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 Category: Sexual Assault

Category: Sexual Assault

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 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.…

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…

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…

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…


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…

Sexual Assault Allegations and the Presumption of Innocence

Any criminal allegation must be proven in a court of law beyond a reasonable doubt. All persons accused of an offence are innocent until proven guilty. That is the presumption of innocence. A sacrosanct principle that is crucial to any legitimate criminal justice system - the fundamental requirement of fairness. However, the mere statement of a complaintant can and often does result in the laying of charges. In a trial, oral evidence of a complaintant is sufficient to establish guilt beyond a reasonable doubt without any other evidence to support the allegation. Unfortunately the stigma and repercussions resulting from a…

Sexual assault in Ontario: Understanding the age of consent

The age of consent for having sex is an often debated issue. It is an important question to have answered, however, since it can be the difference between something completely permissible or sexual assault, if one of the individuals in question is still at a young age. For instance, what happens when a 15-year-old female and a 21-year-old male have sex? In a particular case that involved the Ontario Court of Appeals, it was determined that the female initiated the sexual encounter, even though the age of consent in Ontario is 16. During the initial trial, the male was actually…

New evidence presented in Toronto police sexual assault trial

Sexual assault trials are high-stakes affairs for those on both sides of the allegation. These cases are notoriously complex, especially when substance use is involved. This week, the defence for Toronto police officers accused of sexual assault produced video evidence that raised questions for jurors and the general public alike. During closing arguments, the defence showed a video of an intoxicated man being led into a hotel by his friend. The man, who is one of the accused in the case, was barely able to stand. Further video evidence showed the alleged victim leaving the hotel upright with no apparent issues. The…

Teacher facing multiple sexual assault accusations from students

To work in a profession that requires one to be in a position of trust can be both a blessing and a curse. The public generally holds such people in high regard; doctors, police officers, teachers and others have respect in their communities. They are also held to a higher standard than most other professionals. When allegations of misconduct circulate, public reaction can be swift and strong, even before a conviction. An Ontario teacher facing charges of sexual assault likely knows all this first hand. Peel Regional Police arrested a Brampton high school teacher on June 6. The teacher is accused of having…

Toronto Uber driver accused of sexual assault by young passenger

The dynamic of a taxi is a unique one: one driver transporting perhaps only one passenger, a complete stranger, to another destination in the driver's car. It is impossible for anyone other than the occupants of the vehicle to know exactly what transpires through the duration of the trip. An accusation of criminal wrongdoing may be merely a case of "he said, she said" and yet can cause a major legal problem for the accused individual. A Toronto Uber driver is wrestling with that very problem after his arrest for sexual assault. The alleged incident reportedly occurred on Jan. 27. A 15-year-old…


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