Red Deer sexual assault charges dismissed
OFFENCE: Sexual assault
RESULT: dismissed
LAWYER: Sean Fagan
Regina v. X.X. – July 2019
Charges: Section 271 of the Criminal Code of Canada
Sex assault charges dismissed at preliminary inquiry
This was a historical sexual assault allegation. X.X. was charged with sexual assault on an underage girl from an interaction he was alleged to have had 4-5 years earlier. The complainant was between 14 and 15 years old, which make her legally unable to consent, unless the ‘close in age’ exception applies; X.X. was only a few years older.
Most people are surprised to learn, that all it takes is a phone call on behalf of a complainant to initiate criminal proceedings. Regardless of the truth of allegations, a person charged with a sexual offence of this nature has his/her world turned upside down. Often, they will be subjected to a multitude of court-imposed conditions, including not to live or go anywhere where a person under the age of 18 may be present. This puts a serious limitation on a person’s life, and often they are found to be guilty and punished in the court of public opinion before the matter even gets to trial.
Defence lawyer Sean Fagan accepts charges of this nature on a case by case basis. In this case, and most sexual assault cases, X.X. had a right to choose how he wanted to be tried. The choice is threefold:
- Provincial court trial
- Queen’s Bench Trial with a Jury
- Queen’s Bench trial without a Jury
When an accused elects to proceed by way of a the Court of Queen’s Bench, the matter doesn’t proceed directly to trial. Instead, the matter goes to a preliminary inquiry. If you watch American television, you will have heard the term ‘grand jury’; they are very similar. At a preliminary inquiry, evidence is called and the proceedings will look nearly identical to a trial to a lay person. The main difference is that the Judge does not decide guilt nor innocence, instead, the only decision the judge makes, is whether or not there is sufficient evidence for the matter to proceed to trial.
This is a very low threshold, and a person should never count on ‘winning’ at the preliminary inquiry stage. That being said, it is possible, and the preliminary inquiry is an excellent tool for laying the groundwork for defences at trial.
In this case, Sean Fagan was successful at securing the dismissal of this most serious prosecution at the preliminary inquiry stage, sparing the accused the cost associated with trial proceedings.