Death of Due Process and Limits to Full Answer and Defence

Death of Due Process and Limits to Full Answer and Defence

On behalf of Neuberger & Partners LLP posted in Criminal Defence on Wednesday October 09, 2019.

Joseph Neuberger, Neuberger & Partners LLP

Criminal Defence Lawyers


Effective September 19, 2019, the Liberal government struck a blow to due process in the name of political correctness.  Recent amendments to the Criminal Code as amended by Bill C-75 have eliminated preliminary hearings for any offence with a maximum penalty under 14 years of imprisonment.  The government professed that this was to modernize the criminal justice system and to speed up cases due the Supreme Court of Canada’s decision in Regina v. Jordan.  However, continued reading of the debates clearly show that the main impetus was to spare “victims” of sexual assaults from having to testify more than once. In fact, the language used is “re-victimization of victims”.

This language presupposes guilt.  A victim is only a “victim” once a court has decided guilt of the accused beyond a reasonable doubt. It seems the federal government believes that any complaint is true, and the person charged is guilty prior to trial.  This is very dangerous language in a democratic society.  According to this government, any person accused of sexual assault or domestic assault is guilty.  Shame on the government for throwing away due process and enacting amendments that can and will lead to wrongful convictions.

A preliminary hearing is to protect the accused from needless expenses and exposure, where the evidence justifying the criminal charges is not present. In addition, when used efficiently an accused has the right to call witnesses at a preliminary hearing especially when the investigation by police has been wanting.  This is a very powerful mechanism to shed light on the truth and to protect persons from being convicted where the evidence of guilt is absent.

Many if not all criminal defence lawyers have used preliminary hearings effectively in sexual and domestic assault cases. I have called witnesses when police failed to take proper statements and these witnesses exposed that the complainant intentionally fabricated the charges.

Now, an accused must go directly to trial and have no preliminary hearing that would have significantly benefited the truth-seeking principle in the criminal justice process.

In addition, Bill C-75 has expanded the jurisdiction of the provincial courts to offences punishable up to two years less a day. We can be sure that in many instances when a case would previously proceed by Indictment and an accused could be tried by a judge and jury,  Crowns Attorney’s will elect summary conviction and an accused in serious criminal cases will no longer have the right to a trial before a jury of his or her peers.

It seems that political correctness has given way to the slashing of rights in this country and anyone accused of offences punishable under 14 years of jail must now be very vigilant to ensure that their rights are protected as much as possible because the loss of the preliminary hearing is not only a sad day for due process but a blow to ensuring that people are not unfairly subjected to trials on criminal allegations that have no merit.

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Toronto, ON M6C 2E4
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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