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H.C. found not guilty after three-day judge alone trial, Toronto of Robbery with a Firearm. Someone had posted a fake escort advertisement and when the complainant showed up for his ‘date’, he was met by two masked robbers who pointed firearms at him and robbed him. The complainant could not provide clear identification of the robbers. All the police had to go on was the cellphone number that was used in the advertisement. A couple of weeks later, the police received a call from an anonymous tipster describing having been robbed in the same manner as the complainant with the robbers using the same fake advertisement for the escort and the same phone number. The tipster indicated that he had been instructed by the robbers to attend a particular address. The police went to the area and located H.C. and his co-accused sitting in a vehicle. The police arrested them. They located two firearms and the cellphone with the phone number used in the fake advertisements. The police acquired the phone records for the cellphone. Though it was registered to a fake name, the phone was used to make several calls to family members of H.C. Christopher Assie of Neuberger & Partners LLP, was retained as the criminal defence lawyer. In discussions with the Crown, the Crown felt it was a “slam dunk” against H.C. but that they did not have sufficient evidence against H.C.’s co-accused and eventually withdrew against him prior to trial. The Crown was very confident and did not understand why H.C. was not pleading guilty. After all, the phone that was used to set up the robberies made repeated calls to H.C.’s family in the month of the robberies, H.C. was found in a vehicle with the cellphone in question, with H.C. and two firearms. In the Crown’s opinion, this was slam dunk. However, under careful scrutiny, the evidence melted away. The Crown was unable to call the evidence that the cellphone was used on the night H.C. was arrested to set up an identical robbery to the one he was on trial for. The reason was that the anonymous tipster’s statements to the police was hearsay and thus inadmissible. The relevance of the two firearms found in the car on night of the arrest was not relevant to proving the identity of the robbers. The firearms used on the night of the robbery were described differently than those located in the car on the night of the arrest. The Crown failed to appreciate that the co-accused – the one whom the Crown ultimately withdrew against – was H.C.’s cousin. The defence was able to establish that it was common for H.C.’s cousin to contact his extended family members by phone. How then could we be sure that the phone belonged to H.C. and not his former co-accused? Both equally had access to the phone that was linked to the robbery. In the end, the judge found H.C. not guilty of all charges.
Charges of Sexual Assault, Sexual Interference, Invitation to Sexual Touching, Obtaining Services for Consideration of Person under 18, Make and Possess Child Pornography all withdrawn at start of trial. The client was on a website known as Secret Benefits and had contacted someone advertising as a 19 year old. One thing led to another and a few days after being at D.T.’s residence police attended for an unrelated issue and it was discovered that the complaintant was under 18. At all times the complainant represented herself as at least 18 years of age. However D.T. was charged with various offences arising from his activities with the complainant. Joseph Neuberger was retained as the Criminal Defence Lawyer. The crown operated on the basis that D.T. had to take “all reasonable steps” to verify the age of the complainant. Defence lawyer Joseph Neuberger obtained all of the messaging and posts relevant to establish that the complaintant represented herself and answered questions consistent with being 18 and 19. The case law does not establish that requesting and checking the person’s identification is necessary. D.T. did take reasonable steps and as such all charges withdrawn.
Charges of Sexual Assault x 2 withdrawn after extensive preliminary hearing. P.G. was in early stages of dating the complainant and the two had sexual interaction. After P.G. failed to contact the complainant, the complaintant concluded, in her mind, that she was sexually assaulted during two dates with P.G. and went to the police. Joseph Neuberger was retained as the defence lawyer and the firm’s senior paralegal Grace Condello assisted with the defence. Diligent defence work resulted in obtaining through disclosure and data recovery of the complainant’s phone text messages including critical evidence of messages between the complainant and her friend about P.G. “Ghosting” the complainant and how upset she was. Also the complainant with the assistance of her friend set up fake Facebook book accounts and posted remarks regarding the complaintant and threatened him via Facebook messaging. The complainant after all of the messaging then had gone to police and laid the charges. Thus, Defence Lawyer Joseph Neuberger uncovered solid evidence that the allegations were made as a result of the complainant feeling jilted by P.G. During cross examination at the preliminary hearing the complainant was challenged on all of the defence evidence and it then became obvious that the complaintant was not credible nor reliable about the allegations. As a result the charges were withdrawn.
