How a witness statement is the only evidence needed to criminally charge and convict someone in Canada

The most common forms of evidence that people think of in Canadian criminal cases are DNA, CCTV video surveillance, recorded confessions, fingerprints, and other forensics. Interestingly though, in many Canadian criminal cases the police do not submit any of the previously listed forms of evidence in charging the accused. Instead, they rely on nothing more than the statement or testimony of one eye witness - the alleged victim.

Eye witness accounts are the only piece of evidence the police need to press charges and convict the accused in court. For some types of charges (assault, sexual assault, uttering threats, mischief) it is common for the only evidence against the accused to be the statement of a witness who may or may not also be the alleged victim.

But there is no evidence against me? How can I be charged if it is just my word against theirs?

The reason is because their word, their statement, witness testimony is evidence against you. All the Crown Attorney needs is to put a person on the stand to testify that an assault, sexual assault, uttering of threats, mischief, or any other crime that happened and the accused can be convicted and sent to jail if the Judge and/or Jury believes the testimony. Many cases in Ontario are solely based on eyewitness testimony.

The evidence is that there is a person saying and willing to testify that they witnessed you commit a criminal offence. This is often the alleged victim but could also be a third party.

In the Canadian criminal justice system, just as in the U.S., an eye witness (victim or not) is generally considered to be very good evidence.

It is always up to the trier of fact, judge or jury, to weigh the credibility of an eyewitness’s testimony. Just because a witness says someone else did something to them, or that someone committed a crime against someone else does not mean that their statements are truthful. If the case went to trial the judge or jury would listen to what they have to say, any other evidence if it exists, and the testimony of the accused if he/she decided to take the stand and decide whether the accused is guilty or not.

But how can I be charged if there is no evidence?

Again, the Canadian criminal justice system considers statements from alleged victims and 3rd party witnesses to be evidence. Many people get convicted of extremely serious crimes including various forms of assault, sexual assault, uttering threats, etc. based only on one witness testifying or giving a statement saying they did it. All it takes is someone claiming you committed an offence and if their testimony is believed you can sentenced to prison for many years, given a criminal record, be listed as a registered sex offender, and later be successfully sued for damages (money) as a result of someone else’s claim.

Could someone falsely accuse me of a crime resulting in me going to jail?

Yes - if you are found guilty by the Judge or Jury.

Most of the criminal offences that go to trial in Ontario are matters that involve only witness/alleged victim testimony. It is one person’s word against the other. These cases are often in the domestic context and involve what is commonly referred to as a “he said/she said” allegation. This includes same sex relationships, both gay and lesbian, which may be referred to as “he said/he said” or “she said/she said”. The sexual orientation of the involved parties is irrelevant.

All of these criminal charges will be classified as domestic and treated similarly by the Crown Attorney and the courts. Domestic cases are handled by special prosecutors, in special courts, and are always treated as very serious. In most domestic violence cases, the only evidence is the statement of one of the involved parties.

Sometimes the accused themselves calls the police and provides the evidence via 911 or at the doorstep

It is not uncommon for a fight to occur between a couple in a relationship or while dating. Perhaps a phone gets broken, a car keyed or otherwise damaged, a computer is smashed (mischief) or something else. The police will attend immediately, separate the parties and extract evidence in the form of statements. It is not unusual for the person who called the police/911 to end up being charged.

Perhaps their partner acted out of line first but if the caller admits to breaking their computer or phone in response they will be charged with domestic mischief. Other times when the police separate the couple one person will tell the police that they were pushed, shoved, grabbed, slapped,or punched. Any touching without consent is an assault and in Ontario the police are under policies to proceed with charges once they have evidence of any form of domestic violence. This includes incidents that seem to be relatively minor first time offences.

As indicated, evidence includes someone simply saying that a criminal offence happened. A large percentage of our domestic assault cases result from the person who is accused/criminally charged after calling the police/911 themselves after having a fight with their partner.

I am the victim and want to help my partner, spouse, ex, etc. What can I do to get the charges dropped?

We get calls every day from alleged victims of domestic cases involving assault, uttering threats and mischief asking how they can help their partner who is now criminally charged. They ask about how they can recant their statement, but it is important to note that it is a criminal offence to lie to the police. It is also a criminal offence to lie (perjure) on the stand in a trial or hearing. Once the charges are laid by the police the case is submitted to the Ontario Crown Attorney’s office who will take over.

The Crown Attorney is in charge of the prosecution and any future decisions once the charges are laid in all criminal cases. Just like the police the Crown Attorney is under strict Ontario policies and guidelines in domestic cases. They cannot drop a case just because a victim decides that is what they want or asks them to, that is not how the system works. Victim input is important however particularly in cases where it is simply one person’s word against the other person’s.

Although the victim/complainant does not control how the Crown Attorney or Judge will make decisions about the case their input is extremely important. While it is a crime for the victim to recant and say that they lied to the police (public mischief), it is their right to say that they do not want their partner prosecuted, to go to jail, get a criminal record, and that they want them to be allowed to go home.

It is the right of the Crown Attorney to subpoena (legally force) a witness to testify in any criminal case, but they generally prefer not to force the testimony of domestic assault/violence victims. Providing an affidavit of non-prosecution is perhaps the most significant thing an alleged victim of domestic criminal charges can do to help the accused.

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*2024 Results: the percentage of 99% of clients avoiding a criminal record (conviction) stated on this page is based solely on Lawyer Mark Zinck's personal representation of approximately 2000 criminal defence case clients as of the year 2024. Past results are not necessarily an indication of future results.

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