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T.X. was charged with three counts of Sexual Assault out of Newmarket courthouse. He was a manager at a restaurant where the complainant was an employee. The complainant alleged that when she turned 18, T.X. started to show romantic interest in her. The complainant alleged that on two occasions, T.X. kissed her with “a tongue by force”. She did not consent to the kisses and they were not welcomed. The complainant stated that attention from T.X. made her feel uncomfortable and that she was disgusted by him. On the last day of their interaction, the complainant alleged that T.X. touched her breasts and genitals over her clothes. The complainant didn’t want to go to work and told her sister and her mother about the sexual assault allegations. T.X. attended a police station and provided a statement. As a result, T.X. was arrested and charged with three counts of sexual assault. T.X. retained Mariya Protsenko and Daisy Zhang of Neuberger and Partners LLP. Mariya compiled various pieces of evidence from the client and then set the case down for a trial. A two-day motion was also scheduled to admit other sexual history evidence at a trial. Prior to Stage 1 of the motion, T.X. advised Mariya that he downloaded surveillance video from the restaurant before his employment was terminated. He said that he previously reviewed the videos but did not locate any interactions with the complainant. As T.X. was stressed about the upcoming motion and trial, he reviewed the videos again. T.X. found a video of him and the complainant kissing at the storage area of the restaurant. Mariya examined the video and realized that it depicted the subject matter of the offence, meaning, one of the kisses that the complainant alleged to be against her consent, and for which T.X. was charged with sex assault. Upon reviewing the video, it became clear that the kiss was not only consensual but initiated by the complainant. The complainant took T.X. to the storage area of the restaurant not to be seen by anyone. While there, the complainant took her face mask off, reached out to T.X. with her arms and started to kiss him passionately. The kiss lasted for over 10 seconds, and it was T.X. who stopped. The two left the storage area shortly after that. Mariya amended her 276/278 Application to include the video and sent the video to the assigned crown. After a careful review of the video by the crown attorney and discussions in regard to how the video contradicts the complainant’s version of the events, the crown attorney agreed that the video made a significant impact on the complainant’s credibility. As a result, T.X. entered into a common law peace bond and the three charges of sexual assault were withdrawn.
Charges of Sexual Assault x 2, Forcible Confinement, and Criminal Harassment x 2, withdrawn at Stage 2 of the 276/278 Defence Application, a month before commencement of the trial. M.W.M. was charged with multiple domestic abuse offences by his former fiancé. The two had been dating for over a year and became engaged. Unfortunately, the relationship turned toxic, but M.W.M. did not realize that it was toxic. He was very devoted to the complainant. The complainant ended the relationship essentially because the client was “needy” and was not providing her what she needed. M.W.M. had bought the complainant a very expensive purse and given it to her. She then broke up with him. M.W.M. was upset and continued to contact and attend at her home for the return of the purse and money he paid for her university tuition. The complainant reported to police allegations of criminal harassment and when he was not immediately arrested went back and gave a statement alleging two sex assaults and forcible confinement. Joseph Neuberger of Neuberger & Partners LLP was retained. The client provided a large number of messages, bank statements, Visa statements, and other materials to assess for use in the defence. Joseph Neuberger, assisted by Diana Davison, a men’s rights advocate, assessed the evidence and along with developing the defence narrative. Joseph Neuberger drafted a detailed 276/278 Application to permit the admission of other related sexual history evidence and numerous documents and messages. The narrative laid out a clear pattern of coercive control of M.W.M. He was very much under her control buying her numerous expensive items, paying for her tuition and even after he was charged, the complainant used his Visa. There were messages and documents that undermined the complainant’s narrative and provided a rich foundation for cross-examination to effectively undermine the complainant. Moreover, on the criminal harassment charges, the evidence did not meet the criminal standard especially since M.W.M. was simply trying to get the property and funds back as she had promised him in a text. The motion was successful and prior to the commencement of the trial, the complainant did not want to proceed. The Crown carefully assessed the case, and the charges were withdrawn with the client signing a common law peace bond. Thus, charges of Sexual Assault x 2, Criminal Harassment x 2 and Forcible Confinement were withdrawn.
