Criminal Law Ottawa  |  A Blog

In the recent case of R. v. Bykovets, [2024] S.C.J. No. 6, the Supreme Court of Canada ruled that police officers must obtain a warrant to request individuals’ IP addresses from websites.  The Court decided that the police commit a breach of privacy rights where they make such requests to third-party Internet platforms/websites without having obtained prior judicial authorization beforehand. This ruling applies to the IP addresses associated with transactions conducted via online banking, IP addresses associated with videos uploaded to online streaming media, IP addresses associated with postings on social media, et cetera.  Police who make such requests to third-party websites without first getting permission from a judge will usually be found to have violated section 8 of the Canadian Charter of Rights and Freedoms. Section 8 of the Canadian Charter of Rights and Freedoms guarantees everyone in Canada the freedom from unreasonable search and seizure.  The purpose behind this guarantee is the protection of privacy. Accordingly, a fundamental step in determining whether a "search" or "seizure" occurred within the meaning of section 8 of the Charter is a determination of this question: whether the accused had a reasonable expectation of privacy in the thing searched/taken by the police. The Court thus considered in R. v. Bykovets whether people have a reasonable expectation of privacy in the IP addresses associated with their online activities.  The Court determined they do.  The Supreme Court determined that IP addresses are closely associated with very personal information, and that courts must monitor the police’s trail towards digitized personal information starting with the first step in that trail – the IP address. Every device capable of accessing the Internet does so with a unique number known as an IP address.  The IP address is associated with a modem.  Internet Service Providers (ISPs), such as Bell or Rogers, assign a unique IP address to each specific modem.  By way of example: for every online transaction a website processes, it records the IP address associated with that sale. As such, the website then keeps a number that can later be used to prove which modem was used to make that transaction.  Where the police suspect that such a transaction was fraudulent, they begin an investigation by first requesting the IP address from that website obtaining the IP address where the website complies with the police’s request determining the Internet Service Provider associated with that IP address obtaining a warrant for the Internet Service Provider to produce the subscriber information associated with that IP address (e.g. name and address of the subscriber) obtaining a warrant to search the home address revealed by the Internet Service Provider, as well as the computers (or other electronic devices) found within the home. Obtaining an IP address is the police’s first step in identifying their target suspect. In order to determine the identity of the user of that IP address, the Internet Service Provider must give up the subscriber information (e.g. name and physical address) associated with the IP address’s modem.  In 2014, the Supreme Court of Canada decided in R. v. Spencer, [2014] S.C.J. No. 212, that such a request to an Internet Service Provider for subscriber information constitutes a search.  As discussed, this is because a subscriber has a reasonable expectation that his or her internet activity will be kept private. People’s interests, sexual activities, financial transactions, geographic locations, and lifestyles can be determined by reviewing their online activities.  Much of the things that go to our “biographical core” is kept on computers and the Internet.  The Court emphasized just how ubiquitous the Internet has become in our lives, and it recognized the privacy implications of that. Because obtaining subscriber information from an Internet Service Provider is a step taken toward discovering such private information, police must first explain to a judge why they should have legal access to that information.  The judge must decide whether to give police the green light before they can take such a step and ask the Internet Service Provider for that subscriber information. While this reasoning applied to subscriber information in R. v. Spencer, the same reasoning was applied to IP addresses in R. v. Bykovets. The Court reasoned that the police’s request for an IP address is the first breadcrumb towards obtaining information that is intensely private.  The Court noted that, although police usually seek a warrant for subscriber information from Internet Service Providers to determine the location of the target computer, it is possible to obtain this private information from online platforms themselves once the police learn the IP address. The Court noted that “[t]hird-party companies, such as Google or Facebook, can track the external IP addresses of each user who visits their site and log this information to varying degrees.  These companies can determine the identity of those individual users based on their Internet activity on their sites.” Sometimes, such third-party companies may record names or other information that is associated with an IP address.  