Oftentimes, when I sit down with my clients for a first meeting, they have already decided that they must plead guilty. After all, the police wouldn't have charged them if they weren't in the wrong, right? My job is to look closely at the case and determine if there are facts that would prove a criminal act occurred and if there are issues that could be raised at trial that would raise a reasonable doubt about guilt. In more simple terms, there are two types of guilty:  factual guilt and legal guilt.

Factual Guilt

Factual guilt means that you actually broke the law and committed the act. For example, if I was to punch Jerry in the face, I would be factually guilty. Sometimes, people are charged with a crime when they are factually innocent.

I had a case once where the police charged a client with unsafe storage of a firearm or ammunition. The client had a box of shotgun shells in his room but he didn't own a firearm, his roommate did though. The argument by the police and the Crown Attorney was that the ammunition was stored unsafely. I examined the Criminal Code along with the Firearms Act and Regulations and I did not think the law made it illegal to have shotgun shells in a bedroom. I did not think the client was factually guilty in that case. Ultimately, the Crown Attorney dropped those charges after some significant pressure from me. This was a case where a person did nothing wrong but was still charged with a crime.

Legal Guilt

Legal guilt means can the Crown Attorney prove beyond a reasonable doubt that you are criminally responsible. In some cases, the Crown Attorney may not be able to prove you are guilty in court.

1.  Witnesses - the Crown Attorney must be able to have all of the necessary witnesses or complainants attend court. If a key witness or complainant moves away or loses contact with the Crown Attorney's office, it may become impossible to prove the case in court. Having said that, it is a criminal offence (and a very serious one at that) to try and pressure or influence a witness from attending court. If you do that, you could be charged with obstruction of justice and face a serious jail sentence. Basically, the justice system makes it clear that witness tampering is serious and will be met with serious penalties.

2.  Breach of Charter rights - we have the Canadian Charter of Rights and Freedoms in Canada, often called "the Charter" for short. It contains legal protections to people in Canada in sections 7 to 14 (link) like the right to be free from unreasonable search and seizure and the right to obtain and instruct a lawyer without delay upon detention or arrest. If the police conducted their investigation improperly and did not follow one of the rules in the Charter, you can apply to the court to have evidence excluded (like a statement or breath samples in DUI cases) or you can apply to have the court enter a judicial stay of proceedings (drop the charges), but that is quite rare. For example, if you are facing a charge of simple possession of marijuana but the drugs are excluded by the judge after a Charter breach is argued, the Crown Attorney is then unable to prove its case.

3.  Active defences - in some cases, you can argue an active defence like self-defence or necessity where you agree as to the facts of what happen but that you are not criminally responsible because you had a defence. For example, if I punched Jerry in the face because he was pointing a loaded gun at me, I think using a punch to combat potentially deadly force would be a great example of self-defence. It would also make me incredibly brave, or foolish, or both. To be frank, these cases are quite rare. In many cases where people claim it was self-defence, the legal test says that they used too much force and are guilty because they went overboard. It is important to ask a lawyer if an argument of self-defence could be possible or not. Necessity defences are very tough because many judges would look for alternative non-criminal choices that would have been available and agree you could have done something else.

Where The Two Meet

About the author

Michael Dyck is a partner at Rees & Dyck Criminal Defence. He represents clients primarily from Winnipeg, Steinbach, and rural Manitoba. He has extensive experience helping people charged with criminal offences and focuses on building legal strategy with clients. To read more of his articles, please visit his partner's website TomRees.ca.