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Charges of Sexual Assault and Assault Withdrawn on Day one of Trial. The client was charged with a serious sexual assault and assault involving a next-door neighbour on two separate occasions. The neighbour reported to the Police that the client had invited her into his apartment, and then, while intoxicated, touched her breasts and bottom inside her clothing on the pretense of searching for drugs she had allegedly stolen from him. The Crown was seeking jail in the event of conviction. B.G. retained Michael Bury of Neuberger & Partners LLP, Toronto Criminal Lawyers, to represent him. After a lengthy investigation into the complainant’s background, it became very clear that she had serious credibility and reliability issue both due to a criminal record involving drugs and impaired driving. Additionally, Michael Bury found out she had new impaired driving charges still before the courts and was a known drug user in the building. Given these serious witness problems, Michael Bury convinced the Crown that its case was extremely weak and the chances of success for the Crown were slim to none. The Crown agreed and withdrew all charges the morning of the trial.
Charges of Uttering Threats to Cause Death, Failure to Comply (x3); Client found Not Guilty following a 4-day trial, Ontario Court of Justice. The client was charged with making death threats against his former wife by allegedly gesturing a throat cutting motion on his neck to her during a child access exchange, as well as breaching his release conditions by communicating with her in this manner. Both he and the wife were going through an acrimonious divorce involving over a dozen false allegations made by the wife against him to improve her position in a child custody battle. A.M. retained Michael Bury of Neuberger & Partners LLP, Toronto Criminal Lawyers, to represent him. Working with the client’s family lawyer, Michael Bury gathered extensive information from the family law proceedings which were used at the criminal trial to undermine the wife’s credibility. The wife was cross-examined at length and ultimately agreed that she had made repeated allegations against the client which had not resulted in any charges. She also admitted that this was a high conflict divorce involving the children and other family members. Ultimately, the trial judge found several problems with her evidence following Michael Bury’s cross-examination and submissions which resulted in the decision to find the client not guilty.
Client found not guilty of sexual assault after four-day trial in the Ontario Court of Justice, Ottawa. This was a retrial. N.P. was originally found guilty of sexual assault and found not guilty of assault at this first trial. A successful appeal overturned the conviction and sent the matter back for a retrial on the sexual assault charge. Joseph Neuberger of Neuberger & Partners LLP was retained to act as counsel on the retrial for N.P. After reviewing the extensive trial transcripts and the statements of the complainant, a 276/278 Application was drafted and filed in relation to messages we sought to cross the complainant on and certain other sexual activity. The Application was successful. Joseph Neuberger also brought an application to exclude bad character evidence that the Crown sought to introduce through the complainant and two disclosure witnesses. The defence motion to exclude the bad character evidence was successful. We sought to limit the admissible evidence to a few days before and after the alleged assault and nothing more as it was in our view irrelevant and highly prejudicial. The alleged sexual assault took place during the early months of N.P. and the complainant’s relationship. However, the relationship continued for a year and half and when the two broke up, the allegation was then made to police. Thus, the allegation was a historical sexual assault. But the reason for the breakup of the relationship and other related potential evidence was fraught with eliciting bad character evidence that was prejudicial. Further, the motive to fabricate was formulated at the time of the alleged sexual assault. Thus, any examination or cross-examination of the months following the alleged sex assault was unnecessary and prejudicial. During the retrial, there was extensive cross-examination focused on the complainant’s reliability and professed trauma induced memory loss. There was a complete lack of memory of the two hours before the alleged sexual assault. The two-hour period was significant to the unfolding of events including other sexual activity that led to N.P. and the complainant moving into the bedroom. The evening was about the couple breaking up and the complainant stated that she would never consent if they were breaking up. However, there was a complete lack of memory of the two hours preceding including their discussions, kissing, hugging and other activities. Further, during the time in the bedroom, the complainant in cross-examination again lacked details to the activities and made concessions about how the two were interacting including having a loving and affirming conversation as well as engaging in passionate kissing and touching, details that she failed to disclose in her statement to police and during her in-chief examination. Cross-examination elicited significant details about their sexual interactions and lack of detail on crucial issues about the mechanics of what the complainant described as a violent rape. The complainant at the end of cross-examination was very unreliable and had significant credibility issues. The accused testified and his evidence in and of itself raised a reasonable doubt. As such, N.P. was found not guilty of sex assault.