A possible effect, therefore, is a police ability to obtain from third-party companies private information of users just by providing the IP to that company (so long as the company voluntarily complies and releases whatever information they have associated with the IP). Before this Supreme Court decision in R. v. Bykovets, police could have simply bypassed the warrant requirement for requests to Internet Service Providers if these third-party websites were able and willing to assist.  The courts will now be tasked with monitoring this activity. In a nutshell, the issue as to whether Internet users have a reasonable expectation of privacy to their IP addresses was answered by the Supreme Court as follows: The "reasonable expectation of privacy" analysis revolves around the potential of a particular subject matter to reveal an individual's biographical core to the state, not whether the IP addresses revealed information about the appellant on [the facts of this particular case]. In the vast majority of cases going forward, police will be required to take an additional step to get the ball rolling.  They will have to explain to judges why they wish to ask a third-party website for the IP address associated with a particular post, upload, transaction, et cetera.  Failure to do so will almost certainly be considered an unreasonable search, which will endanger the Crown prosecutor’s ability to use the evidence derived from the subsequent computer searches in that investigation.  Such missteps can lead to acquittals of people accused of child pornography, child luring, identity theft, credit card fraud, and many other crimes that have become much more commonplace on the internet. This blog is for general informational purposes only. Matthew Wolfson does not distribute legal advice through this blog. As such, this blog does not constitute legal or other professional advice, and no attorney-client relationship is created between the reader and Matthew Wolfson. Have a legal question? Send an email to ask@criminallawottawa.com

I have now watched four episodes of Law & Order Toronto: Criminal Intent.  While the show showcases Toronto’s landmarks (and perhaps it even puts the city more firmly in our American friends’ minds), it is yet another television show that misrepresents how the criminal justice system really works. I believe that it ultimately contributes to the public's misunderstanding of how the criminal justice system actually works. Each episode begins with a murder, which is followed with a not-so captivating series of witness interviews conducted by detective duo Graff and Munroe.  Following the formula of a stereotypical legal drama, the detectives take an adversarial tone with every suspect until they corner the actual murderer - at which point, they moralize or bully him/her into confessing. I have noticed a few common themes from episode to episode: portrayals of police tactics that any seasoned criminal lawyer would chide as either totally unrealistic; or misconduct that judges would tear their hair out if proven in court. They are as follows: Fly-By-the-Seat-of-Your-Pants Interviews Detective Graff and Detective Munroe are often shown crossing their arms or keeping their hands in their pockets while interviewing witnesses.  You know what they’re never seen doing?  Writing things down. When talking to witnesses, real-life police are writing notes… a lot of them.  When taking statements at the scene of an offence, witnesses often sign written statements.  For serious cases, witnesses usually come to a police station to have their statements video-recorded.  There are very good reasons for all this. Bigger investigations require multiple officers to work as a team.  Officers leading the investigation will want to know what other officers observed at the crime scene or heard from other witnesses (especially the accused).  Having statements accurately preserved in notes, signed statements, and audio/video recordings allows the lead investigator to come to reliable conclusions. By providing a cogent chronical of the investigation with contemporaneous notes and written statements, Crown prosecutors can get an understanding of the case.  Equally important, the accused (and their defence lawyers) can only exercise their right to make a full answer and defence if they have easily digestible documentation of what witnesses actually said. It is very difficult to investigate a case, prosecute a case, and defend against a case when police officers keep their recollections of witness-statements in their heads. Here's the most obvious problem that can arise when police fail to record statements: what happens when a witness is testifying in court and says, “I never said that”?  Cross-examination on the statement becomes much trickier without a signed statement or video to contradict the witness with. Detective Graff is an Expert on Everything Law & Order Toronto – Criminal Intent portrays its star, Detective Graff, as an authority on expensive liquor, engines, Chinese military strategist Sun Tzu, et cetera.  