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Client found not guilty of Assault with a Weapon (Domestic), Utter Death Threats, Point Firearm, and Possession of Firearm, after a two day trial in the Ontario Court of Justice, Scarborough. M.N. was alleged to have threatened and assaulted his ex-wife over an alleged dispute regarding their son. M.N. and the complainant had been divorced for several years but were still sharing custody of their young son. Over the course of a few months, tensions got heated regarding custody and child support issues. The complainant alleged that on Mother’s Day M.N. attended her apartment building and waited for her to return from work. As she was walking to the apartment at approximately 8:00 p.m. she alleged that M.N. got out of his car and pushed her to the corner of the building and put a gun to her head, threatening to kill her unless she provided him with the baby bonus cheques. M.N. retained Joseph Neuberger and Mariya Protsenko. After a detailed interview of the client and careful scrutiny of the statement of the complainant and other evidence, the defence found that within several days of the charges the complainant filed in Family Court for sole custody and used the allegations as a reason for sole custody. In fact, arguments had occurred prior to the date of the alleged offence wherein M.N. had suggested that their son would be better off living with him and his family because the complainant was working long hours and travelling extensively. Joseph Neuberger obtained the family court documents and used a number of the documents in cross examination of the complainant. Further, at trial, evidence of the complainant suggested that the event took well over 10 minutes with extensive details of how the event unfolded. However, the building video surveillance showed M.N. exiting his car, walking up to the complainant, then going out of range, and coming back to his car with a duration of less than 60 seconds. In cross examination, defence lawyer Joseph Neuberger was able to draw out the alleged details from the complainant and then put to the complainant the actual duration of the surveillance. Further, material inconsistencies arose during cross-examination that undermined her credibility. M.N. testified in his own defence and denied the allegations. After a careful analysis of the evidence, the Court acquitted M.N. of all charges.
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Charges of Firearms Trafficking, Careless Storage of a Firearm, Weapons Dangerous and Possession of Overcapacity Magazines all withdrawn just prior to trial. I.Z.’s home was searched pursuant to a Warrant issued on the primary basis of a confidential source’s information. Defence lawyer Joseph Neuberger, reviewed the Warrant, and the Information to Obtain, and sought source material. It was obvious very little was done by police to confirm the C.I.’s information. In fact, surveillance of I.Z. yielded nothing of probative value although the Justice issued the Warrant. Joseph Neuberger brought a Constitutional Challenge alleging a section 8 Search and Seizure breach such that the Warrant was deficient and provided insufficient grounds for a search. Just prior to trial, the crown conceded that the Warrant was thin and that there was no reasonable prospect of conviction on the charges. As a result all charges were withdrawn.
Charges of Mischief, Domestic Assault, Threatening, Breach of Bail, Mischief to Data and Obstruct all withdrawn prior to commencement of the trial. P.O. who was charged with domestic allegations by his wife while he was on bail for a Refuse Roadside Sample for which she was the one who called police, was alleged to have communicated with her after being charged and the complainant alleged a historical assault, a threat to kill her and other allegations regarding their jointly owned business. Defence lawyer Joseph Neuberger was able to establish to the Crown that the complainant fabricated the allegations because P.O. had filed for divorce and for her to gain an economic advantage in the divorce. Joseph Neuberger retained a forensic technology expert to show there was no mischief to data and interference with the complainant’s business. As a result all charges were withdrawn.
Client found not guilty of a charge of Sexual Assault after five day trial in the Superior Court in Barrie. D.I. was invited to a party in Barrie at a young lady’s home whom he met via Plenty of Fish dating site. The party became extremely large and out of control. D.I. was drinking as everyone at the party was intoxicated and using marijuana. The complainant met up with the client during the evening and took shots from his bottle. At some point, the two went to D.I.’s car and sexual intercourse took place. As D.I. was exiting the car, he was pulling up his pants and a police officer had arrived and noticed D.I. D.I. appeared highly intoxicated and the officer thought he was going to attempt to drive. When he looked into the car, the officer found the complainant passed out in the car. Several police and paramedics attempted to wake up the complainant but she was unresponsive. She was removed from the car, place on a stretcher and taken to hospital. D.I. was charged with sexual assault.
