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New trial ordered for father in alleged sex abuse over judge’s treatment of factual error

This article first appeared in the Lawyer’s Daily.
An Ontario father will be retried for alleged sexual offences against his daughter after the Court of Appeal ruled a trial judge misapprehended evidence concerning his previous criminal record.
According to the ruling in R v. W.M. 2020 ONCA 236, a trial judge originally sentenced the appellant to four years imprisonment after convicting him of sexual interference and sexual assault of his then-4-year-old daughter in 2015.
The trial judge admitted similar fact evidence of sexual assault offences against young children the appellant pleaded guilty to in 1998, but misstated the date of his sexual offender treatment as 2008, when he had completed the course in 2000.
Writing for the 2-1 majority on the Appeal Court panel, Chief Justice George Strathy found the factual error affected the trial judge’s assessment of both the accused’s propensity to offend in 2015, and the weight he gave the similar fact evidence, meeting the “stringent standard” for determining whether a misapprehension of evidence led to a miscarriage of justice.
“In the present case, the similar fact evidence played a significant role in the conviction, as did the trial judge’s discounting of the appellant’s evidence concerning the effect of the sexual offender treatment. The misapprehension of the evidence was material and played an essential part in the trial judge’s reasoning process,” Justice Strathy wrote in the March 24 judgment, allowing the appeal and ordering a new trial.
After representing W.M. at trial, Brampton, Ont. criminal lawyer Jack McCulligh says he carried out the appeal on a pro bono basis when legal aid officials declined to support the case.
“He’s very happy,” McCulligh said of his client, who remains incarcerated while trying to arrange a surety for bail ahead of a fresh trial.
“So he could be happier,” McCulligh added.
Joseph Neuberger, Neuberger and Partners LLP
“The Court of Appeal had to be strong to overturn the decision, because of the compelling similar fact evidence presented by the prosecution, but I think they arrived at the correct conclusion,” said Joseph Neuberger of Toronto criminal defence firm Neuberger and Partners LLP, who was not involved in the case. “The factual error flowed right through the decision and had a profound effect in driving the trial judge’s reasoning towards conviction.”
According to the ruling, the charges against W.M. related to two alleged incidents in which his young daughter accused him of touching her vagina.
At trial, the judge heard he had previously pleaded guilty in 1998 to sexual assault for touching the vaginas of two girls under the age of 7 – one while he was still a teenager and the other when in his mid-20s.
The appellant testified at trial that he was a “changed man” after the 1998 conviction and was unconcerned about relapse in part due to sex offender treatment he received in 2000 while serving a sentence for a number of unrelated property crimes.
But after misstating the date of the treatment as 2008, the trial judge’s decision noted that it was “implicit” in the appellant’s evidence that he was still in “some need of treatment at that time,” more than a decade after his last offence.
In his majority opinion, Justice Strathy wrote that the factual error led the trial judge to believe that the appellant’s propensity to offend was likely still active in 2015, when the new offences were alleged to have occurred.
“Under the correct timeline, the appellant’s evidence, including his claim of confidence, would have been more credible,” the decision reads.
In addition, the majority of the panel found the error affected the weight given by the trial judge to the similar fact evidence because it interfered with his assessment of the treatment program as an “intervening event” diminishing its probative value.
“As discussed, the trial judge reasoned that the propensity exhibited in the similar fact offences was still a factor in 2015 because of the factual error that the appellant received sexual offender treatment in 2008, only seven years before. This line of reasoning would not have been available on the correct timeline of treatment in 2000,” Justice Strathy concluded.
Aaron Harnett, criminal defence lawyer
Toronto criminal defence lawyer Aaron Harnett was not involved in the case, but frequently represents clients faced with sexual assault allegations, when similar fact evidence involving past offences may come into play.
“It really puts defendants in a terrible position, because they are defending themselves not only against the case that brings them to court, but also against that past behaviour,” he said. “The power and potency of similar fact evidence is so great that judges have to be extremely careful in cases where it plays a significant role in leading to a conviction.”
That’s particularly so in the emotionally heightened context of child sexual abuse allegations, Harnett added.
“It’s as a result of the recognition of the potential for the distortion of the process that the Court of Appeal showed such caution in sending it back for a new trial,” he said.
In his dissent, Justice Bradley Miller wrote that he would have dismissed the appeal because he did not believe the trial judge’s misapprehension of the evidence had a material impact on his conviction of W.M.
“Nothing turns, in my view, on the fact that the trial judge misstated the year in which the appellant conceded that he still had a propensity towards sexual touching of young girls,” Justice Miller concluded. “Whether it was 2000 or 2008 (as the trial judge misstated), the salient point was that it was a long-held propensity.”
Ontario’s Crown Law Office did not respond to requests for comment, but McCulligh said it has yet to decide whether to appeal to the Supreme Court of Canada.
Justice Miller’s dissenting opinion means the Crown would not require leave to appeal to the nation’s top court, but Harnett said he would be surprised if it will take up the option of an automatic hearing.
“The Crown will have another opportunity to prove its case in any event at the new trial,” he explained.