Each episode has at least one point in the plot where his unique insight into art, or construction, or whatever subject, leads him on a new trail of breadcrumbs directly toward the confessing culprit. Don’t get me wrong.  Police officers usually reach detective-status by being smart and meticulous investigators.  In fact, my experience is that most police officers are bright and hardworking professionals.  The reality, however, is that most investigations are not solved by a worldly detective’s eureka moment. When a lightbulb goes off in a police officer’s head, it may happen because he or she was combing through boxes of documents.  Or it may occur when a toxicologist at the Centre for Forensic Sciences sends back a lab report.  Sometimes that happens early in the investigation; and sometimes it takes several months to make an important discovery. However, it is rarely the lead officer’s interest in art history that solves the case.  A witness who comes forward puts the nail in the accused’s coffin far more often than the savant detective who gets a suspect to confess. Rights to Counsel – Having a Lawyer Present As early as episode #2, I saw a suspect giving a statement to the police with his lawyer present.  This almost never happens in Canada. Section 10(b) of the Canadian Charter of Rights and Freedoms provides that 10. Everyone has the right on arrest or detention: (b) to retain and instruct counsel without delay and to be informed of that right; This guarantees people arrested (or detained) the right to speak to a lawyer before they are questioned by police or made to participate in any evidence-gathering technique.  The detained/arrested person usually gets legal advice by calling his or her lawyer of choice. Yet movies and shows like Law & Order give people the impression that they are entitled to have their lawyer present during an interview.  They aren’t.  The Supreme Court of Canada said in R. v. Sinclair, [2010] 2 S.C.R. 310, We conclude that s. 10(b) does not mandate the presence of defence counsel throughout a custodial interrogation. We further conclude that in most cases, an initial warning, coupled with a reasonable opportunity to consult counsel when the detainee invokes the right, satisfies s. 10(b). One exception to this rule pertains to arrests and detentions of young persons.  Section 146(2)(iv) of the Youth Criminal Justice Act provides that statements taken from detained young persons (under the age of 18 years) are only admissible in court if they are told about their right to have counsel present (or a parent, adult relative, or other appropriate adult). The Supreme Court also said in R. v. Sinclair that witnesses who are not arrested or detained can get the police to agree to have counsel present in exchange for an agreement to be interviewed.  As a matter of practice, however, this rarely happens.  If the witness is not a suspect, there is seldom a reason for people to want a lawyer present at an interview.  Where the witness is a suspect, every lawyer will almost always tell his or her client to say nothing at all (rendering the interview pointless). Rights to Counsel – Obvious Breaches of an Important Constitutional Right As noted above, a person has the right to retain and instruct counsel without delay on arrest or detention. Arrests and detentions can happen in a few ways. When a person is arrested, an officer says "you're under arrest" or touches a person in a way that restricts his or her liberty. When a person is detained, the police make that person reasonably believe that he or she is not permitted to leave (or actually stops that person from leaving). When a person is arrested or when a person is detained, the police must inform him or her of the right to speak to a lawyer.  If that person then says that he or she wants to do so, the police must cease questioning until that person has a reasonable opportunity to speak to the lawyer of his or her choice. At the end of episode #2, Detectives Graff and Munroe close in on their suspect during an interview at the police station.  Midway through the interview, they start accusing him of murder.  The suspect then says that he will want his lawyer present next time he speaks to them, and begins to stand up – at which point, Det. Graff forces him back down into his chair. Just about any judge would rule that he was most certainly under arrest at that point (and was arguably detained moments before).  Instead of informing the accused of his rights to counsel, the detectives continue to question the suspect until he confesses.  Such a confession – and any statement occurring out of that interview – would almost certainly be excluded from evidence at trial. At the end of the episode, Det. Graff goes on to mock what he believes will be his future lawyer’s closing arguments.  In real life, his defence lawyer would make closing arguments at an application to exclude evidence (or maybe even have the proceedings stayed) by arguing something like this: “It is inconceivable that a police officer as well seasoned as Detective Graff could be so oblivious to years’ old Supreme Court precedents like R. v. Sinclair and R. v. Suberu, and DECADES’ old Supreme Court precedents like R. v. Therens and R. v. Prosper, and ACTUALLY NOT KNOW that he is required to inform detained persons of their right to counsel, and to cease questioning when they invoke it.” The end of the third episode follows the same formula.  