The criminal justice system can be daunting, but you don’t need to go through it alone. Our Criminal lawyers are here to guide you every step of the way.
Contact Our Firm
Charges of assault x 2 and one count of assault (choking) were withdrawn before setting the matter down for trial at the Ontario Court of Justice located at Scarborough. The complainant and J.R. were estranged. It was alleged that J.R. got into an argument over child support with the complainant. During the argument, J.R. allegedly punched the complainant in the head and shoulder. When the complainant attended the police station, she recalled prior incidences where on one occasion, she was punched and on another, choked. The complainant also alleged that their toddler daughter witnessed these incidences. Police charged J.R. with two counts of assault and one count of assault- choking. Yuvika Johri of Neuberger & Partners, Toronto Criminal Lawyers, was retained to represent JR against the charge. Yuvika reviewed disclosure and pictures of injuries on the complainant. Yuvika also requested the prior occurrence when the complainant was arrested for assault on J.R. After several discussions with the Crown and a Judicial Pre-Trial, Yuvika established that the complainant had in fact not be truthful about the allegations. The alleged injuries were inconsistent with the evidence and there were prior incidents of abuse by the complainant. It seemed there was a motive to alienate J.R. for the child of the relationship. It was negotiated that all charges would be withdrawn with the client signing a peace bond.
Charges of Domestic Assault x 2 and one count of Forcible Confinement withdrawn with a common law peace bond at the Ontario Court of Justice, Old City Hall Toronto. The complainant was S.P.’s wife who alleged that an argument had taken place between the two during which he assaulted her. When she tried leaving the apartment, S.P. allegedly grabbed her hand and forced her inside the apartment. He then kicked her in the stomach. A witness allegedly heard the commotion and came to assist the complainant. The witness was able to take the complainant to his apartment from where he called 911. To make matters worse, S.P. inadvertently admitted to the police that he tried to stop the complainant from leaving their apartment. Police charged S.P. with two counts of assault and one count of forcible confinement. Joseph Neuberger and Yuvika Johri of Neuberger & Partners, Toronto Criminal Lawyers, were retained to represent S.P. Yuvika reviewed the disclosure and found several weaknesses in the crown’s case. After several Crown and Judicial Pre-Trials, a package was prepared in S.P.’s defence which included letters from an immigration lawyer, regulatory lawyer, upfront therapy reports, and employment letter. Text messages from the complainant were also provided which proved that the complainant had malice and intended to trap S.P. in the criminal justice. Charges were withdrawn with a common law peace bond. A withdrawal was necessary in this case as S.P. is a physician who was a front-line worker throughout the pandemic and was in Canada on a work visa. S.P.’s license to practice medicine was in jeopardy and there was a considerable body of information establishing that S.P. is an excellent and caring physician.
Charges of Assault withdrawn with an 810-peace bond at the Ontario Court of Justice, Brampton. The complainant was a friend who attended a party hosted by the accused. The complainant got into an argument with one of the co-accused over his financial status. The complainant alleged that he was assaulted by the accused and his cousins (co-accused) where he was repeatedly punched and kicked. He also alleged that one of the co-accused grabbed a knife and raised it towards him in a threatening manner. Complainant attended a police station the next morning and made a complaint. G.P. was charged with Assault. Yuvika Johri of Neuberger & Partners, Toronto Criminal Lawyers, was retained to represent G.P. After extensive review of the disclosure, and several meetings with counsel for the co-accused, Yuvika convinced the crown to withdraw all charges against G.P. G.P. was at risk if the charges were not withdrawn as his citizen application was pending.
Charge of Assault withdrawn prior to trial, Brampton. G.S. was charged with one count of Assault arising from a party with his friends. After a period of drinking an altercation between a number of people. The complainant identified a number of individuals who allegedly assaulted him including G.S. G.S. hired Mariya Protsenko of Neuberger & Partners, Criminal Lawyers Toronto, as defence counsel. Mariya requested and received voluminous disclosure including the identification evidence. After careful review of all of the witness evidence, Mariya charted out a series of material inconsistencies which significantly undermined the evidence of the complainant that G.S. was a participant in the altercation. Mariya provided the Crown with an RPC memo outlining the deficiencies in the prosecution case. At the pre-trial with the Crown Attorney Mariya was able to establish serious problems with the case and that it was not in the public interest to prosecute G.S. G.S. entered into a peace bond and the charge of assault was withdraw.
