Anthony De Marco
Toronto Criminal Lawyer

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R. V. N.W.

Charge: Sexual Assault

This was a spectacular win which illustrates the value of completing a preliminary inquiry in sexual assault cases prior to the actual trial.

The complainant alleged that her supervisor at work (the client) had sexual intercourse with her without her consent. She alleged that, during her lunch break, the client forced her to have sexual intercourse with her in his office. She alleged that following the sexual assault, she spent two hours in the washroom crying.

The sexual assault was alleged to have occurred in a factory setting. The factory is equipped with a modern security system which tracks the movements of persons throughout the factory. Employees and security personnel are required to swipe their cards not only when entering or exiting the building, but also when moving from one area of the building to another.

Over a 3 day preliminary inquiry, the complainant was cross-examined with respect to her version of events. She did not do well during the cross-examination. Some of the evidence was as follows:

1. she testified that the client had threatened to change her work shift which would have caused her tremendous difficulty since she was a single parent who was required to drive her children back and forth from school;

2. the client had also filed various complaints against her involving an irregularity with respect to the removal of product from the factory, her alleged romantic involvement with a co-worker, and her repeated tardiness in arriving to work;

3. two weeks after the alleged sexual assault, she had a meeting with a manager regarding the difficulties with her work habits during which she failed to disclose the alleged sexual assault although she was specifically asked whether there had been any physical impropriety by the client;

4. two weeks after that meeting, when she finally disclosed the alleged sexual assault, the manager prepared a memo regarding their meeting in which the manager alleged that the complainant had made a comment suggesting that she was going to get back at the company for what the company was doing to her;

5. she admitted that when she walked into this meeting and saw that her union representative and other persons from Human Resources were in attendance, she thought she was about to be fired;

6. when questioned about her memory, or her lack of memory, she told a peculiar story regarding how she started to eat almonds and that the effect of eating the almonds was to assist her in recovering her memory.

The defence called 3 witnesses from the client’s place of employment during the preliminary inquiry. The client had been diligent in obtaining copies of computer generated documents tracking the complainant’s movements and his own movements in the factory on the day of the alleged sexual assault. These documents brought into question not only the complainant’s allegation that after the sexual assault she spent two hours in the washroom crying, but also whether the client had the opportunity to commit the sexual assault at the alleged time. Some of the employees from the client’s place of employment were able to provide evidence verifying the documents produced by the client and one of the employees was also able to produce documents from the complainant’s employment file, one of which indicated that the complainant had made a similar allegation in the past against someone else.

At the completion of the 3 day preliminary inquiry, the Crown was persuaded to withdraw the charge against the client since it was evident, based on the evidence presented during the preliminary inquiry, that the Crown did not have a reasonable prospect of obtaining a conviction against the client. The Crown withdrew the charge to the relief of the client.