Category: Sexual Assault

By Joseph A. Neuberger Neuberger & Partners LLP Criminal Defence Lawyers In a recent decision from the Ontario Superior Court, Justice Copeland rejected a Crown appeal of an acquittal based on grounds that the trial judge had relied on stereotypes and myths about sexual assault. In the case of R. v. Solomon, 2020 ONSC 2640 the Crown unsuccessfully argued that the trial judge misapplied the law of consent and employed...
Continue reading Complainants In Sexual Assault Trials Are Not To Be Granted “Better Footing” Than Any Other Witness or Complainant...

By Joseph A. Neuberger,* Neuberger & Partners LLP Criminal Defence Lawyers and Diana Davison**   On June 3, 2020, the Ontario Court of Appeal ruled that section 33.1 of the Criminal Code was unconstitutional for barring self-induced extreme intoxication as a defence in crimes of violence including those that involve bodily harm, death or sexual assault. Public outrage was quickly generated based on misinformation about what this decision means and...
Continue reading Regina v. Sullivan, 2020 ONCA 333 – Misinformation is Fueling Outrage about the Defence of Intoxication...

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...

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 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 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....

Joseph A. Neuberger Neuberger & Partners LLP www.nrlawyers.com If you have been charged with sexual assault, it is of the utmost importance that you and your lawyer lay out a coherent defence theory and obtain all necessary evidence to marshal your defence.  This will often include details of the complainant’s sexual history as it relates to your defence and to issues that are relevant in the evidence of the complainant. ...
Continue reading How the Recent Changes to the Criminal Code May Affect Your Sexual Assault Trial...

By Joseph A. Neuberger Neuberger & Partners LLP www.nrlawyers.com Growing public and media attention on the way sexual assault trials are conducted has increased the scrutiny upon defence lawyers and how these trials are conducted, with a focus on the way a complainant experiences the trial process. Since new legislation was passed in Canada, by Bill C-51 in December 2018, there are new rules governing evidence and the cross-examination of...
Continue reading An Attack on the Right to Make Full Answer and Defence in Sexual Assault Trials...

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...
Continue reading 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...