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Charge of Assault withdrawn prior to setting trial dates. The client suffered a mental health episode while in the residence of her friend and her newborn baby and there was a scuffle. Police were called and the client was brought to hospital. He was unfortunately charged with Assault. Ms. Condello of Neuberger & Partners LLP was retained. Over a period of several months, the Crown was provided with medical reports regarding the client’s diagnosis, treatment and gradual improvement. The Crown Attorney agreed to withdraw the charge, no Peace Bond was required.
Client found not guilty of Sexual Assault after four-day trial in the Ontario Court of Justice, Kitchener. J.E. had been dating the complainant for about two years. At the time of the allegation the couple had recently resumed their relationship after a brief break-up. The complainant attended J.E.’s apartment and eventually became intimate with J.E. After some time, the condom being used for anal intercourse had broken and the complainant accused J.E. of removing the condom and to cover up what he did, he cut it with scissors. At all times, the complainant made it clear that use of a condom was necessary. J.E. explained he did not remove the condom, but it had broken. The complainant called police. J.E. waited at the apartment with the complainant. He was charged with sexual assault. The prosecution case was based on “stealthing” a term used to describe deceptively removing a condom during intercourse that constitutes a sexual assault. Joseph Neuberger of Neuberger & Partners LLP, Toronto Criminal Lawyers, was retained to defend the charge. Joseph Neuberger obtained the disclosure. The statement of the complainant was transcribed. In addition, the police photos of the client’s apartment and condo were very helpful to the defence, as the condom appeared to be oozing a whitish substance that appeared to be semen. The pictures of the condom in various states were examined by the defence expert and the separation of the condom did not support a finding of being cut with scissors or sabotaged by other means. The breakage seemed to be consistent with failure during intercourse. Further, the complainant later provided police with an email clarifying her interview that she may have consented to sexual acts including anal intercourse with a condom and only wanted J.E. charged with “stealthing”. The email demonstrated important inconsistencies with her interview. At trial, the complainant in cross-examination indicated that she did not want to attend his apartment; did not want any sexual contact and had not consented to vaginal or anal intercourse. Extensive cross-examination focused on her actions and agency in their time together. This included the complainant going to his bedroom, and on her own initiative straddling J.E. and kissing him passionately including caressing his face, head, and hair. Further cross-examination drew out from the complainant that in fact she fully engaged in sexual contact, but she adamantly stated that she never consented to vaginal and anal intercourse. However, when faced with her email to the investigating officer, she suggested that she was simply clarifying a point about what she thought he might be charged with but not that she consented to vaginal or anal intercourse. This was not inline with what she had written to the police officer. Further, in cross-examination Joseph Neuberger put the pictures of the condom to the complainant who stated that the condom was first intact, being in one piece and then she saw he had cut it into two pieces. The complainant answered that the condom in the pictures taken by the police at the apartment was not the same condom she had seen with J.E. The police evidence at trial was clear that only one used condom was found. It appeared to have semen in the condom. And that there was only one condom wrapper found torn thus demonstrating only one condom was used. The answers of the complainant about the condom depicted in the pictures may have been a product of general confusion but given her assertive answers, provided material inconsistencies in her evidence. Further, the complainant was contradicted on other key points regarding the status of their relationship. A selection of text messages exchanged between the complainant and J.E. demonstrated that the complainant was very eager to see J.E. and wanted to get married and have a family. This again was in stark contrast to her in trial testimony. J.E. testified and provided coherent and logic evidence. He was unshaken in cross-examination and strongly denied having sex without a condom and sabotaging the condom. Joseph Neuberger drafted detailed written closing submissions. The Court found J.E. believable, and that there were material issues with the complainant’s evidence damaging her reliability and credibility. The inconsistencies were very significant. Accordingly, J.E. was found not guilty of Sexual Assault.
Client found not guilty of Sexual Assault after four-day trial, Ontario Court of Justice, Brampton. A.K. was charged 20 years after an alleged sex assault. The complainant alleged that 20 years prior, A.K. attended her birthday party and essentially abducted her when she was sleeping and intoxicated. The complainant alleged that she knew A.K. as he was in the group of friends that she hung out with and would see each other at parties but never spent any time alone and she barely knew him. In fact, she stated that he asked her out for a date a couple of times, but she turned him down as she was not interested. Yet, he was invited to her birthday party and at the tail end of the party the complainant stated that she was sleeping on the couch, and then next thing she recalls was waking up in A.K.’s car and then passing out. She then had minor waking moments in a strange bedroom with A.K. sexually assaulting her. In the morning, she left his home, and on the way out said hi to his parents, and waked without shoes and a purse to some location where she found a pay phone. She did not report the alleged incident for 20 years. A.K. retained Joseph Neuberger of Neuberger & Partners LLP to defend him. Diana Davison assisted with the defence. A.K. was extensively interviewed and he had a good memory of the complainant. He kept a book she bought him as a birthday gift that had an affectionate inscription in it. He advised that they had dated for about a month and a half and he stopped dating her after her birthday because of her odd behavior. He recalls the relationship and evening in question because he started dating her right after the end of a seven-year relationship to someone he thought he was going to marry. Also, he ran into the complainant a week after her birthday at a bar where she yelled at him for not calling her. Joseph Neuberger brought a section 276/278 Application to admit the book, a few pictures and sexual history evidence to cross-examine the complainant and for A.K. to testify to. The Application was eventually granted, and the book was found not to be a “record” as defined under the Criminal Code section. At trial, Joseph Neuberger cross-examined on the dating history and the book as evidence of the dating history. The complainant became evasive and combative trying to explain the book that she failed to mention and explain other implausible issues including how A.K. essentially kidnapped her from her 19th floor apartment in front of all her friends. Joseph Neuberger called A.K.’s mother to testify who recalled meeting the complainant on the morning in question and having a conversation with her. The evidence of the mother contradicted the complainant in several significant aspects. The defence also put in Google map arial photos to contradict the complainant’s evidence about leaving his home, and where she allegedly walked to. The residential area was very dense with homes, with no sidewalks and no plaza or other such location with a payphone that the complainant could have walked to, let alone walked to with no shoes. The court believed the evidence of A.K. and his mother and rejected portions of the complainant’s evidence based on the highly implausible nature of her allegations. Thus, A.K. was found not guilty of a historical sex assault.
