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Charges of Assault and Assault with Choking were withdrawn on the first day of a two-day trial at the Ontario Court of Justice, Oshawa. The Complainant was the ex-girlfriend of N.B. She accused him of two incidents of domestic violence, one leading to her hospitalization with serious facial injuries. Nick Whitfield of Neuberger & Partners LLP, was retained to defend N.B. N.B. vehemently denied the allegations; he claimed they were fabrications to ensure his removal from the apartment he shared with the Complainant. Several months after contacting the police, the Complainant began texting N.B. to seek reconciliation. Portions of the messages indicated her original allegations were inaccurate. Nick Whitfield presented the text messages to the Crown and advised he would be using them at trial. The Crown agreed to have the complainant re-interviewed as a result of the disclosed messages. Nick took the position that the allegations were fabricated. On the eve of trial, the Complainant was re-interviewed and rescinded her allegations. The Crown withdrew all domestic abuse charges, and the parties agreed to a 6-month common law peace bond with a single condition to keep the peace.
Charges of Assault and Assault Bodily Harm withdrawn on day 1 of a two-day trial in the Ontario Court of Justice, Guelph. E.S. and three other individuals became involved in a verbal altercation outside a nightclub on a Saturday evening. They had never met before. The three individuals had been drinking earlier and gradually escalated matters with E.S. by throwing a soft drink plastic bottle in his direction. All four parties then became involved in a physical altercation. E.S., instead of walking away, remained and the fighting escalated to the point where he allegedly caused one of the complainants bodily harm by pushing him into a concrete barrier headfirst. Michael Bury of Neuberger & Partners LLP, Toronto Criminal Lawyers, was retained to defend the charges. Michale Bury engaged in extensive negotiations with the Crown and demonstrated that despite the actions of E.S., the other individuals were similarly at fault by initiating the fight. The Crown agreed to withdraw the charges before the commencement of the trial upon E.S. entering into a common law peacebond which required him not to have any contact with the complainants for 12 months. As a result, E.S. avoided a possible criminal record if found guilty following a trial.
Client found not guilty of Sexual Assault and Sexual Exploitation after four-day trial in the Ontario Court of Justice, Brampton. J. J.K. was accused of inappropriately massaging his stepdaughter on three occasions when she was 17 years of age. The complainant attended police after an argument with J.K. and J.K. was charged. Joseph Neuberger of Neuberger & Partners LLP, Toronto Criminal Lawyers, was retained. The complainant provided a statement to police that was video recorded, and her boyfriend provided a statement that at the time of the third alleged massage, the complainant called her and was asking to come to his home, thus supporting her feeling of being uncomfortable and scared. The complainant also had a diary that she allegedly was chronicling the instances of sexual assault. The argument just prior to the complainant going to police was about J.K. having read her diary and confronting her about the contents. He had thrown the diary away and the complainant was extremely angry that he invaded her privacy and threw the diary away. The complainant alleged three instances of inappropriate touching. J.K. was notified to turn himself in and contrary to advice from his then counsel, he provided a video recorded statement that was voluntary. The Crown’s case was premised on the statement of the complainant that was admitted into trial evidence under section 715.1 of the Criminal Code because she was under 18 at the time of providing the statement, many aspects of J.K.’s statement that were odd and in the Crown’s theory provided corroborative evidence of the complainant’s version of events, including an admission. It was a strong prosecution case. Joseph Neuberger and Diana Davison had in-depth detailed meetings with the client, his wife and sourced independent evidence that during the year the complainant stated that the three instances occurred she was under the care of a therapist and a chiropractor for back issues. The complainant and J.K. both agreed that they had a bonded loving relationship since she was two years of age. He was always supportive, caring and provided well for the family. At age 11, the complainant wanted to start competitive skiing, and J.K. enrolled her in lessons and a team. He attended her practices, took her skiing, and attended most if not all her competitions. He was a very good stepfather. Things according to the complainant changed when she turned 17 and his massages became “weird” and “inappropriate”. The defence narrative, which was supported through cross-examination of the complainant, was that the complainant suffered from chronic muscle and back issues due to competitive skiing. J.K. had experience with therapeutic massages and from age 11 gave her massages to help her pain and muscle cramps. In cross-examination the complainant eventually confirmed that these massages were about three to four per season, sometimes in the summer and were extremely helpful. Further, he had taken her to a sports clinic to help with her injuries. In addition, during many of the massages the two would talk about personal issues that troubled the complainant related to her biological father and other dynamics in her life. She agreed in cross-examination that the massages were a bridge to a form of talk