Article Originally Published on November 11, 2018 by Advocate Daily.
Toronto criminal lawyer Aaron Harnett says his client’s narrow escape from a wrongful conviction in an alleged rape case — after a prosecutor’s rare declaration he was “completely innocent” — should sound a warning bell about the erosion of the presumption of innocence.
Harnett’s client, a young Iranian student sent abroad, alone, to attend high school, was accused of sexually assaulting a woman, he tells AdvocateDaily.com.
A trial was scheduled at the Ontario Court of Justice. However, before it started, the Crown withdrew the charges a few weeks before the scheduled commencement, according to court documents, after the complainant admitted to fabricating the allegations on the instructions of an angry and abusive ex-boyfriend who found out about her new relationship.
At the hearing, the assistant Crown attorney reiterated, “For the record, he is completely innocent of the charges; it isn’t a situation in which the Crown is withdrawing for other reasons.”
Harnett, principal of Aaron B. Harnett Criminal Defence Lawyer, says the prosecutor’s statement about his client’s innocence was extraordinary.
“I have never heard a prosecutor proclaim to a packed courtroom of supporters that a rape suspect is ‘completely innocent’ in my 28 years of practice,” he says.
Still, Harnett says his client was lucky the woman’s “eleventh-hour pang of conscience” saved him from the prospect of jail and deportation.
“There are plenty of judges who would have convicted him on the strength of the video in which she tearfully described her alleged harrowing tale,” he says. “This case is a good alarm bell to remind us that, even though popular culture seems to suggest that a woman would never fabricate a story like this and put herself through the ordeal of the criminal process, the reality is it does happen.
“It is certainly hard and tricky work to exonerate an accused person who is the victim of such an evil and dishonest person,” Harnett adds.
In the wake of the #MeToo movement, Harnett says some of the traditional institutional safeguards against malicious complaints seem to be disappearing.
“The beginning and end of many sexual assault investigations occur when the police take a statement from the complainant and then blithely conclude on that basis alone that there are grounds to lay a charge,” he explains.
“Once someone says, ‘I’ve been raped,’ the police tend to feel they have no choice but to lay the charge. And now, with prosecutors increasingly bound by over-restrictive policies and procedures, they also seem to feel they have no choice but to throw lousy cases at the feet of some poor judge to sort out,” says Harnett.
“This is not the way the system was designed to run. The police are supposed to actually investigate matters thoroughly before deciding to lay charges. Prosecutors are supposed to have the discretion to make judgments based on experience to drop dubious cases lest the innocent are improperly convicted.
“This heartbreaking example should be a case study to educate everyone about just how vital the presumption of innocence and the notion of reasonable doubt are,” Harnett adds.
He says the matter could also be used to send a message about the risk of making false claims — but Harnett doesn’t expect charges to be laid against the woman who initially accused his client.
“She completely fabricated her story for the purpose of harming my client, but nothing will happen to her. She’s off the hook because her mean boyfriend put her up to it,” he says. “It’s preposterous and infuriating, but par for the course in our courts these days.”