This week, a client of David Anber’s Law Office had charges withdrawn.
What made this case unusual?
In this particular case, the prosecution decided to withdraw the charges before the first Court date (and less than one month after I had written to the Crown).
The Reasonable Prospect of Conviction
Clients are often asking me, “These charges are b*******. Why can’t they just be dropped?” The fact is that in Ontario (like many other places in North America) the Crown prosecutor has the right to prosecute a weak case. Whether or not a weak case is ultimately shored up at trial and whether or not the evidence, with its weaknesses, is sufficient to prove guilt beyond a reasonable doubt is up to the judge to decide. So, even where it is very questionable that a charge could ever stick, the prosecutor will generally prosecute it. This is known as having a “reasonable prospect of conviction.” This is higher than the standard needed to make a “prima facie” case (if you don’t know what that is, don’t be worried, many lawyers don’t even get this right – email me for a simpler explanation) but it does not mean they need to have a very convincing case.
My Client’s Charges Were Withdrawn BEFORE the First Court Date
The duty to withdraw charges where there is no reasonable prospect of conviction is a very important type of discretion within the power of the prosecutor. And discretion it is. Reasonable people may disagree over whether or not the charges are so weak as to merit being dropped. It is not unusual for a Crown Attorney to decide to soldier on even where they have no reasonable prospect since, in their opinion, they do. Nevertheless, the “reasonable prospect” standard is something considered from the start of the case to the very end. In this case, the Crown decided to drop the charges before the first Court date. Why?
This was an allegation of sexual assault. The accusation was that the client went upstairs at a house party and saw a girl he knew lying on a bed, apparently ill. The reasons he is alleged to have gone upstairs are not known but what I expected was that at trial, the accuser was going to say that my client touched her or did other sexual things to her without her consent. If the prosecution were to prove that my client was there, there could be two commonly resorted to responses:
(1) “I didn’t do what she said I did”; or
(2) “I did what she said I did but she consented.”
The problem is that this is a classic “he said/she said.” These are cases which rarely get dropped for lack of a prospect of conviction. This helps illustrate the concept. Maybe a judge accepts what she’s saying. Or maybe a judge accepts what he’s saying. Sure, there may be problems one way or another, but none (usually) are so clear as to convince the prosecutor that – at trial – the girl’s testimony could not be accepted.
What was the significance of the decision not to speak to police?
This is what brings me to the point of this article. First, let me say, that this client just saved himself years of stress, the risk of a trial and wrongful conviction, and thousands of dollars of legal advice. In other words, if he didn’t follow my advice not to speak to police, we probably would have been battling this case out years from now. So how did this all shake out?
Early in the case the police wanted to hear my client’s side of the story. Of course I cannot get into what my client told me specifically, but I discussed two obvious things a person could say a couple paragraphs above.
(1) I did not do that, or
(2) she consented.
But there is a third defence: (3) that wasn’t even me who was there.
Now I am not going to tell you if my client was or was not there – maybe he was, maybe he wasn’t. I don’t know, I wasn’t there. But what I do know is that the prosecutor would ultimately have needed to prove the identity of the person who was there. Now you can see why, if a police officer gets you to tell “your side of the story”, if you answer that it’s explanation #1, or if you answer that it’s explanation #2, we do know one thing: the Crown prosecutor no longer needs to prove that it wasn’t #3 because you just proved it yourself!
This is the reason why the police in this case were adamant about my client telling his side of the story. They went to great lengths to try and get my client to speak. Due to the nature of the investigation, I won’t reveal the tactics that the police used in this case, but I do discuss some of these techniques below. Suffice it to say, the police pushed very, very hard to get this person to talk.
This is where you must see that even stating your innocence can be used against you.
Here’s what I can say:
- Everything you say can and will be used against you. Understand that the reason the police are taking a statement from you is because they either suspect, or believe that you are guilty. Accordingly, they are searching for ways to get close to proving it. Everything will be twisted and used against you if they can find a way. The police are not your friend;
- No, this is NOT “your opportunity to tell your side of the story.” The police almost always use this language. This is a lie, or at the very least, it is misleading. It suggests that this is it – this is your only chance to be heard. Most people would want to speak if they knew they wouldn’t get another opportunity. The real opportunity to tell your side of the story is in Court, in front of a neutral judge. The police are not neutral;
- Truthful people make mistakes. Maybe you had lunch at 12:30, but you said 12:15. Later when you testify that you had lunch at noon, they will point out how (1) you said 12:00, (2) you said earlier 12:15, and (3) they have your receipt from the cafeteria showing that you only bought the food at 12:29 PM. You do not want things you have said floating around to be used at some point to contradict you over some small point. Add up enough small points, and a judge or jury could disbelieve you. Innocent people go to jail;
- The police are allowed to lie to you;
- The police are allowed to pressure you;
- If you say something helpful, you cannot play the audio or video recording of what you said, in Court, to establish those facts. But if you say something unhelpful, the prosecutor can play the audio or video recording to a Court to prove the unhelpful fact. If you’d like to know why there’s this double standard, then email me and I will explain it;
- You may not know that the police have everything they need to accuse you except for one little detail. You may inadvertently provide them with that detail as you are arguing over some of the more obvious things.
This last one (#7) is what happened with my client last week. If he had gone to police and expressed his innocence that he either did not do the things she said, or that it was consensual, the police would not have believed him. Once again – this is a he said/she said for the judge or jury to decide. But in doing so, he could have proven that he was there and had an opportunity to commit the offence.
In the end, the reason that the police told me why the charges were dropped was that the prosecutor did not feel they had a reasonable prospect of conviction on the issue of the identity of the perpetrator.
What to do in this situation
Ninety-five percent of my clients fail to follow my advice. Why? Because the police are very good at what they do. Remember, this client who followed my advice last week saved himself thousands of dollars for my fees if I had to represent him in Court over a multi-year sex-assault proceeding. Whether it’s a rape charge, or another form of sexual offence, these are prosecuted vigorously. And innocent people can be convicted of these things. Your life as you know it will be changed. Jail is just the start of things. A life-long reputation as a sexual offender will haunt you forever. So if you are very serious about protecting yourself, you must follow my advice.
This is easier said than done though. As mentioned, the police have a variety of tactics. Here are a few tips that I can give you. For more give me a call.
- Just keep repeating “I have nothing to say on the advice of my lawyer.” If the police keep probing, add a number to it: “This is the third time that I have said I have nothing to say on the advice of my lawyer,” or “This is the fourth time…” etc. After a while, the police will start to wonder how abusive this will look if it ever gets played in Court one day;
- Put your head down like you’re going to sleep and just ignore the police. There is nothing against the law in ignoring a police officer who is interrogating you (or as they say, “interviewing” you).
- Know that you must be brought to a judge within 24 hours or otherwise be released. Also know that they cannot decide to keep you in jail longer if you remain silent. They are, however, allowed to lie to you and suggest that if you talk, that will improve the chances of you being released, or even that charges won’t be issued. Of course this is dangerous territory.
The fact of the matter is that you will always provide the police with some information that can be used against you if you decide to say anything.
Lastly, I will say this – I have given this advice over 500 times. On one – and only one – occasion, I told my client to speak to police. In that case, the charges were not laid and my client’s statement helped. That’s two tenths of a percent of the time this was the right thing to do. Don’t think you’ve won the lottery because you probably haven’t. 99.98% of the time it is the wrong thing to do.
If you have been contacted by police to call them back or to come into the station, please contact me before you return that phone call.