The Crown pursued the prosecution on two grounds. First, that the complainant was heavily intoxicated and D.I. knew she was heavily intoxicated. Her blood alcohol readings were between 254 and 295 mg per 100 millilitres of blood. A very high level. Thus the Crown argued that at such a high level of intoxication she lacked the “capacity” to consent to sexual activity and D.I. knew this or was wilfully blind that he lacked consent. The second ground was that the complainant must have passed out during sexual contact in the car and thus D.I. no longer had consent as per the Supreme Court of Canada’s decision in Regina v. J.R.. In addition, the Crown relied on an Ontario Court of Justice decision wherein the Court stated that because the complainant in that case was passed out and was unresponsive, there was clear evidence that she lacked the capacity to consent.
Defence lawyers Joseph Neuberger and Stacey Nichols extensively cross-examined all Crown witnesses as to their observations of the complainant and showed that all Crown witnesses were unreliable. However, the complainant, under cross-examination by Joseph Neuberger, admitted that she has been drinking excessively for several months leading up to the date of the party. In fact, the complainant drank four to five times per week at least 375 ml of rum per night and when drunk was a heavy sleeper. The complainant admitted to being an experienced drinker who developed a high level of tolerance. During the party, she admitted to be a social butterfly and being able to socialize, talk, walk and have fun. That the alcohol helped her be more social and she enjoyed herself. However, after a point of drinking she had no memory of the events. Under cross-examination by Joseph Neuberger she admitted that she cannot remember if she consented to sexual contact due to her memory loss.
An expert toxicologist testified for the Crown. The toxicologist testified at to the blood alcohol levels and the general effects of high levels of alcohol. Under cross-examination by Defence lawyer Joseph Neuberger, the expert agreed that the pattern of drinking of the complainant is indicative of a “heavy” drinker and she would not doubt have a higher degree of tolerance. It would be no surprise that she could be functional even while at such a high level of intoxication. More importantly, the expert agreed that just because the complainant was found to be passed out in the car and not responding to police and paramedics, thus in a deep sleep, it does not mean that the complainant could not have been functional 10, 12, 13 or even 15 minutes prior to being found passed out. This one important evidentiary point directly contradicts that finding of the court in the case the Crown was relying upon.
Stacey Nichols and Joseph Neuberger crossed other witnesses that showed the complainant was functional and in fact was outside the house having a cigarette minutes before the sexual contact, and appeared to smile and be “fine”. In addition, although the Crown refused to call medical evidence, Joseph Neuberger extracted from the police witnesses that the complainant was released from hospital some two hours later without any treatment for alcohol poisoning or for any distress and that in fact by an hour or so after her arrival in hospital she was awake and talking to hospital staff. Thus, this evidence detracted from the argument that the complainant was in an exceptionally intoxicated state. Finally, the Crown tendered the video statement of the client.
Based on all the evidence, the Court found D.I. innocent and thus not guilty of the charge of sexual assault.
Case Comment: When dealing with sexual assault cases where the Crown alleges “incapacity to consent” it is extremely important to focus on the surrounding evidence and understand cognitive functioning and that consent to intimate contact requires a minimal level of cognitive functioning.
Charges of Assault, Threaten Death and Fail to Comply x 3 withdrawn after third judicial pre-trial. J.E. was alleged to have followed and ran off the road his former brother in law and assaulted him in addition to threatening him. The client was not supposed to have contact with the complainant. There was also an alleged independent witness who confirmed the complainant’s story. Defence lawyer Joseph Neuberger video recorded the route and then canvassed the surrounding businesses for any surveillance recordings. Further, after a defence investigation Defence lawyer Joseph Neuberger was able to establish that the independent witness was in fact a friend of the complainant. The defence recording showed that it was impossible for the client to have driven as alleged and ran the complainant off the road into a plaza. Joseph Neuberger disclosed all of the defence evidence over the course of several judicial pre-trials and as a result the Crown withdrew all charges.
