The saga of Senator Patrick Brazeau has commanded an vast amount of public attention. He is a caricature that appears in the media as larger than life. When the senate fraud scandal surfaced, he was publicly smeared. Ever more uproar resulted when he was further charged with impaired driving. None of that compared, however, to how he was vilified when the allegation of sexual assault surfaced.
As an experienced lawyer who has represented victims as well as accuseds in sexual assault matters I have seen the full spectrum of allegations. I have seen allegations that are clear and concise; I have also seen those that should never have been brought to court. The experience has taught me to know that when someone is accused, one should not rush to judgment. Rarely are human interactions black and white. In this vein, on February 8, 2013, I wrote:
“Presumption of innocence. Sen. Brazeau is entitled to the same protections as all Cnds; far too many rushing to judge.”
That was 11 years of criminal defence experience speaking. Due process, evidence and reason must prevail; not a self-indulgent twitter lynch mob with an agenda. On Tuesday, those sexual assault allegations were fully resolved. Patrick Brazeau plead guilty to a simple assault and possession of cocaine charge. As regards the sexual assault charge the prosecutor stated the following:
“What we told the court is that given the proof at this time on the sexual assault charge, getting a verdict beyond any reasonable doubt seemed to us not very probable.”
Thus, the sexual assault charge for which Brazeau was vilified, was withdrawn.
Over the past two years, I have been asked to comment about the many dimensions of Brazeau’s legal situation. Here is a legal analysis of some of the questions that have arisen and what may lay ahead for Senator Brazeau.
Question: Why was the sexual assault charge dropped?
The Crown has a duty to continually reassess their prospects of conviction throughout the course of a trial. The Crown operates on a standard of “reasonable prospect of conviction”, which is exactly what the prosecutor was referencing when he stated “…getting a verdict beyond any reasonable doubt seemed to us not very probable…”
In contrast, the standard required to lay a criminal charge is much lower. Specifically, to charge a person, the police require “reasonable and probable grounds.”
Finally, the standard of proof required to convict a person is “proof beyond a reasonable doubt.”
There are many matters where there is enough evidence to charge a person but insufficient evidence to obtain a conviction. This phenomenon exists because gathering sufficient evidence to lay a charge is not terribly difficult. One statement, by one person, is sufficient. Thus, “He sexually assaulted me…” is sufficient evidence to justify laying a charge. No forensics are required; no DNA; no video; no corroboration. One person’s word – on any crime, sexual or otherwise – constitutes viva voce evidence.
Most theft charges are based on the word of a loss prevention officer: “I saw him steal a bottle of liquor.”
Most robbery charges are based on the word of one person: “He pushed me down and took my wallet.”
Most assault charges are based on the evidence of one person: “She pushed me on my shoulder.”
In the same way that one person’s denial of a crime, does not make it so, one person’s allegation of a crime also does not make it so. Neither complainant nor accused has a monopoly on truth. Recognizing this, it is a little known concept that at the charging stage of a criminal matter, the police are not concerned with truth; they are concerned with evidence. Is there sufficient evidence to support this charge? Police do not engage in any in-depth way with a credibility assessment of any given complainant. When two diametrically opposed versions of events manifest, the truth finding process is left to the courts. This is why we have courts, so that witnesses will be subjected to cross-examination and the truth can be determined.
In Brazeau’s case the complainant had completed her testimony and was cross-examined. It has been said that “cross-examination is the greatest legal engine ever invented for the discovery of truth.” For this very reason, one should be suspicious of any allegation where a witness refuses to be subjected to cross-examination. The truth withstands scrutiny; lies do not. Cross-examination is an accused’s fundamental right. It is the accused who need not prove anything on any criminal accusation.
