At the time of the incident Mr. A was on bail for several charges, none of which he had been convicted of. He had no criminal record.
Ms. H connected with Mr. A through common friends while looking for someone to smoke marijuana with on a Sunday evening. The two met at Mr. A’s house and after chatting for some time began consensual kissing and oral sex. They had sex briefly, including attempted anal a few minutes of vaginal intercourse, and afterward they smoked marijuana and watched television before Ms. H left.
Roughly two months later Ms. H filed sexual assault charges with the Kitchener Police Service. She claimed that she consented to the kissing and oral sex, but that the attempted anal and vaginal intercourse were non-consensual.
Mr. A was arrested and charged with sexual assault and released on bail.
Sexual assault charges come with both severe penalties and a high degree of stigma. Mr. A was dealing with other charges at the time and the addition of a conviction for sexual assault could harm him and his reputation even more. He was willing to take the case to trial to prove his innocence, and so we would gather compelling evidence and create reasonable doubt of Mr. A’s guilt at trial so he could walk free without the a label of sexual offender.
Sexual assault can be a complex case to navigate and is often a case based entirely on two parties with conflicting testimonies. Mr. A claimed that the sexual encounter was entirely consensual, and that Ms. H had made false accusations of sexual assault. Ms. H claimed that she had only consented to the kissing and oral sex, and that the rest she did not agree to and was thus sexual assault. In many sexual assault cases this would be the extent of the parties who could testify.
We learned of a third party who could provide clarification; a friend of Ms. H’s, Ms. W, who was said to have discussed the incident with Ms. H after the charges had been laid. Ms. H. had apparently disclosed to Ms. W that she had fabricated the claims against Mr. A, and so our strategy would be to interview Ms. W to obtain her testimony as evidence.
The Crown must prove their allegation beyond a reasonable doubt, and the role of defence counsel is to create that reasonable doubt. A neutral third party testifying that the complainant admitted to fabricating the claims is a highly compelling piece of evidence that can create that reasonable doubt and result in an acquittal. We retained an investigation firm to attempt to contact and interview Ms. W.
Mr. A also provided us with Facebook messages between himself and Ms. H after the alleged incident occurred that suggested she had consented to all the acts. At trial we planned to submit the messages to demonstrate that the activities were entirely consensual. This combined with the testimony of Ms. W would make for a highly effectively defence.
The Crown asked the Crown to dismiss the charges against Mr. A in exchange for an agreement to sign a peace bond.
While Ms. W was unwilling to be interviewed, the Facebook messages combined with an effective cross examination of Ms. H on the first day of trial proved compelling. The Crown agreed to drop the charges if Mr. A was willing to sign a peace bond. He did so happily.
Her Honour referred to Mr. Chan’s conduct throughout the case as “professional,” and Mr. A left the court that day happy and unburdened by a serious criminal conviction.
The young Complainant talked the talk but couldn’t walk the walk. In the middle of my cross-examination, I shared with the Crown some FB messages between the Complainant and my client. She was given the opportunity to step down from the witness stand before what could otherwise be a devastating cross examination. She did! The charge of sexual assault was dismissed on the first day of a 3 day trial!” – Edmund Chan