Building Your Defence

Last Reviewed: October, 2022 Reviewed by: JES Download

Defences

Even if the Crown has proven all of the elements of the offence beyond a reasonable doubt, you may still be found not guilty if you can raise a defence. For example, you may be found not guilty of assault if you can show you assaulted the other person in self defence.

There are a number of defences, but whether they are available and how to raise them is complex. A defence lawyer will be able to help you understand if a particular defence may be useful in your case.

Go to Legal Help to find free and low-cost legal help options.

Defence witnesses

If you decide to call witnesses, they will be questioned by you or your lawyer, the Crown, and even the judge. If you want to present objects or documents as evidence, you may need a witness to confirm their authenticity.

Only call witnesses that will help your case or weaken the Crown’s case. If possible, only call witnesses who are credible, articulate, and sincere. You cannot tell witnesses what to say, except to tell the truth. You may go over what questions you plan on asking them and record their answers. You may also go over what you think the Crown will ask.

To make sure your witnesses attend you can file and serve them with a subpoena. A subpoena is an order for them to attend court on a certain day. If they do not attend, a warrant for their arrest will be sent out.

Find the Form

Subpoena to a witness -Form 16

Charter violations

Evidence obtained as a result of a Charter violation may not be allowed to be presented at trial. Potential Charter violations include:

Police not having sufficient grounds to arrest or detain the accused
Waiting too long to get the accused in contact with a lawyer
Police conducting an unlawful search
Police failing or delaying to warn the accused about their rights

There are others. It is best to go over your disclosure with a lawyer who can help spot potential Charter violations. If you think there has been a violation then you can make a Charter application and a judge will decide whether to allow the evidence resulting from the violation into trial or not. For more serious Charter violations, the judge may decide to stay (stop) the proceedings all together and the trial will not continue.

You should get legal advice about how to proceed with a Charter application and you need to let the Crown know ahead of the trial.

See the Legal Help section.

Unreasonable delay: If it takes too long for your matter to go to trial, your right to trial within a reasonable time may be violated. The Supreme Court of Canada established that there is a presumptive ceiling for how much delay between when the charge is laid and the conclusion of the trial (not including any delay caused by defence) is presumed to be unreasonable delay:

Provincial Court trials: 18 months

Supreme Court trials: 30 months

All people involved in the court system have a responsibility to reduce unnecessary delay in court proceedings. If you are concerned about the length of time it is taking to take your matter to trial you should get legal advice.