Calgary criminal defence and family lawyer Charles Fair discusses true and false accusations - and how to deal with them
Charles Fair has been practicing law for nearly 30 years and founded Fair Legal because he is passionate about helping others, ensuring their rights are protected and that they are treated fairly. Fair Legal deals with Criminal, Family, and Civil Litigation matters.
Partnered with the Canadian Centre for Men and Families, Fair Legal provides monthly webinars on topics dealing with criminal or family matters.
WATCH: True And False Allegations: And How To Deal With Them
Vanessa Farkas-Brahmakshatriya: Welcome. My name is Vanessa Farkas-Brahmakshatriya. I have the pleasure of volunteering with the Canadian Center for Men and Families, Alberta, and of being here to introduce Charles Fair of Fair Legal.
Charles has been practicing law for over 30 years and founded Fair Legal because he's passionate about helping others, ensuring that their rights are protected, and that they are treated fairly.
Fair Legal deals with criminal, family and civil litigation matters. Charles is generously volunteering his time with CCMF Alberta to deliver monthly webinars on topics of common concern to the population that we aim to serve. In other words, men struggling due to intimate relationship breakdown.
At CCMF Alberta, we are committed to meeting men where they're at so they can feel heard and validated, and have conversations that matter to them. We help equip men to manage stressful situations, rebuild their lives after relationships fail, and stay connected with children.
We recognize that providing mental health support for men leads to optimal parenting outcomes for reduction in family violence and lower rates of suicide.
This is an educational offering. It is not legal advice and it is not therapy. If you are looking for extra support for your mental health as you navigate your legal challenges, I will post a link to the programs page of our website here in the chat. Please check out our programs and join us, we have a lot of supports that might - there might be something that's just what you need.
I'm sure that everyone is here for a reason and these legal challenges are some of the most difficult things that any of you will go through. So we want to be here for you at CCMF Alberta.
If you have questions for Charles, please send them in the chat to Melanie Seneviratne, who is here as his assistant. She will read them out loud for Charles to answer during the Q&A period.
And, with that, I will pass it on to Charles.
Charles Fair: Great. Thank you, Vanessa. It is always a pleasure to help out here with the CCMF. You guys do a great job for your clients and it really is an honor to help with that process.
Tonight's topic is a difficult topic. And I have to recognize right at the outset that it can trigger a lot of emotions with some of you. And one of those emotions that you may think that, at times - you may jump to assumptions and conclusions, and I just want you to remember to - don't let those emotions get the best of you.
So, with that, I'll start.
Tonight's topic is dealing with true or false allegations. Really the focus is going to be on false allegations, but a lot of the advice is, what happens when you are facing criminal accusations. Or accusations of criminal conduct.
In a quote here: "Accusation reveals a character of the accuser more than the accused". Of course, that raises a question: What is the character of the accused? And that is a very complicated issue.
So this is an interesting quote, and I'm just going to say that it's not always obvious what is revealed about the character of the accused, but it's important to remember that if somebody is accusing you of something that you did not do, it does reflect more on them than it does on you.
There are serious consequences of criminal accusations, whether they're true or false. There's restrictions on your freedom, harm to your reputation, interference with your parenting rights and obligations, loss of time and money, loss of liberty, if you end up with a sentence against you. There is a lot of serious consequences, obviously.
So tonight we're going to be talking about what to do when you've been falsely charged. Again, this advice is - a lot of it is the same whether you are falsely charged or charged with something that you actually did. All of this advice is going to be very similar and applicable to you.
So I've listed six things and we're going to cover them in detail. Stay calm, stay focused, seek legal advice, gather and preserve evidence, follow your legal advice, and maintain a support network. So we'll go through them one at a time.
Stay calm. Throw in another quote here: Remain calm even in the midst of mistrust and accusations. Your integrity and track records will surely speak for you". Well, this is an interesting one as well, because maybe you don't have a hundred percent integrity. Maybe you don't have a hundred percent track records. Are those, is your past coming to speak for you? Is your past going to haunt you forever? I don't think it should. And, we can take steps to make sure that, or try to make sure, that it doesn't.