Detective Graff closes in on his suspect; he accuses her of murder; he continues to question her; he stands in her way when she tries to leave.  No information about her right to counsel is given.  Instead, he induces her into making a statement.  Such tactics can jeopardize a prosecution.  On top of that, no police officer will want to gain a reputation for breaching constitutionally protected Charter-rights.  It makes it much easier for defence lawyers to cross-examine such police officers by raising those breaches at the next trials in which they testify. In Summary To people who are not criminal lawyers, the process of criminal law can be quite boring.  Its players email each other way more than they have heated exchanges; they do lots and lots of writing; they do lots and lots of reading; and they do lots of consideration of what the law actually says. That just isn’t really what makes for entertaining television. This blog is for general informational purposes only. Matthew Wolfson does not distribute legal advice through this blog. As such, this blog does not constitute legal or other professional advice, and no attorney-client relationship is created between the reader and Matthew Wolfson. Have a legal question? Send an email to ask@criminallawottawa.com

The following article is meant to outline common themes in the legal defence of accusations of sexual crimes.  It should not be relied on as legal advice.  To obtain legal advice for your specific situation, you should speak to a criminal lawyer directly. Part I of this article discusses some initial steps accused persons can to take to increas e the odds of success at a sexual assault trial.  In particular, it discusses strategies in the early innings. Once an accused person or his lawyer has done the legwork on collecting evidence not in disclosure (e.g. determining a complainant’s motive to lie, or locating her prior social media writings about the offence), the accused should manage his expectations about how that evidence can be used at trial.  In particular, the accused should be aware that some types of records cannot be used to surprise or ambush a complainant at trial. The accused should also learn what arguments are more likely to succeed.  Specifically, a good defence lawyer tries to show that the complainant is not credible because her story about the assault changes – not because only true sexual assault victims would act in a way contrary to how the complainant acts or acted. Strategizing: deciding how to use the complainant’s private records Once you have been charged, you and your lawyer should get disclosure from the prosecution.  The disclosure is all of the evidence the prosecution and the police have in relation to your case.  If you’ve played your cards right, there should not be anything in the disclosure about statements you made regarding the alleged sexual offence. If you are really prepared, you will have the complainant’s prior inconsistent statements.  You and your lawyer should devise a strategy on how to contradict her with her previous statements.  This can work wonders in making her seem less believable.  The only bad news is that you will probably not be able to surprise her with those statements. In most types of cases, the defence has an important power which the prosecution does not: the power of ambush and surprise.  Because the prosecution must disclose all relevant evidence to the defence, it can never surprise him with a document/statement he did not already have in his possession.  The defence can do this to the prosecution and complainant in most types of cases, such as domestic assault cases.  This rule does not apply to sexual assault and sex-related cases. When it comes to sexual assault (and related sexual offences), you will need the court’s permission to use a complainant’s private records that didn’t come in disclosure, and you will need to apply for that permission before the trial. You will need such permission for any record she could reasonably expect would be kept private.  A good example would be a screenshot of a text conversation she had with you or with her friend.  Once you notify the court that you intend on using such records, the court must tell the complainant that you intend to use them. This rule makes cross-examination much more difficult.  It alerts the complainant to your possession of the records, as well as your intention to confront her with them at trial.  Aware of the defence’s strategy, the complainant is in a better position to anticipate contradictions, avoid them when being cross-examined, and concoct explanations for previous contradictions when testifying at trial. This requirement is new to sexual assault cases, and it is unfortunately here to stay.  Prior to 2018, the defence could contradict a complainant by surprising her with a record (e.g. an email) that she totally forgot about.  