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Criminal

Ex-mortgage broker avoids jail time in sex assault, fraud case

After three years of investigation and prosecution for multiple charges of sexual assault and defrauding the public, the imposition of a suspended sentence and probation for three lesser counts of sexual assault has allowed one of his clients to avoid jail and move on with his life, Toronto criminal lawyer John M. Rosen tells AdvocateDaily.com.

Rosen, founder of Rosen & Company Barristers, says his 64-year-old client, a former mortgage broker, received the suspended sentences after a Superior Court trial judge rejected the Crown's call for a six-month jail sentence. His client was acquitted of two serious allegations of sexual assault, plus a separate charge of defrauding the public. 

“Although my client was convicted of some offences, he was acquitted of the much more serious charges, and will not be going to jail,” he says, adding that the criminal proceedings have cast a pall over the man’s life for more than three years. “Given his age, he’s relieved that he will be able to get on with his life.”

Rosen says the subject matter in the case ballooned after a woman initially complained to police that she was sexually assaulted by the man in September 2015. His client was arrested and freed on bail in December of the same year while the investigation continued.

Police inquiries turned up numerous complaints from former clients and business associates involved with the man’s subprime lending business, prompting the transformation of the investigation into a predominantly fraud-related probe, he says.  

Acting on his client’s behalf, Rosen came to an agreement with prosecutors to split the charges into two phases. Phase 1 would deal with charges where the sexual assault allegations and fraud allegations were intermingled, while Phase 2 would address those charges that alleged fraud alone.

"The Phase 2 charges were resolved without trial following a judicial pre-trial hearing when the Crown agreed to withdraw the charges in return for a guilty plea on a single count of fraud against a bank based on falsified leases the man drew up to avoid breaching the terms of the bank’s mortgages on rental properties," Rosen says. "By agreement, the court imposed a suspended sentence for that conviction.

"The Crown realized that on each of the Phase 2 fraud complaints, he had an issue because the complainants all signed documents, they all received money, and they all fell into arrears and were unable to pay because of their conduct," he says.

"In reality, those complainants made poor financial choices and were unhappy with the consequences. The Crown and I were able to come to an agreement on the single charge relating to the bank. At that point, the Crown and police were more concerned that if my client was acquitted of all charges he might be able to get his mortgage broker’s licence back, so they were willing to drop all those charges in return for the guilty plea on the falsified leases charge," Rosen says.

However, a trial did proceed on the remaining Phase 1 charges. Originally set for eight weeks, the trial wrapped up inside two weeks, in part because the defence successfully resisted the Crown’s attempt to "lead similar-fact evidence from a number of other witnesses after the judge ruled their allegations of sexually inappropriate conduct fell short of criminal offences. While similar to each other, they were different from the allegations of the Phase 1 sexual assault complaints," he says.  

The acquittal on the most serious of the sexual assault charges was based, to a large extent, on the detailed timeline drawn up by the defence team, which revealed major inconsistencies in the accounts of the complainants, Rosen says.

"I could not have done the case without the timeline. We needed to do a detailed timeline, one document at a time, and by doing so we exposed the fatal flaws in the Crown's case, that's how essential it was."

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