DEFENDING THE FALSELY ACCUSED IN SEXUAL ASSAULT CASES
The current public climate punctuated by catch phrases such as “believe the victim” and the “me too” movement has led to the police laying far more charges of sexual assault. If you follow the victims’ right’s advocates, the police should readily believe the complainant and lay criminal charges. From a defence perspective, there is a real risk that these charges are false; being falsely accused of sexual assault can have horrendous consequences for the innocent. See a recent article in the National Post entitled “Handbook for Men Falsely Accused of Sexual Assault” (December 20, 2017, by Barbara Kay) which recounts the nightmare experience of a young man falsely accused of sexual assault. Judges have also recognized the danger posed by these populist slogans to the fairness of the criminal justice system. In R. v. Nyznik, 2017 ONSC 4392, Justice Malloy stated at paragraph 17:
Although the slogan “Believe the victim” has become popularized of late, it has no place in a criminal trial. To approach a trial with the assumption that the complainant is telling the truth is the equivalent of imposing a presumption of guilt on the person accused of sexual assault and then placing a burden on him to prove his innocence. That is antithetical to the fundamental principles of justice enshrined in our constitution and the values underlying our free and democratic society.
Our courts place a huge emphasis on the presumption of innocence in sexual assault cases because these are very serious offences with horrendous consequences should the accused be convicted. Among the consequences of being charged with sexual assault are publicity in the local media which can lead to the loss of employment, and social stigma in the community. As well, the accused can be subject to release conditions which severely restrict free movement and the ability to communicate via the internet or cellular telephone devices. A person accused of sexual assault will usually be facing a lengthy legal process before a trial which can sometimes be years away. All the while, the accused remains under restrictive conditions and has the possibility of a conviction at trial hanging over his/her head. This can be extremely costly and nerve-racking for anyone. Most people accused of sexual assault, have never been charged with a criminal offence and have no idea of what lays ahead. A conviction at trial can result in a sentence of years in prison and being registered as a sex offender.
Because the consequences are so severe for anyone accused of sexual assault, we follow a very pro-active strategy to ensure that every defence possible is employed on behalf of our clients.
A person facing a possible charge of sexual assault should consult with an experienced criminal defence lawyer before making any statement to the police. The consequences of a conviction for sexual assault are so serious that a person facing such an accusation should say absolutely nothing to the police. The police will always want to interview a sexual assault suspect because any admissions they can get will make it more likely that there will be a conviction at trial.
When the police invite a sexual assault suspect to come in for an interview, the purpose of the interview is to obtain incriminating admissions which will make the prosecutor’s job easier at a trial. In our experience an accused who provides a statement to the police is far more likely to be convicted than a person who exercises his right to silence. In advising clients who are about to be arrested by the police or have been invited to come in for an interview at the police station, we tell clients they should exercise the right to silence. We tell them to remind themselves of the importance of exercising their right to silence, that they should write two words on the palm of their hand in black ink, “SHUT UP”. The police investigators plan their interviews with suspects and employ every tactic possible to obtain incriminating admissions. The police objective is always to obtain evidence to support a conviction, not to let an accused talk his way out of a charge.
Our first step in representing an accused charged with sexual assault is to write the prosecutor seeking the entire contents of the police file in regard to the charge. These file materials will usually include audio/video recorded statements from the complainant and possibly other witnesses, as well as any statement which the accused gave the police. In our experience, the prosecutor’s office will attempt to conceal any information which will lead to the address and other contact information for the complainant and other prosecution witnesses. At Singleton & Associates, we will routinely fight efforts by the prosecutor to restrict access to this information which we consider to be crucial in properly defending our client. In fact, we went to court and challenged the prosecutor’s attempts to conceal such information. The decision of the Honourable Judge Michael Sherar in R. v. Nickerson, 2016 NSPC 72, is the leading decision in Nova Scotia and it states that the prosecutor to provide all relevant information to Defence Counsel.
