Category: Sexual Assault

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 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...

If there was ever an area in which Canada should follow the lead of the US it is on the issue of restoring due process to university sexual assault investigations.. Over the past few years, due process in university tribunals has been degraded in both countries. Many well-meaning efforts to improve outcomes for the victims of such crimes have resulted in the erosion of the rights of the accused. So...
Continue reading Canada Should Learn From the Mistakes in US University Tribunals...

While social media and other online forums have expanded the ways we can communicate with others the same technology also has a dark side. The possibility for anonymity on the internet has allowed many to abuse this power by making anonymous accusations against named individuals while denying the accused an ability to defend themselves. A popular form of mass sexual assault allegations called  “shitlists” - often targetting specific industries or...
Continue reading Anonymous Accusations Violate the Rights of an Accused...

When Bill C-51 was passed by Parliament in December 2018 it changed rules of evidence in sexual assault trials. The most egregious changes for the accused is that all records in their possession and which they may wish to use at trial now have to be disclosed in advance, with the complainant having access to those documents. Additionally, if the accused successfully obtains a ruling for disclosure of third party...
Continue reading Prosecutor Seeks to Withhold Crucial Records from Defence...

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...