But this is interesting that, you know, it's a good quote. I often tell my clients that we cannot control what other people do, what they're going to say, what they're going to think, what they're going to feel. And the reason why I say that to them, because we have - there's just too many things that happen in a litigation case. We cannot control whether somebody makes a false accusation or not. But we can control whether we act with integrity ourselves. We can control whether we do the right thing.
We can control whether we remain calm. We know in our own heart and our belief that we are trustworthy. That we did or did not - and what it is that we did or did not do. And that is far more important than allowing somebody else to dictate what it is that you've done and who it is that you are.
The first - as I said, it's important to stay calm because reacting emotionally or aggressively may make your situation worse. It's an odd thing that, when you are accused of doing something that you did not do, that if you react defensively, it's almost like there's this weird psychological reaction in the other person that they go, wow, I must have hit a raw nerve. I must be onto something. This accusation must be right.
And that gives you a kind of a quandary. What do you mean? If I react defensively to defend myself against a false accusation, I'm going to be perceived as guilty? And this is where I say it's important to remember that you cannot control the accusation that somebody else makes. If somebody makes a false accusation and you've not done anything, there's no need for you to react aggressively or defensively, because that will trigger a further believe that you must have done something.
This is not particularly legal advice. So it's important to get support and we'll talk about that later. But it is important to recognize that sometimes the legal advice will be not to react to things. And we'll get into that more as we go.
But to "stay in the present". Avoid catastrophizing about the future. Anxiety in this situation is normal. You need to look after yourself. This is advice that I think makes it easier for you to deal with the legal system.
If you could catastrophize about the future, and I'm not an expert in this area, what this basically means is that you think that the worst is going to happen. And then when that really bad thing happens, something even worse is going to happen after that. And you're going to spend the rest of your life in jail. Nobody will love you and you will die a lonely and horrible death. That is catastrophizing about the future. So try to avoid that. You can't change the future by worrying about it. You can change the future by staying calm and looking after yourself. Or at least you can contribute to having a better outcome.
And part of that is to stay focused. Stay focused on your goals and your objectives. Because, think about it, a false accusation against you may be your adversary's only way to get in your way. There must be some reason why you are facing a false accusation. Now, it may be that there's a false accusation because there's a misunderstanding or they thought they saw something that didn't happen, or they heard something that didn't actually happen. That's one category of things. But a false accusation, it can get somebody an advantage, say, in the family law context, and they may be looking that as a very cynical way to get an advantage. And so it's important to stay focused on what your goals and objectives are.
Now, I'm going to get to the meat of things here. So it's important to seek legal advice. My recommendation is, especially if you're dealing with criminal charges or accusations that are related to family law matters, that you get a lawyer that is experienced in both criminal and family law. That's one of the reasons why I started doing criminal defense work, is because, in the context of my family law practice, I was encountering clients that had been given legal advice, or accepted legal outcomes on their criminal matters, that were quite damaging to them in the family law context. And they didn't realize, and maybe their lawyer didn't really advise them properly on it, and they took a bad plea deal, or they didn't get legal advice when they should have, they just didn't understand what was going on. Whatever happened, and I just couldn't stand having to deal with that anymore.
It's important to remember that, when you are getting legal advice, that anything that you talk to your lawyer about is covered by a solicitor-client privilege. And I want to describe that a little bit in a little bit more detail.
"Privilege" means it's confidential. It means that the lawyer cannot be compelled to disclose that information to anybody. And the only thing that the lawyer can disclose is what is necessary in order to achieve your objectives. You know, if you hire a lawyer to represent you, he has to show up in court and say, I'm representing you. I'm representing this particular client. So that's, kind of, common sense. But the lawyer must keep confidential the fact that he's been retained by you. Even that fact is confidential.
And so, the reason why this is so important is because you need legal advice. Just because somebody's accusing you of committing a crime does not mean that you have committed a crime. Just because you feel guilty about some situation that you found yourself in, or because you feel guilty about something that you, maybe, were thinking of doing, or maybe you did, doesn't necessarily mean that what you did was a crime. It doesn't. And so getting legal advice is very important. You need to be able to say, this is exactly what happened, so that you can get advice as to how to deal with it.