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Proposed law on roadside breath tests may be unconstitutional

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Preliminary hearing vital component of justice system

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Pot dispensaries the product of gov't missed messaging

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Planned speech by Ghomeshi's lawyer to four universities sparks debate

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OCA ruling on sexual assault case is fair and just: Neuberger

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No charges for Sen. Pamela Wallin an apt outcome after Duffy trial

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New sex assault laws will curb, vet cross-examination: Neuberger

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New evidence presented in Toronto police sexual assault trial

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Neuberger urges police discretion in period of marijuana transition

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Neuberger to share insights on trial preparation at LSUC event

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Neuberger to co-host live radio call-in show on legal issues

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Man sentenced to house arrest for domestic assault

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Law should be decided upon the act itself, not the consequences

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'Knee-jerk reaction' to any specific case is wrong

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Justice system designed to release offenders back into society

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Judicial Council facing difficult decision about judge

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Judge's criticism of legal aid a 'brave statement'

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Judge's comments must not impact right to fair trial

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Judge correct in striking down mandatory minimum: Neuberger

A judge made the right decision in striking down a mandatory minimum sentence of one year in jail for a man convicted of sexual interference of a minor, says Toronto criminal lawyer Joseph NeubergerRead More.

Impaired driving alleged in crash that killed two

By Joseph Neuberger Recovering from a serious car accident can be a difficult process. Knowing that accident claimed the lives of two others would make it beyond painful. Sadly, that's the situation for a man accused of impaired driving after an accident north of Toronto this past summer. Read More.

Joseph Neuberger hits the ground running as TLA president

Criminal lawyer Joseph Neuberger begins his term today as president of the Toronto Lawyers Association with a mandate to tackle two ongoing issues – access to justice and maintaining proper funding for Legal Aid Ontario. Neuberger, senior partner with Neuberger and Partners LLP and certified specialist in criminal law, is moving into the president’s seat after serving for the past year as TLA vice-president. Neuberger joined the association board as a trustee in 2004 and has been on the executive since 2009, previously serving as secretary and treasurer.  Read More.

Health ministry 'owes us a duty of care:' Neuberger

In cases where effective medical technology exists but isn’t being used in Ontario because of funding shortages and lack of training for medical staff, citizens may have the ability to take legal action, Toronto criminal lawyer Joseph Neuberger tells AM 640. He weighs in on the issue after the mayor of Trent Hills went to Germany to undergo a medical procedure to treat a cancerous tumour in his pancreas. Hector Macmillan is outspoken about what he says is a surgery that Ontario wouldn’t provide him, forcing him to seek medical attention in another country, reports the Toronto Sun.    Read More

Ghomeshi outcome 'appropriate'

Resolving an allegation of sexual assault against Jian Ghomeshi through a peace bond falls in line with how such a tool is commonly used in the justice system, Toronto criminal lawyer Joseph Neuberger tells Zoomer Radio. CBC's The National “I believe this is the most appropriate resolution,” he says. Neuberger, partner at Neuberger & Partners LLP, says a peace bond resolution can signal that the Crown felt it didn’t have sufficient evidence to proceed or that it wasn’t in the public’s — or the complainant’s — interest to proceed with the trial. Read More.

Fraud incidents in Ontario becoming more prevalent

By Joseph Neuberger There is a new law on the books that makes it illegal to sell anything related to utilities by going door to door. The Consumer Protection Act in Ontario was recently amended to clearly state that things like air conditioning, water treatment units, purifiers, duct cleaning, furnaces and the like can't be peddled by knocking on someone's door. Some people have been scammed by fraud associated with these types of sales. The best thing for people to do, according to the authorities, is to shut the door. Read More.

