SSS was charged with sexually assaulting his estranged common law wife. The assault was alleged to have occurred in the bedroom of SSS at his condo after a dinner party. The events giving rise to the criminal prosecution are somewhat convoluted but they go something like this: 1) sexual activity including intercourse transpired in the bedroom, 2) the sexual activity was captured on a home movie, 3) the roommate of SSS overheard some shouting and called the police, 4) the police arrived at SSS’s condo and arrested him for sexual assault, 5) the police conducted a warrantless search of the bedroom and seized the film, 6) the complainant reluctantly attended the hospital where she underwent an examination which revealed the presence of SSS’s DNA but absolutely no indicia of “forced” sexual activity, 7) the complainant refused to provide the police with a statement and claimed that she had absolutely no recollection of the event but would not have consented to sexual activity with SSS, 8) the police conclude that the complainant must have been drugged, 9) a forensic toxicology report revealed no trace of any drug resembling a so-called “date-rape” product, 10) the forensic toxicology report did reveal the presence of at least 3 drugs (including cocaine) in the body of the complainant.
SSS was charged with sexual assault and ordered detained pending trial by a Provincial Court Judge and Superior Court Judge. SSS sat in a cell at the local remand center for approximately 17 months prior to commencement of his jury trial. Patrick Fagan was not SSS’s lawyer at the time of his arrest and bail hearing.
The first order of business from a defence perspective was to seek the exclusion of the home movie pursuant to section 24(2) of the Charter as a consequence of the violation of SSS’s constitutional right to be secure against unreasonable search or seizure as guaranteed by section 8 of the Charter. This process (conducted in the absence of the jury) lasted close to a week and at the conclusion of those proceedings the trial Justice reserved his decision.
Bottom Line germane to the application for constitutional relief: the trial Justice held that there had been a serious violation of SSS’s constitutional right to be secure against unreasonable search or seizure and he ordered that the home movie be excluded as evidence in the proceedings.
During the course of the constitutional application aforesaid Patrick Fagan discovered through cross examination of police witnesses that there were various investigative reports which hadn’t been disclosed to the defence. Patrick Fagan was able to use this matter of non-disclosure as leverage to secure the release of SSS. SSS was granted bail on reasonable terms and the trial was adjourned to be reconvened at a later date before a jury.
During the course of the lengthy adjournment Patrick Fagan implored the Crown to seriously consider entering a stay of proceedings relative to all charges. Patrick Fagan was of the opinion that as the Crown could no longer rely on the home movie and the complainant “claimed” to have no recollection of the event that there was no reasonable likelihood of a conviction. Succinctly put . . . the Crown refused to seriously consider any such request.
A jury trial was held and it lasted an entire week. During those proceedings the complainant testified at length. At the conclusion of Patrick Fagan’s brief but concise cross-examination of the complainant the jury retired to deliberate. The jury returned with a verdict of not guilty in record time.
For a transcript of the decision of the Honourable Mr. Justice Lee germane to the Charter application click here.