Then you say, well, if you confess that you've done something to your lawyer, does that mean that your lawyer can't represent you? No, that's not the case because a lawyer who does criminal defense has got another duty, and that is to ensure that the legal system is operating properly and not convicting people without proper due process and without proper evidence. So the lawyer can still require the prosecution to prove their case. You don't have to prove your innocence. The prosecution has to prove your guilt. We'll get into that a little bit later.
So, but it's important here to recognize that even if you tell your lawyer exactly what happened, and even if that constitutes a criminal act, it does not mean that the lawyer cannot represent you.
There's only one caveat to that. You can't insist that your lawyer run what we call an "alibi defense", which means, you couldn't have done it because you're on the other side of the city at the time that this event was alleged to happen. Because that is requiring the lawyer to advance a position that he knows to be false. That's different than requiring the prosecution to prove their case.
But, even in that situation, if you were to, say, be on the stand and testify and say, well, that you weren't there because you were somewhere else, and you had previously told your lawyer the opposite, even at that point, the lawyer has to keep secret that information, but he cannot continue to represent you. He or she.
Okay, so that - this is, kind of, some of the importance of the solicitor-client privilege. It's important to be honest with your lawyer. And you need to be prepared to face - in my notes here, I've said - you need to be prepared to face the ugly. There's all sorts of stuff about the circumstances that give rise to an accusation, whether false or true, there's all sorts of stuff that might be ugly. But that's - there's no other way to describe it.
So, why is it that the accuser is making the accusation? What did you do in the past to maybe contribute to that situation? Where are the little hooks of truth that allow the accusation to get more life than it deserves? You know?
And it's important to have that discussion with your lawyer because there, that is part of the legal defense that you may need. The lawyer needs to understand the full context of what's gone on.
Okay. Then, legal strategies that your lawyer can discuss with you.
Remember, the burden of proof is on the prosecution to prove that the accusation, or that the criminal conduct, happened beyond a reasonable doubt. It's not an absolute proof. But it's also not what we see in the family law context, or in the civil law context, that, well, it's more likely than not that he or she did that bad thing. So that's what we're going to find. You know, maybe they did, maybe they didn't. But, on balance, we think they probably did. Okay. That's not good enough in a criminal context. What is, again, it's not a hundred percent proof, but it is proof beyond a reasonable doubt.
And the strategies can involve challenging the credibility of the accuser through cross-examination, presenting evidence that is inconsistent with you having done the thing that you're accused of.
And I also want to say that there is - often people will instinctively move to wanting to discuss character. Say, I'm a good guy, I don't deserve to be accused of this. I'm a good guy - I didn't do this because I'm a good guy. And that is a dangerous road to go down. Number one, there's some logical problems with it. Just because you're a good guy doesn't mean that you did or didn't do something in this particular instance. But if you start to present evidence that you are of good character, the prosecution then is open to present evidence of your bad character. And now the case becomes about your character rather than about whether what you are alleged to have done happened or not.
No, point number four, gather and preserve evidence. We've already talked about the burden of proof and that the onus of proof is on the prosecution. In other words, the prosecution has to prove that you are guilty beyond a reasonable doubt.
Now, at some point, one of the questions that your lawyer may have to deal with is whether or not you should testify, and that's where the lawyer will be asking you lots of questions. Wanting to see how you react. Sometimes a lawyer will be asking questions that sounds like the lawyer doesn't believe you. It's important to answer the questions that your lawyer's asking you and not jump to an assumption that your lawyer doesn't believe you. Or that your lawyer's not on your side.
Don't catastrophize. Stay calm. This is an important part of the process. Because a lawyer needs to assess. Because, at the time of trial, the lawyer is faced with a difficult question. Because, typically, we don't want to put an accused person on the stand because we can't really be sure what they're going to say. But it may be that we have to put the accused person on the stand. Because, if we don't, a jury, for example, may conclude, wrongly, that, well, if he was innocent, why didn't he get on the stand? Right? And so they might conclude that because you don't get on the stand, you're guilty. They're not supposed to conclude that, but juries can and do make that kind of conclusion. Not a good conclusion. But they want to hear the accused's version of events.