Former chief justice right on sexual assault cases

The Supreme Court of Canada’s former chief justice Beverley McLachlin was right to stress the rights of accused to a fair trial in sexual assault cases during a recent speech, Toronto criminal lawyer Joseph Neuberger tells AdvocateDaily.com. The Globe and Mail reports that McLachlin used her acceptance speech for the Criminal Lawyers’ Association’s G. Arthur Martin Criminal Justice Medal for lifetime achievement to say that complainants in sexual assault cases have a right to be treated with dignity. Read More

Joseph Neuberger: Family law matters jumping to criminal courts

For the third time within recent weeks Toronto defence lawyer Joseph Neuberger has had criminal allegations that arose in family court dismissed against his clients. But, while he achieved favourable results for his clients, Neuberger says he’s concerned by what he thinks is a trend of false allegations made in family matters jumping to the criminal courts to be used as leverage in the prior proceedings. Read More.

False domestic abuse allegations cause long-standing trauma

Sometimes people falsely accused of domestic abuse never recover from the trauma, says Toronto criminal lawyer Joseph Neuberger. A recent ruling saw a woman sentenced to 60 days in jail for a bogus claim that her ex-spouse choked and tried to rape her in 2015. Her lies resulted in the man spending 19 days in jail before she recanted her claim, reports the National Post. “When you did what you did, you not only hurt (the ex-spouse), you hurt every real victim out there, every real complainant,” Ontario Court Justice Karen Lische told the woman, the Post reported. Read More

Failed breath test won't guarantee impaired driving conviction

By Joseph Neuberger Failing a roadside breath test is a frightening prospect. A conviction for impaired driving may mean a fine, a lost licence, and perhaps other penalties. Those are serious punishments for the average citizen. However, there have been many cases wherein failed tests did not lead to convictions. A recent example happened in Ontario when a woman's case was dismissed for a Charter violation. Read More

Exploding dispensary leads to drug trafficking charge

By Joseph Neuberger The ongoing dispute between citizens and marijuana dispensaries in Toronto shows no sign of abating. While drug trafficking charges have been laid in some cases, these businesses often operate in a legal grey area. A catastrophic event at one Forest Hill dispensary has brought a lot of attention to the neighbourhood, and legal trouble for one man.  Read More

Expansion of ‘rape shield’ law will lead to wrongful convictions: Neuberger

Proposed changes to Canada’s sex assault laws — that would make a complainant’s relevant sexual communications presumptively inadmissible — are a direct attack on an individual’s right to make full answer and defence, says Toronto criminal lawyer Joseph Neuberger. “It will just lead to wrongful convictions,” says Neuberger, founding partner with Neuberger & Partners LLP. Read More

Expansion of ‘rape shield’ law will lead to wrongful convictions: Neuberger

Proposed changes to Canada’s sex assault laws — that would make a complainant’s relevant sexual communications presumptively inadmissible — are a direct attack on an individual’s right to make full answer and defence, says Toronto criminal lawyer Joseph Neuberger. “It will just lead to wrongful convictions,” says Neuberger, founding partner with Neuberger & Partners LLP. this is unconstitutional.”  Read More

Evidence key consideration in historical sex assault cases

Sexual assault cases that date back several decades are often difficult to try unless the evidence presented has unique and distinctive features that make it more capable of reaching a threshold of proof beyond a reasonable doubt, Toronto criminal lawyer Joseph Neuberger tells host Tasha Kheiriddin on AM 640.   Read More

Duffy verdict may impact cases against other senators

A judge’s finding of not guilty for Sen. Mike Duffy on 31 criminal charges will likely have a large effect on cases against other senators who are being investigated for expense-related issues, Toronto criminal lawyer Joseph Neuberger tells CBC’s The National. He says the investigators and the prosecutors "will now have to carefully scrutinize the facts they are building their case on because they know there is a judicial standard, a statement now made, that the rules and policies in place are non-specific and do not give good guidance.  Read More

Dozens of criminal charges laid after seizure of guns and drugs

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Domestic violence and psychedelic drugs

