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Client found not guilty of Sexual Assault x 5 and Sexual Assault Choking after three-day trial, Ontario Court of Justice, Toronto.  Y.D. interviewed and hired the complainant at the company he worked with.  After a few months, the two developed a relationship even though both were married.  Both realized there were issues, and soon the complainant moved to another position in the company where she reported to another supervisor.  The two shared intimate and emotional details about their lives and grew closer. However, Y.D. had second thoughts after about seven months and sought to return to a purely professional relationship.  The complainant remained at the company but continued to seek out Y.D. and have his attention.  The complainant secured a promotion but in the new position began to have performance and interpersonal issues with co-workers.  She remained at the company for another two years but due to poor performance was terminated.  Unfortunately, Y.D. was one of the people responsible for the termination.  Within three weeks, Y.D. was charged with multiple sex assault offences including one that could be described as a highly violent rape.  Y.D. hired Joseph Neuberger of Neuberger & Partners LLP.  Diana Davison was assigned to assist.  After some time, Joseph Neuberger was able to recover some deleted messages from Y.D.’s digital devices that demonstrated a different narrative than the complainant.  The complainant provided police with two sets of WhatsApp messages that seemed to show Y.D. as pursuing the complainant for sex and the complainant not favorably responding. These messages were provided by the complainant via a link. The police DID NOT seek to search her phone, nor even review messages on her phone during the interview.  The complainant was permitted to just send what she allegedly possessed to police.  This is the standard method for police receiving digital evidence.  The defence brought a 276/278 Application regarding other sexual history evidence and to admit what messages he was able to recover via a forensic extraction.  The complainant alleged multiple sex assaults over the entire time period she was with the company.  Thus, the application was successful in part due to the global nature of historical sexual assault allegations and ongoing sex assaults up to and including her termination.  Just prior to trial, Joseph Neuberger sought clarification on the dates of many of the complainant’s messages and meta data (which had been requested at the outset of the case but never provided).  One day prior to trial, the complainant provided specific dates for each message.  Joseph Neuberger followed up with the Crown noting that she should be interviewed because to provide such specific dates, two years after the charges were laid means that she possesses all of the messages (that was Neuberger’s opinion).  Nothing was provided as to the source of the dates.  At trial, an objection was raised as to obvious issues related to the thread of messages the complainant provided as being disjointed and cut off.  The complainant disclosed on day two of the trial, more messages.  This led Joseph Neuberger to ask the officer in charge to take a statement from the complainant because the new messages disclosed were more WhatsApp messages that at the top had Y.D.’s new profile picture and stated “Y.D. last seen yesterday at 9:22 p.m.).  Clearly the complainant had not blocked Y.D. on WhatsApp and had access to all the messages.  The further interview then led to disclosure by the complainant of all WhatsApp messages exchanged between the two parties over a period of about one year.  Joseph Neuberger spoke to the Crown and the assumption that the complainant was holding back relevant exculpatory messages was true.  The Crown sought dismissal of the charges (not guilty verdict) and Y.D. agreed to sign a common law peace bond for no contact without any admission of liability. 

• This is yet another example of a highly inadequate policy and process for the police to obtain relevant digital evidence from complainants.  If the phone was seized by police and searched at the outset of the investigation, the police would have had access to all the threads of messages.  The messages in this case demonstrated a completely different narrative than what the complainant had stated in her interview with police.  It is likely Y.D. would not have been charged.