So the lawyer has to make a decision, oftentimes on the spot, has the prosecution presented enough evidence that is likely to result in convincing the jury, or the judge, that the crime happened. And so, at that point, the lawyer has to make a decision. Put the client on the stand, or do I not? That's why it's important to have a full, honest discussion with your lawyer.
This is under the category of gathering and preserving evidence. Kinds of evidence that can be obtained are things like witness statements, video footage, documents, receipts, to say, well, I couldn't have done it because I was somewhere else at the time, and here's a receipt to prove it.
Witness statements can be important. Again, they're not witness statements to go to the evidence of - or, sorry, to your character. Right? These are witnesses who were present during the alleged event, and that sort of thing. Those are the best kinds of witnesses. Again, it's important to discuss each of the possible witnesses, and discuss with your lawyer whether those people should be interviewed or not.
Then there's other kinds of evidence which may be problematic, particularly in the context of sexual assault trials. And that is things like text messages, emails, that sort of thing, from or to the complainant. There may be some extra procedural hoops you have to jump through in order to have those kinds of communications admissible. But, again, you gotta get it all out there.
I think it's important at this point to talk about myths and stereotypes. And I talked about, earlier, that some of the material in this presentation may be difficult to take, it may seem very frustrating, and may give one a sense of hopelessness.
So, I talk about these myths and stereotypes because there is a lot of case law on this issue, and it's very clear that certain kinds of evidence are not allowed to be presented in a sexual assault trial because of these myths and stereotypes.
And I'm just going to go through some of them. I may not get them all. We'll go through some of them to give you an idea of some of the difficulties in running the defense on a sexual assault matter. And it's not that these myths say, oh, well, it means that the court has to conclude that if you can't do this, provide evidence of these things, that it's going to automatically result in a conviction. That's not the case. Okay?
So, first off, the myth of the perfect victim. This is the idea that a victim of sexual assault should have behaved in a certain way before, during, and after the assault. For example, they may be expected to resist the assault physically. To report it immediately to the police. Or to show emotional distress afterwards. In reality, a victim of sexual assault may respond in a variety of ways, and their behavior before, during, and after the assault does not determine whether or not they were assaulted.
Secondly, stereotypes based on - there we go - gender, race, or sexual orientation. These stereotypes may include assumptions about the sexual behavior, or promiscuity, of women, or the aggression or violence of men, or the morality of people of certain races or sexual orientations. Again, these stereotypes have no bearing whether or not a person in a particular situation was assaulted and cannot be used to challenge their credibility.
Some of this stuff is difficult. There's just a case that came out of an Ontario Court of Appeal and a lawyer had improperly, or inadequately, defended his client accused of a sexual assault. His client was black. The victim was white. The white male lawyer chose not to "play the race card" and the Ontario Court of Appeal said, yeah, the lawyer should have played the race card when it came to jury selection. Funny enough, quite possibly because of the stereotype based on race. So this stuff is complicated. No question about it.
Okay. Here's another one. The myth of false accusations. This idea that, oh, there's lots of - most - sexual assault complaints are - or sexual assault complainants - frequently lie. Or actual sexual assaults are rare. Or that, you know, people, typically, will fabricate stories, and that sort of thing.
If it's based on this idea that there's lots of false accusations out there, again, it's not relevant to whether or not the accusation is valid in this particular case.
I have a lot of problem with this one in particular because it seems to me that the - and this may be straying from what the courts would say. So they may not agree with me on this.
It seems to me that the search for statistics on whether or not false accusations are rare or not is, I think, an exercise in trying to find a shortcut to the difficult job of determining whether in particular situation an accused person is guilty or not. I don't like this idea that false accusations are very, very rare. It seems to me that that is just simply another kind of statistical error that's out there. But it is one of those things that's regarded as a myth, that false accusations are extremely rare. And so, this accusation, in this case, is more likely to be true or false based on that, I believe.