therapy that was very constructive and helpful to her. Thus, only when she turned 17, after she stopped skiing competitively, did she allege three instances when he grazed her vagina, and touched her breasts. He was also alleged to have used some inappropriate language. In cross-examination of the complainant, after extensive questioning, the complainant admitted that when she was 17 there was considerable tension at the home due to her boyfriend and her group of friends. She eventually admitted to using marijuana, mood changes, losing weight and issues with school. This caused tension with J.K. as he had high expectations of her and wanted her to succeed in university. J.K. used these massages at the time to talk to her about these issues. The complainant was challenged on her not disclosing any of these issues including a major blow up about her wanting to quite her job at their cottage so she could be in the city to be with her boyfriend. The complainant admitted that both the mother and J.K. were very upset and this caused more tension during the summer. Toward the end of the summer and the last alleged incident of sexual touching, the complainant was expressing concerns about a family trip and her moving out west for a gap year to go skiing work to be away from bad influences. The aspects of this issue and the disagreement with J.K. was also never mentioned in her statement to police. J.K. testified that in fact when discussing her reluctance to go out west for the year, he was giving her a massage to relieve her tension and to try and talk about the issues however, things soured, and a bad argument occurred with J.K. giving her an ultimatum to stop seeing her boyfriend and that she must go out west. Shortly after this argument and the confrontation about the diary, the complainant went to police. J.K. testified that he made a mistake looking at her diary but what he read made no sense and he read the diary to see what was going on in her life. He confronted her about certain contents in her diary that caused him great concern. This only exacerbated their tension, and he threw away the diary in anger, not to destroy inculpatory evidence. There were other significant issues raised in cross-examination, but at the end of the trial, Joseph Neuberger and Diana Davison drafted detailed writing closing submissions dealing with the statement of the complainant, inconsistencies, the throwing away of the diary and the statement given by J.K. The defence also put forth a multifaceted motive to fabricate including that the complainant’s social life as under attack. The judge carefully considered all the evidence, and in the end found that there were compelling aspects to the motive to fabricate and the inconsistencies and lack of disclosing the tensions and arguments with J.K. significantly detracted from the complainant’s credibility and reliability. J.K. was found not guilty of both sexual abuse charges.
Charges of Sexual Assault x 2, and Assault x 6 withdrawn prior to setting the matter down for trial, Toronto. R.R. and his wife, the complainant, were in a bitter separation and custody battle. After R.R. filed for divorce, the complainant contacted police, and R.R. was charged with various historical allegations of assault and sexual assault. R.R. retained Joseph Neuberger of Neuberger & Partners LLP to defend him. The complainant provided a statement to police and some messages as evidence of his abusive conduct over the years of their marriage. Joseph Neuberger obtained from R.R. numerous messages, and videos directly relating to arguments that the complainant related to the alleged abuse. R.R. had in fact made various recordings due to his concerns about the complainant’s erratic behavior. Joseph Neuberger compiled a detailed memorandum outlining the weaknesses with the Crown’s case and provided a detailed chart breaking down the video evidence disclosed by the defence refuting several allegations of assault and demonstrating exceptional aggression on the part of the complainant including potential harm of their child. Further, Joseph Neuberger outlined the defence for the Crown. After several discussions and judicial pre-trials, the Crown concluded that there was no reasonable prospect of conviction and if R.R. were to sign a common law peace bond all charges would be withdrawn. Accordingly, the matter was resolved for a common law peace bond and the Sexual Assault and domestic assault charges were withdrawn.
Charges of Sexual Assault x 2, Sexual Interference x 2, and Forcible Confinement, withdrawn eve of trial in the Ontario Court of Justice. M.M. was accused by his niece of a sexual abuse allegations. M.M. had been living with his brother and hence the complainant. M.M. was asked by his brother to help out with monitoring homework and limiting access to social media after school. The two became embroiled in an argument and within days M.M. was charged with multiple sexual offences. Joseph Neuberger of Neuberger & Partners LLP was retained to defend the charges. The complainant provided a video statement to police but then a short while after, the complainant went to police and gave a second video statement recanting her first statement and explaining that she was very mad at M.M. for taking her iPad and then searching it finding out she had been on some inappropriate social media sites. The matter proceeded to trial, and Joseph Neuberger challenged the section 715.1 application to have the first statement admitted as it did not have sufficient reliability given the recantation. A motion record was filed and just before trial, Joseph Neuberger and the assigned Crown worked out a resolution for a common law peace bond to be signed by M.M. and all charges were withdrawn.