Charges of Sexual Assault and Sexual Interference dismissed following four-day Superior Court trial, Toronto. D.A. was charged with three counts of sexual assault and three counts of sexual interference. The offences were alleged to have been committed against C.G., the complainant, in the spring and summer of 2011 when the complainant was 10 years old, and D.A. was in his late 30s. Much of the Crown case respecting the alleged offences was placed in evidence through a videotaped statement to the police given by C.G. on September 7, 2016, almost five years after the events of 2011, but shortly after her first reporting of her allegations to her mother. C.G. described three settings during the 2011 visits in which D.A. touched her in a sexual manner. At his first trial, D.A. did not testify based on the advice of other counsel and was found guilty by a jury. D.A. retained Neuberger & Partners LLP, Toronto Criminal Lawyers, to represent him on an appeal alleging ineffective assistance of counsel. Following the successful appeal, the Court of Appeal ordered a new trial. Michael Bury of Neuberger & Partners LLP represented D.A. on the second trial at which D.A. did testify at length. Following this contested trial which included an extensive cross-examination of the complainant, the trial judge found the accused not guilty on the basis that the Crown had not proven its case beyond a reasonable doubt despite the evidence of the complainant which the judge found to be credible. The comprehensive cross-examination of the complainant, together with the extensive preparation of D.A. resulted in a situation where the judge had sufficient reasonable doubt to acquit DA and find him not guilty as charged.
Client found not guilty of sexual assault after a 5-day trial at the Superior Court of Justice, Barrie. The Complainant stated that she was visiting a family campground where her and her family have multiple long-term trailers. She stated that she attended a party one night where everyone was consuming alcohol. As the night progressed, she became visibly intoxicated. She alleged that she had consumed almost ten beers, five vodka shots, and smoked 7 grams of marijuana through out the day and night. She later stated that she left with her sister to go back to her trailer to sleep. However, she allegedly consumed sleeping pills, anti-depressants, and anti-anxiety medication before sleeping. She claimed that the combination of all the intoxicants in her system left her incapacitated. However, while sleeping during the night, she claimed that she heard a male’s voice saying, “What would people say?” She alleged that she remembered being sexually assaulted by someone. It was only next morning when she woke up that she saw her uncle, D.J., in bed next to her. She claimed that she had no memory of what had occurred but believed that D.J. sexually assaulted her. Yuvika Johri of Neuberger & Partners LLP, Toronto Criminal Lawyers, was retained to defend him on the charge. Yuvika Johri cross examined the complainant for two days and was able to establish significant inconsistency from the statement of the complainant to the police with her in-court testimony. The Complainant also added several details to her in court testimony that were missing from her police statement. The Complainant’s mother testified in court and denied ever having asked D.J. for money for Complainant’s therapy. Yuvika Johri was able to impeach her testimony with messages which showed that she had indeed asked D.J. to pay for the Complainant’s therapy much in advance of D.J. getting arrested and threatened him with bodily harm. Yuvika Johri also cross examined the Complainant’s sister and established discrepancy between her statement and testimony in court. After a five-day trial, D.J. was found not guilty of sexual assault as there were concerns that the Complainant’s evidence may have been a product of her conversations with others.
