R. v. KAR, [Court of Queen’s Bench of Alberta, Red Deer – October 2020]

KAR, a young man with no prior criminal convictions, was involved in  a long term “friends with benefits” relationship with a young adult  woman. They maintained independent residences and would visit each  other at all hours of the day and night for mutual sexual gratification as  their moods dictated. At the conclusion of the last sexual interlude (at  her place) she accused KAR of raping her and promptly called the  police. The police attended, took her statement and charged KAR with  break & enter and sexual assault.  

As the Crown was seeking a lengthy period of imprisonment in a  Federal institution (followed by mandatory enrollment in the Sex  Offender Registry). KAR hired Patrick Fagan to defend this most  serious criminal prosecution. Patrick Fagan entered an election of trial by way of Queen’s Bench Judge and Jury and scheduled the matter for  preliminary inquiry.  

At preliminary inquiry, it was revealed that KAR had ongoing  permission from the owner of the residence where the alleged sexual assault took place, to come and go as he pleased. Faced with this  reality, the assigned Crown Prosecutor reluctantly but wisely withdrew  the charge of break & enter. As for the remaining charge of sexual  assault, it was scheduled for trial by Judge and Jury.  

From a Defence perspective (and some might say, a “common sense” perspective) KAR’s long term prior “friends with benefits” sexual  relationship with the Complainant could be highly relevant evidence  more than capable of casting a reasonable doubt over the entire  proceedings. The existing state of the law, however, prohibits the  Defence from leading evidence or otherwise making direct or indirect  reference to the mere existence of any such prior sexual relationship  UNLESS a Judge issues an order allowing for the reception of such  evidence at trial. An application for such an order is complicated and  success is by no means guaranteed. 

Patrick Fagan’s application for an Order permitting the reception of  evidence germane to KAR’s prior sexual relationship with the “victim”  was successful.

Needless to say, the success of this application greatly enhanced the odds of securing a not guilty verdict at trial. For those of you who may be interested in reviewing the actual Queen’s Bench Ruling, click here. 

On the morning of the first day scheduled for trial, the Crown notified  the Defence that it was in possession of damning disclosure that had  been previously overlooked and invited the Defence to apply for an  adjournment/postponement of the trial. Patrick Fagan declined the  Crown’s request to seek an adjournment and compelled the Crown to  make the application for postponement — Patrick Fagan opposed that  application and asked that the matter proceed immediately and that the  Crown not be permitted (given the extended passage of time) to rely on  the “new” disclosure.  

The trial Justice denied the Crown’s application for an adjournment and directed that the trial proceed immediately. For those of you who may be interested in the Queen’s Bench Ruling on the adjournment application, please click here. 

The foregoing developments resulted in the assigned Crown Prosecutor  extending a highly favourable last-minute offer of resolution. The trial  never happened. 

BOTTOM LINE: The Crown completely withdrew all charges against  KAR in exchange for the issuance of a Peace Bond (ie: a simple order  directing that KAR continue to “keep the peace and be of good  behaviour” and to have no contact with the Complainant) — done.