LOCATION: Old City Hall Toronto Ontario Court of Justice

BACKGROUND

In 2018 the complainant made allegations of that our client had violently raped her on New Years Eve 35 years ago. They had been in a relationship (which both parties acknowledge) that had ended in the fall of that year. The allegations were that our client showed up to the complainant’s apartment uninvited just prior to midnight, when she was alone. In a 90-minute interview with police she gave a very detailed account of the interaction in the apartment, which included allegations that our client forcefully directed her to the bedroom where he violently raped her. The 90-minute interview with the police, which took place in the province the complainant was now residing in, in spite of numerous troubling contradictions, went unchallenged by the investigating officer in any way. The officer simply praised the complainant for her courage in coming forward. In her statement to police, the complainant provided police with the names of others who knew of the events at the time of the alleged rape. She also alleged that she had made a report to police who at the time told her that there was nothing they could do about it as the accused had not injured her.

Relying solely on the unchallenged evidence of the complainant, Police arrested our client and charged him with sexual assault. Upon learning of the arrest, our client’s employer immediately placed our client on paid suspension.

THE ISSUES

The interview with the original police officer was the only time that the police ever interviewed the complainant. Careful review by our team revealed several extremely troubling contradictions, and serious reliability issues within that statement that were never challenged by police. Subsequent interviews of potential other witnesses were conducted in a way that were prejudicial towards our client. It was our belief that from the beginning, Police were not seeking the truth in their investigation, but were simply interested in bolstering a case for conviction. There were 4 potential key witnesses that were identified by the complainant in her statement to police. One of the potential witnesses was now deceased, one gave a telephone interview where she stated no recollection of the time period in question, and one witness was never located, leaving only one witness who could provide a helpful statement to police. That witness directly contradicted the complainant when she said the complainant had not told her about the alleged sexual assault in 1986, or ever. As she was the sister of the accused, both the police and the crown chose to believe she was not being truthful. On our advice, the accused did not give a statement to police.

THE STRATEGY

It was clear from the beginning to us that the police did not intend on properly fulfilling their role of thoroughly investigating the allegations. The 90-minute interview the complainant gave to police offered a large amount of investigative avenues on corroboration. As the police were derelict in their duties of investigation, we endeavoured to investigate on behalf of our client. Our client indicated that the missing witness would absolutely refute claims being made by the complainant so we tracked him down and interviewed him. He would provide the defence with an additional witness, on top of our client’s sister, who would dispute assertions made by the complainant. While we engaged the crown numerous times to have them consider withdrawing the charges, it was clear they were determined to prosecute this case no matter what. Because of this, we ended discussions and set the matter for trial.

At the time of our client’s arrest, a preliminary hearing was still an option. Given that our client’s life was completely disrupted and his career was under suspension, after much discussion the decision was made to forego the preliminary hearing and go right to trial in the Ontario Court of Justice. Our strategy was threefold. First was to prepare both of our civilian witnesses to testify at trial. We spent many hours with them reviewing the complainant’s statement and piecing together their memories from almost 35 years ago. Some of that included them going back to old photographs and journal entries. Secondly, we did the same with our client. Both to prepare him to testify (a decision we would make at trial) and to help us in our preparation to cross examine the complainant. We were careful to do these preparations separately. This was an exercise in truth seeking so we wanted our witnesses to have “Independent” memory recollection that would stand up to cross examination. Finally, and most importantly, we spent many hours preparing for the cross examination of the complainant.

THE RESULT

Originally scheduled for March of 2020, the trial was postponed on the eve of trial due to the pandemic. It was then moved to November 2020. The trial lasted 5 complete days. During examination-in-chief, the complainant continued the pattern she exhibited in her interview with police. Her rambling testimony was rife with inconsistencies, full of contradictions when compared to her original statement, and included many shocking new revelations that were not included in her original statement to police. The examination-in-chief lasted almost the entirety of the first day. With only an hour left until the end of the first day in court, Mr. Collett’s cross examination was brief and mostly superficial with the intent of saving the difficult questions until the next day.

The cross examination lasted a total of 2.5 days. Normally the strategy on cross examination would be to ask very focused questions and to keep the witness on point. It became clear with this complainant that she was very willing to expand on clear fabrications and lies in her testimony. Much of the cross examination was therefore structured to allow her the latitude to talk herself into trouble on facts that were either contradictory to other facts she had expressed earlier during trial or her police interview. Some of her testimony was simply so outrageous it was challenged on its own. Cross examination of this complainant exposed her as someone who was capable of breathtaking lies.

After the crown closed their case, we decided to call our two civilian witnesses. They were extremely well prepared and forthright and honest. If any doubt remained after the devastating cross examination of the witness, their testimony cemented our client’s innocence. With no need to call our client, we rested our defence. Submissions were straightforward but took the time to exhaustively review the fatal cross examination, and strong testimony of defence witnesses.

Often in serious cases, the judge will take a recess to contemplate the verdict, or even reserve judgement to a later date. In this case, the judge gave his verdict immediately upon Mr. Collett finishing his submissions. The verdict was a complete exoneration of our client where the judge used extremely sharp language indicating that the cross examination of the complainant caused her story to be categorized as impossible to believe. Our client’s family, who were present for the entire trial were afforded the great relief of seeing their husband/father/brother completely exonerated of the false accusations that had wreaked havoc on all of their lives for more than 2 years.