W.C.C. is a young well educated professional male, with absolutely no prior adverse contact with the police, who found himself charged with sexual assault contrary to Section 271 of the Criminal Code. If convicted, W.C.C was looking at years in prison and life thereafter encumbered by the National Sex Offender Registry.
Faced with potential ruination, W.C.C. hired Patrick Fagan to defend this criminal prosecution. Bottom Line: On day 1 of a 1 week trial, Patrick Fagan killed this ill -conceived prosecution in its entirety by way of a Stay of proceedings.
Background
W.C.C. and the “victim” (hereinafter referred to as the “Complainant”) had been close friends since high school. On W.C.C.’s convocation from University he celebrated at a local drinking establishment with the Complainant and a few other mutual friends. At the end of the night W.C.C. and the Complainant ended up at her place shortly after midnight. On arrival at the Complainant’s residence, she invited W.C.C. to share her bed for the night – W.C.C. accepted the
invitation.
W.C.C. and the Complainant engaged in sex (including intercourse) while in the Complainant’s bed. The next morning nothing was said between the two of them regarding the shared sexual experience; they simply bid each other good morning and left for their respective places of employment.
Over the next couple of years W.C.C. and the Complainant maintained their friendship and communicated by way of telephone and text on a regular basis. Nothing of a sexual nature transpired between the two of them after the night in question.
Approximately 4 years later, the Complainant discovered that a few of her friends were aware of the fact that she had sex with W.C.C. – this upset the Complainant. The Complainant thereafter sought counselling with respect to what “really” happened that night, joined a victims advocate group and eventually contacted the police and laid a complaint of sexual assault. W.C.C. was arrested and charged accordingly.
W.C.C. maintained his innocence from the word go but his profession of innocence would not spare him the cost, anxiety and risk associated with trial proceedings. Consequently, Patrick Fagan entered a plea of not guilty to the charge of sexual assault and scheduled the matter for trial.
The Complainant led the police and the Court to believe that following the night of sex she made no attempt to contact W.C.C. and their friendship (for all intents and purposes) was over. Well . . . the Complainant stuck to her sworn testimony in this regard until, during the course of Patrick Fagan’s cross -examination, she was presented with a multitude of text messages between her and W.C.C. that extended over the course of a couple years after the night in question. The Complainant , faced with this challenge to her sworn version of events, endeavored to shift the date of the sexual encounter so that it would fall after the text messages – the attempt failed miserably.
At the conclusion of the Complainant’s testimony at trial, Patrick Fagan invited the police to take W.C.C.’s cellular phone to conduct a forensic examination of same so that a determination could be made as to the authenticity of the impugned text messages. To the credit of the CPS detective primarily responsible for the investigation, she readily
accepted the invitation and turned W.C.C.’s cellular phone over to the appropriate forensic unit.
An exhaustive forensic examination of all communications between W.C.C. and the Complainant were conducted by the CPS and that examination confirmed beyond any shadow of a doubt the authenticity of same and that they in fact occurred for at least 2 years subsequent to the night in question. The forensic analysis also led the assigned Crown prosecutor to the abundantly obvious and inexorable conclusion that the Complainant (to put it delicately) was being less than candid with the Court (and the police) and there was no reasonable likelihood of a conviction. Patrick Fagan was successful in killing this egregious prosecution in its entirety by of the entry of a Stay of proceedings.
As to whether the Complainant will be charged with perjury remains to be seen. Regretfully, to the detriment of women who are true victims of sexual assault, prosecutions of this nature (despite the best efforts of the police and Crown) are all too common.