Client found not guilty of Sexual Assault after three-day trial in the Ontario Court of Justice, Newmarket. K.Q. was a teacher at a very prestigious boys’ school. After a school event, various teachers attended a party to celebrate the end of term. At some point latter in the evening, K.Q. and another teacher were cuddling on a couch at a colleague’s home. There was some intimate touching but one particular intimate sexual touch under clothing in the chest area of the complainant became an issue. After the touch, the complainant bit K.Q. K.Q. apologized the next day and apologized in text. The complainant went to police and K.Q. was charged with Sex Assault. Joseph Neuberger was retained as the criminal defence lawyer. The defence team consisted of Joseph Neuberger, Mariya Protsenko and Diana Davison. The history of the complainant and K.Q. was extremely relevant as to how and why K.Q. interacted with K.Q. just prior to and during the impugned evening. After careful review of all the prosecution evidence, and the history provided by the client, there was a dynamic of over two years with intimate physical touching and an emotional bond wherein there were mixed signals that impacted how K.Q. thought about his relationship with the complainant. Such acts included hand holding in public, dancing, nights at each other’s home, and other relevant intimate contact. The complainant maintained it was a purely platonic relationship. For trial, careful, and strategic attention was given to advancing the defence of honest but mistaken belief in communicated consent to defend the sexual assault allegation. Considerable time was spent on the case law, crafting the cross-examination of the complainant, and preparing K.Q. for testimony. A motion was brought prior to trial under section 276 and 278 of the Criminal Code to advance evidence of prior sexual history. The defence motion under section 276 and 278 was successful. At trial cross-examination was able to bring out a significant inconsistency from the statement of the complainant with her in-court testimony, as well as various critical factors prior to the date of the alleged offence that impacted the state of mind of K.Q. The defence of honest but mistaken belief in communicated consent is a very complex defence and accordingly written submissions were provided by the defence to assist the court to make critical determinations of fact and law. Extensive time was spent on drafting the closing submissions. As a result, K.Q. was found not guilty of the offence of Sexual Assault.
Client found not guilty of Sexual Assault after trial in the Superior Court, Barrie. J.G. was charged with a historical sexual assault of his cousin. The allegation was that sometime between 2007 and 2009, J.G. drove his younger female cousin home after she was too drunk to walk home and during the drive stopped and committed a sexual assault. Joseph Neuberger, Neuberger & Partners LLP, Toronto Criminal Lawyers, was retained to defend the charge. The defence team consisted of Joseph Neuberger, Diana Davison and Grace Condello. The client flatly denied the allegation. The evidence of the complainant consisted of two statements provided in 2020 and essentially rested upon repressed memories that were recovered 11 years later during a stressful argument with her husband over separation. Joseph Neuberger and the defence team carefully constructed a detailed cross-examination of the complainant outlining key inconsistencies between her two statements, and then her in-court testimony at trial. In addition, cross-examination focused on the storyline of the complainant, her drinking habits in 2007 to 2009, including the night in question, and the evidence of her “repressed” memories. Of particular interest was cross-examination that established her first statement noted that she had experienced blackouts and had a patchy memory. Her second statement, expanded considerably on additional details that included a memory of a lack of memory. The client and his wife were prepared as defence witnesses. They testified about the family dynamic at the time of the allegations, how close the family was and how the complainant remained a close cousin and friend through 2007 to 2019 when the allegation was made. As this was a judge alone trial, Joseph Neuberger drafted detailed written submissions detailing the frailties of the evidence and why J.G. ought to be acquitted. The judgement of the court adopted the defence submissions that “the reliability of the complainant’s memory is integral to the Crown’s case. When her memory takes on the appearance of a chalkboard which can be erased and rewritten at will, her evidence loses all reliability.” The judgement is important with respect to assessing recovered memories, and the inherent frailties. In particular, the Court noted that recovered memories should be viewed with suspicion. In our opinion, courts must resist new formulations of “recovered memory syndrome” and recognize the frailty of junk science about memory.
People who find themselves charged with sexual assault often enter the process with myths about how their trial will be conducted. There are not only myths about what evidence will establish their innocence but also about how evidence can or cannot be used in court.
Due to an increased protection for the privacy rights of complainants, most sexual assault trials require pre-trial applications. Not only to establish what evidence an accused can use in court but also to determine whether or not certain areas of questioning will be permitted in cross-examination.
