Rights of the Accused

Last Reviewed: October, 2022 Reviewed by: JES Download

Criminal convictions are very serious as they could involve taking away someone's freedom. Even if someone is not sent to jail, the stigma of a criminal record can seriously affect their life. To try to ensure no one is convicted of crimes they did not commit, there are number of safeguards, including:.

The Presumption of Innocence: One of the most important principles under Canadian law is the principle of “presumption of innocence”. The principle is protected by the Charter of Rights and Freedoms and means that the accused is presumed innocent until proven guilty. It is why we refer to people who are charged with a crime as the “accused” and not the “criminal”. It is also why the Courts may release people before the trial (often called “bail”) on even serious charges.

Proof beyond a reasonable doubt:To overcome the presumption of innocence and find someone guilty of a crime, the judge or jury must find that the accused committed the crime "beyond a reasonable doubt". Beyond a reasonable doubt means the standard of proof is close to absolute certainty but does not mean it has to be 100% certain. It is a higher standard than in civil law

Burden of proof on the crown: The entire burden of proving that an accused is guilty is on the Crown Counsel. The accused does not have to prove they are innocent.

Right to know the evidence: The Crown must give the accused all information that is not clearly irrelevant, even (and especially) if the material may help the accused’s case. This is so the accused can be fully aware of the case against them and are able to prepare. The accused does not have to give the Crown any information, with a few exceptions. 

Right to remain silent: The accused has the right to remain silent throughout the whole criminal process, from investigation to trial. They do not have to testify at trial if they do not want to, but they may choose to. The judge or jury may not use the accused’s silence against them when deciding whether to find them guilty or not. 

Right to a lawyer: The accused has the right to a lawyer throughout the criminal process. If they cannot afford a lawyer they may qualify for a free lawyer through Legal Aid. They also have the right to represent themselves.

Right to understand: Accused in Canada can choose to have their trial in French or English. If the accused or a witness does not speak French or English, or is deaf, they must have an interpreter. 

The rights of the accused are protected throughout the criminal process by the Charter of Rights and Freedoms.

Are You Indigenous?

If you are Indigenous, you have specific rights under the Criminal Code of Canada called “Gladue rights.” The judge and Crown counsel must consider your Gladue rights when you are asking for bail and, if you are found guilty, when a judge is considering your sentence. Gladue rights apply to all Indigenous peoples: status and non-status Indians, First Nations, Métis, and Inuit. They also apply whether you live on or off reserve.

If you want Gladue applied to your case, you must tell the court that you are Indigenous as soon as possible. The judge will want to know about yourself, your family, and your community. You can provide this information to the court by yourself or through a “Gladue report.” A Gladue report provides comprehensive information about you, your background, your community, and the unique systemic factors that may have played a role in bringing you before the court. A Gladue report will suggest realistic and appropriate options for the judge to consider. If you self-identify as First Nations, Metis, or Inuit the BC First Nations Justice Councilmay be able to provide a trained writer to write your Gladue report for free. The judge must consider your Gladue rights even if you do not have a lawyer or cannot get a Gladue report.

Learn More

You can find more information on this website: aboriginal.legalaid.bc.ca and by reading Gladue and You and the Gladue Submission Guide.

Get Help

You can also get support from the Native Courtworkers and Counselling Association of BC by calling 1-877-811-1190.

The BC First Nations Justice Council prepares Gladue reports for bail, sentencing, appeals, long-term offender hearings, dangerous offender hearings and parole hearings.

Indigenous Justice Centres in British Columbia provide culturally-appropriate information, advice, support, and representation for Indigenous people.

Need Legal Help?

LIVEMon - Fri
11 AM - 2 PM
call-jesCall or Text Free