Note: Sadly the federal government’s new legislation amending the Criminal Code under Bill C 51 and Bill C 75 will now make this type of defence much more difficult. The new amendments eliminate preliminary hearings for sexual assault cases. Also because of Bill C 51 lawyers will have to disclose and argue at a hearing the relevance of all the messages and Facebook messaging that was so important in this case. Thus from now on the complainant will get full disclosure from the defence well prior to trial of such evidence and can argue it is not relevant and ought to be excluded. As well there are no more preliminary hearings . Such changes are a shameful attack on due process and the ability of anyone accused, male or female, to make full answer and defence. In this case, solid defence work uncovered clear evidence of motive to fabricate and in the future the ability to defend has become a greater challenge. That is why experience is necessary to defend sexual assault charges.
Charges of Domestic Assault x 2, Assault with a Weapon and Theft Under withdrawn on day of trial in the Ontario Court of Justice, Newmarket. The client and the complainant had been married for nine years. The couple had been arguing for years about various issues including finances. In October of 2018 the couple had an argument after the complainant made a comment about M.C. being fat. The complainant alleged that she was assaulted and later that day called police. The client was charged with offences also dating back a few months and then in 2016. Joseph Neuberger was retained as the criminal defence lawyer. About a month after, the complainant brough an Application in family court for divorce but also sought sole custody. M.C. was limited to what time he could spend with the two children. Joseph Neuberger obtained the family court material, the disclosure and additional material from the client about exchanges that suggested there was a rift in the marriage for some time as the complainant had been very aggressive about what M.C. should be doing for her financially and that the complainant had been sending money to her family via a separate account without M.C,.’s knowledge. Extensive time was spent with M.C. preparing him for trial and developing cross examination. Certain material was disclosed by defence lawyer Joseph Neuberger to the Crown suggesting that the allegations were motivated by gaining leverage in a family court proceeding to not only have sole custody but also substantial child support. At trial, the Crown considered all of the evidence and agreed to withdraw all charges if the client signed a common law peace bond. The result was in the best interests of bringing down conflict so both the complainant and M.C. could bring their family law matter to a close and for the client to obtain shared custody. As such, M.C. signed a common law peace bond and the charges of Assault, Assault with a Weapon and Theft Under were withdrawn.
Charges of Domestic Assault x 3, and Threaten Death, withdrawn in the Ontario Court of Justice, Scarborough, at trial. The complainant had charged the client on four (4) previous occasions and each time sought that the accused ought to receive a peace bond. On this occasion, an argument erupted regarding my client wanting to end the marriage. The complainant had discovered a letter noting that A.F.S. had retained a family lawyer. The complainant called police and alleged new Assault and Threatening charges. Joseph Neuberger was retained as the criminal lawyer Toronto on the file. Joseph Neuberger sought disclosure on all of the prior charges and subpoenaed the pictures of the client’s injuries from one occurrence and obtained the Affidavits of the complainant provided on two of the prior charges were the complainant averred that she fabricated the allegations to avoid being charged by A.F.S. It appears that A.F.S. had indeed been assaulted more than once by the complainant. Once all of this material was gathered, defence lawyer Joseph Neuberger disclosed the material to the Crown. Oddly the Crown at first took the position that the evidence was collateral and not relevant. Joseph Neuberger responded that a pattern of fabrication cannot be “collateral” and is a direct impugnment of the complainant’s credibility. At trial, further discussions took place and eventually all charges were withdrawn.
Charges of Sexual Assault x 2 and Sexual Interference x 2 withdrawn prior to trial, Ontario Court of Justice Scarborough. J.T. was charged with allegedly sexually assaulting his daughter on at least two occasions when J.T. was intoxicated. The allegations were only disclosed two years after they were supposed to have occurred. J.T. retained defence lawyer Joseph Neuberger to defend the charges. CAS had been involved in the investigation, and after a few months, defence counsel Joseph Neuberger was able to obtain the entire CAS file, and after careful review the notes of the youth worker seemed to suggest that the complainant had not only recanted early after the police took the statement but that the allegations arose after a period of parental discipline by J.T. that the complainant deemed too harsh and restrictive of her social life. Defence lawyer Joseph Neuberger disclosed the relevant notes during a judicial pre-trial to a judge and the Crown. It was interesting the CAS never felt it necessary to directly communicate these facts to the Crown or police. After continued discussions, the Crown agreed that there was no reasonable prospect of conviction and the charges of sexual assault and sexual interference were withdrawn.
