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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.
Client found not guilty of Sexual Assault, after a three-day trial in the Ontario Court of Justice, Toronto. A.M. was charged with sexual assault during a message of his neighbour. A.M. retained Christopher Assie of Neuberger & Partners LLP, Brampton Criminal Lawyers, to defend him. A.M. was alleged to have given his neighbour a massage. During the massage, the complainant alleged that A.M. had massaged her breasts and had massaged/touched her clitoris and buttocks without consent thus giving rise to a charge of Sexual/Sex Assault. A.M.’s version of events was that after a brief conversation with the complainant regarding her back pain and other ailments outside of their homes, he offered to provide her with Turmeric – which he knew to be help with physical ailments. He offered to give her some if she did not have any. She accepted his offer and went into his home to retrieve it. While discussing various topics in the home, he pointed out a tube of topical anesthetic cream that had been prescribed to him by a doctor to help with his own muscle pain. He offered her some and she accepted. He applied the cream to her back. He denied touching any other body part and flatty denied Sexual Assault. The complainant told the police that A.M. had then tried to ‘bribe her’ by offering her some jewellery after he assaulted her. The incident occurred about a week before Christmas. The complainant had distorted the interaction, characterized innocuous events as nefarious, and had fabricated the sexual assault. Mr. Assie was able to demonstrate through careful cross-examination that the complainant’s account made no sense and did not withstand scrutiny. What she characterized as an attempted ‘bribe’ was in fact the reasonable actions of a small business owner who was simply trying to make a sale during the lucrative Christmas season by presenting her the costume jewelry he sold in the hopes of turning her into a customer. Mr. Assie also spent a significant amount of time preparing A.M. to testify in his own defence. A.M. was an immigrant and was not entirely fluent in English. He was an older gentleman who had never been in trouble with the law before and was very nervous to testify. The only way to help A.M. from feeling overly nervous at trial was to spend several days conducting mock examinations-in-chief and mock cross-examinations of the facts and basis of the Sex Assault charge. All the work preparing A.M. for trial paid off as the judge ultimately ruled that she accepted his version of events and found him not guilty of sexual assault.
*This is an important example of how it is vital to helping a client prepare for giving evidence in court. This type of preparation of the defence evidence resulted in the client being believed by the trial judge on the sex assault charge. At Neuberger & Partner, Criminal Lawyers Toronto, Joseph Neuberger, over three decades of assisting clients has developed a defined process for defences on charges of Sexual Assault, Sexual Interference, Sexual Exploitation, Domestic Assault and Assault. All lawyers in Neuberger & Partners follow the same detailed approach to defending and helping clients succeed in their cases.
Charge of Sexual Assault withdrawn prior to setting date for trial, Kingston. N.C. was charged with one count of sexual assault out of Kingston courthouse. N.C. invited some friends over to his house. After some drinking and watching movies, N.C. ended up having a sexual intercourse with one of the attending friends. Later that night, the friend made a complaint that sexual intercourse was not consensual, and that N.C. had forced himself on her. N.C. retained Mariya Protsenko, Neuberger & Partners LLP, Criminal Lawyers Toronto, to represent him the Sex Assault charge. Mariya spoke to the client and carefully reviewed two statements of the complainant, two witness statements and other evidence provided to the defence. Defence interviews were conducted to determine what was observed of the two parties that night. Mariya conducted several pre-trials with the Crown and provided a memo on material discrepancies in the statements of the complainant and witnesses as well as internal inconsistencies. The Crown Attorney agreed that she had a weak case for a reasonable prospect of conviction. N.C entered into a peace bond and the charge of Sexual Assault was withdrawn.
Charges of Domestic Assault x 3, Assault causing Bodily Harm, Threat Death, Forcible Confinement and Criminal Harassment withdrawn prior to trial, Ontario of Justice Kitchener. A.S. and the complainant have been married for two years. Unfortunately due to stresses A.S. and the complainant argued frequently. A.S. sought a divorce and the argument escalated and continued for several days. A.S. was charged. Joseph Neuberger, Toronto Criminal Lawyer, was retained to defend the domestic abuse allegations. After careful review of the evidence and sending the client for intense therapy related to anger and conflict management, Joseph Neuberger, was able to negotiate a withdrawal of all domestic assault related charges for a peace bond.
Charges of Sexual Assault and Sexual Interference withdrawn prior to trial. The client was on a dating app and planned to meet someone. The client and the person had been exchanging messages and the subject of money came up. The conversation led to a discussion of sexual services for money but was a bit vague. The client attended and the complainant seemed young, and he left. However, the complainant called police and he was charged. Joseph Neuberger was retained to defend A.A. After receiving the disclosure, Joseph Neuberger charted out the statements of the complainant which demonstrated a number of significant inconsistencies. In addition, disclosure was requested for forensic testing of the bedding as the complainant had alleged sexual acts that would have left DNA. The bedding was seized by police. The testing came back negative for any DNA or biological evidence to support the complainant’s version of events. Further, Joseph Neuberger prepared a memo setting out the deficiencies with the Crown’s case including disclosing several messages and the dating site profile of the complainant noting an age over 20. After several judicial pre-trials, it was agreed that the client would sign a common law peace bond and the Sexual Assault charge, and the Sexual Interference charge were withdrawn.
Z.L. was charged with Domestic Assault against his wife. ZL retained Christopher Assie of Neuberger & Partners LLP to defend himself against these charges. Mr. Assie suggested that ZL do some up-front counselling with a well-respected therapist. ZL agreed and completed the counselling. Mr. Assie analyzed the case and documented the discrepancies between the complainant’s allegations and the observations made by the police. He waited until the counselling was completed and had a favorable report by the therapist before engaging with the prosecutor. Armed with a therapist report and the ability to point out the inconsistencies in the evidence, Mr. Assie was able to convince the prosecutor that it was not in the public interest in prosecuting the matter. ZL agreed to enter into a peace bond without admitting any criminal or civil liability and his criminal charges were withdrawn.
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.