Once we obtain full and complete disclosure from the prosecutor, we meet with our client to determine the best way to proceed in defending them against the sexual assault charge. In most cases where the prosecutor has proceeded by way of “indictment”, we advise having a preliminary inquiry in the Provincial Court before proceeding to a trial in the Supreme Court of Nova Scotia. The purpose of a preliminary inquiry is to give Defence Counsel an opportunity to examine the complainant in a sexual assault case before having to conduct a cross-examination at trial. At a preliminary inquiry, all evidence is being recorded and a transcript will be available at trial to compare the complainant’s testimony gave at the preliminary inquiry with their testimony at trial. Frequently there are serious contradictions in this evidence which can be used by an experienced criminal defence lawyer to suggest that the complainant’s evidence is not credible or reliable.
We note that some prosecutors will choose to proceed “summarily” with a sexual assault case in an effort to shield the complainant from being subject to an intensive cross-examination at a preliminary inquiry. When the prosecutor proceeds “summarily”, the accused only has a right to a trial in the Provincial Court and will not be able to have a preliminary inquiry. The effect of the prosecutor proceeding summarily deprives the accused of a right to have a preliminary inquiry which can be crucial to a successful defence of a sexual assault charge. If the prosecutor proceeds “summarily” with a sexual assault charge, the maximum sentence is eighteen months in a provincial jail and mandatory registration as a sex offender. Serving time in a provincial jail is often worse than serving a sentence in a federal prison given the maximum security detention and lack of parole.
In most sexual assault cases, the issue is whether or not the complainant consented to the sexual activity. Consent can be by words and/or actions. A person can consent to some sexual activity and not to other sexual activity. Consent may exist at the beginning of the sexual encounter and be withdrawn at some point afterwards. A person who is intoxicated can consent to sexual activity. A judge will determine, based on the facts of the case, whether the complainant was able to consent despite having consumed alcohol. In consent cases, evidence of earlier interactions between the complainant and the accused, for example at a party before the sexual activity, may be highly relevant in determining a complainant’s state of sobriety and her ability to consent to the sexual activity.
An accused facing a charge of sexual assault has an uphill battle in defending himself/herself given the enormous power and resources of the state in prosecuting such a case. The police and the prosecutor’s office have virtually unlimited resources at their disposal. In comparison, an accused has to pay for the services of a competent criminal defence lawyer and all other costs associated with his/her defence. While the prosecutor has all of the resources of the police available for further investigation, an accused often has to come up with additional funds so that his/her lawyer can hire an investigator to obtain background information on the complainant and other witnesses. Given the great imbalance in resources between the prosecutor and an accused, an experienced criminal defence lawyer must aggressively pursue all defences available to his/her client and must be extremely alert to attempts by the prosecutors to use evidence, such as statements, that may not be admissible at trial.
The punishment, if an accused is convicted of sexual assault, is very severe. If the prosecutor proceeded by way of “indictment”, an accused convicted of sexual assault is liable to imprisonment for a term of up to ten years. If the complainant was under sixteen years of age at the time the assault occurred, the maximum punishment could be up to fourteen years, with a minimum punishment of a term of one year in prison. If the prosecutor proceeded by way of “summary conviction”, the maximum punishment is eighteen months in a provincial jail. If the complainant was under the age of sixteen years, the maximum punishment is a term of two years, less a day, in a provincial jail with a minimum punishment of six months. In addition to a term of incarceration, an accused convicted of sexual assault is also subject to a mandatory sex offender registry order (SOIRA) and will also be ordered to provide a DNA sample and not be permitted to possess or use firearms. In some cases a person convicted of sexual assault can also be ordered not to be near schools, playgrounds or other places frequented by children and be subject to an order not to use any device capable of accessing the internet.
Other consequences of a conviction for sexual assault may well be worse then the sentence imposed by the Court. The notoriety which comes with a conviction may render the offender unemployable. The sex offender registry order (SOIRA) will make it next to impossible to escape the stigma of a sexual assault conviction even if the offender moves to a new town in a different province.
