ANOTHER SEXUAL ASSAULT CASE GONE
Another one Bites the Dust – John Deacon (queen)
Steve walks warily down the street with the brim pulled way down low.
Are you ready, hey! Are you ready for this?
Are you hanging on the edge of your seat?
And another one gone, and another one gone, another one bites the dust.
Mr. SS came to my office nearly 18 months ago in a state of terror. He explained that he had been at a party with his friends. It was a house party where they were celebrating his friend’s birthday. Everyone had been consuming alcohol, but no one was overly intoxicated. Later in the evening, one of his closest friends arrived with a girl. They all continued to hang out and have fun. Eventually, he made his way to a bed to go to sleep for the night. The girl and his closest friend were in the same bed with him, and all had gone to sleep. At some point, he woke to this girl kissing him. This kissing turned into making out. The making out progressed further. The other friend had woken up. All three continued making out, and all three engaged in sexual activity. My client explained that he believed he participated in a “threesome” where all parties were consenting.
About a week later, my client was contacted by the police and was “invited” to come to the police station to talk about what occurred at this party. Thankfully, he contacted me first. I explained his rights. Because he listened to me and because he invoked his rights, he did not make the situation worse. Eventually, he was arrested and charged with sexual assault, contrary to section 271 of the Criminal Code.
The investigation seemed to be complete at this point according to the Calgary Police Service and the prosecution’s office. However , my client received a message from the friend (who had participated in the threesome according to my client). This message told my client that if he offered the girl money, he wouldn’t have to go to court. My client declined this invitation, but he gave me the messages. We engaged a private investigator and obtained further evidence about this extortion issue. This became an important piece of evidence. Additionally, during the sexual activity, my client video taped a portion of the sexual action. This short video (according to my client was taken with her consent) directly contradicted what the complainant was stating. She claimed she was so incapacitated that she only remembers being moved around like a “rag doll” and was limp and lifeless. But we had direct evidence to the contrary. Our video showed the complainant intentionally, purposefully, and voluntarily engaged in sexual behavior including acts of fellatio on my client. Her motivations behind the alleged criminal complaint, extortion and potential civil action against my client was very evident.
You would think that with evidence of what appears to be extortion of my client and with clear evidence that directly contradicts what the alleged victim is stating that the prosecution would withdraw or stay the charges. They would see that they have no reasonable likelihood of conviction, given that the truth was being presented. The Criminal Justice System is a very adversarial one, a serious charge of this magnitude has temporary and lasting outcomes including: effect on security clearances, international travel restrictions, professional irreversible impact on reputation, potential media releases and a permanent record. Remember, all court proceedings are public record unless your lawyer requests a publication ban. However, publication bans are only permitted in certain circumstances and would not have been allowed in Mr. SS’s case.
Because the prosecution was continuing, we were set to go to trial. My trial strategy was being built brick by brick. We never gave this video to the prosecution, but I alerted them that it existed and that it was clear and visible evidence that contradicted the complainant’s assertions that she was raped while she was incapacitated.
Are you ready, Are you ready? Are you hanging on the edge of your seat?
On the eve of trial, the prosecution came back to me and suggested that I was going to have to make an application pursuant to section 276 of the Code if I wanted to use this evidence. This would enable the prosecution to argue that the evidence as inadmissible and would have the impact of denying the court with clear incontrovertible evidence to the contrary.
I’m going to explain a little about this section so that the rest of this story will make sense.
This section of the Code states that evidence that a complainant engaged in sexual activity is not admissible to support an inference that by reason of the sexual nature of the activity that she is either more likely to have consented to the sexual activity that forms the subject matter of the charge or is less worthy of belief.
“Are you kidding me?” Is what I wanted yell at the world. I thought about Steve when he walked warily down the street with the brim pulled way down low.
[a capella, repeat 4x]
There are plenty of ways you can hurt a man and bring him to the ground.
I thought about how the law can do the same to those who are innocent.
I didn’t yell instead I was ready.
I did fight back, and your lawyer needs to do this for you as well. There are valid times to make this application and go through this procedure. But it is important to understand that when this application is made, we as your defence lawyers, are putting our cards on the table so to speak. We are required to file a notice of motion. This notice must be accompanied with an affidavit that comes from you and articulates what sexual activity took place as well as what you did and what you were thinking at the time. This was not a valid time to make this application. The effect of the prosecution’s position was that it would trick my client into submitting evidence that could be used in trial and become a permanent and searchable public record. We as your legal team think the big picture. Not just on winning a case but also reducing the lifelong impact on you. Section 276 governs the admissibility of sexual activity that does not form the subject matter of the charge. My position was, that the video evidence we wanted to exhibit, in the trial was evidence of the subject matter of the charge. Some lawyers may decide to make the application “out of an abundance of caution” but, in my opinion, we should not do this for two reasons. First, this affidavit is compelled evidence from you, and it can be used against you in the trial. Secondly, this creates a precedent that allows section 276 to expand in scope and use. I cannot stress enough how detrimental that is to any person’s rights to make full answer and defence.
In my case, with Mr. SS, the complainant said that the only occurrence was a rape that occurred at 2:00 a.m. My client said that the consensual activity occurred around 6:30 a.m. and he had a video that showed her giving him oral sex at approximately 7:00 a.m. It was our position that this was the sexual activity that formed the subject matter of the charge. The prosecution disagreed and said that it was at 2:00 a.m. Therefore, there is about 5-hour difference. It cannot be up to the prosecutor to decide. Your lawyer must stand strong and fight this issue for you on your behalf.