Client found not guilty of 3 counts of Forcible Confinement, 1 count of Assault, 1 count of Assault with a weapon, 1 count of Assault Bodily Harm and 1 count of Intimidation by threats following a two-day trial in the Ontario Court of Justice, Toronto. Neuberger & Partners LLP were retained to defend J.B. Between the dates of January 1, 2006, and July 26, 2023, J.B. and L.D. resided in various residences within the GTA. Throughout the duration of their relationship, it was alleged that J.B. would assault L.D. on a weekly basis whenever they got into an argument. The complainant alleged that J.B. engaged in acts such as pulling her hair, twisting her arm and making gestures toward her with an open hand causing her to believe that he would assault her. Between the dates of November 4, 2019, and July 26, 2023, L.D. claimed that J.B. escalated his controlling behavior after she gave birth to their child. She testified at trial that he would not permit her to leave the apartment with the exception of medical appointments. According to L.D. when she would make any attempts to leave the apartment, either by her self or with their child, J.B. would stand between her and the front door of the apartment, wrap one arm around her in an embrace and squeeze her to the point it would cause the her pain. J.B. would also allegedly engage in extreme behaviors such as stabbing their child’s toys with scissors as a form of discipline whenever their child would misbehave and throwing objects throughout their apartment. Both L.D. and J.B. testified at trial. L.D. was cross-examined at length by Michael Bury. It became clear that her version events made no sense as she had several family members in the GTA had she chosen to move out as well as a relative who was a family lawyer who could have assisted her with any custody issues as her greatest fear was that she would somehow lose access to their child. J.B. testified in a straightforward manner and his evidence was left unchallenged by the Crown. Ultimately, the trial judge had serious concerns about L.D.’s credibility as she repeatedly attempted to “bad mouth” J.B. throughout the trial in response to simple questions asked by the Defence in cross-examination. As a result, J.B. was found not guilty on all domestic abuse allegations.
Client found not guilty of 5 counts of sexual assault, and 1 count of break and enter into dwelling following a three-day trial in the Ontario Court of Justice, Toronto. S.H. retained Michael Bury of Neuberger & Partners LLP to defend him. S.H. and C.H. began a dating relationship in November 2019 and ended December 2022. S.H. was 21 years old at the time and the complainant was 48 years old. S.H. would work the night shift and stay awake all night while the complainant would go to bed. The complainant would take sleeping pills to help her sleep. The pills were over the counter and would allow her to sleep through the night. C.H. would take the sleeping pills aspart of her nightly routine and go to bed. She would sleep on herstomach but was allegedly awoken to the blanket being pulled off with S.H. naked on top of her on four separate occasions. C.H. testified that S.H. would have intercourse with her even though she claimed that she did not consent. At some point, the relationship ended and S.H. met a new partner. C.H. repeatedly tried to “warn” the new partner about S.H. Additionally, C.H. decided to report the matter to the police after considerable time had passed following her break-up with S.H. At trial, the main issue was both credibility and reliability. S.H. testified in a straightforward manner. Michael Bury cross-examined the complainant at length about the absence of details regarding the allegations and her displeasure about S.H. moving on to a new relationship. Her reliability as a witness was successfully challenged leading the trial judge to find S.H. not guilty of all sex assault charges.
Charges of Assault, Assault Choking, Forcible Confinement and Mischief Under $5,000.00 withdrawn just prior to the commencement of trial, Toronto. F.L. had been dating the complainant for about a year. F.L. agreed for the complainant to move in with him. The day after she moved in, and during unpacking and setting up the apartment, the two got into a heated argument and F.L. told the complainant to leave and that he did not want to live with her. The complainant slapped and kicked F.L. and the two got into a struggle. F.L. was able to push the complainant off and he left the apartment to cool off. While having a coffee, he got a call from police and for him to return to the apartment to be charged. F.L. was charged and retained Joseph Neuberger to defend the charges. The statement of the complainant was a rather incoherent outline of what she alleged for the assault allegations including the mischief charges. She of course told the police nothing about hitting F.L. first. F.L. was alleged to have punched “big” holes in the walls of the apartment as part of the altercation. Upon arrest, there were no injuries or marks to F.L.’s hands but he did sustain redness and scratching to his facial area. Prior to trial, discussions took place between the Crown and Joseph Neuberger regarding the deficiencies in the complainant’s statement and the complainant not wanting to attend trial. An agreement was reached for F.L. to sign a common law peace bond. After signing the common law peace bond, all charges of domestic assault were withdrawn.