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ARRESTED - GETTING OUT OF JAIL
The most terrifying experience for anyone is getting arrested by the police. At the time of your arrest you are detained and are no longer free to leave and go about your business. The police take possession of your personal belongings, handcuff you and place you in the back of the police car for transport to the police station. After being processed at the police station, some people get released upon signing a “Promise to Appear” in court and some don’t. This article outlines the various forms of release from custody, who gets released and under what circumstances.
Promise to Appear in Court
The simplest form of release from custody is a “Promise to Appear” in court. This is sometimes referred to as an “Appearance Notice”. This is a form which the police complete and the Accused person signs. Upon signing, the Accused is released from custody on his promise to appear in court on a later date and to attend at the police station for fingerprinting and to have his photograph taken pursuant to the Identification of Criminals Act. Accused persons who normally reside in the area of the province under the jurisdiction of the court who are charged with relatively minor criminal and drug offences are usually released on a Promise to Appear. (An accused person who is not arrested can be issued a “summons” to appear in court.)
Undertaking with Conditions
The police may also ask an Accused to enter into an “Undertaking with Conditions” to secure his release from custody. This form of release is frequently used in domestic violence and sexual assault cases where the Accused will be asked to undertake to have no contact with the complainant or alleged victim. There can be other conditions such as abstaining from alcohol or drugs or residing at a particular address. The police have the burden of justifying these conditions should the Accused request a variation before a judge of the Provincial Court.
If the police decide not to release an Accused on a Promise to Appear, Recognizance or Undertaking, they must take him to court for a bail review within twenty-four hours of his arrest. At a bail hearing a judge will decide if the Accused will be released and the conditions of release. If a judge determines that an Accused can be released it will be in the form of a Recognizance entered into before a judge or justice. The Recognizance may be with or without a surety. A “Surety” is an individual who accepts responsibility for the Accused and promises to pay an amount of money to the court should the Accused fail to attend at court or fail to abide by his release conditions. Not everyone can act as a surety; for example, the court would not accept as a surety an individual without a fixed address or an individual who has a criminal record.
Who May be Refused Bail
If an Accused has a history of failing to show up at court or has a history of committing the same offence, he may be denied bail. Similarly, if the Accused was already out on bail and breached his release conditions, he may be denied bail. In some cases if an Accused was already on release conditions for an indictable offence, he may have to show cause as to why he should be released. As a general rule, if an Accused has already been released on conditions and is arrested again, the release conditions will be more onerous and may include a curfew and house arrest. If an Accused habitually breaches his release conditions, the court may decline to release him under any conditions and he will have to remain in custody until his trial. In some cases, after an Accused has been arrested, the Crown Attorney may request that the Court not proceed with a bail hearing for three days to permit the police to investigate further.
An Accused who has been arrested and not been released by the police pursuant to a “Promise to Appear” should always contact a lawyer to determine how to obtain his release from custody. An experienced criminal defence lawyer can navigate the often complex rules which will determine if you are released from custody and under what conditions. A failure to get it right the first time may result in a costly appeal of the bail decision.
The tragic Rehtaeh Parsons case, which has been front-page news in Nova Scotia and throughout Canada, raises some of the most troubling questions in Canadian criminal law. In the Rehtaeh Parsons case there was an allegation that she was sexually assaulted by four young men and that a photograph of the incident was circulated over the internet. In her case, the police investigated the complaint of sexual assault and, after consultation with the Public Prosecution Service, decided not to lay any criminal charges. Subsequent to the sexual assault incident and the online circulation of the photograph allegedly taken during the incident, Ms. Parsons was bullied to the point where she took her own life. These are very tragic circumstances for her family, friends, and the community at large.
It is in this context that questions have been raised as to why the police did not lay charges against any of the four young men both in regard to the complaint of sexual assault and the circulation of a photograph on the internet which could be considered child pornography. The Rehtaeh Parsons media reports referred to the police investigation and a review of the investigation results by one or more Crown Attorneys before a decision was made not to proceed with criminal charges against any of the four young men involved.
