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| Patrick Ducharme |
This defence effectively places the prosecution on its requirement to prove each element of every criminal offence charged beyond a reasonable doubt. The accused is saying to the prosecutor “prove it.” All issues are in dispute. Without any admissions by the accused, the prosecution must proceed on the basis that it is required to prove all elements of the mens rea and the actus reus of each crime alleged.
The “prove it all” defence is most often used in cases that are old, where facts are difficult to find and support, and procuring witnesses presents expensive and/or logistical problems in having the witnesses attend court. Trials involving allegations of historical sexual assaults often present some or all these logistical problems. The allegations of a complainant may relate to alleged sexual offences that may have happened decades before. There may be little or no corroborative evidence because the passage of time has caused the loss of witnesses and/or other valuable material that is no longer available to the prosecution.
It is the responsibility of the prosecutor to prove what is alleged occurred and that the accused was the person who did it. And, to prove the events beyond a reasonable doubt.
The blanket denial defence requires the prosecutor to meet his onus of proof unassisted by admissions from the accused. The accused is always entitled to rely upon the presumption of innocence. Because the accused enjoys the presumption of innocence, it is always a valid defence to deny the conduct claimed by the prosecution and put the prosecution to the strict proof of each essential element of each crime alleged.
The above is the an excerpt of Patrick J Ducharme's book, Canadian Criminal Procedure, available at Amazon or in bulk through MedicaLegal Publishing along with Criminal Trial Strategies.
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