Are you ready, Are you ready? Are you hanging on the edge of your seat?
Typically, prosecution would offer an option to plead guilty to lesser charge with a non-custodial sentence. Emotions are heightened, stress, lack of sleep, depression and anxiety set in at the last stages of this process and often my clients want the path of least resistance by choosing a lesser of two evils. As your lawyer, that knows the prosecution tactics, I often advise my clients to maintain their sovereignty.
The prosecution has withdrawn the charge against my client. It took nearly 70 pages of written work on my part and nearly 100 hours of work in total. My client has been walking around with the fear of going to prison for multiple years and then being deported. He was fearful of being hurt in prison. He was ashamed that he could even be accused of this heinous crime. His friend group has been destroyed because of this allegation. His pre-arranged marriage was hanging in the balance between a happy walk down the aisle or the deafening sound of a jail cell door being slammed shut.
But now his charge is withdrawn, and he can go about his life. Words cannot depict his sense of relief. I won’t even try.
Not everyone is as fortunate as Mr. SS, Mr. EM wasn’t as fortunate. Mr. EM was convicted and sent to prison in Ontario. In his case, his lawyer had a video, an audio recording and three photographs that he wanted to use to defend his client.
In Mr. E.M.’s case, thankfully all lawyers agreed that section 276 did not apply (because the sexual activity in question formed the subject matter of the charge). However (at that time), section 278.92 of the Code required a similar application to be made to exhibit the items because it was argued that this section deemed these items as “records” and, therefore, this section required a hearing in order to determine if they were admissible. In Mr. EM’s case, the complainant said she was intoxicated and couldn’t recall many of the details as to what happened to her. She said she was in the back seat of a vehicle and a male person put his fingers in her vagina. She recalls she was forced on to her hands and feet and then a penis was forced into her mouth. She also recalled feeling intense pain in her anal region and concluded that one of the males attempted anal penetration during the sexual activity. In this case, the complainant said she was too intoxicated to consent. The men both said she wasn’t too intoxicated, and she did consent to the sexual activity. The audio recording was about 2 minutes long and recorded her ostensibly agreeing to have consensual sex with the men. Mr. EM wanted this audio recording to be admitted because, he said it was direct evidence that demonstrated she was consenting to the sex. The prosecution took the position that it wasn’t admissible, and that the complainant was too drunk to consent. The video recording was taken with a cell phone. It was approximately 40 seconds long. The complainant’s hair mostly covered her face but for a few seconds where she pulled her hair back and her face became visible. In this video, she is performing oral sex on one of the men. There is no dialog or conversation. There are three photographs that show the complainant naked below the waist. Her face is not visible in any of the photographs.
The judge wrote extensively about section 276 but noted that all counsel agreed in this case that the proffered records (the video, the audio recording, and the photographs) were evidence of the sexual activity that formed the subject matter of the charge. The judge provided some caution and stated at paragraph 22:
Thus, a person may consent to specific sexual activity but not other sexual activity, and it is a question of fact whether the proffered sexual activity is the sexual activity that forms the subject matter of the charge, even if the two activities have a close temporal relationship. In the present case, I am satisfied that the sexual activity depicted in the proffered records is the sexual activity that forms the subject-matter of the charge, and that therefore s.276 does not apply.
This paragraph essentially means that an individual can consent to vaginal sex at 1:30 a.m. but not consent to vaginal sex at 1:45 a.m. This is why timing is so important and why the prosecutor cannot be the one who decides the sexual activity that forms the subject matter of the charge.
The judge relied upon section 278.92 (a similar provision to section 276) which required a notice of motion and an affidavit from the accused. In EM’s case, it was a jury trial. The judge admitted the audio recording but refused defence’s application to admit the video and photographs. The defence argued that the video recording was relevant to the complainant’s capacity to consent. The judge disagreed and said that in the 22 seconds that she appeared in the video, there was no indicia of impairment or sobriety in the video clip. Her eyes were closed. There was no talking or walking. (Therefore, one could not see her stumbling or walking without issue or hear slurring or clear speech). The court said the video did not show fine motor skills. Therefore, the court concluded the video had minimal probative value and it was highly prejudicial to the complainant. Ultimately, EM was found guilty of sexual assault and was imprisoned.
You can read about the admissibility issue here.
You need a strong lawyer. I spoke to Mr. EM’s lawyer. Thankfully the case is being appealed.
Imagine yourself being wrongfully accused of a sexual assault resulting from a party, an outing, or a date. Imagine yourself as a mother or father and your son is charged with an offence such as this. Often times, we don’t have the “smoking gun” to prove your innocence. The law clearly says we don’t have to have that “gun.” But in my client’s case and in Mr. EM’s case we did, we had evidence that proved both factual and legal innocence. The law is in constant motion, swinging from one end to the pendulum to the other. We are at the devasting end of the pendulum. You may need a strong and competent defence team.
This case demonstrates the important lessons of how strategic your lawyer must be in sexual assault cases. There are times to work with the prosecution to advance your case. There are times that we must dig in our heels and fight. Sexual assault is a serious charge. You need a serious lawyer to defend you. Call us today.
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