Charges of domestic assault x 2, and threaten death x 2 withdrawn after commencement of trial. Mr. S.S. had married his wife in India and after about two years of living together in Canada, repeated arguments arose regarding his work and finances. S.S. was her sponsor and the complainant had asked for him to sponsor his family. S.S. decided to separate and prior to the formal separation, S.S. was charged with assault and threatening. Defence lawyer Joseph Neuberger obtained emails and text messages showing that the complainant was having an extramarital affair. In addition, the joint savings account had numerous withdrawals. This material was provided by Joseph Neuberger to the Crown at the start of the trial and during the initial phase of cross-examination. Based upon discussions, the charges were withdrawn and the client signed a common law peace bond.
Charges of sexual assault, sexual interference and internet luring withdrawn after extensive defence investigation. The client had met the complainant through an online dating site. The communications between the two continued for two weeks prior to meeting up. The initial communications were via the dating site but the majority of communications were by text messaging. The two met, went on a date and eventually had an intimate encounter. J.C.B. shortly after stopped communicating with the complainant because of excessive messages and calls. J.C.B. also came learn that the complainant was 15 and not 20 as she had noted on her profile. A few weeks later the mother of the complainant saw some of the text messages and that J.C.B. was 29. Police were contacted and charges were laid. The complainant gave a statement that included allegations that she was forced to have intimate contact with J.C.B. and had been clear with him that she was under age. After the charges were laid the complainant started to communicate again with J.C.B. Defence Lawyer Joseph Neuberger was retained. Each text message was downloaded and saved as defence evidence. Also, Joseph Neuberger retained on the client’s behalf a technology expert to retrieve all of the several hundred text messages between his client and the complainant. Defence Lawyer Joseph reviewed and organized the messages in groups establishing that the complainant led J.C.B. to believe she was older and experienced. Joseph Neuberger then hired a private investigator who pretended to be the client and messaged with the complainant on his phone. A strategy was employed to relate many of the past text messages in their ongoing communication to obtain admissions that she pretended to be older; that she pursued J.C.B. and not only consented to intimate contact, she had helped arrange the date and had talked about wanting to have intimate contact with J.C.B. After several hours of communications there was plenty of defence evidence to prove the complainant felt forced to give the statement she did because of her mother’s pressure and that she did not tell the truth to police. Defence Lawyer Joseph Neuberger prepared a document brief of all of the messages and disclosed the material to the Crown prosecutor. As a result all charges were withdrawn as the client was innocent. The client is now considering civil action for damages to his reputation and for the legal fees he spent.
Client charged with one count of assault in the Ontario Court of Justice in Milton. Mr. Navarrete obtained various defence evidence and provided it to the Crown including emails and recordings. After reviewing the material the Crown concluded they had no reasonable prospect of conviction and withdrew the charges.
Client charged with domestic assault in the Ontario Court of Justice in Scarborough. Lawyer John Navarrete conducted a Crown Pre-Trial with the Crown Attorney’s office and convinced the Crown that upon successful completion of the PPAR program, the charges should be withdrawn. Mr. Navarrete provided character letters of the client’s good standing in the community and also demonstrated possible mental health issues with the complainant including depression. Client completed the PAR program, entered into a common law peace bond and the charges were withdrawn.
Client charged with domestic assault in the Ontario Court of Justice in Newmarket. Lawyer John Navarrete conducted a Crown Pre-Trial with the Crown Attorney’s office. Mr. Navarrete convinced the Crown that upon successful completion of the PAR program, the charges should be withdrawn. Mr. Navarrete provided character letters of the client’s good standing in the community and also demonstrated issues the Crown would face in successfully prosecuting the client at trial. Client completed the PAR program, entered into a peace bond and the 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.