In 2018, the Canadian government, under Prime Minister Justin Trudeau’s leadership, enacted Bill C-51, requiring the defence to seek permission to use any of the complainant’s private records in sexual offence trials. In 2022, the Supreme Court of Canada upheld the constitutionality of Bill-51 in a case called R. v. J.J., 2022 SCC 28.  Justice Brown wrote a dissenting opinion to the decision.  Justice Brown stated, as follows: The risks go beyond the explicit fabrication of evidence, and include the subtle manipulation of testimony by a witness to address the frailties or inconsistencies disclosed in advance by the defence [citation omitted]. Again, and contrary to the assertions of many Attorneys General and interveners, this concern is not based on stereotypical reasoning about the untrustworthiness of sexual assault complainants, but simply a recognition of human nature. Even where the accused can establish an inconsistency against the complainant’s police statement, the complainant will be given an opportunity to reconcile competing accounts. [ . . . ] And that is where the danger of wrongful conviction lies. Impeachment of a Crown witness, including impeachment by surprise, is a legitimate and valuable defence tactic, which the regime eviscerates. [Underlining added for emphasis] Justice Brown determined that this reverse-disclosure obligation heightens the chances of wrongful convictions of sexual offences.  Justice Brown, however, was not in the majority.  The majority decided that this reverse-disclosure regime is lawful, and there is nowhere higher to appeal to than the Supreme Court of Canada.  Because the Supreme Court upheld the constitutionality of this reverse-disclosure requirement, it will continue to be the law unless a future federal government repeals Bill C-51. With this said, I reemphasize that this rule only applies to records to which the complainant has a reasonable expectation of privacy.  Public writings – such as tweets – will likely not have such protection, and the defence can ambush the complainant with them.  It will be up to the court to determine whether the complainant’s prior inconsistent statement is a ‘private record’. Barking Up the Wrong Trees: prior sexual history Like a complainant’s personal records, you will need the court’s permission to refer to any of her sexual experiences that you are not criminally accused of, and you will need to apply for that permission before the trial starts.  One example would be references to the times she has had sex with other people.  Alternatively, the rule encompasses even references to sex she had you yourself before the alleged offence. The court will not allow you to imply that the complainant’s sexual history itself makes her less believable or more likely to have consented.  For example, you are not allowed to argue that she shouldn’t be believed because she likes BDSM; she shouldn’t be believed because she worked as a sex-trade worker; she probably consented to the sexual activity with you because she’s a sex-trade worker; she would sleep with you because she would sleep with anyone, or the sexual incident against her you’re charged with must have been consensual because she had consensual sex with you on a previous occasion. On cross-examination, the court will not allow you or your lawyer to ask her about her sexual past during unless you have made clear beforehand that you are not asking these questions to draw out these types of prohibited inferences. The defence may refer to her prior sexual history for other purposes though. For instance, suppose the complainant told the police that she found you so repulsive and wouldn’t have sex with you if you were the last man on Earth. If you had a text message she sent a year before the alleged sex assault, and that text message confirms that she gave you oral sex, a court would likely let you confront her with it on cross-examination.  The court would let you use it because the defence always has the right to contradict a witness. This serves as an important example of where the defence should be focused.  The defence should always be focused on contradicting the complainant’s evidence. Barking Up the Wrong Trees: stereotypes and obnoxious cross-examination A good defence in a sexual offence case focuses on getting the complainant to contradict her own previous statements.  It does not rely on stereotypes of how true victims usually act. It will not serve the accused well in court if the defence tries to show that the complainant should not be believed because she is eccentric, has mental health issues, or is of low social standing.  Pointing out that the complainant is a drug-addict or a prostitute will score you no points.  In fact, it will do the exact opposite by making you look like a jerk who believes that drug-addicts and sex-trade workers don’t deserve the protection of the criminal law. Another poor trial strategy is one where the defence suggests that a true victim would have taken evasive actions that the complainant did not take, or reported it earlier than the complainant reported it.  