(Note: names have been changed to protect the privacy of our clients)
The Case: R. v. Charles L.- Ontario Court of Justice, Brampton
The Facts: Our client works for a small company. He is a dual citizen from South East Asia, and married a woman from Mexico. They had a child together. His career risked being derailed when he received a letter from his country of origin reminding him that he would lose his citizenship if he did not return to perform a year of military service. However, if he had a second child, the military service would be waived. As a result, he wanted a second child; his wife, coping with a new country, a baby at home already, and a new part-time job- did not. They argued about it, his parents (who lived with them) pressured her as well. She secretly went to see a doctor to get contraceptive injections to ensure that she did not have an unwanted pregnancy. The marriage did not survive the strain, and she complained to Children’s Aid (CAS) that her husband was forcing her to have sex against her will in order to get her pregnant. Children’s Aid called police, and Charles L. was charged with sexual assault.
The Defence: The client was shocked that he was being charged, and believed that she was doing this to get the upper hand in a custody battle over their child. Indeed, she went to see a divorce lawyer the same week that she went to the police. We were able to get access to the matrimonial file and the CAS file, and learned about some inconsistencies in her story. We interviewed the client and his parents, and obtained emails and text messages that suggested that perhaps she was playing both sides: keeping her husband happy by agreeing to try for a second child, while secretly sabotaging that prospect with the contraceptive injections. The medical records confirmed some of this.
The Trial: This was a good case for a jury and a preliminary hearing, but the client could not afford those steps. He also needed the trial to be completed quickly, because he was in line for a promotion at work, which would require a criminal record check. We went straight to trial and challenged the complainant’s version of the case. The defence theory, that we developed and advanced at the trial, was that Charles’s wife, secure in the knowledge that she could not get pregnant, took the path of least resistance and went along with her husband’s attempts to conceive a child. Given the language and cultural barriers, the problems in the marriage, and the stress and busyness of their life, she did not make it clear that she was not consenting to sex. In fact, some of the text messages that our client had saved, tended to confirm this.
The Result: This was a hard-fought trial against a veteran prosecutor who is a zealous advocate for sexual assault complainants. The client had two major strikes against him, because he was charged with both sexual assault and domestic violence, which are “zero tolerance” offences. He is also someone who thinks and speaks very analytically, and can come across as being robotic and insensitive. A lot of work went into preparing him to testify, including mock cross-examination. In addition, sexual assault in particular has been the focus of much attention in the media lately, and judges are becoming more cautious about acquitting defendants in these cases. Nevertheless, our defence theory was accepted by the judge, and Charles L. was found Not Guilty. He is now able to take up his new promotion at work, and to see his daughter without supervised access. In the meantime, his country of origin recently changed their military service policy, and he is no longer required to enlist.Back
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