

Canadian criminal law operates under the legal concept of “presumed innocent until proven guilty”. In proving that guilt, Crown prosecutors must provide evidence that a defendant committed the guilty act, or “actus reus” in Latin. Prosecutors must also prove that the criminal act was committed with intent or knowledge – “mens rea” for “guilty mind.” In addition, the legal threshold for proof must be established “beyond a reasonable doubt.”

The Supreme Court of Canada’s precedent-setting decisions on “reasonable doubt” hold that judges and juries do not need to be 100% certain of a defendant’s guilt. However, the high court established that guilt cannot be established on a belief that a defendant “probably” committed the crime. The court has also interpreted the beyond-a-reasonable doubt standard as being closer to a 100% certainty threshold than the “balance of probabilities” proof threshold used in civil cases.

Therefore, defence lawyers must take every opportunity during criminal trials to reduce the potential percentage of certainty when it comes to examining evidence. Rather than proving innocence, defence lawyers typically rely on disproving guilt by raising doubt. Of course, defence lawyers will also typically introduce innocence-supporting evidence, as this casts additional doubt on the Crown’s case.

Lack of Intent

The lack of intent defence acknowledges the commitment of the crime, but argues that it was justified or excusable. As an affirmative defence, the onus is on the defendant to prove the claim. Judges only allow such affirmative defences to be introduced during trial if there is enough evidence to establish an “air of reality” supporting the claim.

Defence lawyers use lack of intent to challenge the “mens rea” element of proving guilt that requires criminal acts to be committed with intent or knowledge. Without the proper intent or knowledge, a person cannot be held criminally responsible for their actions. Common lack of intent defence strategies include:

  • Mistake: Based on proving that the criminal act was committed on a mistake of fact. For example, arguing that a theft was committed because the defendant thought that the stolen item was theirs.
  • Duress: Codified by law, this defence relies on proving that a defendant committed the criminal act because they were under imminent threat of death or bodily harm. Under the criminal code, this defence cannot be used in cases involving 11 kinds of serious offences, including murder, arson, and sexual assault.
  • Mental incapacity: As codified in Section 16 of the Criminal Code, “[no] person is criminally responsible for an act committed … while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act … or of knowing that it was wrong.”

Self Defence and Defence of Property

Codified under Section 34 of the Canadian Criminal Code, self-defence is one of the most well-known legal defences used in criminal law. This law specifically states that a person is not guilty of committing an offence if:

  • They believed that force or the threat of force was being used against them or another person.
  • Their defensive actions were taken to defend themselves or others from the use or threat of force.
  • Their defensive actions were reasonable under the circumstances.

During trial, self-defence can be raised as a defence strategy if the issue emerges during the presentation of physical evidence or the cross-examination of a witness. If the judge deems it a viable defence, Crown prosecutors must disprove the self-defence claim beyond a reasonable doubt. During trial, the success of self-defence typically hinges on the reasonableness of the defendant’s self-defence actions and the proportionality of the response to the threat.

Covered by Section 35 of the Code, the defence of property is also similar to self-defence.

Mistaken Identity

Lastly, the mistaken identity defence relies on raising reasonable doubt surrounding whether or not police correctly identified the offender.

This defence works best when charges are based primarily on eyewitness testimony; the reliability of eyewitness testimony is open to challenges based on numerous factors that criminal defence lawyers are adept at exploiting. Distance, lighting, memory, stress, and other elements can affect what a witness thought they saw – and, when more than one witness is involved, their accounts can often vary.

At the end of the day, working with a skilled lawyer is critical when it comes to solidifying your defence strategies in preparation for your criminal case. At Vilkhov Law, our team of professionals is here for you to help you every step of the way. Reach out to a member of our team today to schedule your consultation.

By |2023-08-11T10:32:52+00:00June 12th, 2023|Criminal Defence|

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