For instance, it is usually a colossally bad idea to suggest to the complainant and the court during trial that she should have run away from the accused, or gone to the hospital to get a ‘rape-kit’ done. If you or your lawyer ask the complainant why she didn’t run away or report sooner, you’d better know the answer, and it should be a really good answer that will definitely help the defence.  Otherwise, she will likely say that she was frightened of being hurt, or that she was fearful that her parents would find out about her having sex, or that her kids might get taken away by the Children’s Aid Society, et cetera.  That is a very good way to make the judge and/or jury not like you, and that will not help your case. In Summary The best way to defend yourself or client is to raise concerns about what she has said about the alleged offence – not because of who she is or where she has gone wrong in life.  Instead, show that she could not observe or remember the incident (e.g. because she had too much alcohol in her body on the night in question); show that she is lying (e.g. by revealing a contradiction that is unlikely to result from a mistake); and/or show a motive to lie. The best way to reveal this is to contradict the complainant with previous statements she has made.  Just manage your expectations, as the chances are that the complainant may tailor her evidence after learning that you have these communications. This blog is for general informational purposes only. Matthew Wolfson does not distribute legal advice through this blog. As such, this blog does not constitute legal or other professional advice, and no attorney-client relationship is created between the reader and Matthew Wolfson. Have a legal question? Send an email to ask@criminallawottawa.com

INCREASE YOUR ODDS IN THE PRE-CHARGE STAGES The following article is meant to outline common themes in the legal defence of accusations of sexual crimes. It should not be relied on as legal advice. To obtain legal advice for your specific situation, you should speak to a criminal lawyer directly. If you are ever charged with sexual assault, it will be one of the worst experiences of your life. No lawyer can change that. One of the very few things worse than experiencing such an accusation is being convicted of it. For those of you in Canada who have been charged (or are about to be charged) with sexual assault, it is crucial that you understand how to reduce the chances of a conviction. What you are about to read is meant to assist with that. Sexual assault is, in simple terms, sexual touching without consent. There are many different sexual offences in the Criminal Code of Canada, but sexual assault is the most common charge. Some similar charges – such as those committed against young persons – are known as ‘sexual interference’ and ‘sexual exploitation’, but most sexual crimes are colloquially referred to as ‘sexual assault’, as does this article. Canadian society holds a particular revulsion for these types of crimes. A custodial period in jail for months, or even years, is the default sentence, and sexual offenders are put on a national registry. As frightening as it is to be accused of such horrible crimes, there is a silver lining: sexual assault trials have better success rates than trials for other types of offences. Why Sexual Assault Cases Are Easier to Defend It has been my experience as a criminal lawyer that these types of trials are tactically easier to win. There are a few reasons as to why this is: -  There are seldom any independent witnesses to the alleged crime; -  Complainant witnesses are often incapacitated or intoxicated by substances during the alleged act; -  Nobody ever takes any notes during or shortly after the incident; -  Complainants and witnesses seldom record anything before, during, or after the alleged crime; and - Contrary to popular belief, there is often a motive for the complainant to lie (more on that below). The quality of evidence collected in these situations is the polar opposite of that collected in an impaired driving case, for instance. In impaired driving cases, police – who are experienced in testifying in court – take contemporaneous notes of their observations, record the accused when at the police station, and seldom have a personal stake in an accused’s conviction. In sexual assault cases, however, the lack of impartial and conscientious observation makes it easier for witnesses to make mistakes, and that makes for an easier defence at trial. Regardless of how the general public may feel about this, these are undoubtedly some important reasons why accused persons more often exercise their right to a trial when charged with sexual assault. For those who do opt for a trial, defence counsel have the duty to inform on how to improve the odds. It should be noted that this article frequently refers to the accused with male pronouns and complainants with female pronouns. While it is acknowledged that some victims of sexual assault are male, and some sexual offenders are female, the overwhelming majority of sexual assault accusations are male-on-female assaults. How to Make it Easier in the Pre-Charge Phase: shutting up The initial phase of the process is where you – the