Similar one, another one, the myth of the delayed report. I, kind of, mentioned this one already. This is the belief that a victim of sexual assault who does not report the assault immediately must be lying or exaggerating. In reality, many victims of sexual assault may delay reporting the assault for a variety of reasons, including fear of retaliation, shame, or trauma.
Again, that doesn't mean that a delayed report is not - it doesn't mean the opposite either. You know, a prompt report doesn't necessarily mean that it happened for sure. And a delayed report doesn't mean that it happened for sure, either.
Other ones are the myth of the "real rape". This is the idea that certain type of rape is real or legitimate, and other types of sexual assault are not as serious or valid.
The myth of the "good guy" perpetrator. This is the belief that someone who is a good guy or a nice guy would not commit sexual assault.
The myth of the provocative victim. This is the idea that a victim of sexual assault may have somehow provoked the assault through their clothing, their behavior, or previous sexual activity.
This one in particular is really bad. It doesn't really matter how a person dresses, or how they behave, that doesn't give anybody the right to commit an assault on them. You can't run a defense based on this kind of theory.
And another one is the cry for help. This is the belief that a sexual assault complainant is really making a false accusation as a cry for help or a cry for attention. The question I have is, well, what if this is actually true? And that's what makes this difficult.
Okay. So, other ones. The myth of "she asked for it". The myth of the "false memory". The myth of the "gray area". The myth of the one-off offender. I'm not going to get into that in a lot of detail. These things are difficult.
And I want to stress again, you go, oh my God, does that mean that there's no way to defend against a case of sexual assault? No, there is. It's just that you had to tiptoe around some of the legal impediments that have been put in place I think, probably, for good reason. Because a sexual assault is often a "he said, she said" kind of thing. There are no witnesses. And, you know, if you have, for example, an approach that says, well, if there's always a delayed reporting, it's very unlikely that the thing actually happened. Well, that may mean that there's a lot of actual sexual assault that doesn't result in a conviction. And so, that's the opposite kind of error. So that's one of the difficulties that the court has to deal with is, how do we balance that need to ensure that we are encouraging a culture of respect and accountability for behavior and not being unfair to a person who's accused. This is, without a doubt, a very difficult area that the courts have to deal with.
The next point here, follow legal advice. This is easy to say, hard to follow in practice. And I'm going to talk about a couple of ones that come up again, and again, and again. Okay?
Number one is: Understand and exercise your right to remain silent. You do not have an obligation to answer questions about that are asked of you by the police when they have said that you are the target of their investigation. If you do answer any questions, you have to answer them honestly and truthfully, because that creates a problem if you don't.
It's very difficult in practice to remember this advice when the police say, okay, have you talked to the lawyer? Because the police have to give you the right to - they have to tell you the right to contact a lawyer. And they have to give you that opportunity to contact a lawyer. So you go and you make your call, you come back to them and say, okay, now, did you talk to your lawyer and say, yeah, my lawyer told me not to say anything. And then the interviewer says, okay. So, can I just ask you a few questions? I just wanted to get your side of the story. Well, my lawyer told me not to say anything.
Well, you know, you're, say, 25 years old. Are you from around here? Are you working? Hey, how did you meet the complainant, anyways? You know, we just want to hear your side of the story. And they'll all be very nice. And they'll continue. So here's the thing to understand is that the right to remain silent is your right. It doesn't mean that the police have an obligation to stop asking questions. Yeah. Ask your questions. Because whether or not you choose to exercise your right to remain silent is your choice.
So, now, question is, well, is the advice that you're going to receive from the lawyers always to exercise your right to remain silent? Well, it really does depend on the circumstances. Sometimes I have advised clients that they can exercise their right to silence, but in some situations they may be better off to say, well, this is what I know and, hey, can I help you find out whoever did the thing? And if they are arrested under suspicion and they were a witness, then I would say this is probably a good time to cooperate with the police.
It's important to remember that there is nothing that you can say that will help your case when you are being investigated by the police.
And it's hard to - you think, well, wait a second, can't I defend myself? Yes, you can defend yourself. It's not the time and place to do it. Because, when you open your mouth and start talking, you're going to reveal stuff about you that you may not realize can be used against you.