Client found not guilty after two-day trial in the Ontario Court of Justice, Brampton. M.A. had attended with his truck a cement loading company and entered an office of the operator. M.A. overhead racial comments that disturbed him and he confronted the female operator. After about 11 minutes, he left the operator’s office and continued to load his truck. He thought about the exchange and later in the day sent a friendly text to the operator to de-escalate the matter as he had to attend that location everyday for as part of his job. However, after a day or two he became increasingly upset and spoke to the HR department of his company. Two days later he discovered he was being accused of sexual assault. He was charged by police and had to obtain new employment. Joseph Neuberger and Diana Davison were retained to defend Mr. M.A. The complainant alleged a ten-minute sexual assault that in many ways seemed physically not possible, and highly risky. The complainant stated that no other person came to her office during the alleged sexual assault and that she was on the phone with a family member for five minutes of the sexual assault that did not deter him. There were many other details of the allegations. Jospeh Neuberger subpoenaed the dash cam video recordings from his client’s truck and another employee who had attended the same location and office during the time frame of the allegations that required careful cross-examination to expose as false. The dash cam videos were provided to the Crown three weeks before trial. At trial, Joseph Neuberger, carefully got the complainant to commit to details of her story that were directly contradicted by the dash cam videos and then launched into a long cross-examination while playing the videos in court. The complainant became increasingly hostile during cross-examination. For example, the dash cam videos demonstrated that about four minutes into the alleged sexual assault, another truck driver entered her office and was in the office for no less than a minute. This was directly contradictory to her statement to police and her evidence at trial. The complainant claimed she forgot about this party. This made no sense as he gave a statement about 72 hours after the alleged event. More importantly, additional videos showed that the complainant had to pay careful attention to this other driver operating his truck to move into position to be loaded. The complainant had to take several steps with the computer system to start the loading process and stop the loading process, again undermining her evidence including that M.A. had confined her forcefully to her chair. Further, Jospeh Neuberger cross-examined on the mechanics of the alleged sexual assault and several aspects were highly implausible if not impossible. Joseph Neuberger filed written closing submissions, and the Court found the complainant not believable, accepted the evidence of M.A. and found him not guilty of sexual assault. * This was another case that after detailed cross-examination, it became obvious that the complainant had a motive to fabricate a false allegation to avoid an adverse employment complaint. However, if not for the dash cam videos, M.A. would still likely have been found not guilty but would not have had objective evidence to establish objective evidence of fabrication. This is a caution as to how easy it is for a false allegation to be made. But how it is important to spend considerable time building the defence to establish the client’s innocence.
Directed verdict of not guilty entered after two-day trial in the Ontario Court of Justice, Toronto. P.H.L. attended B Boss bar with friends. During the evening, he was partnered with a young lady who he met a week before at the same bar. The two played drinking games with their friends and eventually the young lady became intoxicated. She was offered to go home with one or more of her friends, but she refused. She left with P.H.L. and no one provided P.H.L. with her home address. P.H.L. took her to his apartment and after an hour she provided her address by typing in to his Uber app. While at her apartment, the two engaged in intimate contact. While leaving, P.H.L. encountered the landlord where the young lady was staying and later learned that the landlord wanted to evict the young lady for having a guest over. Shortly after leaving, the young lady became increasingly angry at P.H.L. and blamed him for the eviction and began messaging P.H.L. about her situation. She eventually had to leave the apartment about eight weeks later. She then attended police and charged P.H.L. with three counts of sexual assault. Joseph Neuberger of Neuberger & Partners LLP, Toronto Criminal Lawyers, was retained to defend the charges. Joseph had Diana Davison assist with the defence. The complainant turned over to police selected WeChat messages but did not disclose other communications. Joseph Neuberger was able to obtain from the client, the Uber receipts and money transfers P.H.L. made over the morning hours to the complainant. At trial, Joseph Neuberger cross-examined the complainant on several important issues, but in particular the messaging that had occurred from the time P.H.L. had left her apartment during which she expressed her anger at him for the eviction, blaming him, and her accusations that he took advantage of her. Joseph Neuberger eventually obtained admissions from the complainant that she had been messaging for about two hours with P.H.L. during which time he also sent funds to appease the landlord and to calm down the complainant. She admitted that she did not provide any of the earlier messages to the police. Further, she was unwilling to admit how P.H.L. obtained her address if not from her and how the complainant obtained his WeChat information. Further, Joseph Neuberger was able to suggest that the complainant had manufactured a witness to help her with the issue of her address. That fact demonstrated to the Court, that the complainant was not being truthful. The complainant had tried to manipulate the trial evidence to suggest her friends gave him the address, but he ignored it or changed it in the Uber app to scheme to bring her to his home. However, in cross-examination it came out that in fact her friends had asked her to go with them home, and the complainant refused. No one provided P.H.L. with her home address. P.H.L. had in fact took her in an uber hoping to get her address but instead she just came to his apartment. Later she gave the address and invited him over. This was in complete contrast to her initial statement to police and testimony. There was detailed cross-examination also on her capacity to consent as she claimed she was essentially catatonic for the sexual assaults. Capacity to consent was a main issue given she had consumed a considerable amount of alcohol. However, consumption alone does not mean that she could not consent to sexual activity. In cross-examination, it was established contrary to her statement to police, that she was walking, talking, and making conscious decisions. Thus, at the end of a lengthy and detailed cross-examination, the Crown conceded that P.H.L. should be found not guilty of the three charges 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.