By Joseph Neuberger In our last post we wrote about the existence of a domestic violence court in the province of Ontario. The court is used in cases where the individuals involved in the alleged activity share an intimate relationship. At the end of the process, if the accused is found guilty, it is possible he or she could face serious consequences. But what if the focus was instead on the prevention of domestic violence? Read More

Court's new practice direction a response to Jordan concerns

A new practice direction from the Ontario Superior Court of Justice that proposes to enhance the “timeliness, appropriate scheduling and trial readiness” of criminal proceedings is an attempt to address the ramifications of the R. v. Jordan decision — and other provinces will likely follow suit, Toronto criminal lawyer Joseph Neuberger tells The Lawyer’s Daily.    Read More

Courts need stronger role in ensuring offender safety in prison.

A convicted child pornographer’s bid for a stay of conviction as a result of suffering abuse in prison may not go very far, but it does raise the broader issue of how to ensure the safety of offenders in jails, Toronto criminal lawyer Joseph Neuberger tells The John Oakley Show on Talk Radio AM 640.    Read More

Court rules suspicion of impaired driving grounds for breath test.

By Joseph Neuberger There are many instances in which a police officer must rely on his or her instincts. However, there are limits to what an officer may demand of a citizen, regardless of what those instincts may be saying. In a recent court case, an Ontario man argued his rights were violated when an officer ordered him to take a breath test, despite an absence of any visible signs of impaired driving.  Read More

Cognitive functioning key in 'incapacity to consent' cases: Neuberger.

A Superior Court judge has found a man not guilty of sexual assault after criminal lawyers Joseph Neuberger and Stacey Nichols extensively cross-examined all Crown witnesses during a five-day trial. “When dealing with sexual assault cases where the Crown alleges ‘incapacity to consent’ it is extremely important to focus on the surrounding evidence and to understand cognitive functioning, and that consent to intimate contact requires a minimal level of cognitive functioning,” Neuberger tells AdvocateDaily.com.    Read More

Civil suit connected to Meng's extradition strategy: Neuberger.

A notice of civil claim filed by Huawei executive Meng Wanzhou alleging serious violations of her constitutional rights is “an oblique attack on the extradition process” she is facing, Toronto criminal lawyer Joseph Neuberger tells 900CHML Radio.   Read More

Billiards with the Bar supports a food program for the needy.

Toronto criminal lawyer Joseph Neuberger is urging his colleagues to come out for an evening of billiards and fun in support of a vital food program that may be the victim of its own success. The third annual Billiards with the Bar fundraiser, held at the famed Rivoli nightspot, is aiming to double the $12,700 it raised last year for the Toronto Lawyers Feed the Hungry Program. “It’s a great opportunity for us to give back to the community,” says Neuberger, senior partner with Neuberger & Partners LLP.Read More

Billiards with the Bar fundraiser: lawyers helping those in need.

Serving more than 60,000 meals each year to people in need, the Toronto Lawyers Feed the Hungry Program is putting out a call for help to the legal community, says Toronto criminal lawyer Joseph Neuberger.  Read More.

Bill C-51 — evidence in sexual assault cases

By Joseph Neuberger We have seen a significant shift in the criminal justice system over the past two years that has and will continue to erode the ability of an individual's right to make full answer and defence to allegations of sexual assault. The most controversial changes as proposed by Bill C-51 is to automatically exclude relevant evidence in the possession of the accused. Text messages, emails, pictures, video recordings, even thank you cards, that have any content related in any way to "sex" with the complainant will be presumptively inadmissible even though it involves the actual subject matter of the alleged sexual assault. legislation. Read More

As crime rate decreases, charges for illegal substances rise.

By Joseph Neuberger As the Canadian government seeks to change laws surrounding marijuana usage, statistics show that police officers are increasingly cracking down on pot and other drugs. The police-reported crime rate in Canada has been on steady decline since its peak in 1991. However, Statistics Canada reports that police-reported charges related to illegal substances have been on the rise during this period. Read More

Are you facing a misconduct claim as a real estate professional?

By Joseph Neuberger If you are a real estate professional in Ontario, society will hold you to a high standard of professional conduct. Your investment into qualifying for and practising your profession can be in jeopardy in the event of allegations of misconduct. If you do not handle such charges appropriately, damage to your reputation might have long-term consequences. Read More

Appeal court confirms implied violence can lead to weapons ban.

