Carrie's Case — Assault & Fail to Appear — Dismissed

Client:  Carrie, Accused
Complainant:  Tristan, a youth bullying her son at school; Durham Police
Charges:  Assault; Fail to Appear

Background:  Carrie is a single parent with one son, Jacob, in grade 8 at the time. She drove to his school to give him a lift home. When she spotted Jacob, she noticed he had a troubled expression. She could tell something was wrong. She quickly learned that a group of kids from his school were again picking on Jacob. She decided to intervene. She parked the car, and approached the group of boys. One of the boys, who I will call Tristan, let loose with the vulgarities, and a physical confrontation ensued. As a result of the police investigation, Carrie was arrested and charged with assaulting Tristan. When she got the Court dates mixed up and failed to show at the first Court appearance, she was arrested again for failing to attend Court.

READ THE POLICE REPORT

Goals:  Carrie's goals were simple. She wanted to be cleared of both charges.

Strategy — Assault:  I knew from the start that it was unlikely that we would get the assault charge withdrawn during the early stage of the proceedings. The Crown accepted the statements of the group of boys who had picked on Jacob, and viewed Carrie as the aggressor. There was no reasonable prospect of getting the charge withdrawn. My strategy was to raise a reasonable doubt at trial by calling both Carrie and her son Jacob as witnesses. If the Judge accepted what either or both of them had to say, or if either of them raised a reasonable doubt in his mind, the Judge would have to acquit. With that strategy in mind, we scheduled the trial.

Strategy — Fail to Appeal:  I had two defences to the fail-to-appear charge. The first defence was that Carrie honestly forgot her Court date. The case law is clear that a finding of guilt cannot be based upon an honest mistake. I tried to convince the Crown of our position before we scheduled a trial, but the Crown refused to accept our explanation. The Crown took the position that I would have to call evidence at trial to establish this defence. I felt the Crown's position was unreasonable, but, as the decision fell within the Crown's discretion, I was left with the option of fighting the case at trial. The second defence was that the police failed to swear the information in a timely manner (The "information" is the official Court document which outlines the charge.) Unfortunately, I could not raise this second argument with the Crown because, if I did, the Crown could try to patch up the problem by calling the police officer at trial to explain why it took him so long to swear the information. The net result was that we also scheduled this charge for trial.

Results — Assault:  This trial took place over two days. As you can read in the decision below, the Judge rejected Carrie's evidence and appeared to accept the Crown's version of the events. In the end, however, he had a reasonable doubt based on Jacob's evidence, and acquitted.

READ THE JUDGE'S DISMISSAL OF THE ASSAULT CHARGE

Results — Fail to Appear:  After the Crown called its evidence at trial, I asked the Judge to dismiss the Crown's case on the basis that the information before the Court had not been sworn "as soon as practical." As you can read in the detailed reasons below, His Honour agreed with my argument and dismissed the charge. (As a result, Carrie never had to testify about honestly forgetting the Court date.)

READ THE JUDGE'S DISMISSAL OF THE FAIL-TO-APPEAR CHARGE