In fact, you might even be thinking that this is information that in your defense, so how can it be used against you? Well, one thing to note is that the police don't have an obligation to tell you truthfully everything they know. And so they may be asking you questions that are completely not based on anything that they know or don't know about the file.
So, you have no idea what you're up against. So don't make an assumption. Because you may be directing them into - signaling to the police what it is that you are particularly worried about. And again, the reason why you get legal advice is because you may be worried about something that may not even be a crime. So, again, is so important to follow legal advice.
The second part of that is don't speak to anybody else about your case. Because, again, you may inadvertently share information that may be used against you and you don't really have a good idea of what that information is or how it can be used against you.
And, in particular, I think this is true if the allegations against you are false. Because what you might be doing is giving factual information about the circumstances that allows other witnesses to start tailoring the evidence to support an allegation against you. So there really is no benefit in some of these cases, especially when there's a false accusation being made. There's really no benefit, I think, in answering any questions about the incident, or the allegations, except in, maybe, some particular situations. That's why I say it's so important to follow legal advice.
The last thing is: Maintain a support network. And I just want to say, while that seems a little counter, doesn't it, you're not supposed to talk to anybody about it, this can be a very trying experience for you. So you maintain a support network of people that you can trust. Professionals, counselors, or psychologists, that can assist you with your psychological wellbeing. Remembering that this is not an opportunity to discuss things about your legal defense or that sort of thing. But you just need to be careful.
Unfortunately, when you're in this terrible situation of false accusations, this is something that's very difficult. It has a lot of anxiety. And you need the support. And, yet, at the same time, now you feel like you have to go through life and not trust anybody around you. What it means is, go back, check in with your lawyer, get the support you need, without jeopardizing your case as much as you can.
And I want to point you guys back to the Canadian Center for Men and Families because I think that the support that they can give you is - it can be very helpful. So that's it for my presentation tonight. If there's any questions, I'm just going to turn these blind so it might be easier to see me here. But if you've got any questions, go ahead and let Melanie know what your questions are.
Melanie Seneviratne: Alrighty.
The first question is - this person's in Ontario, but this shouldn't matter - what is the difference between the Section 127 of disobeying a court order and being charged for contempt of court?
This particular person was arrested for picking up their son from school and charged with a Section 127, and their lawyer had never had a client charged with a Section 127. Do you have any thoughts on that?
Charles Fair: No, because I've never had a client charged with Section 127 either. That's a short answer. Again, just because a lawyer doesn't have any experience with a particular charge, doesn't mean that they shouldn't figure it out, right? Just because it's new doesn't mean that they can't figure it out. The basic principles are the same.
I'm not familiar with what the Section 127 is. There may be an argument that there's a more appropriate remedy that the prosecution could be using. I don't know enough about the facts to be able to comment on that.
Sorry, I don't know everything.
Melanie Seneviratne: That's okay.
Okay. Next question is - just a second, sorry - why are false accusers not automatically held accountable for their actions? Civil lawsuit is rarely known to have yielded results that deter other false accusers to think twice before falsely accusing someone else.
Charles Fair: Yes, this is problematic. I was going to throw in, at the end of this, the prospect of taking civil action for defamation for wrongful prosecution, for abusive process, for malicious prosecution. Might even rise to the level of public mischief, making false allegations. Or extortion, for that matter.
I mean, there's a number of remedies for this stuff.
The question as to why this stuff doesn't happen more is a complicated question. There is - I'll tell you, this recently came up in a discussion that I was having in the context of an emergency protection order case. Which is not a criminal matter, but more on the civil side. But it kind of has criminal consequences. And if you breach an emergency protection order there can be criminal charges. And so, it's, oftentimes, the first sign of trouble in this area.
And the case that I was reading at the time was describing it like this, that particular statutory regime is intended to facilitate, and make it easy for complainants to, bring their complaints forward. That if you put into the system some serious negative consequences for making a false allegation, you risk, as a legal system, creating the opposite problem.
Remember we were talking about, earlier, about, say, the myth of delayed reporting. So a complainant who actually has been assaulted is experiencing trauma and shame and, she, or he, for that matter, delays the reporting of the complaint. And then, when they go to make the complaint, they hear that, well, if you're not believed, then you might be faced with some serious legal action against you for malicious prosecution. Or for defamation. Or for, even, criminal charges.
