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Crown withdraws, judge apologizes as Harnett’s client cleared

Original article published on May 3, 2018 by Advocate Daily.

Toronto criminal lawyer Aaron Harnett tells the recent withdrawal of sexual assault charges against his client by the Crown mid-jury trial and subsequent apology from the bench, demonstrates why defence counsel are resistant to water down fair trial protections in these serious matters.

Harnett, principal of Aaron B. Harnett Criminal Defence Lawyer, acted for the accused in the case, who faced trial in the Ontario Superior Court of Justice for two counts of sexual assault against his ex-wife, which she alleged occurred during their marriage.

However, the Crown took the extraordinary step of withdrawing the charges following the conclusion of its case after one of its own witnesses undermined the complainant’s evidence, prompting the judge to apologize to the man for the two-year ordeal he had been put through.

Harnett says criminal defence lawyers and judges are operating in an increasingly hostile environment following the perceived harsh treatment of complainants in the Jian Ghomeshi trial and the subsequent rise of the #MeToo movement.

“Courts are under pressure to believe alleged victims and there are people who would like to see the process made more friendly to them or toned down in some way,” he says. “My questioning of the complainant, in this case, was vigorous and confrontational. It was very unpleasant for her, and I’m sure that in the eyes of some observers, it is exactly the type of cross-examination that people have expressed concerns about.

“And yet, it was that and nothing less than what was required to demonstrate that the witness was absolutely dishonest in her evidence,” Harnett adds.

Indeed, without the late intervention of the key contradictory witness, a friend of the complainant, Harnett says he fears it was possible his client would have been wrongly convicted of the charges.

“A vigorous cross-examination, even one that is unpleasant for the complainant, is the engine by which we seek truth, and it can’t be allowed to be eroded through political correctness,” he says.

Harnett’s client was married to his wife for more than a decade before they split in early 2016. Following the separation, the woman complained to police that he had sexually assaulted her on two occasions the previous year, claiming that she had told a friend shortly after each occasion. Harnett’s client was then formally charged with the assaults, despite the police’s inability to interview the allegedly corroborating friend.

The case finally made its way to trial by judge and jury last month, about two years after the allegations were first made. By this time, the friend was available, and told the court that the complainant had never told her about the assaults. In addition, her evidence contradicted the ex-wife’s claim that she had stopped engaging in sex with her husband after the first alleged assault.

When the Crown closed its case to the jurors, the judge urged the prosecution to consider whether it was appropriate to continue with the case in light of the friend’s evidence. After consulting with her superiors in the Crown office, the lawyer for the prosecution asked the judge to direct a verdict of not guilty on all counts. He did so, apologizing in the process to the accused for having to spend the last two years with the charges hanging over his head.

Harnett says he gives credit to the assistant Crown for calling the friend as a witness, despite knowing that her evidence may undercut the prosecution’s case.

“Our system is not like the U.S., where it’s winner-takes-all. The Crown’s job here is to be fair and seek the truth, rather than tailoring a case to suit a lopsided story,” he says. “The Crown neither wins nor loses, so long as justice is done, and this is a good case to demonstrate how they should be operating.”

However, he says the case also highlights the lack of repercussions for a person who falsely accuses someone of sexual assault. Harnett’s client is in the early stages of bringing a civil malicious prosecution claim against his ex-wife.

“It’s small comfort to him because she will never be named,” Harnett says. “As a practical matter, there are no adverse consequences for what she has put him through. There will not be justice in the sense that she will never be investigated or charged for criminal mischief.”

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