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Joseph A. Neuberger Neuberger & Partners LLP, Criminal Defence Lawyers The Provincial government has again declared a state of emergency under the Emergency Management and Civil Protection Act.  Under that power the government has made a “stay at home” order permitting Ontarians to leave their residence for only defined purposes (approximately 33 essential reasons) including exercise, walking pets, going to and from essential work, health care, shopping for necessities such...
Continue reading The Second Lockdown – What does that Mean for You and Your Rights?...

Joseph A. Neuberger Neuberger & Partners LLP, Criminal Defence Lawyers Since the Ontario Court of Appeal decision in R. v. J.J.R.D., O.J. No. 4749 there has been significant movement away from following the three step process for assessing testimony, as previously outlined in the Supreme Court’s 1991 decision in R. v. W.(D.) Many judges have focused on the third step, beginning with a review of the evidence as a whole....
Continue reading The Ongoing Error of Credibility Contests in Sexual Assault Cases...

On November 23, 2020, Mr. Justice Akhtar of the Ontario Superior Court, ruled that sections 278.92, 278.94(2) and 278.94(3) were of no force or effect in Ontario. His decision in R. v. Reddick, 2020 ONSC 7156  will likely go to the Court of Appeal. In Ontario the complainant is no longer granted standing at pre-trial hearings and only evidence of a sexual nature requires an advance application. Alberta, Saskatchewan and...
Continue reading Ontario No Longer Subject To New Rules...

If there was ever an area in which Canada should follow the lead of the US it is on the issue of restoring due process to university sexual assault investigations.. Over the past few years, due process in university tribunals has been degraded in both countries. Many well-meaning efforts to improve outcomes for the victims of such crimes have resulted in the erosion of the rights of the accused. So...
Continue reading Canada Should Learn From the Mistakes in US University Tribunals...

While social media and other online forums have expanded the ways we can communicate with others the same technology also has a dark side. The possibility for anonymity on the internet has allowed many to abuse this power by making anonymous accusations against named individuals while denying the accused an ability to defend themselves. A popular form of mass sexual assault allegations called  “shitlists” - often targetting specific industries or...
Continue reading Anonymous Accusations Violate the Rights of an Accused...

When Bill C-51 was passed by Parliament in December 2018 it changed rules of evidence in sexual assault trials. The most egregious changes for the accused is that all records in their possession and which they may wish to use at trial now have to be disclosed in advance, with the complainant having access to those documents. Additionally, if the accused successfully obtains a ruling for disclosure of third party...
Continue reading Prosecutor Seeks to Withhold Crucial Records from Defence...

By Joseph A. Neuberger Neuberger & Partners LLP   As Canadian courts struggle with how to return to normal functioning and deal with the backlog of trials after the pandemic, suggestions are being made on how to effectively modify the trial process. Technology such as video conferencing has allowed some proceedings to continue remotely but there are compelling reasons why remote hearings should be restricted to case management, certain pre-trial...
Continue reading Restoring the Trial Process After COVID-19...

By Joseph A. Neuberger Neuberger & Partners LLP Criminal Defence Lawyers In a recent decision from the Ontario Superior Court, Justice Copeland rejected a Crown appeal of an acquittal based on grounds that the trial judge had relied on stereotypes and myths about sexual assault. In the case of R. v. Solomon, 2020 ONSC 2640 the Crown unsuccessfully argued that the trial judge misapplied the law of consent and employed...
Continue reading Complainants In Sexual Assault Trials Are Not To Be Granted “Better Footing” Than Any Other Witness or Complainant...

By Joseph A. Neuberger,* Neuberger & Partners LLP Criminal Defence Lawyers and Diana Davison**   On June 3, 2020, the Ontario Court of Appeal ruled that section 33.1 of the Criminal Code was unconstitutional for barring self-induced extreme intoxication as a defence in crimes of violence including those that involve bodily harm, death or sexual assault. Public outrage was quickly generated based on misinformation about what this decision means and...
Continue reading Regina v. Sullivan, 2020 ONCA 333 – Misinformation is Fueling Outrage about the Defence of Intoxication...

Joseph A. Neuberger Neuberger & Partners LLP Criminal Defence Lawyers Access to the legal system and the proper functioning of our courts is an essential public service. Though the courts are not completely shut down during the coronavirus pandemic, case processing has slowed to the point that the backlog will cause significant problems. Former Chief Justice of Canada, Beverley McLachlin, writing for The Lawyer’s Daily, “beseech governments across Canada to...
Continue reading The Justice System and COVID-19 – We cannot Lose the Human Element...