A. B.

Case Summary

A.B. was charged with three counts of sexual assault and uttering death threats in relation to three instances of sexual activity with his ex-wife.  A.B.’s ex-wife described the interactions as three discrete instances in which she had “unwillingly” had sex with A.B., whereas A.B. admitted that they had had sex, but said that on each occasion, the conduct was “consensual and mutually agreeable.”1

During the timeframe in which the alleged assaults took place, A.B.’s ex-wife sent a Facebook message to A.B.’s new partner. The message recounted several incidents of sexual activity between A.B. and his ex-wife and made it clear that the activity was consensual.

A.B. was self-represented at trial. A lawyer was appointed under s. 486.3 of the Criminal Code to cross-examine the complainant, who testified she had “no recollection of having sent the message and expressed disbelief that she had done so.”2 Any further attempts to cross-examine were curtailed by the trial judge on the basis that no application had been made to present evidence that the complainant had engaged in sexual activity. The judge directed the jury to disregard all the evidence about the Facebook message and A.B. was convicted.

A.B. appealed his conviction. His lawyer worked with Crown prosecutors and forensic analysts to determine the authenticity of the Facebook message. Their investigation determined that neither the content, nor the date of the message had been manipulated, and that A.B.’s ex-wife now admitted to having sent the message.3

A.B.’s lawyer sought to introduce these findings as fresh evidence in the appeal. The Crown conceded that A.B.’s lawyer established the prerequisites to admissibility for the proposed fresh evidence.4 Further, the Crown conceded that the fresh evidence could have reasonably affected the verdict of the jury had it been elicited at trial.5 As a result, the Court of Appeal set aside A.B.’s conviction and, in accordance with a joint request by A.B.’s lawyer and Crown counsel, directed that the order for a new trial be stayed. This case satisfies the Registry’s definition of a wrongful conviction because of the acceptance of new evidence after conviction and the court’s entry of a stay.6

[1] R. v. A.B., 2016 ONCA 830 at 2 [R. v. A.B.].
[2] R. v. A.B., supra note 1 at 4.
[3] R. v. A.B., supra note 1 at 6,7.
[4] R. v. A.B., supra note 1 at 9.
[5] R. v. A.B., supra note 1 at 12.
[6] R. v. A.B., supra note 1 at 13.

Case Details

  • Full name:

    A. B.

  • Gender identity:

    Male

  • Race/ethnicity:

    Unknown

  • Age - at the time of conviction:

    Unknown

  • Charges - specific offences:

    Sexual assault; Uttering death threats

  • Date of conviction:

    2011-11-22

  • Date wrongful conviction was overturned:

    2016-11-01

  • Sentence - total time served:

    Unknown

  • Legal mechanism by which wrongful conviction was overturned:

    New evidence on first appeal

  • Status of alleged crime:

    No Crime Occurred

  • Compensation Received?

    No

  • Guilty plea?

    No

  • Cause(s) of wrongful conviction:

    At A. B.'s trial on charges of sexually assaulting and threatening his ex-wife, she denied having sent a  Facebook message about consensual sex with A. B. at that time. His conviction was overturned due to fresh forensic evidence establishing that she did send this message, which cast doubt on her credibility as a witness.