Greg's Case — Assault & Mischief — Dismissed

Client:  Greg, Accused
Complainant:  Sigmund, Greg's former spouse
Charges:  Assault, Unlawfully in Dwelling, and Mischief Under $5000

Background:  Greg and Sigmund had lived together as a couple. They had invested both time and money in a house, but the house's title was in the name of Sigmund's parents. After a dispute, Greg had moved out temporarily. Now, he wanted to move back home. He believed that, as a part owner, he had the right to move back home. Greg arrived home, and made his way inside. He and Sigmund argued. When Greg stepped outside, Sigmund locked him out. Undeterred, Greg broke a window, and forced his way inside. Sigmund tried to remove him. Greg fought back. The police were called. Greg was arrested, held for a bail hearing, and charged with mischief to property, unlawfully in a dwelling, and assault.

READ THE POLICE REPORT

Goals:  Greg wanted all charges withdrawn or dismissed. (He also wanted to re-gain possession of the house; failing that, he wanted his fair share of it. My practice being restricted to criminal law, I referred Greg to a civil lawyer to help on that front.)

Strategy — Property Offences:  During my early pre-trial negotiations with the Crown, I was able to show through documents registered on title that Greg reasonably believed (perhaps not accurately) that he was part owner of the house. My pitch was that, since Greg had a reasonable belief that he was a owner, he could not be found guilty of mischief, nor could he be found guilty of being unlawfully in a dwelling. Believing that he had a right to be there, he had no mens rea — from the latin, meaning "no guilty mind." I also argued that Greg could not be found guilty of the assault if he only used reasonable force to prevent his removal from what he believed was his own house.

Results — Property Offences:  The Crown accepted my argument on the property offences. On the scuffle, however, the Crown's position was that Greg used excessive force. The mischief and unlawfully-in-a-dwelling charges were withdrawn that day. We scheduled a trial on the assault.

Strategy — Assault:  The Crown made one concession going into the assault trial. They agreed that Greg could only be found guilty if he had used excessive force. As you might suspect, Greg disputed Sigmund's account of the events. This being a he-said, she-said case, my strategy was two-fold:  (i) to demonstrate through my cross-examination of Sigmund that he was not credible; and (ii) to raise a reasonable doubt through Greg's testimony.

Results — Assault:  At trial, I was feeling confident after my cross-examination of Sigmund. After the Crown closed its case, Greg and I discussed whether he should testify. We decided that it wasn't in his best interest. In my final submissions, I argued that the remaining assault charge should be dismissed because Sigmund was not a credible witness. The Judge agreed.

READ THE JUDGE'S DISMISSAL OF THE CHARGE