R. v. C.N.C.

(Calgary - Sexual Assault). This case concluded in July 2023 with a mid-trial stay of proceedings by the Prosecutor. This case involved a single count charging sexual assault; it was scheduled for a multi-day trial.  The complainant was cross-examined over the span of two-days. The defence vigorously challenged the complainant's credibility and reliability, using some evidence that was subject to challenge under section 276-278 of the Criminal Code of Canada. For anybody charged with sexual assault it is important to understand that the Criminal Code contains what are sometimes colloquially called rape-shield provisions that in the opinion of this Calgary defence lawyer, can sometimes present a serious impediment to the accused's ability to make full answer and defence. In short, section 276 essentially stipulates that evidence of prior sexual history cannot be used by the defence to suggest that the complainant is more likely to have consented or is less worthy of belief. Section 276 and its associated parts have been the subject of much legal debate.  

In CNC's case the defence was able to use many pieces of evidence not captured by the rape shield provisions. The cross-examination had to be carefully managed so as to make best use of the defence evidence. 

In Canada the Crown is expected to act with a high degree of fairness and candour in the conduct of its case. In CNC, after cross-examination of the complainant,  the Crown ultimately stayed the charge.  In Canada, the Prosecution is not required to give reasons for entering a "stay of proceedings". The Prosecutor's ability to stay a charge is one of its great powers; for not even a judge can interfere with the prosecutor's discretion to enter a stay of proceedings. A stay of proceedings is essentially the withdrawal of a charge with the added element that the Crown can, where special and exceptional circumstances arise,  re-enliven a prosecution. In over two-decades of practice, this defence lawyer has obtained hundreds of stays and only witnessed a single case come back to life.  A stay of proceedings does not leave the accused uncertain in perpetuity; the Crown has up to one-year to re-prosecute the case after which the charge cannot be re-enlivened.

Sexual assault cases can be difficult to defend. It is not unusual for Prosecution services to prioritize these cases. Courts rigorously apply the rules set out in sections 276-279 of the Criminal Code. Defence counsel are often pressed to make difficult pre-trial applications that, as a result of a several higher court cases. can be incredibly challenging. The starting point sentence for major sexual assault is 3 years incarceration. If the accused was in a position of trust, the starting point penalty is 4 years incarceration. A starting point penalty is not a mandatory minimum, for the sentence number can move up or down. In light of the possibility for serious penal consequences and the likelihood of the accused's inclusion on the sexual offender registry, it is important for anybody charged with sexual assault to act with all due diligence when retaining defence counsel.  There are many criminal lawyers in Alberta who will take on a sexual assault case, but in the opinion of this defence lawyer, there are only a few who defend these cases well.  The best criminal lawyer for sexual assault cases is one with experience, who is prepared to devote the time necessary to mount a fulsome defence. If you have been charged with sexual assault, choose your defence lawyer carefully.