Baldwin's Case — Sexual Assault — Withdrawn

Client:  Baldwin C., Accused
Complainant:  Patricia, a friend
Charge:  Sexual Assault

Background:  Baldwin, his wife, Patricia, and her husband were friends. They socialized regularly, and went drinking together about once a week. Occasionally, they flirted with each other's spouse, and a few times they ... well, let's just say that they got to know one another a little better. This one night Baldwin, Patricia, and her husband were drinking heavily. Baldwin's wife had only a few drinks. The festivities had ended with Patricia falling asleep in her bed and with Baldwin falling asleep on the sofa. Patricia woke up to find herself having sexual intercourse with Baldwin, who she thought was her husband. The police were called. They investigated. The police telephoned Baldwin and told him that they intended to charge him with sexual assault. That's when I became involved.

READ THE POLICE REPORT

Goals — Arrest:  The immediate goal was to get Baldwin surrendered, arrested, and released. I had three objectives: firstly, to minimize Baldwin's time in detention; secondly, to ensure that Baldwin did not provide any evidence to the police; and, thirdly, to get him released with the least restrictive conditions. After that, the goal was to get the charge dismissed or withdrawn.

Strategy — Arrest:  I arranged Baldwin's surrender directly with the Detective. I then prepared what I call an arrest statement. The plan was for Baldwin to provide this statement upon his arrest. This statement said everything to the police that I would have wanted Baldwin to say to assert and preserve his rights. With the statement in hand, Baldwin wouldn't have to remember what to say. It also provided a record of what Baldwin asserted when detained. The Crown could never argue, for example, that he didn't ask to speak to his lawyer, as his request was there for all to see and read.

"I DON'T WISH TO MAKE ANY STATEMENT"

Results — Arrest:  Baldwin's arrest was uneventful — exactly as we wanted. He presented himself at the police station with his arrest statement. The police then allowed him to speak with me. The police afterwards sought a statement from him, but he wisely refused. The police did not hold him for a bail hearing. Within a few hours, he was released on a Promise to Appear and an Undertaking with modest conditions.

Goals — Sexual Assault Charge:  This case involved an allegation of sexual intercourse, what would have been called rape in the old days. Baldwin's interest in a guilty plea was about equal to the Crown's interest in withdrawing the charge: a non-starter in either case. Baldwin would have to seek his exoneration in front of a Judge or jury. Baldwin waived his right to a jury trial. He elected to have a Judge-alone trial at the Ontario Court of Justice.

Strategy — Sexual Assault Charge:  This case absorbed a considerable amount of my time and energy over a significant period. This space does not allow for full review of our strategy, so I'll focus on one important aspect of the battle ground. From the beginning, I was worried about the role that alcohol might play. Aside from its obvious effect on witnesses' ability to recall, I had two very specific concerns. If the Judge decided that Patricia was too drunk to consent — in other words, that she did not have the capacity to consent — Baldwin would not have a consent defence. More importantly, if the Judge found that Baldwin believed that Patricia was consenting because he was too drunk — in other words, his belief was induced by intoxication — again, he would not have a defence. Worry on that front had consumed me from day one. (To understand how a Judge must approach "consent" when sex and alcohol are mixed, read the judgment in Garth's case.)

Results — Sexual Assault Charge:  I wanted to ensure that the trial Judge understood the context in which these allegations arose. On several occasions, Baldwin, his wife, Patricia, and her husband had crossed the line with one another. I wanted the Judge to hear this history. There are strict rules, however, about what questions I can ask about a complainant's prior sexual history. In this case, I could not ask any question about the sexual interplay between the four, unless I brought an application under section 276 of the Criminal Code. In seeking this permission, I had to file in advance of the trial detailed materials concerning the history of the relationship between the four. I had to outline both the evidence I intended to bring out and why it was relevant. It's an application no defence lawyer enjoys filing, as it is considered an exception to your right to remain silent. My materials were filed one week before the trial. Four days later, the Crown faxed me a letter indicating that they had met with Patricia to discuss my materials. I wasn't privy to the conversation between Patricia and the Crown, but it obviously had taken the wind from the Crown's sails. The Crown reported that they would not be proceeding.

READ THE COURT TRANSCRIPT