They go, oh, then, well, I guess I better not report it. So the difficulty with those cases is there's this, almost like this, public policy that says, look, yes, it's bad, false accusations are bad, but the opposite is also bad. That you get people who are sexually assaulted and, because, if there's a risk to them that they're going to face even more, on top of the shame and the trauma of the sexual assault itself, now they're going to face the financial consequences, or even the criminal consequences, if they happen to be found guilty of something that they didn't do. Right?
So this is a complicated area. So that it is true that these remedies are difficult to get. I don't think it's true that they can't be obtained in every case. The facts have to line up properly. But that's why it's - this is a difficult area. No question about it.
Vanessa Farkas-Brahmakshatriya: Okay. The next question is: Can kids testify or give evidence for or against the parents? And is there any different rules for kids under 18, or over 18?
Charles Fair: They can give evidence and there are procedural rules. Again, a lot of the rules are designed to make the process as comfortable as possible for the child, so as to make sure that they are comfortable in telling the truth of what happened.
So that may restrict who's present in the room when they're being questioned. They may be questioned behind a screen so that, for example, so that the person that they're accusing, that they don't have to look at them. So there are some rules that are in place in order to protect the child.
And, again, it goes back to that assumption that we want to make sure that, if there is a true accusation, that the child is able to testify in a way that allows that to come out.
And I would argue that it also applies the opposite. That you want the child to be comfortable to come clean if it's a false allegation, or to tell all of the circumstances about how it came to be that they made a statement in the first place.
Very difficult. But not impossible.
Vanessa Farkas-Brahmakshatriya: Okay. Next question is: What legal remedies do I have, as an accused, in terms of counter-suing my false accuser? And this person was accused of a sexual assault, a Section 271. And they ask: Am I able to sue them right away, or do I have to wait for an acquittal/court decision on the criminal charges?
Charles Fair: Well, there's a difference between - there's two basic kinds of things. There's an abusive process claim, and there's a malicious prosecution claim. The malicious prosecution claim has no basis in proceeding until it's been established that there was a prosecution for something that didn't happen. So you have to wait until the end for that one.
The abusive process claim, I don't know the answer to this question, but I don't think that it would be applied in the criminal context.
This is where I think it's important to have a lawyer - you want to make sure that the criminal defense lawyer and the family lawyer are talking together, because there may very well be a claim for abusive process if there's enough evidence to cast doubt on the validity of the complaint. Then it might be worth, pressing that issue on the civil courts.
So where this typically happens - and there's almost some recognition in the system for this - because the bail conditions or release conditions that are typically imposed on somebody that says, okay, well, you can't have any contact with the accuser, with the complainant. That is actually not something that, you know, a singling out, sexual assault type of accusations, that's going to be true across the board. You don't want somebody who's been accused of a crime having unrestricted contact with the person who's accused them of the crime.
Well, what if the accuser is the spouse and you've got children? And there's no question that you should continue to have parenting time with your child. But that means you gotta have contact with the parent. You gotta have contact with the children. And sometimes in these situations, the first thing to do is to cut off contact between the accused person and the family members who are potentially victims.
So a typical exception to that bail condition, or that release condition, is to say "except as permitted by a court of competent jurisdiction", which means the family law courts. The criminal courts try to dodge the issue by saying, well, we don't have expertise in the area of children, or family law. Our expertise is in figuring out whether somebody committed a crime or not. Somebody's innocent until proven guilty. Yeah, we get that. But, in the meantime, we're not going to try to get involved in what kind of parenting time should happen. When somebody is presumed innocent until proven guilty, they should continue to have parenting time with the children. Or maybe that time needs to be supervised. The criminal courts will say, well, we don't get involved in that at all. So that's when you go into the family law courts.
And I think that's where there's, potentially, an opportunity to say, look, there's so little merit to these criminal charges that we need to proceed as if they don't have any merit at all. At least on the civil side.
