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Supreme Court of Canada Clarifies Use of Prior Sexual Activity and Re-defines Consent in Honest but Mistaken Belief in Consent Defences in Sexual Assault Cases

Joseph A. Neuberger, LL.B., LL.M., C.S. Neuberger & Partners LLP www.nrlawyers.com In a recent precedent setting case out of Alberta, the Supreme Court of Canada overturned Bradley Barton’s manslaughter acquittal and ordered a new trial due to the Crown’s failure to be alert to the issue of the victim’s privacy regarding her sexual history. Mr. Barton was on trial for first degree murder in the death of an Indigenous woman and sex worker, who was found dead in the bathroom of the accused hotel room. The cause of death was determined to be an 11cm wound in the vaginal wall.…

New (and Arguably Absurd) Drinking and Driving Offences

By Christopher K. Assié & Joseph Neuberger Neuberger & Partners LLP The new amendments to the Criminal Code have changed the drinking and driving landscape significantly. Two changes are attracting particular attention due to their impacts on protected Charter rights and a serious potential for wrongful convictions. Arguably the most concerning amendment is the creation of a new offence – consuming too much alcohol or drugs after driving. Under s. 320.14(a) and (b), anyone with a blood alcohol concentration or blood drug concentration above the prescribed limits two hours after they have ceased driving is guilty of an offence. The…

What You Need to Know About Impaired Driving Charges in 2019

Recent changes to the impaired driving laws by the Federal Government developed to combat drinking and driving offences and the impact of legalizing cannabis, the laws surrounding impaired driving in Canada changed on Tuesday, December 18, 2018. These changes come as part of Bill C-46 which was enacted to ensure deterrence from impaired driving by making the penalties some of the most severe in the world. What Hasn't Changed The amount of alcohol allowed in your system, or the blood-alcohol concentration (BAC) has not changed for drivers. For fully licensed “G” class drivers over the age of 21, that is…

University Tribunals are no Substitute for Courts

The growing concern to address sexual assault allegations on university campuses has resulted in a new vigilance to investigate and litigate allegations against students and faculty with little to no protection of the accused person’s fundamental rights.  Increasingly students and faculty members accused of sexual misconduct, even absent criminal charges, are being forced to participate in pseudo-trials designed by universities. The accusations being made through these tribunals are often very serious in nature and the universities cannot guarantee that the complainant will not proceed with criminal charges. Most people who are accused think that they can engage in a rational…

Know Your Rights: Get in Touch with an Experienced Criminal Defense Lawyer

Being arrested, detained or charged with a crime can leave you feeling scared and vulnerable. It’s important to remember that in a situation like this, you still have rights. Under Section 10 of the Canadian Charter of Rights and Freedoms, everyone has the right on arrest or detention: To be informed promptly of the reasons therefor; To retain and instruct counsel without delay and to be informed of that right; and To have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.   It is always in your…

Bill C-51 and its Implications.

What is Bill C-51?   According to the Government of Canada’s website it is, “Legislation introduced by the Minister of Justice and Attorney General of Canada on June 6, 2017 [that] reflects the Government of Canada’s ongoing commitment to ensure that Canada’s criminal justice system protects Canadians, holds offenders to account, shows compassion to victims, and upholds the Canadian Charter of Rights and Freedoms.” Advocates for those falsely accused of sex crimes have a different interpretation. While the Bill is meant to “ensure that victims of sexual assault and gender-based violence are treated with the utmost compassion and respect”, it…

New (and arguably absurd) drinking and driving offences.

By Joseph Neuberger and Christopher Assié Originally published by Lexus Nexis. (www.thelawyersdaily.ca)       The new amendments to the Criminal Code have changed the drinking and driving landscape significantly. Two changes are attracting particular attention due to their impacts on protected Charter rights and a serious potential for wrongful convictions. Arguably the most concerning amendment is the creation of a new offence — consuming too much alcohol or drugs after driving. Under s. 320.14(a) and (b), anyone with a blood alcohol concentration or blood drug concentration above the prescribed limits two hours after they have ceased driving is guilty…

The Advantage of Hiring a Domestic Assault Lawyer

Life has a habit of throwing you curves. There can be situations where, in a million years, you would have never expected that you would need to hire a criminal defence lawyer. Domestic abuse allegations are very serious and can have dire consequences for the person accused of family relations, including custody and access to children. In Ontario, there are mandatory charge polices that result in a charge or charges being laid with only the statement of the complainant to substantiate the allegations. The person who is accused of such an offence has his or her life turned upside down…

The Common Use of Domestic and Sexual Assault Allegations

We live in an age where sexual assault and domestic violence allegations are being taken more seriously than ever before. And for the true victims of these crimes, this comes as a welcome relief.  Sadly however, there are those that would take advantage of the seriousness of such allegations and falsely use them to their own benefit. Being falsely accused of domestic violence - whether an assault or sexual assault - is common in high conflict divorce cases.  These allegations are often used to gain an advantage in family court proceedings particularly when access and custody is an issue.  These…

CAPACITY TO CONSENT TO SEXUAL ACTIVITY

Joseph A. Neuberger, LL.B., LL.M., C.S. Neuberger & Partners LLP   Having defended well over 1000 sexual assault cases, a considerable percentage have involved alleged sexual assaults when both parties have been drinking or under the influence of a drug.  The thrust of the prosecution case is that as a result of the complainant’s level of intoxication, she or he lacked the capacity to consent to sex. Often during cross-examination the complainant alleges that “he knew I was drunk, and I couldn’t’ consent”.  The legal error with this is that the law is very clear and well established that a…

Recreational cannabis will pose new challenges for law enforcement

The legalization of recreational cannabis in Canada has raised various questions about how law enforcement will deal with a likely increase in impaired driving charges. If we want to know what the future might have in store,, we can look at the State of Colorado which legalized recreational marijuana approximately four years ago. In Colorado, the rate of impaired driving under the influence of cannabis has dramatically increased. In fact, since legalization more than 20% of drivers involved in fatal traffic accidents tested positive for cannabis. [i] When more than 150,000 cannabis users in Colorado were surveyed, almost 70% admitted…

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