Sexual Assault Causing Bodily Harm - Charges Stayed
I recently represented a man charged with sexual assault causing bodily harm as well as several other sexual offences including sexual interference, sexual invitation to touching and sexual assault. These charges are very serious, and the accusation alone can have lifelong consequences. It is critical to remember that an accusation is only an allegation. The presumption of innocence is a bedrock principle that cannot be lost or minimized when defending a person facing such serious allegations.
In this case, my client worked in a remote northern community in Alberta. He was a shift worker and resided part time in a residence when in that area for work. The landlord’s teenage daughter accused him of several sexual offences. He had no idea why these accusations were coming or what he’d done to deserve it. Because he didn’t live in that area full time, a warrant in the public instance was issued and he was arrested sometime after the accusation was made and the investigation concluded. The complainant told the officer that the sexual assault occurred on a specific weekend while her mother (his landlord) was out of town. She said the sexual assault resulted in her bleeding for well over a week. Based on her statement alone, the police laid charges. She said further sexual invitations and touching occurred after this weekend and this was the one and only time intercourse took place. After this teenager reported this accusation to her mother, they both set about trying to “catch him red handed”. The complainant sent my client several messages over snapchat while her mother screenshot them. My client responded to these messages. Most of his responses were exculpatory but one response was “of concern”.
My client was completely bewildered by these accusations. Despite his fear and nearly crippling anxiety he had the fortitude to find me and retain me to help him. I did what I always do, I got to work and started building his defence. He had retained several text messages between himself and the complainant’s mother.Buried deep within these messages was a set of messages where she was yelling at him for not honouring his commitment and providing supervisory responsibility for her daughter while she was out of town. It turns out, the daughter left the home and was away with her friends. She didn’t return until late Sunday afternoon. There were also messages exchanged between the two about the complainant drinking and stealing alcohol as well and ongoing issues with the complainant lying. My client provided all of this and much more. These messages and other information provided and obtained developed the defence theory. The complainant was lying and made these false allegations in order to divert attention away from several acts and issues she was facing.
Sexual assault accusations are dealt with seriously and with little to no discretion at this point in time. The law has significantly shifted. Defences have been limited and defence strategies have been removed. The law now requires reverse disclosure proceedings. Meaning if the defence holds information that we want to use to defend someone we must make an application and have the evidence screened in order to determine admissibility. The two common applications are a records screening application pursuant to section 278.92 of the Criminal Code and prior sexual history application pursuant to section 276 of the Code.
I advised my client on his best course of action pursuing trial. In his jurisdiction, trial by judge and jury was the best option. Defence lawyers advise clients on their Mode of Election by assessing the jurisdiction, whether or not the client will testify, the age of the complainant and by gauging how a potential jury would perceive the defency theory advanced before them. In this case, a jury was the best option. Because these charges included sexual interference and sexual assault causing bodily harm, my client had the right to a preliminary inquiry.
A preliminary inquiry occurs in the Court of Justice (formally the Provincial Court of Alberta). The legal test being determined is “if there is some evidence” to commit the person to stand trial. This is a very low threshold, and in most cases, defence would consent to the committal. However, we often pursue a preliminary inquiry to further build the defence for trial. At a preliminary inquiry, credibility and reliability is completely irrelevant. It is not a consideration for the presiding justice at all. Therefore, cross examination at a preliminary inquiry is incredibly different than it is at trial. Defence tends to ask open-ended questions in order to set the cross-examination questions for the actual trial. This can also be a risk which is important to explain to a client. In my client’s case, he understood the risks and the benefits of proceeding to trial and through a preliminary inquiry. He did that and fortunately we obtained information that was devastating to the Crown prosecutor’s case.
As we prepared for trial, negotiations began Crown and myself where we working towards a peace bond. I did not give up I held my client’s ground and would not accept certain terms and conditions. Eventually, the prosecution was stayed. My client can’t be more relieved or happy with the outcome. He’s walked away from prison, a conviction and lifelong stigma as he knows he was cleared of this heinous accusation.
This case demonstrates how important it is when you are accused of an offence to retain as much information as you can and give it to your defence lawyer. It is so vital to remain silent when you are accused of a crime. Text messages and statements can be taken out of context and can be used against you. Your criminal defence lawyer must be skilled in building defences and advancing through pre-trial applications. Understanding the rules of evidence and the differences between statements and admissions is vital. Furthermore, your lawyer must not give up through negotiations. It is impossible to state how happy I am for my client. He has his life back. The shroud of these heinous accusations has been removed.
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