Client found not guilty of Sexual Assault x 5 and Sexual Assault Choking after three-day trial, Ontario Court of Justice, Toronto. Y.D. interviewed and hired the complainant at the company he worked with. After a few months, the two developed a relationship even though both were married. Both realized there were issues, and soon the complainant moved to another position in the company where she reported to another supervisor. The two shared intimate and emotional details about their lives and grew closer. However, Y.D. had second thoughts after about seven months and sought to return to a purely professional relationship. The complainant remained at the company but continued to seek out Y.D. and have his attention. The complainant secured a promotion but in the new position began to have performance and interpersonal issues with co-workers. She remained at the company for another two years but due to poor performance was terminated. Unfortunately, Y.D. was one of the people responsible for the termination. Within three weeks, Y.D. was charged with multiple sex assault offences including one that could be described as a highly violent rape. Y.D. hired Joseph Neuberger of Neuberger & Partners LLP. Diana Davison was assigned to assist. After some time, Joseph Neuberger was able to recover some deleted messages from Y.D.’s digital devices that demonstrated a different narrative than the complainant. The complainant provided police with two sets of WhatsApp messages that seemed to show Y.D. as pursuing the complainant for sex and the complainant not favorably responding. These messages were provided by the complainant via a link. The police DID NOT seek to search her phone, nor even review messages on her phone during the interview. The complainant was permitted to just send what she allegedly possessed to police. This is the standard method for police receiving digital evidence. The defence brought a 276/278 Application regarding other sexual history evidence and to admit what messages he was able to recover via a forensic extraction. The complainant alleged multiple sex assaults over the entire time period she was with the company. Thus, the application was successful in part due to the global nature of historical sexual assault allegations and ongoing sex assaults up to and including her termination. Just prior to trial, Joseph Neuberger sought clarification on the dates of many of the complainant’s messages and meta data (which had been requested at the outset of the case but never provided). One day prior to trial, the complainant provided specific dates for each message. Joseph Neuberger followed up with the Crown noting that she should be interviewed because to provide such specific dates, two years after the charges were laid means that she possesses all of the messages (that was Neuberger’s opinion). Nothing was provided as to the source of the dates. At trial, an objection was raised as to obvious issues related to the thread of messages the complainant provided as being disjointed and cut off. The complainant disclosed on day two of the trial, more messages. This led Joseph Neuberger to ask the officer in charge to take a statement from the complainant because the new messages disclosed were more WhatsApp messages that at the top had Y.D.’s new profile picture and stated “Y.D. last seen yesterday at 9:22 p.m.). Clearly the complainant had not blocked Y.D. on WhatsApp and had access to all the messages. The further interview then led to disclosure by the complainant of all WhatsApp messages exchanged between the two parties over a period of about one year. Joseph Neuberger spoke to the Crown and the assumption that the complainant was holding back relevant exculpatory messages was true. The Crown sought dismissal of the charges (not guilty verdict) and Y.D. agreed to sign a common law peace bond for no contact without any admission of liability.
Charges of an unbelievable allegation of Domestic Assault withdrawn prior to setting a trial date, Toronto. The client MT retained Grace Condello of Neuberger & Partners LLP, Toronto Criminal Lawyers, to defend him. The client and his wife were walking their dog and walked through the yard of a school. Although the children were not outside for recess, employees of the school came out and confronted them. An argument ensued. The dog leash broke and the client tapped his wife on the shoulder to go home to get another leash. Employees of the school called police stating that the client was trespassing and assaulting his wife. When police arrived, the client’s wife told police that he did not assault her. The police recorded in their notes that the victim was “not cooperative” and “denied assault”. The client was arrested and charged with Assault. The Undertaking provided a condition that he could not have any contact with his wife. Ms. Condello was able to establish that there was no reasonable prospect of conviction for the following reasons: that no offence had been articulated by the caller, the caller was someone the client had an argument with and had motive to fabricate an allegation of assault, and the alleged victim told police there was no assault. The charge was withdrawn.
