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B.M. was charged with one count of Domestic Assault out of Old City Hall courthouse, Toronto. B.M. and his girlfriend met each out online and both were students at the University of Toronto. After the two started living together, regular arguments began. B.M. decided to move out but didn’t tell his girlfriend. Once she found out, B.M. and his girlfriend began fighting. B.M. called 911 and police arrived. Police officers took statements from both B.M. and his girlfriend and decided to arrest both for Assault. However, while at the police station, the girlfriend provided a more detailed statement and police officers decided not to proceed with the charge against her. B.M. retained Joseph Neuberger and Mariya Protsenko to represent as his criminal defence lawyers Toronto. Joseph and Mariya obtained disclosure. They organized it and analyzed it. The statement B.M.’s girlfriend provided at the police station contained some information that could have potentially resulted in an additional charge of Sexual Assault. Furthermore, the University of Toronto investigation officers conducted an investigation and included a Sex Assault allegation in their report. Joseph and Mariya conducted a number of pre-trials with the Crown Attorney very careful in order to make sure additional charges were not laid. After the defence investigation and interview of a number of key defence witnesses, detailed discussions about the evidence resulted in the Crown deciding to withdraw all charges. B.M. entered into a common law peace bond and the charge of Assault was withdrawn.
P.B.M. was charged with five counts of Assault, four counts of Forcible Confinement and one count of Criminal Harassment, Toronto. The complainant was his ex-girlfriend. She alleged that P.B.M. was constantly jealous of her and on a number of occasions didn’t let her leave the house but pushed her and grabbed her. P.B.M. had no status in Canada. P.B.M. retained lawyers at Neuberger and Partners to represent him as his Toronto Criminal Defence Lawyers. Mariya Protsenko carefully reviewed disclosure. It included text messages from the client to the complainant of jealous nature, photos of alleged injuries and the statement of the complainant. Mariya discovered some inconsistences between the alleged injuries of the complainant on the photos and the description of the injuries in the statement of the complainant. A defence medial expert was consulted by the defence. Along with other information, Mariya presented a memo on deficiencies with the Crown’s case and was able to convince the Crown to withdraw all charges. P.B.M. entered into a peace bond and all domestic assault and harassment were withdrawn.
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.
Charges of Domestic Assault were withdrawn by way of a section 810 peace bond at the Ontario Court of Justice, Scarborough. AD and the Complainant were in a relationship for over three years. They were engaged to be married and were living with each other. The Complainant alleged that AD started suspecting that the Complainant was cheating on him. She also alleged that AD would follow her on numerous occasions due to which she broke their engagement and asked him to move out. On one occasion, the Complainant alleged that AD followed her into a club where he punched her several times on her face. To make matters complicated, the Complainant’s son called AD to make death threats against him. AD met the police to report the Complainant’s son, however, got arrested himself for Assault on the Complainant. Yuvika Johri of Neuberger & Partners, Toronto Criminal Lawyers, was retained to represent AD against the charge. Yuvika reviewed disclosure which included several pictures of injuries on the Complainant’s face. At the Crown Pre-Trial, Yuvika established that the Complainant was in fact cheating on AD while they were weeks away from getting married. She also showed weaknesses in the Crown’s case and was able to convince the crown to withdraw the charges against AD. All charges were withdrawn by way of a common law peace bond against AD.
Charges of Assault x 3 withdrawn prior to trial, Halton Region. Mr. N.M. had separated from his wife and divorce proceedings were filed. Shortly after the filings, Mr. N.M. was charged with Domestic Assault of his former wife, and assault of his son. There was a serious issue of parental alienation involved. Joseph Neuberger was retained as the criminal defence lawyer. After obtaining and reviewing the statements of the two complainants, Joseph Neuberger disclosed the divorce proceeding documents to the Crown and conducted an extensive pre-trial. It was evident that the criminal allegations were being used as leverage in the family court proceedings for sole custody and an unequal division of assets. Further, Joseph Neuberger obtained a copy of a report done by a therapist regarding an assessment with the children including the son who was the complainant. That was also provided to the Crown along with additional defence disclosure. As a result of the defence disclosure, the Crown agreed to withdraw all charges.
Charge of Domestic Assault withdrawn, Newmarket. Mr. E.C. was living with his girlfriend. After an evening of drinking the two got into an argument because E.C. did not want to get married. The incident became physical and police were called. E.C. was charged. Joseph Neuberger was retained as the criminal defence lawyer. Joseph Neuberger had the client photographed as he sustained injuries from the altercation. Further, after receiving the disclosure, Joseph Neuberger brought a civil motion to have the complainant removed from E.C.’s home. The complainant had no interest or right to the property and the bail for some reason excluded E.C. from his home. Joseph Neuberger did not act on the bail hearing. The motion was successful and the complainant was removed. Joseph Neuberger then had the bail amended. During the course of the proceedings the complainant made numerous outrageous allegations. After discussions with the Crown Attorney, it was agreed that E.C. would sign a peace bond and the charge would be withdrawn. As a result, the charge of assault was withdrawn.
Charges of Sexual Assault and Domestic Assault withdrawn on the eve of trial, Newmarket. Y.Z. was in a on and off relationship with the complainant. The couple broke up in 2018 when the complainant at that time was charged with assault related to Y.Z. The couple reconciled. During a five day period the complainant was staying at the home of Y.Z. and on the last day an argument and physical altercation arose. The complainant reported to York Regional Police and Y.Z. was charged. Joseph Neuberger was retained to represent Y.Z. Diana Davison was brought on the file to assist. Joseph Neuberger obtained the full disclosure and carefully analyzed the two statements of the complainant noting oddities about the evidence. Joseph Neuberger brought a 276/278 motion to permit cross-examination of the complainant on prior sexual history evidence and text messages exchanged relevant to evidence given by the complainant. These applications are complex and need to be drafted carefully with supporting case law. The Application was drafted to set out not only the defence but the factum mapped out the issues with the complainant’s evidence. The Application was opposed by the Crown but Joseph Neuberger was successful and given full ability to cross-examine the complainant on all areas sought. After the successful application Joseph Neuberger provided the Crown with the draft outline of his cross of the complainant and a memo on reasonable prospect of conviction. After some discussions the Crown withdrew the Sexual Assault and Assault charge. * It is important to note that there were subtle inconsistencies in the complainant’s evidence that required creative drafting of the cross and weaving together evidence the demonstrated some falsities of the complainant’s evidence. The preparation of the Application and Cross required considerable time but proved to establish the client was innocent.
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.
