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Joseph A. Neuberger, Neuberger & Partners LLP Criminal Lawyers Toronto   In a March 3, 2021 Ontario Court of Appeal decision, Justice Paciocco addressed the growing complexity in defining what comprises a stereotype in sexual assault trials. R. v. J.C., 2021 ONCA 131 offered a number of opportunities to examine how the accused are being blocked from adducing properly relevant evidence. The first issue of stereotypes arose in relation to...
Continue reading The Role of “Common Sense” in Sexual Assault Trials...

Neuberger & Partners LLP Criminal Lawyers   In the 1990s, the news media couldn’t get enough of New York mobster John Gotti and how he always seemed to “beat the rap”. As a result of his successes at trial, he was dubbed the Teflon Don and was consistently on the cover of various magazines and newspapers. Our society’s love affair with the Italian mafia has no doubt been influenced by...
Continue reading Justice must be seen to be done: Breach of Solicitor and Client Privilege in Wiretap Cases...

Joseph A. Neuberger, Neuberger & Partners LLP Criminal Lawyers   In a recent BC sexual assault appeal, R. v. N.P., 2021 BCCA 25, the Crown conceded that a retrial was warranted after the trial judge improperly used prior consistent statements to corroborate the complainant's testimony. The Court of Appeal issued their decision, elaborating on how "narrative as circumstantial evidence" should be properly used at trial. This exception may form an...
Continue reading The Risks of “Narrative as Circumstantial Evidence”...

Joseph A. Neuberger, Neuberger & Partners LLP Criminal Lawyer   Two similar, though not identical, Crown appeals of sexual assault acquittals were heard in the Nova Scotia and Alberta Courts of Appeal in January 2021 with two very different outcomes. In R. v. Nelson, 2021 NSCA 11, the Crown unsuccessfully argued that "the trial judge erred in law by making findings of fact which were not supported by the evidence...
Continue reading A Tale of Two Crown Appeals...

Since the beginning of 2020, the new prostitution laws under section 286 of the Criminal Code of Canada have been on constitutionally shaky grounds in Ontario. On February 21, 2020, in the case of R. v. Anwar, 2020 ONCJ 103, Justice McKay found almost all the sections of 286 unconstitutional and not saved under section 1 of the Charter. The accused in that case were not charged under section 286.1...
Continue reading The Meaning of “Control” in Prostitution...

Joseph A. Neuberger Neuberger & Partners LLP Criminal Defence Lawyers In a number of recent sexual assault cases, trial judges have been asked to find an accused guilty based on his own evidence. The Crown argument has been that, by the accused’s own testimony, they failed to take reasonable steps to obtain affirmative consent prior to engaging in a sexual act. In R. v. M.F., 2020 ONSC 5061 Justice Varpio...
Continue reading Reasonable Steps and Sexual Consent...

Joseph A. Neuberger Neuberger & Partners LLP Criminal Defence Lawyers   Throughout October, November and December 2020, the Supreme Court of Canada heard appeals in ten different cases involving sexual assault appeals. In seven of those cases the appeal was granted or dismissed after only a short recess. In all seven rulings from the bench, the Supreme Court found in favour of the Crown and confirmed or restored the convictions....
Continue reading Supreme Court Rulings from The Bench...

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...