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Successfully Defended Domestic Assault Cases

The Case

Mr. M was charged with domestic assault after his ex-girlfriend, Ms. B, accused him of striking her in the face during outdoor Victoria Day festivities. Police laid charges after taking Ms. B’s statement, interviewing another witness, and reviewing bystander and CCTV video footage of the festivities that allegedly captured part of the assault. However, police did not arrest Mr. M until three months later, and the trial was not scheduled until more than two years after Mr. M had been charged.

As such, Mr. B’s lawyers filed a motion to stay the proceedings based on unreasonable trial delay and a supplemental application to stay the proceedings due to lost evidence. Because the Crown did not have time to respond to the applications before the start of the trial, Judge C blended the defence evidence on the applications with the trial and addressed the unreasonable trial delay application first.

At issue was whether the 657 days between the laying of charges and the start of the trial constituted an “unreasonable” delay under the Supreme Court of Canada’s Jordan ruling and to determine how much of the delay was caused by Mr. M’s defence. Among several other prosecutorial timing issues, Judge C called the Crown’s nine-month delay in providing the defence disclosure materials “wholly unacceptable.” And while the judge criticized the defence for delays in requesting missing disclosure materials, “[d]efence counsel’s lassitude is no excuse for the Crown’s failure to expeditiously meet basic disclosure obligations.” The “overall passive, complacent approach taken by the Crown, the judge concluded on this issue, “persuade me that the disclosure-related delays must be borne by the state.”

The Results

In issuing a stay of proceedings, Judge C noted that the Crown failed to “establish both that exceptional circumstances existed and that it reasonably attempted to mitigate the resulting delay.” As this application proved dispositive to the case, there was no need for the judge to directly address the defence’s lost evidence application.

The Case

Mr. T was charged with domestic assault after his ex-girlfriend, Ms. Y, accused him of slapping her in a fit of drunken anger after he failed to convince her to reconcile. Ms. Y provided police with a detailed description of the alleged assault after calling them to her apartment right after the incident. Mr. T was arrested at his own apartment approximately one and a half hours later, and upon his arrest denied slapping Ms. Y and claimed that Ms. Y had actually hit him.

During the trial, Ms. Y claimed that Mr. T had “anger issues” when drunk and that he had slapped her on other occasions. On the night in question, she said that Mr. T was obviously drunk and quickly grew angry when she rebuffed his affectionate advances and pleas to get back together as a couple. This led to a heated verbal argument that ended when Mr. T slapped her in the face and stormed out of the apartment.

For his part, Mr. T testified that he was not drunk during the alleged incident and that Ms. Y had actually slapped him during the verbal spat. He said he did not hit her back but threatened to call the police on her for assault just prior to leaving the apartment. Mr. T further claimed that Ms. Y had anger issues when drunk, had been drinking the night of the alleged assault, and had slapped him on prior occasions.

The arresting officers testified that while Ms. Y’s cheek appeared to be red, there was no way to conclusively prove that it was the result of a slap rather than some other cause. They also testified that while Mr. T had the smell of alcohol about him, he showed no visible signs of inebriation. Under further questioning, they agreed that Ms. Y not only smelled of alcohol, but also showed visible signs of inebriation.

The Results

Because Ms. Y’s claims of the assault revolved around the issue of inebriation, Judge M deemed the lack of evidence supporting Mr. T’s alleged inebriation a mitigating factor that raised doubts about the veracity of the assault accusation. For this reason, Mr. T was found not guilty of the charge.