There is an art to winning these pre-trial applications. Arguments must be articulated carefully and precisely to explain the probative value versus the prejudicial effect. A failure to handle these applications can compromise the integrity and fairness of the trial.
The Supreme Court of Canada has commented that sexual history evidence will rarely be admissible but at Neuberger & Partners we have been successful in every application brought since the new legislation was passed. From R. v. Goldfinch, 2019 SCC 38 at para 56:
In the case of Regina v. Y.Z. we successfully argued the relevance of the complainant’s suspicions about the client cheating on her and their use of a dating app. Additionally, we were able to prove that the couple’s history of birth control methods was relevant to undermine the alleged aggravating factor of not using a condom. After winning the application the charges were withdrawn without the need for a trial.
In the case of Regina v. K.Y., hundreds of pages of WhatsApp messages were reviewed and all 58 segments of the chat history the defence sought to access were deemed to be admissible at trial. The entire nature of the relationship was in question and this was a case with 10 charges, including three alleged sexual assaults spanning the course of the one year relationship. With access to these messages we were able to obtain acquittals on all of the assault and sexual assault charges.
In the case of Regina v. A.H., we were able to show that WhatsApp messages over the course of the relationship were relevant to the true dynamic of the relationship. After winning the pre-trial application the client was able to prove that the complainant was lying about abuse and sexual assaults to the point that she was begging the client not to self-isolate during the pandemic and wanted them and her children to all “catch Covid together.” All 18 charges were withdrawn after winning the application and conducting a preliminary hearing.
In the case of Regina v. K.Q., the complicated defence of “honest but mistaken belief in consent” was the only defence being advanced. This is a very difficult defence to articulate properly as there is agreement and clear evidence that the complainant did not consent to the touching. The history of the couple’s previous activity was essential to show why the accused had a reasonable belief that she would consent and that he was not being reckless or wilfully blind as to her consent. Without the evidence deemed admissible after the application the client would not have been able to prove he had taken reasonable steps.
In the case of Regina v. A.M. the complainant unsuccessfully argued that none of their numerous text messages were relevant or probative because she could explain them all in a way that did not impeach her statement to police. We were successful in showing that the messages were highly relevant and that the complainant’s credibility on all the issues related to the dynamic of their relationship was a serious issue to be determined in trial.
In the trial of Regina v. N.B., the Crown and complainant’s lawyer both conceded that our application should be granted as the messages were highly probative for the reasons that we articulated. After being confronted with her messaging history with our client the complainant tried to claim she didn’t write the messages herself and the judge did not believe her. The relevance of the messages had to be detailed properly to show that we were not arguing “advance consent.”
In the case of Regina v. D.S., our client faced 6 charges including sexual assault causing bodily harm, domestic assault, threatening, criminal harassment, sexual assault with a weapon (to wit, a dildo). After winning our application to admit numerous emails, text messages and videos the charges were withdrawn as it was clear none of the accusations had a prospect of conviction. The client was spared a trial and was able to move on with his life.
Despite the Supreme Court’s suggestion that sexual history evidence will rarely be admissible, Neuberger & Partners, Criminal Defence Lawyers Toronto, has been successful in every pre-trial evidentiary application brought since the new, strict legislation was enacted. These applications need to be focused and heavily supported with the most recent case law to ensure our clients receive a fair trial. Although onerous, when done properly a successful application can often result in the Crown reconsidering their prospect of conviction.
It is vital for people faced with sex assault charges, that these application be drafted in a very detailed fashion grounded in the evidence supported by the client’s version of events. These are NOT simple applications and because of the new legislation, defending sexual assualt charge is a complex nuanced matter.
Charge of Domestic Assault withdrawn prior to trial, Toronto. J.B.I. was charged with Assault out of North York courthouse. He and his wife had recently arrived from China and were going through some marital issues. On one of the evenings, J.B.-I. and his wife got into an argument. The wife was having a difficulty adjusting to a new life in Canada and was suffering from depression and anxiety. The argument escalated into a physical fight and the wife alleged that J.B.I. pushed her. J.B.-I. was arrested and released from police station. J.B.-I. retained Mariya Protsenko, Neuberger & Partners LLP, Criminal Lawyers Toronto. Mariya went through the disclosure including the CAHM report on the complainant. Mariya was contacted by a counsel who was hired by the complaint. Mariya worked with the complainant’s counsel and submitted documents for the Crown Attorney to review. After numerous discussions with the Crown Attorney, the charge of Domestic Assault against the client was withdrawn.
