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In 2017, public outrage erupted over the sexual assault acquittal of a Halifax taxi driver after the media headlines denounced the judge for saying “clearly, a drunk can consent.” The Nova Scotia Court of Appeal confirmed that Justice Lenehan was correct in law, though his wording could have been better chosen, but the public continues to believe that the judge was wrong.   When the Nova Scotia Court of Appeal...
Continue reading The Palpable Misinterpretation of the Law of Capacity to Consent...

While significant changes have been made to address stereotypes about women in our legal system, stereotypes about men continue to proliferate. The concept of “toxic masculinity” has grown in popularity with academics and the media but has no place in a court of law.   In a June 2019 decision, R v Cepic, the Ontario Court of Appeal ordered a retrial after the judge used myths about how men and...
Continue reading Rooting out Stereotypes about Men in our Legal System...

Joseph A. Neuberger Neuberger & Partners LLP With the increase in prosecutions of sexual assault accusations and recent changes to the rules of evidence at trial it is more important than ever to have legal counsel with experience and extensive knowledge in this area of law.   I have defended numerous cases hinging on a complainant’s capacity to consent at the time of the alleged encounter.  Despite common misperceptions about...
Continue reading Capacity to Consent in Sexual Assault Cases...

Joseph A. Neuberger Neuberger & Partners LLP Criminal Defence Lawyers Toronto Airbnb Hidden Camera Case Demonstrates Once Again That Police Cannot Search a Residence without a Warrant. A person’s action or suspected actions does not give the right to police to search and seize property without a warrant in a residence. This was demonstrated once again in a recent Toronto case in which Airbnb owner, Michael Chow was charged with...
Continue reading Finally, Some Respect for Charter Rights...

Joseph A. Neuberger Neuberger & Partners LLP A Bill to re-educate judges on sexual assault trials has been brought back to parliament after failing to be passed by the Senate in 2017. Rona Ambrose had introduced Bill C-337 in the wake of a scandal which resulted in a former judge being removed from the bench after making what were deemed to be inappropriate comments during a sexual assault trial. After...
Continue reading Education of Judges on Sexual Assault Trials -“Education in Secret a Risk to Fair Trials”...

By Joseph A. Neuberger Neuberger & Partners LLP A year after parliament’s new rules of evidence for sexual assault trials came into effect judges continue to disagree on how to uphold the constitutional rights of the accused. Until recently, the new legislation has been interpreted to require advance disclosure of defence evidence in a manner which would allow complainants to both know how they would be cross-examined and give them...
Continue reading The Continued Impact of Bill C-51 and the Ensuing Chaos in Sexual Assault Trials....

Joseph A. Neuberger Neuberger & Partners LLP Criminal Defence Lawyers www.nrlawyers.com Recent changes to the bail hearing provisions in the Criminal Code of Canada, for those accused of domestic violence, including assault and sexual assault, the government has created a reverse onus for anyone with a previous, related conviction.  With the passing of Bill C-75, the presumption of innocence has taken a back seat in order to address concerns from...
Continue reading The Presumption of Guilt in Bail Hearings....

Joseph A. Neuberger Neuberger & Partners LLP Criminal Defence Lawyers The justice system depends upon public faith to give it legitimacy and that faith must remain intact for both the complainants of crime and the accused. Not only should complainants expect to have their grievances properly heard, an accused must have access to a fair and impartial hearing with procedural and evidentiary protections to ensure a fair trial. In recent...
Continue reading Attack on the Rules of Evidence in Sexual Assault Cases....

By Joseph Neuberger Neuberger & Partners Criminal Defence Lawyers Preliminary hearings have played an important role in the justice system ever since the Criminal Code of Canada was introduced in 1892. As a result of these hearings, many cases have been granted “stays” of proceedings – meaning that they did not proceed to trial, or charges withdrawn as the Crown often re-assesses reasonable prospect of conviction.  The Crown always has...
Continue reading Important Strategy to Deal with the Loss of the Preliminary Hearing...

Joseph Neuberger, Neuberger & Partners LLP Criminal Defence Lawyers As an adjunct to a previous short piece I penned on Bill C-75, I believe it is important to note another significant blow to our rights in Canada. Among many changes brought in under Bill C-75, the Liberal government also struck a direct blow to the right on an accused person to pick an impartial jury in a criminal trial. In...
Continue reading Death of Picking an Impartial Jury...