Four counts of sexual assault, three counts of simple assault, one count of criminal harassment, one count of utter threats, and one count of assault choking withdrawn prior to trial at the Ontario Court of Justice, Toronto. The Complainant alleged that she was in a relationship with H.S.C. since 2019. She alleged that H.S.C sexually assaulted her in a violent manner on their first date. She alleged that he assaulted her in her car by sitting on top of her, biting her lips, and making them bleed. She claimed that she tried to open the car door but H.S.C. allegedly didn’t let her leave his car. He allegedly licked the blood off of her lips while trying to recline her seat to penetrate her. She claimed that the accused digitally penetrated her vagina and then continued to do so with his penis. The Complainant went on to describe in her police statement that sometime in September 2021, she learned that she was pregnant with H.S.C’s child. She claimed that H.S.C. took her on a vacation. During the vacation, she alleged that H.S.C was not happy about her pregnancy and allegedly blamed her for cheating on him. As a result, she claimed that H.S.C. beat her up in the woods all over her body. She claimed that he beat her so much that she lost her pregnancy and that H.S.C. did not allow her to return home or see a doctor for a few days as he was allegedly worried that she may report him. She advised that during their relationship, H.S.C. repeatedly raped her anally and stalked her. She also alleged that after she tried to break things off from him in 2022, H.S.C. allegedly followed her and her son from time to time. Lastly, she claimed that she met H.S.C once post breakup to as it was his birthday, however, H.S.C. allegedly screamed at her and threatened to kill her. She claimed that H.S.C. punched her, choked her, and pulled her hair. As a result of the allegations, H.S.C. was charged with Four counts of sexual assault, three counts of simple assault, one count of criminal harassment, one count of utter threats, and one count of assault choking. Yuvika Johri of Neuberger & Partners LLP, Toronto Criminal Lawyers, was retained to defend him on the charges. A 500-page comprehensive s. 276/278 application was prepared by Yuvika Johri. Text messages, WhatsApp messages, video, audio recordings, and H.S.C’s google timeline were provided in the application to rebut the Complainant’s allegations. The messages showed a different version of the relationship and showed that the Complainant had intentionally lied about the allegations. Google timelines were provided to show that H.S.C. and the Complainant returned home from their vacation next day unlike how the Complainant had alleged. Text messages were also used to show that the Complainant was never pregnant as alleged. Audio recordings were provided to show that the Complainant was dealing with jealousy issues and repeatedly accused H.S.C. of cheating on her. Video recording also showed the Complainant’s behaviour towards H.S.C on the day of their breakup which was contrary to her allegations. All charges were withdrawn against H.S.C. for no reasonable prospect of conviction prior to trial.
Client found not guilty of two counts of Assault-choking, one count of utter threats, and one count of simple assault after a seven-day trial. The Complainant and R.V. were in a common law relationship with one daughter. They lived in a home that was bought by R.V. and only R.V. was on the title of the house. Sometime in January 2022, the Complainant alleged that R.V. started an argument with her over an unpaid bill. As a result of the argument, she claimed that R.V. grabbed her by her hoodie and choked her with both his hands. Sometime in May 2022, she alleged that R.V. started an argument with her over guests who were visiting them from abroad. She alleged that R.V. wanted the guests to leave as they had overstayed. She claimed that the argument had become turned physical at one time during which R.V. allegedly slapped her on her head and then grabbed her by her hoodie and started twisting it to choke her. He allegedly threatened her, I am going to kill you.” Yuvika Johri of Neuberger & Partners LLP, Toronto Criminal Lawyers, was retained to defend him on the charges. Yuvika Johri cross examined the Complainant for two days and was able to show several inconsistencies. Yuvika Johri was also able to show that the Complainant had introduced several details during her in court testimony which were omitted from her police statement. After a seven-day trial, R.V. was found not guilty of all the charges.
Client found not guilty of Sexual Assault after three-day trial in the Ontario Superior Court, Toronto. R.H.Y. was approached by a real estate agent to sell his business property and purchase a new one in a different area. The agent and R.H.Y. met at the Granite Club and then continued to meet for showings but spent many hours together privately talking about life and personal matters. R.H.Y. opened up to the complainant (agent), once after a showing of his property, that he was divorcing and going through a hard time. The two spoke for some time. The complainant sent an email that was very kind and offering to help R.H.Y. anyway she could even non-business related. The two arranged to meet the next night at his home around 6 p.m. to sign a listing extension agreement and to view his home. The complainant offered to help sell his home even though she had no experience in residential real estate. This was a personal move on the complainant’s part either to generate more business for herself or to develop a closer relationship with R.H.Y. R.H.Y. took her email, all their personal discussions, and then offer to help, as a personal interest in himself. The two met at his home and started to have wine while signing the document and having a tour of the home. The two eventually had more wine and tequila. The two sat, talked, and drank together. The complainant alleges that she “blacked out” and woke up around 2:00 a.m. the next morning in a state of distress believing something had happened to her. The complainant turned on her phone and discovered that her husband had messaged and called on numerous occasions and called police filing a missing persons report. The complainant left the