This is another perfect example of how the criminal process can be manipulated by unethical actors and the police simply lay a charge even if the alleged victim/complainant does not confirm an allegation of domestic assault
Client found not guilty of six counts of Sexual Assault after a five-day trial at the Ontario Court of Justice, Toronto. F.R. and the Complainant were related to each other as cousins. Despite the age difference of 20 years, F.R. and the Complainant would party with common friends on a regular basis which included alcohol and marijuana use. The Complainant was 18 years old and F.R. was 38 years old. On one occasion, the Complainant alleged that she was at F.R.’s residence. On this day with her common friends, they were consuming alcohol and smoking marijuana. At around 4 am, she alleged that she went to sleep and was not quite conscious of her surrounding. She claimed to recall the event in scenes. The Complainant alleged that F.R. walked inside her bedroom with his dog, sat on the bed beside her, and rubbed her buttocks. She claimed to be aware of what was happening, however, did not know how to tell F.R. to stop. She claimed that F.R. only stopped when her friend walked into the room. On the second occasion, the Complainant alleged that she was visiting her boyfriend’s residence with F.R. Her boyfriend was F.R.’s friend and also 20 years older than the Complainant. On this occasion, the Complainant, F.R., and her boyfriend were drinking alcohol and smoking marijuana. At some point during the evening, the Complainant’s boyfriend left his apartment leaving the Complainant alone with F.R. The Complainant alleged that she was drunk and laying in bed. The main lights in the room were off but there were LED lights in the room. The Complainant alleged that she was covered in paper towel. At one point, F.R. proceeded to rub the Complainant’s butt for a few seconds. He allegedly stopped when the Complainant told him that she did not want them to be incest. On the third occasion, the Complainant alleged that she was once again at her boyfriend’s residence with F.R. and another common friend. As usual, they were drinking and smoking marijuana. The Complainant alleged that after her friend left the apartment, she fell asleep on the bed with her boyfriend and F.R. However, when she woke up, she felt as though her vagina was stretched. She suspected that F.R. may have penetrated her vagina on this night. The Complainant further alleged that she confronted F.R. about this and he allegedly admitted to doing so. On the fourth occasion, the Complainant alleged that she was hanging out at F.R.’s residence with a friend. Once again, she sleeps on the same bed as F.R. with her friend next to her. She alleged that she felt F.R.’s hands inside her pants and was trying to digitally penetrate her vagina. The Complainant woke up and turned away from F.R. On the fifth occasion, the Complainant alleged that she was once again sleeping in the same bed as F.R. after a long night of partying. On this occasion, she alleged that F.R. allegedly put his hands inside her pants and was rubbing her vagina. She claimed to have moved away from him and continued sleeping. On the last occasion, the Complainant, F.R., and their common friends went to a social gathering at a hotel. On this day, the Complainant’s friend alleged that she saw F.R. touch the Complainant’s buttock while she was asleep. On a later date, F.R. was confronted by the group of friends. The witness and the Complainant alleged that F.R. admitted that he had touched the Complainant inappropriately. As a result, F.R was charged with six counts of sexual assault. Yuvika Johri of Neuberger & Partners LLP, Criminal Lawyers Toronto, was retained to represent F.R. against the charges. Yuvika thoroughly reviewed the disclosure and the Complainant’s statement. She discovered numerous inconsistencies in the Complainant’s allegation. At trial, the Complainant was crossed examined for 2 days by Yuvika Johri. During cross examination, it was established that there were serious reliability concerns with the Complainant’s narrative of what may have happened or if they happened at all. For example, during examination in chief, the Complainant testified that for the longest time, she believed her boyfriend to be the reason for her stretched vagina until F.R. allegedly admitted to her months later that he was responsible for it. However, during cross examination, the Complainant changed her evidence and explained that she believed F.R. to be responsible for the act from the beginning and claimed to have confirmed with her boyfriend the next day who told her that they did not engage sexually with each other. Yuvika Johri also cross examined the witness who claimed to have seen the alleged butt rubbing at the hotel. Yuvika Johri established that prior to noticing anything, the Complainant had tainted the witness’s opinion about F.R. (who happened to be F.R.’s girlfriend) by sharing the allegations with her. With this knowledge, the witness kept an eye out to observe anything out of the ordinary between F.R. and the Complainant. Yuvika Johri established that although F.R and the Complainant were sleeping next to each other, they were covered by a blanket. The witness was looking to spot inappropriate touching, however, could not with 100 percent certainty confirm that anything that she may have observed was an intentional act. Defence was able to establish a reasonable doubt against all the allegations and F.R. was found not guilty of six counts of sexual assault. A finding of not guilty was important in this matter as the client was facing incarceration for a lengthy period of time if convicted.
