Presumption of Innocence, the burden and standard of proof in criminal law in Surrey

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Presumption of Innocence

If you have ever watched an episode of Law and Order or read a John Grisham novel, you are likely reasonably familiar with the phrase “innocent until proven guilty”.  The presumption of innocence is an intrinsic part of our criminal justice system for all criminal cases, from simple criminal mischief charges, assault charges, drug charges, all the way up to charges for first-degree murder.

Given its importance in our system, it is worth having a closer look at the presumption of innocence and the burden of proof.  At trial, the decider of fact (be it a judge or each member of the jury) must begin with the assumption that the Crown’s case is not proven. It is up to the prosecution to show that, despite the presumption of innocence, they have enough good evidence to prove that what they claim happened, actually happened.


In criminal law, that amount or standard of proof needed is that proof which shows the accused to be guilty “beyond a reasonable doubt”.  It is not enough for the judge or jury to believe the accused is probably, or even likely, guilty. The evidence must be so strong that a “reasonable person” would not doubt the defendant’s guilt.

Another way of describing this is that the judge or jury must consider all of the admissible evidence and decide if there is a reasonable doubt that the accused did the crime.  If there is no reasonable doubt remaining, the defendant should be found guilty. Absolute certainty of guilt is not necessary to convict, but if there is a reasonable doubt, the judge or jury must continue their presumption of innocence, and find the accused not guilty.


Presumption of Innocence

Imagine a scale where the furthest left point on the scale represents innocence and the furthest right point represents guilt.  Somewhere to the right of middle is the reasonable doubt point.  At the start of the trial, the accused is presumed innocent and the scale points to zero. The prosecution’s job is to move the scale past the point of reasonable doubt by adding substantial items of incriminating evidence. The accused should be found not guilty if the prosecution’s evidence does not weigh enough to shift the arrow past the mark.


The standard for civil trials is very different and the presumption of innocence doesn’t apply. The defendant is legally responsible in a civil trial if the weight of the evidence passes a mark at the middle of the scale. Sometimes the accused may face a civil suit in addition to the criminal charge. For example, if there is a criminal assault charge, the assaulted party can sue in civil court for financial compensation for their injuries.  Because the standard of proof is lighter than the criminal standard, a guilty conviction from a criminal trial can be accepted as a legal fact at a civil trial.


The burden of proof in criminal law courts is also quite different from that in the “court of public opinion”. It is not uncommon for people to infer guilt when a person does not defend themselves from an accusation. However, the accused has no legal obligation to prove their innocence. The burden of proof is squarely on the prosecution. Often, the seriousness or unsavory nature of criminal charges in a highly publicized case will turn the general public against an accused. The idea that “where there is smoke, there must be fire” often prevails and reputations and lives are ruined before an accused has had a chance to properly defend themselves in court.


A competent defence lawyer will produce evidence that reduces the weight of the prosecution’s evidence. In some cases, a criminal defence lawyer will argue that items on the scale are irrelevant or inadmissible and have them removed. The prosecution’s evidence, however, is not to be considered more weighty simply because the defence does not address it.

This principle is most notable when the accused does not take the stand as a witness. This is quite common and can be an important part of a criminal defence lawyer’s strategy. It is important to remember that judges and juries are not allowed to consider whether the accused took the stand, when deciding guilt.


A criminal conviction can carry very serious consequences for your health, relationships, mobility and employment prospects. Whether you are dealing with charges related to a border offence, internet crime, drug charges or a drinking and driving offence, a criminal conviction on those charges can have life altering effects. Luckily and understandably, this is why the courts have set such a high bar for the standard of proof. It is also critical that anyone accused of a criminal offence in Surrey, Vancouver or elsewhere, has an experienced defence lawyer on their side. The right lawyer will help to protect their freedom by challenging the prosecution’s evidence wherever possible and increasing the chances that the weight of evidence on the scales of justice will balance in the accused’s favour.