In attempting to understand the Rehtaeh Parsons case it is important to be aware of the different roles the police and the Crown play in our justice system. It is the role of the police to investigate allegations of criminal offences and determine whether or not charges will be laid. The Crown in Nova Scotia does not decide whether criminal charges will be laid in any particular case. On some occasions the police will consult with a Crown Attorney to determine whether the evidence they have gathered in a particular case would justify proceeding with certain charges under the Criminal Code. What a Crown Attorney is usually determining is whether, based on the evidence presented by the police, the elements of a criminal offence are made out and whether there is a reasonable prospect of obtaining a conviction in a criminal court where the evidentiary burden is proof beyond a reasonable doubt. A Crown Attorney will likely have this discussion with the police investigator but, at the end of the day, the decision as to whether or not to lay a criminal charge remains with the police.
If the police do lay criminal charges, the Crown Attorney can later decide whether or not the evidence supports a reasonable prospect of conviction at a trial. If the evidence available to the Crown does not offer a reasonable prospect of conviction then the Crown Attorney has an obligation not to proceed with the prosecution. There are some situations where, even if there is a reasonable prospect of a conviction, the Crown will, nevertheless, decide not to prosecute because the prosecution may not be in the public interest. An example may be the case of an elderly accused who has no prior record who is charged with a very minor offence.
In sexual assault cases where the issue may be whether the complainant consented to the sexual activity, the police will collect evidence which may include statements from the complainant, other witnesses and, sometimes, statements from the alleged perpetrators which may collectively present a less than clear picture on the issue. If the evidence collected by the police is ambiguous on the issue of consent, the police may very well want to consult with a Crown Attorney to determine whether there is a reasonable prospect of a conviction should they lay a charge. It is important to note that consent to sexual activity is not simply a complainant stating “I did not consent” but can also be implied from the complainant’s actions and surrounding circumstances. Experienced criminal defence lawyers and Crown Attorneys who prosecute sexual assault cases run into this situation in some cases which can result in lengthy trials dealing almost entirely with the consent issue.
Sexual offences are among the most serious charges under the Criminal Code and include everything from aggravated sexual assault to pornography charges and child pornography charges. On any given day in courts throughout Nova Scotia persons accused of sexual offences appear to elect their mode of trial or to enter a plea and obtain a trial date or sometimes for a trial itself. While it is bad enough that an accused person will find themselves before a court facing such serious criminal charges, what is worse is the fear that their names will be published in a newspaper, mentioned on radio or television or in some online media. The publication of the name of an accused who is charged but not convicted (i.e. presumed to be innocent) of a sexual offence will frequently have very serious consequences including social stigma and the possible loss of employment.
What determines whether a case gets reported by the media or not? If the accused has the same family name as the victim and publication of the name of the accused would identify the victim, there will almost certainly be a court ordered publication ban on reporting the name of the accused or any other information which might identify the alleged victim of the sexual offence.
If a person accused of a sexual offence is socially prominent, for example a politician, a lawyer, a doctor or some other professional, the odds of the name of the accused being reported are greater. Even if reporters are not present in court, human nature being what it is, the information that such a person has been charged with a sexual offence will often find its way to the media.
In cases which do not involve socially prominent people, whether a criminal accusation gets reported or not will depend on the seriousness of the offence was or the notoriety of the incident which led to the sexual charge being laid.
Most people accused of sexual offences, who are not socially prominent and where the events themselves were not particularly notorious, will often avoid seeing their names published in the newspaper, mentioned on radio or television or in some other media. A skilled criminal defence lawyer will ensure that his client does not appear in court for routine court appearances by having filed a Designation of Counsel with the court which enables the lawyer to appear on behalf of the accused person. A criminal defence lawyer will usually ensure that the criminal charges are not read out in court and that the only times the accused is attending at court is for a preliminary inquiry, a trial or a sentence hearing.
While it may appear unfair, a person accused of a sexual offence in a large centre, such as Halifax, will often remain anonymous while a person accused of such an offence in a smaller centre will usually find their case mentioned in the local newspaper. While our criminal court system is based on the principle of the public having a right to know, whether the name of an accused is actually reported in the media is far from certain and in some cases can be avoided by a skilled criminal defence lawyer.