As a recent Ontario Court of Appeal decision in a break and enter case confirms, implicit threats of violence can be enough to meet the criteria for a weapons prohibition under the Criminal Code, Toronto criminal lawyer Joseph Neuberger tells Lawyers Weekly. Read More

Alleged car theft results in drug charges.

There are a variety of situations that could lead to someone being arrested for committing an alleged crime. Recently we wrote about drug charges that were laid after a sweep was conducted in Toronto. While that is one way in which charges could arise, it is not the only one. Other times tips from other citizens could prompt police to take action. The recent arrest of three individuals in Toronto provides a good example of this. Read More

A 13-year-old cannot be tried as an adult for murder.

It’s rare — though not unheard of — for a serious charge such as first-degree murder to be laid against a 13-year-old, Toronto criminal lawyer Joseph Neuberger tells Global News. Read More

Sentencing hearing for ‘chair girl’ adjourned before it got started.

Marcella Zoia denies that she posted the infamous video of her throwing the chair to social media, but the crown says she did. Catherine McDonald has more. Learn More. (https://globalnews.ca)

Great volunteers help cue up Billiards with the Bar fundraiser.

Everyone is invited to enjoy a relaxing evening of pool, music, and great food as Neuberger & Partners LLPHull & Hull LLP, and the Toronto Lawyers Association host the annual Billiards With the Bar fundraiser on Nov. 14, says Toronto criminal lawyer Joseph Neuberger. Read More

Difficult legal road to prove Minassian not criminally responsible.

Proving mass murder suspect Alek Minassian was not criminally responsible due to a mental disorder will be a tough legal challenge, says a leading Toronto defence lawyer. Joseph Neuberger is also a member of the Ontario Review Board which oversees 1500 people who have been found either unfit to stand trial or suffering from a disease of the mind that rendered them incapable of knowing the crime they were committing was morally and legally wrong. Read More (https://torontosun.com).

Chalk one up in the fight against hunger.

Neuberger & Partners LLP, Hull & Hull LLP, and the Toronto Lawyers Association will host an annual fundraising event in support of the Lawyers Feed the Hungry program in November. The sixth annual Billiards with the Bar fundraiser will be held Nov. 14 from 6- 10 p.m. at the Rivoli, 334 Queen St. W., 2nd Floor, Toronto, says Toronto criminal lawyer Joseph Neuberger. Read more

Banning of CBD user at U.S. border 'ridiculous': Neuberger.

Canadians must heed warnings that even though marijuana products are legal in many states, taking them across the U.S. border is not, says Toronto criminal lawyer Joseph Neuberger. Neuberger, a partner with Neuberger & Partners LLP, says the case of a British Columbia woman who is facing a lifetime ban from the U.S. after carrying medicinal CBD (cannabidiol) oil into Washington state is a perfect example. Read more

New "Ghomeshi Rules" will turn our courts into a circus

As Canadian judges struggle with the new so-called "Ghomeshi Rules" in accusations of sexual assault, many innocent men may go to prison. Former CBC radio host Jian Ghomeshi was acquitted of sexual assault in a sensational, high profile trial back in 2016. Each of the complainants were deemed by Judge Horkins in that case to have "breached her oath to tell the truth" and even the media, who were mostly salivating for a conviction, had to admit that Ghomeshi should not have been convicted. Read More (www.thepostmillennial.com).

SCC dissenting voices speak volumes in sexual assault case.

It's significant that the Supreme Court of Canada (SCC) found a trial judge erred in not allowing a line of questioning surrounding the pregnancy of the complainant in a sexual assault case, says Toronto criminal lawyer Joseph Neuberger. Read more

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.

Identification evidence is all about reliability: Neuberger

Juries must be very careful when assessing the reliability of eyewitness evidence, as there is a very good chance it is incorrect, says Toronto criminal lawyer Joseph Neuberger. Read More.

Rape shield amendments interfere with access to justice

A recent case illustrates how amendments to the rape shield provisions of the Criminal Code have "thrown criminal litigation into insane disarray," says Toronto criminal lawyer Joseph Neuberger. Read more

Troubling legislation results from 'knee-jerk' reactions

Hashtag activism and the government's reaction to it have led to bad law, particularly the elimination of peremptory jury challenges, the reduction in preliminary inquiries, and the curtailing of defence rights in sexual assault trials, Toronto criminal lawyer Joseph Neuberger tells. Read More.