Client found not guilty of three counts of Sexual Assault, two counts of Domestic Assault, and three counts of Threaten Death, after a seven-day trial by Zoom in the Superior Court, Newmarket. K.Y. had a religious marriage with the complainant. They were not civilly married. Over the course of the first year of their relationship, arguments emerged about how K.Y. was not willing to have a civil marriage to create a legal marriage in Ontario. In addition, numerous arguments occurred regarding financial expectations of the complainant. After about 16 months of the relationship, the complainant attended the hospital after an extensive verbal argument about the demise of their relationship. The complainant attended the hospital due to falling on the ice but when there had disclosed to a nurse that she was subjected to abuse over the entire relationship with K.Y, and ultimately K.Y. was charged with multiple offences related to domestic abuse including sex assault. Joseph Neuberger, Neuberger & Partners LLP, Toronto Criminal Lawyers, was retained to defend K.Y. Joseph Neuberger obtained the disclosure and then had K.Y. retain a family lawyer to work with Joseph. The importance of the correct family lawyer in the divorce case was vital to uncovering the reason for fabrication. There were three separate statements provided by the complainant and a few messages that were disclosed to the defence. After careful analysis of the statements there were a number of important inconsistencies but more importantly a general lack of coherence. Joseph Neuberger worked with the family lawyer on the Reply and the discoveries (in the family law proceedings) that provided a robust source of evidence to cross-examine the complainant on to undermine her credibility. In particular, the complainant had filed several documents in the family court proceedings to attempt to convince the family court that there was a legal marriage in order to seek support payments, division of the assets of K.Y. and other financial remedies. Joseph Neuberger reviewed the documents with the family lawyer, and the documents appeared to be fraudulent. At trial, Joseph Neuberger, filed through a 276/278 motion extensive material including WhatsApp messages spanning the entire relationship, family court documents and other evidence to support the defence. Joseph Neuberger extensively cross-examined the complainant on the documents and was able to establish that the complainant had falsified a marriage licence, marriage certificate, a religious document promising payment from K.Y. of $150,000.00, all of which the Court concluded that the complainant had knowingly participated in providing false documents to establish a legal marriage to allow her to claim significant amounts of money from K.Y. Further, during cross-examination by Joseph Neuberger, there were material inconsistencies established on each charge, not only between the statements and in-court testimony, but also in relation to the preliminary hearing. There were also recordings made by the complainant of several arguments during which threats were made by K.Y. Yet when reviewed carefully, did not amount to threats to cause death. Further, the defence spent considerable time with K.Y. preparing him to testify, and at trial, K.Y. testified and his evidence was accepted by the court. It was very important for K.Y. to testify and tell the truth. At the end of the trial, Joseph Neuberger, drafted a 75-page written closing argument to assist the court with properly applying evidence to avoid myth-based reasoning. Ultimately, the court found that there was insufficient evidence to determine who was telling the truth at trial, but further found that the complainant’s credibility was severely damaged by her involvement in falsifying legal documents. K.Y. was found not guilty of all charges of Sexual Assault, Assault and Threatening.
This case was a rare case where the complainant had gone to the extent of creating legal marriage documents that with careful review by Joseph Neuberger were proved to be false. It was clear in this case that the complainant was willing to fabricate evidence to suit her desire for financial gain. This significantly undermined her credibility and any ability of the court to rely upon her evidence.
Charges of Assault, and Assault with a Weapon withdrawn prior to setting a trial date, Ontario Court, Scarborough. W.C. and his wife had a series of escalating arguments about their marriage. During one argument, W.C. was cooking and had a knife in his hand. The complainant called police and alleged that W.C. had grabbed her and threatened her with the knife while pointing it at her. This resulted in charges of Domestic Assault and Assault with a Weapon. Joseph Neuberger was retained to defend the charges. Joseph Neuberger, Grace Condello and Daisy Zhang, combined the team at Neuberger & Partners who assisted W.C. with his defence. After detailed review of the disclosure and numerous pre-trials, the Crown was persuaded that there was insufficient evidence to proceed to trial. W.C. was making dinner during the argument in question and had the knife in his hand as part of his preparation of dinner. Further, based upon the manner of the alleged physical assault as described by the complainant in her statement to police, the defence was able to establish the description was frankly implausible. As a result, the Crown agreed to withdraw all domestic abuse charges.
Past results are not necessarily indicative of future results and that the amount recovered and other litigation outcomes will vary according to the facts in individual cases.
