Evan's Case — Assault & Death Threat — Dismissed

Client:  Evan P., Accused
Complainant:  Vanessa, Evan's estranged wife
Charges:  Assault and Death Threat, Criminal Code, s. 266 and 264.1(1)(a)

Background:  I first met Evan just after his arrest. He was still in custody. He had gone to his house the day before to retrieve his firearms. Evan had been worried that his estranged wife, Vanessa, might sell his firearms, because she had already sold some of his property. While there, Evan and Vanessa argued. After Evan left with his rifles, Vanessa called the police. She complained that Evan had assaulted and threatened her. The police took her allegations very seriously. At Court during the bail hearing, the Crown fought vigorously to keep Evan in custody until his trial date (which would have been months). I was worried that the Justice of Peace would detain Evan. By day's end, however, I had managed to secure Evan's release on reasonable conditions. The allegations arose in the midst of a family-law battle. Evan explained that Vanessa had told a "pack of vindictive lies" just to get him in trouble and in the hope that it might give her some extra leverage in the family-law proceedings. Evan's family-law lawyer confirmed that the family-law proceedings were "nasty," and that, at trial, we could expect a witness dripping with venom.

READ THE POLICE REPORT

Goals:  The objective was simple: to get the charges withdrawn or dismissed.

Strategy:  Not surprisingly, the Crown was not interested in discussing withdrawing these charges. We scheduled the trial. There were two charges: the death threat and the assault. The defence on each was different. On the threatening-death charge, Evan was not guilty because he had used the phrase "you'll be sorry" in the sense that one might come to regret one's actions over time, not as a physical threat. Evan and Vanessa had been arguing in spanish. In english, the meaning of the phrase "you'll be sorry" can be open to interpretation and can depend on the context. In spanish, the language is more precise. The spanish verb that Evan had used specifcally meant you'll come to regret your actions with the passing of time. No reasonable person would interpret it as a physical threat. If Evan had wanted to make a threat, he would have used a different verb. On the assault charge, our first defence was that Evan didn't touch Vanessa. If the Judge found as a fact that Evan did touch Vanessa, we could still argue that Evan was allowed to use reasonable force to enter his home to retrieve his property. In other words, he could only be found guilty if the Judge found that the force used was excessive.

Results:  At trial, Vanessa and Evan were the only witnesses. In her testimony, Vanessa agreed that the spanish verb Evan had used to tell her that "you'll be sorry" is not the verb used to convey a threat, and that, if he had meant to convey a threat, another verb would have been used. That charge was promptly dismissed after Vanessa finished testifying (after I brought what is called a "non-suit motion" at the close of the Crown's case). Evan then testified to answer to the assault allegation. The Judge was impressed with his evidence. He dismissed the assault charge.

READ THE JUDGE'S DIsmissal OF THE ASSAULT CHARGE