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.
Patrick C. Fagan is a highly accomplished lawyer with an impressive career spanning over 35 years in the legal field.