Ben's Case - Found not guilty of sexual assault

Ben was charged with a number of serious Criminal Code offences, including:

• Sexual Assault – Section 271
• Sexual Assault with a Weapon – Section 272(2)(b)
• Forcible Confinement – Section 279(2)
• Assault – Section 266

Ben and the complainant had a short casual relationship. Five years after Ben had last seen the complainant he was arrested. Ben was placed in a room with a video camera. The police told Ben they had enough evidence to convict him. Ben was shown photos of the complainant’s injuries and statements by independent witnesses. The complainant told the police she had been held in a house, beaten, sexually assaulted, and raped by Ben over many hours. Ben was shocked and vehemently denied all the allegations.

A conviction would have resulted in a lengthy penitentiary sentence given the seriousness of the alleged crimes. Ben retained Brett McGarry to defend him.

Ben and I discussed the allegations at great length. I retained a private investigator to interview witnesses. The complainant’s background was thoroughly investigated, for example, by reviewing Facebook and other social media.

We elected to have a preliminary hearing to test the implausible elements in the complainant’s story and to obtain inconsistent statements under oath. The preliminary hearing also allowed us to discover the existence of counselling records and additional background information to have investigated before the trial.

In preparation for the trial, the cross-examination of the complainant was carefully designed over many days. Ben was extensively prepared to tell his story persuasively at trial and how to withstand cross-examination by the Crown.

In order to fully defend my client at trial, I made a third-party records application to access the complainant’s counselling records. I also prepared a motion to introduce evidence concerning the complainant’s previous sexual history with Ben under section 276 of the Criminal Code, so that the court would not be left with a misleading picture of their relationship.

Ben was found not guilty of sexual assault charges after a two week trial in the Superior Court of Justice. The judge granted the defence’s application to introduce the complainant’s prior sexual history with Ben. Based on the cross-examination of the complainant the judge found that her story was implausible. The complainant would have had more severe injuries if her story was true in the judge’s opinion. The many serious inconsistencies that came to light under cross-examination persuaded the judge that the complainant had severe credibility and reliability problems.