Joseph Neuberger's media roundup

Toronto criminal lawyer Joseph Neuberger is frequently called upon by the media to be a trusted source for their news stories, particularly for his focus on criminal law matters. Here is the most recent list: Read more

SCC hearing provides hope on relationship evidence.

Toronto criminal lawyer Joseph Neuberger says he is encouraged by a Supreme Court of Canada (SCC) hearing on the admissibility of relationship evidence in cases of sexual assault. Read more 

Are police violating your rights by testing for sobriety without cause?

"The argument that you haven't done anything wrong so you should have nothing to hide, does that mean police shouldn't need search warrants to search our homes and our computers?" Neuberger said. Read more (The Globe And Mail).

Canada is using online outrage to make dangerous changes to the criminal code.

Almost a year ago, Prime Minister Trudeau and his Minister of Justice took to Twitter to undermine the Canadian public's faith in our own legal system. Read more (The Post Millennial).

Latest drinking and driving legislation 'unfathomable:' Neuberger

"Troubling" legislation that allows police to demand a breath sample two hours after a driver has parked their car will eventually be contested at the Supreme Court, predicts Toronto criminal lawyer Joseph Neuberger, whose firm is often retained to run constitutional challenges. Read more

New law may jail innocent people.

Youtube Link Some laws passed by our government are enacted in ways that are later deemed to be unconstitutional. It happens. And it usually takes years before a successful challenge makes it all the way to Supreme Court to be overturned. Read More(The Post Millennial).

Fight against Bill C-51 just beginning: Neuberger

The legal profession will rise up to challenge the constitutionality of the federal government's proposed Bill C-51 once it becomes law, says Toronto criminal defence lawyer Joseph Neuberger. Read more

Power to demand breath samples strips civil liberties: Neuberger.

Giving police the power to demand a mandatory breath sample from any driver they lawfully stop is an "unnecessary" erosion of civil liberties that will clog the courts with challenges for years, Toronto criminal lawyer Joseph Neuberger tells Global News Radio. Read more

Scrutiny heightens on NCR findings

Two high-profile criminal proceedings in Toronto have again put a spotlight on the issue of defendants who are found not criminally responsible as a result of mental illness and what needs to be shown before this finding is accepted. Read more (Law Times)

Neuberger urges police discretion in period of marijuana transition.

Police should use discretion with members of the public as they become accustomed to new laws surrounding marijuana possession, Toronto criminal lawyer Joseph Neuberger writes in The Lawyer's Daily. Read more 

Will cannabis criminal records be expunged after legalization?

Before Oct. 16, 2018, an adult possessing 30 grams of cannabis is breaking the law. If convicted of possession, that person will have a criminal record. On and after Oct. 17, 2018, possessing that cannabis will be perfectly legal. But a person's criminal record for possessing cannabis will remain. Read more

Billiards event chalks up record sum to feed the hungry

The annual Billiards with the Bar charity event celebrated its fifth anniversary in style, pocketing a record sum to feed the hungry, former Toronto Lawyers Association (TLA) president Joseph Neuberger tells AdvocateDaily.com. Read more 

Stay serves setback to cops who delay right to counsel: Neuberger

Police who delay an arrested person's right to counsel have suffered another setback in Ontario Superior Court after Toronto criminal lawyer Joseph Neuberger recently won a stay of charges against a man caught with a backpack full of stolen opioids. Read More

Fifth Billiards with the Bar fundraiser: Lawyers Feed the Hungry marks 20 years

Fun, food and fundraising make for the perfect combination at the annual Billiards with the Bar charity event, former Toronto Lawyers Association (TLA) president Joseph Neuberger tells AdvocateDaily.com. Read More

What to expect if police suspect you are driving on drugs.

It is no mystery why Ontario law enforcement and safety advocates urge drivers to stay off the road after they have been using any substances that may result in impairment. Driving under the influence of drugs, even certain prescription drugs, raises the possibility that you will be involved in a motor vehicle accident that could cause you or others to suffer serious or fatal injuries. Read More

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