Client acquitted of five counts of Assault, two counts of Sexual Assault, and two counts of Uttering Threats mid-trial at the Ontario Court of Justice, Toronto. The Complainant alleged that she was a new immigrant to Canada with her one-year-old child. She was married to S.A. who sponsored her visa to immigrate to Canada. After landing, she alleged that within one week, S.A. started subjecting her and their child to cruelty. On the first occasion, the Complainant alleged that there was an argument in relation to dowry. S.A. allegedly got angry that the Complainant did not bring more gold from India. This is when he allegedly twisted her hands while she was holding her son. She claimed that S.A. twisted her hand to get a gold bangle out of her hand. On the second occasion, there was an argument in relation to their son. The Complainant claimed that S.A. used to hate their child, however, on this occasion, he took the child on a walk. Once back, there was an argument in relation to the clothing that the child was wearing. The Complainant alleged that S.A. slapped the Complainant on her face and threatened to kill her and their child if she went to the police. On the third occasion, it was alleged that the Complainant’s parents had sent a present to their house. S.A. allegedly threw the gift in the garbage. This upset the Complainant who initiated an argument with S.A. She claimed that S.A. became angry and started pushing the Complainant out of the house. S.A. allegedly pushed the Complainant while she was holding their son in her hands. On the fourth occasion, the Complainant alleged that one night, S.A., asked the Complainant to the living room. He allegedly kissed the Complainant and began touching her breasts. When she told him no, he pushed her on the couch. The Complainant claimed that she refused to engage sexually with him, but S.A. mounted her and forced oral sex on her. He then sexually assaulted her by penetrating her vagina. On the next occasion, the Complainant alleged that there was an argument with S.A. over the type of toy car their son should get. The Complainant alleged that S.A. started pushing the Complainant which led her to fall on the floor. He then stood over her and punched her face which left a black eye and bleeding from her nose. On the next occasion the Complainant alleged that she was pushed repeatedly until she fell on a suitcase which left a mark on her leg. On the last occasion, the Complainant alleged that she was sexually assaulted in her vagina in front of their child. She claimed that she wanted to go to the park. However, S.A. demanded sexual intercourse before taking them anywhere. The Complainant alleged that S.A. pushed her on the bed, kept their child on the floor, mounted her, and penetrated her with his penis. During the assault, her slapped her face while their child cried on the floor. Yuvika Johri from Neuberger & Partners LLP was retained. Yuvika reviewed the disclosure carefully and discovered that the Complainant had previously been arrested for assaulting S.A. She waited until her charges were withdrawn to lay these allegations against S.A. It became clear that the Complainant had a motive to fabricate and these charges were being brought as revenge for her own arrest. Yuvika Johri also compiled items such as pictures and videos which raised serious concerns about the allegations made by the Complainant. A s.276/278 application was prepared. However, prior to trial, the Complainant travelled to India claiming medical issues in relation to her parents. Due to shortage of interpreters at the courthouse, the trial was adjourned to a later date. When the trial was scheduled for the second time, the Complainant travelled back to Toronto and testified in person. During cross examination, the Complainant testified that she was in Canada all along. Upon being confronted with her email to the officer in charge claiming to be in India, the Complainant changed her evidence that she was in India all along and was not in Canada. The matter could not be concluded within the time scheduled for the trial so further trial dates were secured. Once again, the Complainant left for India with no return ticket to Canada. She refused to provide her Toronto address to the police claiming safety reasons. The Crown brought a remote testimony application to allow the Complainant to testify from India. Yuvika Johri cross examined the officer in charge for two hours. She was able to show the court that the complainant had gone on an indefinite vacation while being the main witness in a serious criminal case who was in the middle of a cross examination. Yuvika Johri was able to show that her non-attendance impacted the defence’s ability to make full answer and defence. The crown’s application was dismissed and because of the Complainant’s non-attendance and prejudice to the defence, an acquittal was entered on all counts against S.A.
