Finding a person guilty of a crime can’t be taken lightly. Because of this, the law guarantees the accused certain fundamental rights that must be respected until the judge or jury makes a decision.
Presumption of Innocence
In Canada, a person accused of a crime is presumed innocent until found guilty by a judge or jury. This is called the « presumption of innocence ».
The presumption of innocence is one of the most important rights in our criminal justice system.
This right means many things:
- The accused does not have to prove his innocence. The prosecutor, who is the lawyer for the government, must prove and convince the judge or jury that the accused committed the crime. Prosecutors are officially called “criminal and penal prosecuting attorneys.” They used to be called “Crown prosecutors”
- The prosecutor must prove that the accused is guilty “beyond a reasonable doubt.” At the end of the trial, if the prosecutor has not presented enough evidence, or if the judge or jury still has a reasonable doubt about whether the accused committed the crime, he must be found not guilty. In other words, he will be “acquitted.”
- The judge and jury must be fair. They can’t be prejudiced against the accused during the proceedings. For example, a judge can’t be involved in a case if the victim is a member of her family.
Right to Be Informed of Evidence
The accused has the right to defend himself against an accusation that he committed a crime. To prepare a proper defence, he has a right to know all the evidence the prosecutor has against him.
The prosecutor must inform the accused of all evidence against the accused before the trial begins, including the names of the witnesses who will testify. (“Testifying” means answering questions about a case).
When the trial begins, the prosecutor starts by presenting the evidence and questions the witnesses testifying against the accused. Then the accused or his lawyer can question the witnesses.
Next, the accused presents a defence, either with or without the help of a lawyer. He can testify, present evidence and question his own witnesses. However, the accused can chose to remain silent and not testify in his own defence.
Right to Remain Silent
The accused has the right to remain silent in all the steps of the criminal process, from an arrest by police until the end of the case.
The accused is therefore not required to testify to defend himself. He can simply remain silent.
The prosecutor can’t force an accused to testify. The right to remain silent exists in part because the accused is presumed innocent until proven guilty, and can’t be forced to hurt his case by testifying against himself.
As a general rule, if the accused decides to remain silent, the judge and jury must not interpret this as proof of his guilt. In Canada, a person is presumed to be innocent until found guilty. The prosecutor must prove guilt “beyond a reasonable doubt”.
Although he has the right to remain silent, the accused can choose to testify in his own defence. If he does this, he will be questioned by his own lawyer and then by the prosecutor. However, sometimes there are certain questions the prosecutor cannot ask the accused.
Right to Be Represented by a Lawyer
A person has the right to talk to a lawyer when he is arrested.
The right to a lawyer applies from the beginning to the end of a criminal case. The accused can therefore be represented in court to get help to defend himself.
The accused must usually pay for his lawyer. However, an accused with a low income might qualify for government legal aid. In other more rare cases, the judge can give the accused a lawyer free of charge. This can happen, for example, if the accused does not qualify for legal aid but the judge believes the help of a lawyer is needed for the process to be fair.
The accused also has the right to act on his own without a lawyer. If the accused does this, the judge can offer some help to make sure the trial is fair, for example, by briefly explaining the different steps in the case. If necessary, the judge can have a lawyer help the accused to ensure the trial runs smoothly.
Right to Understand the Trial
Choice of Language: English or French
A criminal trial takes place in English, French, and sometimes in both languages. An accused can ask for the trial to take place in the official language of his choice.
When the accused goes before a judge for the first time, the judge must inform him of the right to choose the language of the trial and tell him how long he has to make this decision. Usually, he must decide before they set a date for the trial.
For example, if the accused chooses English as the language of the trial:
- the prosecutor, judge and jury must understand English and speak it during the trial
- the accused and his lawyer can speak to the judge and jury in English
- some French documents must be translated into English
- the judge’s decision (the judgment) must be made available in English
However, the judge can’t force a witness to speak in the language the accused chooses. In this case, an interpreter will be made available.
When the accused does not indicate his choice of language, the judge can order the trial to take place in the language the accused seems to understand best. This way, the judge makes sure the accused has a fair trial.
Right to an Interpreter
The Canadian Charter of Rights and Freedoms and the Criminal Code say that the government must provide and pay for an interpreter during a trial if
- the accused does not speak English or French, or
- a witness does not speak the language of the accused
For the Accused
When the first language of the accused is not English or French, she can ask for the trial to take place in either of these two languages with which she is more comfortable.
If the accused has trouble understanding and speaking English or French, or is deaf, an interpreter will be provided at no cost. This means she can testify in her own language and understand what is going on.
For a Witness
A witness can testify in English or French, no matter which language the accused chooses.
If a witness testifies in a language that is not the language of the accused, the accused or his lawyer can ask for an interpreter so that the accused can understand the testimony.
Special Measures to Make Testifying Easier
Other measures are available to make testifying easier for people under the age of 18 and people with physical or mental disabilities (also called “intellectual disabilities”).