Mr. C came to our office in a state of panic. He had been accused of sexual assault stemming from a sexual encounter with an acquaintance that he was adamant had been, at all times, consensual. He did not know the details of the allegation and was unsure of what he could expect from that point forward. After being advised of methodology when dealing with sex assault allegations, Mr. C was able to put his mind to rest, think rationally about the charges and take the first crucial steps in defending himself. Mr. C had been arrested and released but he did not yet have his disclosure. He did not know the extent of the allegation or precisely what was alleged. After leaving the office he immediately returned to his residence and created a written record of everything that he could remember from the night in question. This would be crucial in the event he would have to take the stand.
Mr. C was charged with sexual assault contrary to s. 271 of Criminal Code of Canada.
Crown Position: The Crown would not diverge from their screening position of 6 months’ custody followed by 12 months’ probation. The Crown wanted Mr. C to be placed on the sex offender registry and provide a sample of his DNA.
Mr. C was a university student. He had a good reputation in the community and had no criminal record. His career prospects would be dramatically impacted if he were to incur a permanent conviction for sexual assault. The goals in this case were layered. The primary objective was to see if an early favourable resolution could be achieved. This would involve Mr. C’s matter resolving without him having to enter a plea to sexual assault. Failing that, the goal was to convince a judge and Crown at a judicial pretrial conference that the matter should not go to trial, in which case the file would likely resolve on non-criminal terms. If there were to be no favourable resolution at that point, we would be ready to go to trial.
Most sexual assault cases will inevitably boil down to one person’s word against another. At issue is usually not whether sexual contact between two or more people occurred, but rather whether the interaction was consensual throughout. Therefore, when facing a sexual assault allegation, one clear and reliable version of events is often the best defence. In addition to reviewing the accused’s anticipated evidence, it was also crucial that we understand the big picture. After the disclosure was received, it appeared the allegation was essentially that the complainant had not consented to a small portion of larger sexual event. In our subsequent meeting with Mr. C, further information was obtained relating to the complainant’s credibility and motive to fabricate. We then set the first resolution meeting with the Crown. The goal was to highlight just enough of the frailties in the Crown’s case, while speaking in general terms of Mr. C’s anticipated credible and reliable evidence. As anticipated, the Crown was unwilling to drop the charges after the first meeting. We then set the matter down for a Judicial Pretrial Conference (“JPT”). A pretrial in cases of sexual assault is important, not just for working out the details of an anticipated trial. A JPT is also a crucial last kick at the can, so to speak, for a favourable resolution. Sex assault allegations are highly politicized. We’ve all heard of the Me Too Movement. Often the opinion of a judge regarding the likelihood of conviction at trial provides the Crown with the input they need to justify their decision to withdraw charges. I attended the JPT and made my pitch. The goal was to get the judge and Crown to see that based on the complainant’s evidence alone, there was, at minimum a live issue of mistaken belief in consent—a defence at law to sexual assault. By this point we had the original video of the complainant’s statement. It appeared police had not included the portions that actually supported our client’s version of events. At the JPT I relayed all of the exculpatory portions of the complainant’s statement to the judge and highlighted the internal inconsistencies in her evidence.
After a discussion with the presiding JPT Justice, the Crown decided that it would offer to resolve the matter by having Mr. C complete some up-front counseling at which point he would then enter into a peace bond and the charge would be withdrawn. Even though Mr. C’s chances of being acquitted were good, why risk it? This was an offer that included a guaranteed withdrawal of a criminal offence. Mr. C accepted the offer. He remained without a criminal record, did not have to be put on the sex offender registry and was not hindered in his pursuit of a career. Mr. C was, of course, both overjoyed and relieved.