Mr. F came to us in a state of despair. He was facing the prospect of a lengthy trial as well as a long wait for closure in his case. Mr. F’s faith in the criminal process was beginning to wane. He had been charged after a complaint was made against him following a night out with his friend at a local bar. A police investigation lead to the seizure of video surveillance footage that, for the most part, exonerated him. However, a small portion of the allegation was not captured on video and police were not willing to drop the charges.
Mr. F was charged with one count of sexual assault.
Crown’s Position: The Crown screening form stated “penitentiary sentence,” meaning a jail sentence of two years or more.
To get the Crown to withdraw the charges at an early stage.
A decision to continue with any prosecution usually involves a two-step process for Crown attorneys. First, from the Crown’s perspective, there must be a reasonable prospect of conviction. If there is a reasonable prospect of conviction, the Crown must address the second stage of the analysis and ask “is it in the public’s interest to proceed with the charges”. Therefore, the first goal was to demonstrate to the Crown that the “reasonable prospect” of a conviction had been diminished by many aspects of the Crown’s own case. If we could cause the Crown to doubt whether a conviction could be reasonably achieved, then the Crown would be dutybound to withdraw or stay the charges at its first opportunity.
Highlighting the problems with the Crown’s case is always a delicate task. Exposing holes in a prosecution and providing too much of your side of the story can jeopardize many of the advantages available to the accused at trial. This is because, unlike the Crown, there are few disclosure obligations on the defence and the accused often benefits from the element of surprise at trial. Therefore, it is always important to cautiously balance the risks of pre-trial discussions with the Crown with the very practical advantages of convincing the Crown to withdraw the charge well before the trial is even set.
First, we carefully reviewed all the evidence with Mr. F and made a list of the most glaring problems with the Crown’s case. Accentuating only the issues that would be likely to come to the Crown’s attention ahead of trial was the safest way raise doubt while still keeping your best cards close to your chest. At the Judicial Pretrial Conference, the point was made that, based on the Crown’s evidence alone, there was a significant risk of a false conviction at trial given that the video surveillance footage clearly proved much of the allegation to be false. It was further argued that the credibility of the complainant was irreversibly damaged by the contents of the security footage and that the trier of fact would likely be unable to rely on her evidence at trial.
Following the Judicial Pretrial Conference, the Crown requested further time to consider whether there was indeed a “reasonable prospect of conviction” in the case.
The sexual assault charge was withdrawn at the request of the Crown. Mr. F entered into a s. 810 peace bond which essentially required him to have no contact with the complainant for a period of one year. The Crown stated that the withdrawal was based on considerations relating to a “blend” of “reasonable prospect of conviction” and “public interest”. Mr. F was saved the cost of a four-day trial. Most importantly he avoided a criminal conviction.