Charges of Criminal Harassment x 2, and Threatening x 2 withdrawn prior to setting a trial date, Ontario Court of Justice, Toronto. M.F.S. was intoxicated one night with his former girlfriend. During an argument about him possibly having been unfaithful to her, she directed M.F.S. to contact via text and phone a former friend of hers to impersonate someone and intimidate and harass the complainant. This went on for several days during which the complainant contacted police and eventually M.F.S. was identified as the culprit and arrested. Joseph Neuberger was retained as the criminal defence lawyer to defend the charges. Joseph Neuberger had an investigator take a statement from M.F.S. former girlfriend, and indeed, she confessed to orchestrating the event and coercing M.F.S. while he was quite intoxicated. Joseph Neuberger sent the client for therapy as to his susceptibility to such an offence and alcohol counselling. During the therapy, the forensic psychologist interviewed the former girlfriend who again confirmed her involvement. Defence lawyer Joseph Neuberger disclosed the therapy report and the interview of the girlfriend to the Crown assigned and it was agreed that the charges would be withdrawn if M.F.S. signed a common law peace bond. Thus, all charges were withdrawn and M.F.S. signed a common law peace bond.
Charges of Assault x 3, and Assault with a Weapon (Domestic) all withdrawn at first court appearance. W.W. was confronted by his girlfriend about an alleged affair (she misread a text message) and the girlfriend/complainant severely assaulted W.W. W.W. called 911. W.W. went to hospital with a gash to his left eyebrow, multiple abrasions and a possible concussion. W.W. gave a brief statement to police at the hospital but the complainant gave a video recorded statement at the police station at the same time. When released from the hospital, W.W. was charged with assaulting his girlfriend. Joseph Neuberger was retained as the criminal defence lawyer. Joseph Neuberger obtained the medical records and pictures of the injuries of W.W. Joseph Neuberger drafted a detailed disclosure letter not only seeking disclosure but a detailed response to how a decision was made to charge his client. Defence lawyer Joseph Neuberger also provided the medical records and pictures in support and suggested in the letter that not only was his client wrongfully accused, but there was an obvious gender bias that can result in a lawsuit. On the first appearance the Crown withdrew all charges.
Client found not guilty after trial on a single count of breaching a section 161 order. H.T. had plead guilty in 2015 to offences related to sexual interference and sexual assault. A section 161 order was made for a term of five years. One prohibition was to not apply for work related to anyone under the age of 16. H.T. had applied for a job to tutor, but had thought it was just for editing of papers of University Students. The person offering the position, went to police alleging that H.T. had applied for a tutor position that could involve students ages 8 and up. Joseph Neuberger as retained as the criminal lawyer to defend the case. Joseph Neuberger sourced out the website of the tutoring company, the job description and retrieved from the client all email exchanges. Aside from disclosure that was provided, it became apparent that the complainant and her business marketed to university students, and in fact the position was not posted on the website and the complainant could not recall if at any time any mention was made of students other than students in University. At trial, Joseph Neuberger cross-examined the complainant and another employee of the tutoring business and it was established that the complainant was not forthright about what position was offered, and in fact misrepresented what the position was that H.T. had applied for. There was no mention nor evidence that H.T. applied to tutor anyone other than university level students. Without going into other detail, cross-examination revealed that the complainant simply took it upon herself to allege something that in fact was not an accurate reflection of the job or H.T.’s application. H.T. was found not guilty at trial as H.T. had obeyed the strict terms of the 161 order and not breached the order.
Charge of Domestic Assault withdrawn after successful negotiations at the Judicial pre-trial stage, Ontario Court of Justice, Barrie. An argument between a husband and wife culminated in the husband allegedly hitting the wife on her head in front of their children. The altercation was reported by the father of the wife with the wife providing a statement. Mariya Protsenko of Neuberger & Partners was retained to represent O.I. on the assault charge. Mariya reviewed disclosure diligently and found numerous issues in the wife’s statement. After three extensive pre-trials with the Crown Attorney, Ms. Protsenko conducted a Judicial pre-trial at which time it was agreed that the prospect of conviction was low and the client entered into into a peace bond and the charge was formally 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.
