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Client found not guilty of sexual assault after five day trial. T.H. was a student in a University. T.H. and the complainant attended a friend’s house for a pre-drink prior to going to the bars. The house party went on for some hours and everyone played drinking games. Eventually T.H. and the complainant left the house and went back to his house. The two had intimate relations. The complainant woke up in T.H.’s house and did not remember the night. She spoke with T.H. who advised her that they had sex and about speaking about sex before being intimate. There were details about birth control and the complainant menstrating. The complainant left and over the course of a week spoke with friends and another female student who was at the house party. The conclusion was that she could not have consented and having been intoxicated she lacked the capacity to consent. The complainant sent a text to T.H. accusing him of sexual assault. T.H. replied and apologized and gave his version of the evening and sex. The complainant filed a complaint with the University and then the police. Joseph Neuberger was retained as his crininal defence lawyer. Joseph Neuberger put together a team from his office of John Navarrete and Diana Davison to work on the defence. At trial Joseph Neuberger surgically cross-examined all Crown witnesses to demonstrate their biased and wrongly held views on consent and capacity to consent and within that context their evidence was not reliable. There were many other areas of cross-examination after a successful 276 application about prior behavior of the complainant that undermined her evidence. For example the complainant alleged previous held attitudes about sex while menstruating; about sex for the first time with a man and her attitude of not being interested in T.H. that the Crown relied upon to demonstrate lack of consent. Cross-examination elicited evidence that directly contradicted these “attitudes” undermining the assertions of lack of consent. In relation to lack of capacity, Joseph Neuberger assailed the notion that an intoxicated party cannot consent. In fact an intoxicated consent is still consent. It may be that while intoxicated the complainant made choices that were not in her best interest and contrary to what she would normally do when sober but that in and of itself did not establish incapacity. Further, it became dangerously obvious that the “consent” education at the University was dramatically out of line with the law and infected the evidence with a skewed view of what actually took place the evening of the house party. Finally, underlying the evidence was an inherent bias about male sexual stereotypes that were improperly applied to the evidence including how it was used to frame T.H.’s text apology as a confession. After extensive written and oral submissions T.H. was found not guilty of sexual assault. To read the full text of the judgement
Charge of Domestic Assault and Mischief withdrawn well prior to setting a trial date, Newmarket. K.W. and his wife were having marital issues. An argument erupted regarding finances of the family and relationship issues. The complainant wanted K.W. to leave the home and live somewhere else. When he refused, a 911 call was made by the complainant and K.W. was charged with Assault and Mischief. Joseph Neuberger was retained as the criminal defence lawyer. Shortly after the charges were laid, the complainant sent a letter to the Crown about the motive for calling the police. This was also send to Joseph Neuberger. In reviewing the statement and 911 call, it was apparent, as so often we see in these cases, more concern by the complainant about the relationship than issues about any type of domestic violence. A Zoom conference was set up with a judge and the assigned Crown. There were two children of the marriage and the parties wanted to reconcile. Joseph Neuberger arranged for joint marriage counselling and therapy on conflict management. After successful completion of the therapy, the charges were withdrawn.
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.
Charge of Sexual Assault withdrawn prior to setting a trial date, Toronto. P.S. was married to the complainant for a short-term. It was an arranged marriage and upon immigrating to Canada multiple arguments arose regarding the relationship and finances of the marriage. On the date of separation, the complainant contacted police and alleged a historic sexual assault from earlier in the marriage. Joseph Neuberger and Yuvika Johri were retained as the defence lawyers. Upon receiving the disclosure, the statement of the complainant demonstrated more concern over insignificant issues in the marriage than the sexual assault. During the criminal process, the complainant retained a family lawyer, and in the correspondence a demand for a lump sum was sought along with reference to the criminal charges. The client was referred to a family lawyer, and a defence on both fronts was marshalled. After some defence disclosure of information received through the family court process, extensive pre-trials took place and ultimately it was determined that the charge ought to be withdrawn in exchange for the client signing a common law peace bond. As such, the charge was withdrawn.
Charges of Assault x 5 withdrawn after extensive pre-trial negotiations, Ontario Court, Scarborough. C.L. and X.L. are son and mother and were charged with a domestic incident regarding C.L.’s girlfriend. Allegations stem form living together and a series of arguments culminating on the day of the charges. Joseph Neuberger was retained as the criminal defence lawyer for both person accused. Once disclosure was received, Joseph Neuberger disclosed audio recorded arguments prior to the date of the offences showing a history of animus from the complainant and her father. It seemed that arguments centered around the living arrangement and the defence took the position that the alleged assaults were in fact a plan by the complainant to orchestrate a removal of C.L and X.L. from the home and an abatement of their portion of rent. Regardless, Joseph Neuberger conducted several pre-trials and given the nature of the offences, a peace bond resolution was worked out and all 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.