home in her car and while on her drive home called her husband. They spoke on the phone. During the call, the police ordered her to stop driving as she was somewhat intoxicated, and the police located her and when located, she alleged she was drugged by R.H.Y. and likely sexually assaulted. Joseph Neuberger and Diana Davison were retained to defend R.H.Y. Joseph Neuberger obtained the security camera footage from the client’s residence. After reviewing the statements of the complainant, the security camera video was a crucial piece of defence evidence. Further, through the defence investigation, important messages between the complainant and R.H.Y. were obtained by Joseph Neuberger that cumulatively supported a defence narrative that the complainant, if not romantically interested in R.H.Y., was at least interested in him beyond a purely business relationship. A 276/278 motion was brought by the defence to admit the messages and the video footage. The motion was successful. At trial, Joseph Neuberger cross-examined the complainant and contradicted her allegations with the forensic evidence of the lack drugs in her system (the police conducted a search of the client’s home 5 hours after the alleged incident with no results for any type of date rape drugs) and the toxicology also showed negative results for drugs. The toxicology noted high readings of alcohol in the complainant’s system, but in cross-examination, Joseph Neuberger was able to establish the complainant was a social drinker with tolerance to alcohol and because of the false narrative of the complainant; the complainant failed to admit any effects of the alcohol consumed with R.H.Y. undermining her evidence of experiencing a blackout or unconsciousness. Continued cross-examination focused in a detailed manner on the voluntary steps taken by the complainant to engender a relationship with R.H.Y. and on the night in question, had full responsibility for her own actions including drinking and staying with R.H.Y. because she was enjoying his company. The complainant in cross-examination would not admit that after three alleged glasses of wine and three shots of tequila was “loosening up” and was conversational. The complainant maintained that she had no onset of any intoxication and went blank on memory with no onset any illness or other symptoms. The defence theory and motive to fabricate was put to the complainant. She was asked in detail about her interest in R.H.Y.; that she had discussed with him her own desire to divorce and that R.H.Y. was a wealthy man, going through his own divorce and that ultimately, she was attracted to R.H.Y. The complainant detailed in cross-examination that when she awoke from her “blackout” she was in his bedroom, confused and panicked. She got her clothes together and essentially ran out of the house and drove off “as fast as she could”. When the video was played for the complainant in cross-examination, the complainant refused to admit that her version of her waking up, being panicked, and leaving the home as fast as possible, was starkly different than the security video. R.H.Y. testified. His evidence was coherent, consistent, and believed. After closing submissions, the Judge found that the complainant’s version of events could not be believed even on a balance of probability and in contrast, the evidence of R.H.Y. was believable. Thus, Mr. R.H.Y. was found not guilty of sexual assault.
This case is another example of the importance of detailed defence investigation of the case; extensive preparation of the client’s defence narrative and cross-examination of the complainant to uncover a false allegation.
Charge of Domestic Assault withdrawn prior to trial, Toronto. It was alleged that A.S. scratched and pinched her husband during an argument the two of them had. A.S.’s sister called the police and A.S. was arrested. A.S. retained Tyler Alviano of Neuberger & Partners LLP, Toronto Criminal Lawyers, to defend her. Tyler reviewed the disclosure and conducted multiple pre-trials with the assigned Crown. Tyler provided extensive background information on A.S.’s relationship with her husband and her personal circumstances. Tyler encouraged the Crown not to take a position yet and suggested that A.S. attend 12 sessions of private therapy, with a report detailing her progress to be provided, following which they would revisit their positions. Upon completion of these steps and a very positive therapy report, the Crown agreed to have the charges unconditionally withdrawn.
Assault with a Weapon (x2), Assault, Mischief Under, Theft Under Dismissed following three date trial in the Ontario Court of Justice, Toronto. B.H. was charged with multiple counts arising from the breakdown of a common law relationship. The Complainant claimed that the Accused assaulted him with a phone charging cable and cardboard box during the course of moving out shortly after it was confirmed that he had been unfaithful and planning to move in with another woman. The Complainant also claimed that B.H. had damaged his personal property, a laptop, and stole a significant quantity of his clothing prior to the move out. There were no independent witnesses to the allegations. All the offences were alleged to have taken place in the Accused’s apartment where the Complainant had also been residing. Prior to trial, the complainant commenced Small Claims Court proceedings against the Accused in relation to the allegedly damaged and stolen property as well as a claim for personal damages. As part of this process, the Complainant served an “Offer to Settle” on B.H. which consisted of harassing allegations which bordered on extortion. B.H. retained Michael Bury of Neuberger & Partners LLP, Toronto Criminal Lawyers, to represent her. Following a contested trial which included an extensive cross-examination of the Complainant on issues including his antagonistic Offer to Settle, the trial judge found B.H. not guilty on the basis that the Crown had not proven its case beyond a reasonable doubt, especially given the complainant’s credibility issues and hostility towards B.H..
Past results are not necessarily indicative of future results and that the amount recovered and other litigation outcomes will vary according to the facts in individual cases.
