Capacity to Consent in Sexual Assault Cases

Capacity to Consent in Sexual Assault Cases

On behalf of Neuberger & Partners LLP posted in Sexual Assault on Tuesday February 25, 2020.

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 how intoxicated a person can be while still capable of giving legal consent, the law remains clear – an intoxicated consent is still consent.  The person must have an operating mind, but the cognitive threshold is not high.  I have successfully defended numerous clients, proving that they obtained meaningful consent in cases where alcohol is claimed to have vitiated the ability of the complainant to engage in sexual activity.


I have contributed to the body of case law, establishing the markers for capacity which recognize that disinhibited behaviour does not negate consent or make sexual interactions criminal.


The recent high profile case of R v Al-Rawi drew public criticism and protests when the judge properly stated that “a drunk can consent” but the court of appeal confirmed that the trial judge was correct in law on that point.


The public outrage regarding sexual activity during periods of intoxication is based on misinformed campaigns which rob complainants of their agency and deny their ability to make informed conscious choices, despite evidence of their legal capacity to consent. These public campaigns are causing needless suffering for the accused and for complainants who are encouraged to report in cases which have no prospect of success in court.


My clients have benefitted from our firm’s extensive knowledge and experience in capacity cases, showing that complainants factually had the requisite operating mind to consent. Resolving these cases prior to trial where possible spares both the accused and the complainant from the burden of testifying in cases that should not proceed to court.


With the recent elimination of preliminary hearings, it is important to have a defence lawyer who can skillfully work with the available facts to ensure the best outcome for all participants in the justice system.


Though public pressure has pushed more of these cases to trial, my firm remains a leading defence firm for sexual assault accusations; ensuring that our clients are protected by the existing laws, receiving fair treatment and just verdicts.

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1392 Eglinton Avenue West
Toronto, ON M6C 2E4
Fax (416) 364-3271


On behalf of Neuberger & Partners LLP posted in COVID-19 on Tuesday March 17, 2020.

At Neuberger and Partners, we are monitoring the COVID-19 situation and have implemented safety measures to ensure the safety of our clients and staff. Our priority is and always will be the health, well-being and safety of our staff, clients and colleagues.

We have put in place various measures to prevent and minimize the impact of COVID-19:

  • In addition to standard hand-washing habits, our staff are washing hands before and after every client interaction;
  • All individuals entering our office will be required to use our hand sanitizer to ensure the safety of our other clients and staff;
  • Regular disinfecting of our offices, public areas, meeting rooms and board rooms as well as increasing the frequency of disinfection of higher-traffic surface areas;
  • If a lawyer or client who has a scheduled meeting is feeling unwell, they will be strongly encouraged to stay home;
  • For the time being, we will avoid greeting clients and colleagues with our usual handshakes;
  • We will make every effort to ensure our firm will be stocked up with extra tissue and alcohol-based hand sanitizer; and
  • We will monitor and stay informed from the Government of Canada and World Health Organization for facts as they become available. We will ensure all staff and team members are educated on symptoms and are well informed on prevention and best practices.

Frequently Asked Questions:

Will the firm still run if there are closures?

  • We are committed to assisting our clients. We remain open to assist our clients at this time (following aforementioned standards for health and safety). For clients who wish to communicate with our firm virtually, we have the technology for virtual meetings and are able to respond to the needs of our clients in a manner best to protect our staff and clients’ health.

Are staff and lawyers set up to work virtually?

  • All lawyers and staff are set up to work virtually and continue to assist clients and one another remotely. All lawyers are available via telephone, email and virtual video conferencing.

What is the court situation? How will we deal with court closures?

  • At this time, the Superior Court of Justice is closed from March 17, 2020 to June 1, 2020 – unless a judge orders otherwise.
    If you have a March matter, your matter will be postponed to June 2, 2020.
    April matters will be postponed to June 3, 2020 and May matters will be pushed to June 4, 2020.
  • Similarly, the Ontario Court of Justice will be closed for 10 weeks for all out of custody matters in criminal practice court. In custody matters will still be addressed. It is unclear if out of custody matters such as trials or preliminary hearings will continue since the courts have left this decision to the discretion of the judges. However, Bail courts will remain open for the time being.
  • The Court of Appeal for Ontario has suspended all scheduled appeals until April 3, 2020. But we are still able to file materials and apply for urgent appeals to be heard.
  • We will advise clients by email of their next Court date.

How can payments be made?

  • Payments can be made via e-transfer and visa payments can be made over the phone.

If I have to deliver something to my lawyer, how shall I go about it?

  • For clients who wish to drop off documents but do not wish to come in contact with any one at the firm, you are encouraged to drop them off in our mail slot in front of our office.

We will be open and available for any questions, comments or concerns. Please call (416) 364-3111 for any further information.

Stay safe and healthy,

Joseph Neuberger