I think that - this is where, when we talk about focusing on what your objectives are, I think that is more important than focusing on a legal retribution strategy. There may be abuse of process, in the sense that a wrongful accusation gets criminal charges, that you get the emergency protection order, or a King's Bench restraining order, and then you go get your order that's saying - giving you interim custody of the children. And supervised access only to the Dad, et cetera, et cetera.
The objective isn't to penalize a person for committing an abuse of process. The objective is to have time with your kids. To act in the best interest of the children. And that's the objective that needs to be the focus.
So I think that what happens in a practical matter is that the abuse of process claim is there, but it's just not the important one. And you really have to get the judge - it really has to go your way in a big way, I think, before the abuse of process claims starts to have any traction.
All of that is not legal advice. All of that is just, kind of, some general impressionistic comments about how I think that system works.
Yeah, you know, it seems unfair, but, again, focus on what your objectives are. You want to have a relationship with your kids, and that's what the focus is.
I mean, I was representing somebody who's in jail for - sentenced to 25 years in jail for murder, and the previous counsel had agreed to no contact with the kids. And I convinced the judge to vary that, to say, well, if the kids want to see their Dad, they can initiate it. I got a little tiny bit of a win in a very, very serious situation. I didn't represent the client on the criminal side on that one. But I did it on the family law side. And it was interesting to get a little bit of a win, even in the face of the most horrendous crime.
You've got to stay focused on what your objectives are. And that's what my client's objectives were. He said, it's not right that I don't have contact with my kids at all. And what if they want to see me. They won't be allowed past the gate because of the order. Judge Agreed.
Melanie Seneviratne: Mm-hmm. Okay.
Charles Fair: I don't think he's seen his kids since, but anyways.
Melanie Seneviratne: So, we've got time for one more question. Unfortunately, not all the questions. But I thought this one was a little interesting one. Are the police allowed to lie to people while they are trying to question them?
Charles Fair: I think they are. You know, and I think - I know that that sounds really unfair. I think that you gotta be really careful about it. I don't think there's an obligation on the police to tell the truth, so to speak. To disclose their case to the accused while they're questioning them. I think that's what the point is. I
think where there's real problematic with the police making statements, are things like when interviewing a child complainant. I think the police have to be honest in that situation.
So I don't know that it is a 100%. Yeah, the police can do whatever they want. And, again, I think the reason for that rule is because it's not about the police conduct in the first instance. Or that we're not really - that's not the primary focus. The primary focus is on the accused and whether he committed a crime or not. And so, there's some leeway given to the police in terms of, well, how do you get somebody to talk? Well, that's why you've gotta have nerves of steel and not talk. Because I don't think that - here, I mean, I get the criminal disclosure files and the police don't even tell the crown prosecutor what actually happened in the interview room.
You know, is it a lie or is it just because they're busy and they're - I don't know. I think that's probably one of the reasons why I have a decent success rate on the criminal law side is because the police don't do a very good job of their investigations. That's another story.
I wish they did a better job. That's all I can say.
Not to say that there's not good police out there. I don't want to get into trouble for making these kinds of comments, so just bear that in mind. Okay?
Melanie Seneviratne: Okay. Well, thank you. I think we'll wrap it up. So, Vanessa, if you wanted to close up?
Vanessa Farkas-Brahmakshatriya: Yes. Thank you very much, Charles.
This was a very content-rich presentation. And insightful questions and answers. It was a real pleasure to be part of it. And thank you to everyone who joined us.
There will be a recording available for viewing online, which all of you who registered should be receiving a link to when it is available.
And thank you for your questions.
We will not be having one of these webinars in the month of May. So our next one will be in June. And we hope to see some of you there. Keep bringing your questions. It's always too bad when we can't get to everybody's questions.
But I really want to encourage everyone to seek out our other mental health supports at CCMFAlberta.ca, and thank you again for coming.
And thank you, Charles and Melanie, for volunteering your time with us.
Calgary lawyer Charles Fair brings over 30 years of experience to Fair Legal in criminal, family and civil litigation. Charles draws on his personal experiences related to each field of law which helps him to understand and relate with each of his clients. He is compassionate, caring, and will always be your champion for justice when life gets messy.