soon-to-be accused – have a bad case of the jitters. If someone is hinting that a charge is coming down the pike... it probably is. At this point, the complainant, someone she knows, or the police has confronted you with an accusation. That confrontation could be subtle. It may be your ex-girlfriend baiting you with a text message about the drunken sex you two had after a party. Conversely, it could be as direct as a police officer inviting you to the station to talk about an accusation made by your friend’s daughter. Should you have even the slightest feeling that an accusation is coming, here is the golden rule: calm down, stop what you’re doing, and DON’T TALK ABOUT IT WITH ANYONE WHO ISN’T YOUR LAWYER! That rule is ten times more important when it comes to talking to the police. You know what trial lawyers love? Prior statements made by opposing witnesses. Why? Because a person’s account of an event is more likely to change the more often he or she talks about it. When you talk to others about the interactions that did or didn’t happen between you and the complainant, you risk giving an account that differs from the account that will actually matter – the one you ultimately give to a judge and/or jury. As an accused person, you are never required to testify at your trial. However, you may decide to tell the court what happened in order to counteract the complainant’s testimony. If you do ultimately tell the court what happened at trial, you won’t want the prosecution to compare your testimony to a recorded interview you gave to the police. If it differs in any material way, the prosecution will point out that your story is evolving, and it will argue that you are not credible. At that point, your testimony will go up in flames. That’s why you don’t give your side of the story to anyone but your lawyer before trial – particularly not the police. Here's another example. After having told the court that you remember your buddy’s girlfriend enthusiastically giving you oral sex after the kegger, you don’t want the prosecutor cross-examining you with a text message you sent to your buddy two days after the party where you told him that you got too drunk to remember what happened. These are examples of what trial lawyers call ‘prior inconsistent statements’. Let the complainant make the prior inconsistent statements – not you. Don’t give statements to the police; don’t try to explain yourself to the complainant; don’t try to make people less mad at you; and don’t think that you can talk yourself out of a bad situation. You need to shut up and play a smart game... because the stakes have probably never been higher. Preparation: finding the complainant’s prior inconsistent statements When there are no independent witnesses or other corroborating evidence of an offence, the prosecution needs the complainant to be credible and reliable if it wants a conviction. As stated by the Ontario Court of Appeal in R. v. A.M., [2014] O.J. No. 5241, one of the most valuable means of assessing witness credibility is to examine the consistency between what the witness said in the witness box and what she has said on other occasions, whether or not under oath. These cases are usually very much about the complainant’s credibility. They are thus very much about the complainant’s prior inconsistent statements. In almost all sexual assault trials, the complainant will have told her story at least twice. In the pre-charge phase, she will have given that story to the police in a written and/or recorded statement. Such statements will be disclosed to the accused and his lawyer shortly after the charge is laid. Later on, she will give her story to the court. If her story to the court differs in a significant way, her statement to the police will be considered a prior inconsistent statement. The trick to defending against sexual assault accusations is tracking down and identifying complainants’ prior inconsistent statements. Those statements can come from many sources other than complainants’ police interviews. Most of those sources can be hunted down with a smartphone. The internet and digital text messaging have made defending against sexual assault charges so much easier. Complainants very often pick up their smartphones and vigorously type away about the accused and/or the alleged offence. This means that there may be a Facebook message, an email, a tweet, or a text message just waiting to be found. Complainants sometimes upload these communications to the social media profiles for everyone to see. Other times, they privately send them to friends, family, and even the accused. This underscores the importance of keeping all the texts and all the emails from your ex or that girl at the bar you hooked up with. Some people panic when they think they are about to be charged, and they delete their text conversations the moment they’re met with an accusation. Nobody should ever do that. Ever! Accused persons do this as a way of sticking their heads in the sand. We get comfort by pretending that our problem doesn’t exist, but that comfort is very temporary. The smart thing to do is to keep all electronic messages, make screenshots