Kirk's Case — Sexual Assault & Death Threat — Dismissed

Client:  Kirk K., Accused
Complainant:  Mia, Sister of Kirk's friend
Charges:  Sexual Assault and Threaten Death, Criminal Code, ss. 271 & 264.1

Background:  Kirk received a casual invite to attend for a few drinks at a mutual friend's house. He accepted, not giving it much thought. Within a few hours, he was sitting on a back porch enjoying a drink on a delightful early summer evening. As the night wore on, Kirk ran out of cigarettes. He decided to go and purchase some. Mia, the female host of the party, invited herself along for the short drive, and — yadda, yadda, yadda — they ended up having sex in his truck. Kirk dropped Mia back home, and drove away. A few days later Kirk was arrested for sexually assaulting Mia. He was also charged with uttering a death threat against Mia and her daughter. During the arrest, Kirk gave the police a video-taped statement, initially denying any sexual contact, but eventually admitting to consensual sexual contact. When Kirk and I first met, he was feeling down. That was understandable. Not only was he charged with two serious offences that could land him in the penitentiary, but he had unwisely lied to the police about the event, thereby compromising his credibility.

READ THE POLICE REPORT

Goals:  Getting the charges withdrawn was not a goal we could reasonably work towards. We focused on the next best thing: getting Kirk acquitted.

Strategy:  Our efforts were devoted to preparing for trial. Kirk decided that he didn't want a jury trial, nor did he want a preliminary hearing. He decided to have a trial before a Judge of the Ontario Court of Justice. I was comfortable with his decision. The major issues for trial were Kirk's and Mia's reliability and credibility, especially since there were no witnesses to the alleged crime (except Kirk and Mia). If the Crown were allowed to use Kirk's statement at trial, they would attempt to undermine his credibility by demonstrating that he had lied when first questioned by the police. "He lied then, Your Honour, and he's lying now," the Crown could legitimately submit. Kirk was worried about this. I shared his concern. I had one argument to keep the statement out of evidence. Even though the police had been careful to provide Kirk access to a lawyer, they did not tell Kirk that he was also being charged with making a death threat. Kirk didn't even know about the threatening charge until after he was released. If Kirk didn't know the full scope of the investigation — I intended to argue — then how could he have made an informed decision to give up his right to silence. The only reasonable conclusion — I would continue — was that Kirk's statement wasn't voluntary, and ought to be excluded. We scheduled the trial, and bided our time.

Results:  The Crown called its witnesses on the first day of the trial. Just before Kirk was to testify on the second day, the Crown agreed that the statement wasn't voluntary. With that concern removed, Kirk took the witness stand. He testified with a full heart and understandable regret, but also with conviction. I was impressed (and, as it turned out, so was the Judge). After the evidence was completed, the case was adjourned again. The Judge needed time to consider the evidence, make a decision, and formulate his reasons. On the third day, the Judge gave brief reasons promptly dismissing both charges. Kirk managed to contain his excitement until he reached the hallway, where everyone heard him bellow with his whole heart and soul: F*ck'n "A", man, just f*ck'n "A". Later, the Judge released an in-depth analysis of the evidence, the law he had to apply, and the application of the law to the evidence. This comprehensive judgment, linked below, demonstrates how Judges approach cases like Kirk's where there are no witnesses to the alleged crime except the accused and the complainant. If you want to better understand the process of how a Judge arrives at a decision — especially in a classic "he-said, she-said" case — you should read it carefully.

READ THE JUDGE'S REASONS FOR DISMISSING THE CHARGES