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No competent prosecutor will take a case to trial without some form of evidence. In the absence of evidence, a person cannot be convicted and should not be found guilty. This is because of the presumption of innocence that the Canadian Charter of Rights and Freedoms provides.

The presumption of innocence, section 11(d), states that any person charged with an offence is presumed innocent until proven guilty beyond a reasonable doubt. As such, it is the Crown’s onus to prove the accused is guilty beyond a reasonable doubt and not the accused who must prove themselves innocent. The Crown always has the responsibility to call evidence at trial and the must prove guilt beyond a reasonable doubt.

Evidence is how guilt is proven in court. Since guilt must be proven to convict, a conviction is not possible without evidence. Of course, this is not as simple as the old adage, “no body, no crime,” as there are many types of evidence available.


Physical evidence is some of the most recognizable, and often damning, forms of evidence. This is actual tangible evidence that can be seen, felt, and touched. For instance, physical evidence can include things like hair, fingerprints, DNA or even a murder weapon.

Compelling physical evidence is often difficult for the defence to overcome. But physical evidence is not necessary for a conviction.

Direct and/or circumstantial evidence can result in a conviction on their own, together, or by backing up the physical evidence available. Direct evidence directly links the accused to the criminal activity in question. For example, someone witnessing them during the criminal activity. There was witness testimony that put the accused at the scene of the crime.

Circumstantial is evidence that could infer that a person is linked to criminal activity. Lab work, such as DNA analysis is a form of circumstantial evidence that is at the crux of many convictions. For example, the accused person’s DNA was found at the scene of the crime.


Because the ability to convict hinges on the presence of evidence, the ability to challenge and/or have evidence dismissed is essential in many defences. A criminal defence lawyer is your best bet to have evidence dismissed. They understand the ins and outs of challenging evidence. They understand the rules around the admissibility of evidence and how evidence can be excluded from a trial.

How Evidence Was Gathered

One of the critical factors your defence lawyer examines is how the evidence was gathered. For instance, sometimes the police need a warrant to seize evidence and there may be special circumstances surrounding the issuing of a search warrant. Your lawyer ensures that the police had the legal grounds to obtain the search warrant that allows them to legally search and seize evidence.

As well, they make sure that all the right procedures were followed in the search and seizure. If your rights were violated or proper policies were not followed in the search, even a warrant may not be enough to protect the evidence. You criminal lawyer should be able to legal advice on if there is sufficient evidence for the matter to proceed to trial.

If a criminal lawyer can demonstrate that the evidence was gathered illegally or in violation of your rights, they may be able to have the evidence excluded from being used at trial.

What Does the Evidence Actually Prove?

A defence lawyer may also explore how relevant or applicable the evidence actually is to the case. If it is irrelevant to the charges and character of the accused there may be grounds for dismissal. Furthermore, the lawyer brings into question what the evidence actually proves.

Does the evidence demonstrate the involvement of the accused? If so, is it definitive? Even where the evidence may not be excluded, exploring these questions can help to plant a seed of doubt in the mind of the Judge and/or jury.

The nature of the evidence and what the evidence can prove will make all the difference in a criminal case. The slightest variations in the evidence could mean the difference between a first-degree murder conviction or a manslaughter conviction.

Probative vs Prejudicial

Prejudice can tarnish the fairness and integrity of legal proceedings. When admitting evidence, the Judge balances its probative value versus its prejudicial effect. If the prejudicial effect substantially outweighs the probative value, the evidence should be excluded.

Is the Evidence Reliable?

Even some of the most common forms of evidence have glaring flaws. Eyewitness testimony, for instance, is a form of direct evidence that is used in many trials. Despite its common use, eyewitness testimony is unreliable. Over and over, studies have shown significant issues with their accuracy.

A good criminal lawyer will, where applicable, demonstrate the unreliability of evidence through effective cross examination. With witness testimony, they can question the reliability of the witness, the glaring problems with eyewitness memories, and problematic or leading witness questioning by police.


If you or a loved one are facing criminal charges and cannot be convicted, your best option is to get legal advice from an experienced criminal lawyer. William Jaksa is a Toronto criminal defence lawyer who understands the nuances and options for examining and challenging evidence. Speak to an experienced criminal lawyer before making any decisions is important and can avoid being convicted unnecessarily.

Contact Jaksa today for a consultation.

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