Rupert's Case — Assault (Neighbour) — Dismissed

Client:  Rupert, Accused
Complainant:  Leah, Neighbour
Charge:  Assault

Background:  Good fences make good neighbours. Hardwood floors and high heel shoes overhead do not. Rupert had enough of the incessant "tap, tap, tap" over his head. He stopped his neighbour on her way down in the elevator. He gave her a piece of his mind. There was much screaming and gesticulating. She was frightened and afterwards called the police. Rupert was charged with assault.

READ THE POLICE REPORT

Goals:  Rupert thought the charge was bogus as no touching or assault ever occurred. He was determined to beat the charge.

Strategy:  The Criminal Code does not require a touching for an assault. An assault occurs when a person threatens another by act or gesture, and has present ability to carry out that threat. That was the Crown's position. Our defence was that an argument had taken place, not an assault. There was no middle ground, so we scheduled the trial and prepared for battle. In advance of the trial, I prepared Rupert to testify. Nine months after the incident, the trial began. The Crown's only witness was the neighbour. In bringing out her evidence, the Crown forgot to prove where the incident took place. I said nothing. I asked no questions. When the Crown closed its case, I leaned over and whispered to Rupert that I wasn't calling him as a witness because the Crown had made a fatal mistake. Rupert was puzzled by this last-minute and unplanned change of strategy, but he trusted my judgment. I then stood up, and pointed out the error.

Results:  The Judge had already noticed the problem. The charge was promptly dismissed.

READ THE JUDGE'S DISMISSAL