of them, make screenshots of those messages’ date-stamps and metadata, and then make backups of all of those screenshots. It is also smart to hunt for more than just the communications she herself sent to you. If you are able to view the complainant’s social media profiles, look for anything she posted to her Facebook timeline, her tweets, anything she has said on Reddit, et cetera, and screenshot those writings too. Make copies of those writings and preserve them! If you know people who might have access to such writings, have your lawyer contact them. Also consider hiring a private investigator to scrub the internet for things the complainant may have said about you or the alleged offence. Do not cheap out when it comes to hunting for prior inconsistent statements. They are the lifeblood of a successful defence at a sexual assault trial. Locating prior statements is wise not just because those statements may reveal inconsistencies, but they may also reveal motives to lie. Preparation: finding the motive to lie A clear motive to fabricate makes it much easier to defend against sexual assault accusations. In the Ontario Court of Appeal case of R. v. Batte, [2000] O.J. No. 2184, Justice Dougherty said, It is difficult to think of a factor which, as a matter of common sense and life experience, would be more germane to a witness's credibility then the existence of a motive to fabricate evidence. There is an emerging narrative that there is no incentive to falsely accuse someone of sexual assault. The logic is that doing so comes with so much to lose and nothing to gain. That narrative is nonsense. It is an offshoot of the “Believe Women” slogan spawned by the #MeToo movement. It presupposes that complainants are telling the truth, and it exists only to foreclose any doubt or probing into accusations of sexual misconduct. That is difficult to square with a fundamental pillar of a free society that we call ‘the presumption of innocence. I agree that it can be intimidating for a complainant to give statements to the police and testify in court. I am sensitive to the trauma that victims have to relive when they recount their abuse. I also agree that there is a societal interest in having victims come forward with the truth. Having said that, to claim that there is nothing to gain from a false accusation is to ignore many obvious realities. Complainants do indeed have obvious motives to lie about sexual assault in some situations. They may be -  protecting their reputations as chaste women by pre-empting rumors of promiscuity (for example, see R.I. (Re), [2011] O.J. No. 4154 (Ont. C.J.) at para. 112); -  pre-empting others’ discovery of cheating with the accused (for example, see R. v. Azonwanna, [2020] O.J. No. 1611 (Ont. Sup. Ct.) at paras 241 to 242); -  seeking retribution against the accused (for example, see R. v. Beals, [2008] O.J. No. 3547 (Ont. Sup. Ct.) at para. 54); -  being pressured by someone else into colluding or bolstering their own accusation (for example, see R . v. C.F., [2019] O.J. No. 6885 (Ont. C.J.) at paras. 24 to 25); -  getting the leg up in family court and foreclosing the accused spouses’ access to their children (for example, see R. v. K.H., [2021] O.J. No. 7057 (Ont. Sup. Ct.) at para 93). These are not stereotypes; they are not rare; and they are not farfetched. They are real. Some people carry these motivations with the aim of destroying the accused. Others, however, may report sexual offences without expecting them to result in a criminal prosecution. This is very common in cases of domestic violence (e.g. a wife calls the police in hopes that an officer will scare her husband straight), but I have seen it happen in sexual offences too. Once a person has made her initial false accusation, she will likely feel as though she cannot come clean and set the record straight. At that point, the lie begins to take a life of its own. As the Chinese proverb goes, "He who rides a tiger is afraid to dismount." As such, a person who fabricates an accusation of a sexual offence will often steadfastly maintain her lie until it reaches a verdict (and long thereafter). She will fear that recanting will be too painful. Although it is not required to mount a successful defence, finding the initial motivation to lie can pay handsomely at trial. In Summary In the initial innings of the game (and I liken this to a game because you must approach this with a strategy to decrease the chances of conviction), the accused should say as little as possible and search for previous statements made by the complainant. Searching for statements on the internet is quiet and inconspicuous. Instead of asking her friends and family what she might have said about the accusation, speak to a lawyer first. That lawyer will likely advise that you hire a private investigator. This blog is for general informational purposes only. Matthew Wolfson does not distribute legal advice through this blog. As such, this blog does not constitute legal or other professional advice, and no attorney-client relationship is created between the reader and Matthew Wolfson. Have a legal question? Send an email to ask@criminallawottawa.com