Alex Koustov Wins Another Acquittal in a Major Sexual Assault Case
In a recent Alberta Court of Justice case, Alex Koustov was successful in defending his client in allegations of two instances of sexual assault, one common assault, and one assault by choking. The incidents allegedly occurred over approximately a six-month period, while a young couple was going through an acrimonious break up. Ultimately, the case turned on the credibility and reliability of the complainant’s and the accused’s evidence at trial. The complainant testified to one version of events, and the accused testified to a different version of events.
The trial had multiple sittings, spanning over a year, due to pre-trial applications and the length of the evidence of various witnesses. Mr. Koustov was successful in a s.276 pre-trial application to permit the accused to lead evidence of prior sexual history with respect to certain sexual acts the parties had never engaged in. However, certain other evidence of abuse by the victim against the accused, was not permitted. An interesting issue arose with respect to whether the court is permitted to publish the decision with respect to the first stage of a 276 application, under s.278.95(1).
The trial judge ruled that he was permitted to do so and published a decision with respect to this obscure sub issue. The decision will be useful guidance to other judges in Alberta (where this issue has had little consideration). That decision can be found here.
The issue was the judicial interpretation of conflicting subsections of the Criminal Code. In the context of s.276 application, s.278.95(1) prohibits the publications of such applications, but carves out certain exceptions. Subsection (a) prohibits the contents of a stage one application, while subsection (b) prohibits the publication of any evidence taken, information given, or representations made in a stage one application or at a stage two hearing. Subsection (c) and (d) on the other hand, permits the publication stage one and two, respectively, in accordance with subsection (4), after taking into account the complainant’s right of privacy and interests of justice. The trial judge pointed out that there are two readings of this section of the code. One is the narrow reading; the other reading is broader. The narrow reading would permit the judge to publish the decision of either stage one or two hearing, but scrub out all particulars, ultimately making the publication so generic and opaque that no useful purpose could be served by the actual publication. This would create legislative absurdity. The broader reading of the section would be to permit the court to reference the contents of the application and any evidence taken, and representations made, insofar as making such references consistent with the court’s decision to publish, which decision has already accounted for the interests of justice and the complainant’s right of privacy. After review of the relevant case on judicial interpretation of statues, the court noted that parliament is presumed to avoid absurd results from the legislation it passes. Thus, the broad reading of section s.278.95(1) is the logical answer. Given that the identity of the complainant is protected by a publication ban, and if care is taken to protect any possibly of identifying the complainant through the judicial reasons, why shouldn’t the other evidence be referenced in the decision? There is no harm to the complainant, while it would be highly in the interests of justice to have well-reasoned and meaningful decisions that could guide counsel and the courts in the future.
The publication of the decision for the stage one hearing, which can be found here, may not have been a turning point in this case. Mr. Koustov effectively took apart the evidence of the complainant, pointing out the inconsistencies in her own evidence and the implausibility of some of her statements. In addition, it was carefully pointed out through cross-examination that the complainant’s initial report to the police was related to criminal harassment by the accused, well after the parties broke up and all the alleged offences had taken place. It was further pointed out by Mr. Koustov through cross-examination that only after the accused made complaints to the police about him being physically abused by the complainant, did the complainant make additional statements alleging the crimes at trial. The trial judge acquitted the accused on all counts.
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