Charges of Sexual Assault against A.B. stayed due to unreasonable delay pursuant to Section 11(b) of the Canadian Charter of Rights and Freedoms in the Ontario Court of Justice, Toronto. A.B. was charged with a serious sexual assault involving his former girlfriend. The Crown was seeking a custodial sentence and various ancillary orders including registration with the sex offender registrar if A.B. were found guilty. The matter had a lengthy history of delay with a significant portion of delay attributable to the Crown as well as significant institutional delay. Michael Bury spent considerable time assessing the delay and conducting recent case law research to determine the prospects of making a successful stay application argument before the scheduled trial date. The stay application was argued in advance of trial and after hearing from both Michael Bury and the Crown, the Judge hearing the application agreed that A.B.’s right to a trial within a reasonable time had been violated and ordered the charges stayed for this reason.
P.M. found not guilty following a trial on a charge of Sexual Assault in the Ontario Court of Justice, Kitchener. P.M. and V.A. were involved in a brief boyfriend girlfriend relationship. During the relationship, the complainant started demonstrating several behaviours which caused P.M. serious concerns about any future together with the complainant. On one occasion, while at P.M.’s home with other family members in close proximity, P.M. and V.A. had an intimate interaction in the basement. P.M. was not sexually experienced. V.A. was sexually aggressive towards P.M. and initiated activity which P.M. was uncomfortable engaging in, especially with other family members nearby. P.M. was afraid to end the relationship because of V.A.’s erratic behaviour. Ultimately, V.A. decided to breakup with P.M. by publicly announcing that she had decided she was a lesbian which was not true. This caused significant hardship for P.M. at the school they both attended and he was bullied by other students as a result. P.M. decided to date another mutual friend and ended contact with V.A. V.A. found out and was angry at him, even though they had broken up. As a result, she decided to contact the police and have sexual assault charges laid against P.M. P.M. retained Michael Bury of Neuberger & Partners LLP, Criminal Lawyers Toronto, to defend him. P.M. decided to take the matter to trial. Reliability and credibility were the central issues at trial. The complainant was cross-examined at length by Michael Bury regarding the events leading up to and including the allegations. While the trial judge found V.A. to be credible overall, her lack of recall on very important details following the cross-examination did ultimately raise both credibility and reliability concerns which the court could not ignore. Applying the relevant legal principles, the trial judge found P.M. Not Guilty as the Crown had not proven its case beyond a reasonable doubt.
Historical charge of indecent assault withdrawn at the second day of a two-day trial. The complainant, in his sixties, alleged indecent assault by his cousin of the same age during the 1970s, claiming a two-year period of intermittent abuse when both boys were in their early teens. The complainant originally advised police that the abuse began when he was twelve years of age. But during examination-in-chief he suggested the abuse began much earlier. Following the complainant’s testimony, Mr. Whitfield raised a jurisdictional issue: that the accused, on the revised timeline, could not have been lawfully charged with a criminal offence under the governing youth legislation. The Crown withdrew the charge.
Client acquitted of one count of sexual assault following a three-day trial at the Ontario Court of Justice, Toronto. A previous charge of criminal harassment was withdrawn for lack of evidence. The complainant made historical allegations against her ex-boyfriend, including sexual intercourse at a family event where she was too intoxicated to consent. Mr. Whitfield was retained, Neuberger & Partners LLP, Criminal Lawyers Toronto. Mr. Whitfield went directly to trial and presented material inconsistencies in the Complainant’s account of her level of intoxication, and between the versions of events she recounted to the police versus her testimony on the stand at trial. Mr. Whitfield also identified serious reliability concerns with the complainant’s evidence: she was unable to recall many details of the alleged sexual assault due to a patchwork memory and agreed it was possible she may have uttered words of encouragement during the periods she could not remember. The accused also testified. The trial judge found his evidence to be largely unchallenged, and, in the reasons for acquittal, cited serious shortcomings in the complainant’s credibility and reliability. Accordingly, the client was found not guilty of sex assault.
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.