Upon completion of the Crown case the prosecutor came to the conclusion that there was no reasonable prospect of conviction on the sexual assault charge. There could be numerous reasons for this, including:
(i) the complainant discombobulated during cross-examination on the stand, and could no longer be considered credible or reliable on the issue of whether a sexual assault occurred;
(ii) the complainant fabricated evidence and recanted the false allegation on the stand;
(iii) the complainant was initially truthful but recanted on the stand and the recantation was false, but still decimated the Crown case;
The term “recantation” may not be familiar to non-lawyers. A recantation occurs when a witness’ testimony in court is different than their earlier statements to such an extent that both versions cannot be true. It must be recognized that a recantation of an allegation can itself be false. It is difficult in any situation to determine which version is accurate. Courts have seen both situations many times. However, when a recantation occurs, the Crown is always left with the problem that whether version X or Y is the truthful one, it means that their witness has either attempted to manipulate the police or alternatively, the court. Generally, neither situation should rise to the level of proof required to support a criminal conviction.
In Brazeau’s case, any one of those reasons or combination thereof could be reason for the Crown to re-consider their case. The Crown and defence did so and jointly accepted some of the complainant’s evidence – that a low grade assault occurred. Thus, Brazeau plead to assault simpliciter, and the charge of sexual assault was withdrawn.
Question: What is likely to happen on sentencing?
It is understood that the Crown is going to join the defence for a “absolute discharge.” If accepted by the judge, it would mean that Mr. Brazeau was found guilty, but has no conviction registered. To obtain a discharge (whether conditional or absolute), there is a two step test that is applied. First, is a discharge in the best interests of the accused? In this case, this is a relatively simple sell. Patrick Brazeau, but for his legal woes, has lived a very positive and pro-social life. He was active in the aboriginal community and was seen as a leader. The second part of the test for a discharge requires that it not be contrary to the public interest. In Brazeau’s case, this test will also be met easily. But for his legal troubles, it could be argued that he was a role model for young aboriginal people as to what can achieved with dedication, hard work, and a positive attitude. Moreover, Brazeau has heavily volunteered, participated in charity events, and donated his time to good causes. Further, it is understood that due to his drug and alcohol issues, Patrick Brazeau undertook time in rehabilitation which would operated heavily in his favour on the possession of cocaine charge. Ultimately, this may be a case of a successful young man taking steps to slay his demons and moving forward on what was otherwise a positive life. Thus, it would not be against the public interest that he be spared a criminal conviction for all of these matters.
As a final note, in sentencing Brazeau, the court would need to take into account his aboriginal heritage. The Criminal Code as well as the Charter have provisions that require the court to do so. Many people from aboriginal backgrounds have suffered inter-generational disadvantage. This is known as the Gladue considerations and it recognizes that not every person comes to the Court on an even playing field. Thus, concepts such as institutional and/or inter generational disadvantage are considered. When appropriate an ever-so-softer sentencing hand will be used. I anticipate that Senator Patrick Brazeau will be discharged absolutely on these matters.
Question: Can Patrick Brazeau return to the Senate?
Generally crimes of “moral turpitude” will stop a person from returning as a senator. Thus, the charge of sexual assault was a barrier to Brazeau’s successful return. With this charge withdrawn it does bring Brazeau one step closer to vindication. However, Mr. Brazeau still faces an impaired driving charge as well as a breach-of-trust fraud allegation stemming from his residency claims while as a Senator. The impaired driving charge, in my view, would not stop Mr. Brazeau from returning as a Senator. On the other hand, the breach-of-trust charge would. Thus, while the removal of the sexual assault charge is a positive first step in Mr. Brazeau’s road back to the Senate, in my view he would need to overcome his fraud charge to make a successful re-entry.
Tuesday’s plea is a step in the right direction for Patrick Brazeau. It resoundingly clears him of a charge that he vehemently denied; it expresses remorse for the crimes he did commit – assault and drug possession. The plea allows the healing to begin. Being discharged absolutely of this set of charges will certainly pave the way for his future prospects. From his brief television appearance on the matter, he appears genuinely committed to rehabilitation in both a personal and relationship guise. He appears anxious to resume service to his community. Defence lawyers routinely assist people who find themselves at rock bottom. Perhaps Senator Brazeau circa 2013 was there. To me, it is inspirational to watch him rise above this, and take a step back in the right direction.