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R v R – “The harder you work, the harder it is to surrender” – Vince Lombardi

Because of our hard work, Mr. R did not have to surrender. In the case of R v R, he was facing serious child sexual assault charges where the court would have had to sentence him between three to eight years in prison if he would have been convicted after trial.

None of that happened. All charges were withdrawn. Why? Because at Ross Lutz we work hard. We strategically build defences through hard work.

What happens when a person is accused of sexual assault both as a youth and as an adult? Your criminal defence lawyer must have criminal defence surgical like skills in cases where youth and adult charges overlap. Mr. R faced both youth and adult criminal offences. Youth criminal offences are governed by the Youth Criminal Justice Act. Adult criminal charges are governed by the Criminal Code of Canada. If a young person is convicted for sexual assault but faces a trial for the same allegations as an adult the rules of evidence are complex as to what the Court may hear and admit into evidence. Furthermore, the jurisdiction of the adult court could be at issue.

This issue was litigated in R v KPA (1992), 18 WCB (2d) 197. In this case, the accused was charged with two counts of sexual assault that were said to have occurred between November 1 to November 30, 1990. The accused turned 18 years old on October 31, 1990. On it’s face, he was charged as an adult for allegations that occurred during the first month of his 18th birthday. The evidence led at trial revealed two separate incidents of sexual assaults, however, it was unclear if the incidents occurred in October or November of 1990. Several witnesses were called and none of them were clear as to when the alleged incidents occurred. Due to this evidence, the jurisdiction of the adult trial court came into question.

In order to be successful in a prosecution, the prosecutor must prove all essential elements beyond a reasonable doubt. The essential elements for sexual assault offence include:

• Identity;
• Touching for a sexual purpose without consent;
• Jurisdiction; and
• Ages (of the complainant and the accused, for certain sexual offences).

In this case, the Court said, “Normally the exact date of an alleged offence is not an essential averment in an Indictment and the exact date need not be proven unless time is an essential element”.

In Mr. R’s case part of our defence strategy was to insist that time was an essential element. The Court in KPA also said, “It is only in the exceptional case that age will be an essential element of a criminal offence, whether prosecuted in youth court against a young person or in adult court against an adult.”

Anchoring our defence around admissible evidence and around time as an essential element necessarily meant that the prosecutor would have difficulties with their proposed evidence and with ensuring the court even had jurisdiction to hear the matter.

Mr. R found himself in serious jeopardy because of sexual assault allegations. Thankfully, Mr. R had the good sense to retain a serious criminal defence lawyer who knows how to successfully build a defence and how to work the prosecutor into surrender.

If you are facing sexual assault charges, like in the case of R v R, you need serious lawyers who defend serious allegations like this every single day. Contact Ross Lutz Barristers.