Charges of Sexual Assault x 2, and Assault Choking withdrawn prior to pre-trial motions in the Superior Court, Toronto. S.B.L. was married in India and he commenced the process of sponsoring his wife to come to Canada. During the first year of marriage, the complainant lived in India, and he would travel to India frequently to spend time with her. They would also communicate frequently by email and over a messaging app when he was in Canada. After arriving in Canada, the complainant alleged that S.B.L. sexually assaulted her one night and choked her. S.B.L. was charged. S.B.L. was represented by two previous law firms but eventually retained Joseph Neuberger to defend him. S.B.L. had in fact sought to end the marriage when she was living in India and wanted to prevent her from coming to Canada. He explained to Joseph Neuberger that several serious issues arose after they were married that caused him to fear for his emotional and physical safety. Fortunately, S.B.L. kept all his written communications totaling well over a 1,000.00 messages and emails. After careful review, it became apparent that the complainant was unstable and making odd and threatening remarks almost immediately after they were married. The complainant was demanding sponsorship, money and kept trying to convince S.B.L. that he was mentally unwell and needed her to make him well. The messages and emails read like a bizarre movie. Joseph Neuberger drafted and filed a very detailed lengthy 276/278 Application filing over 400 messages that demonstrated a pattern of intimating and threatening behavior including S.B.L. advising her not to come to Canada. When the complainant came to Canada it was a surprise to S.B.L. as he had told her he wanted a divorce. S.B.L. wrote to the complainant to stay away from him and he rented her a hotel until she could return to India. The complainant managed to get kicked out of the hotel and S.B.L. allowed her to stay at him home provided they were in separate rooms. During the night, S.B.L. drank and then went to bed. He awoke with the complainant on top of him trying to have sex with him. He tried to push her off but was unsuccessful due to his level of intoxication. The next morning, he left the home early and the complainant threatened him if he did not return, she would call police and claim he assaulted her. He nonetheless went to the police for help and when the police contacted the complainant, she made the allegations of sex assault and choking. The messages completely undermined the complainant’s evidence. After filing the messages, emails and meta data, the Crown and defence began discussions. After further investigation by the Crown and the officer in charge, the Crown conceded that the allegations are fabricated, and the charges were withdrawn.
Charge of Domestic assault withdrawn prior to trial, at the Ontario Court of Justice, Toronto. By standers called police after an argument between a male and female became physical. The female was the male’s girlfriend. The girlfriend declined to give a statement to the police. However, the police charged M.K. based upon statements from witnesses. M.K. was in Canada on a student visa. Grace Condello of Neuberger & Partners LLP was retained to defend M.K. A criminal conviction would have impeded the renewal of the student visa. The complainant would not cooperate with the police or Crown. Ms. Condello was successful in negotiating with the Crown to resolve the case whereby the charge would be withdrawn. The Crown could not prove lack of consent, and how the physical altercation started. Thus, the charge was withdrawn and M.K. entered into a common law peace bond.
Charge of Utter Threats withdrawn prior to trial, at the Ontario Court of Justice, Brampton. The client was a tenant in the process of moving out of a unit. On the day of the incident, the client was in the process of moving. The move took longer than expected. Around 8 pm, the client contacted the landlord asking for a few more hours to move out. The landlord agreed. The client said she would be moved out around 10 pm. At approximately 9 pm, a male entered the front door of the premises to change the locks unannounced. An argument ensued. The client asked the male to leave so she could call the landlord to confirm his identify. The male refused shoving past her into the home. The client said she would have her dog attack him. The male called police and the client was arrested. Grace Condello was retained to defend T.B. Ms. Condello was successful in convincing the Crown Attorney to resolve the case. T.B. maintained a right to protect the property as she was still in peaceful possession until the time agreed upon with the landlord. Further, the aggressive actions of the complainant were criminal acts including a physical assault. As such, the charge utter threats was withdrawn.
Charge of Sexual Assault withdrawn after successful 276 Application and just before the commencement of trial, Toronto. S.B. was a student in university and during an evening with friends at a house party, S.B. connected with the complainant. The two spent time together and eventually after talking for a couple of hours and have some drinks, wound up in a room and became intimate. Several friends opened the door to the room and spoke with them, but shorty after intimacy ended, the complainant left the room and chatted with her friends. It appears comments were made disparaging S.B., and then the next day, the complainant made a complaint to the police and S.B. was charged. Joseph Neuberger was retained to defend S.B. The complainant in her statement to police denied having spoken with S.B. during the evening and in fact described him as the most boring person ever. The defence had several people at the party interviewed who confirmed S.B.’s version of events leading up to being in the bedroom. A section 276 Application was brought to admit evidence of their discussions earlier in the evening that including flirting, and sexual related conversations. The Application laid out in detail the defence evidence including the anticipated evidence of witnesses to be called by the defence. The Application was successful, and the evidence was permitted to be used at trial. Just prior to commencement of the trial, the Crown and defence had discussions, and the matter was resolved by S.B. signing a common law peace bond the charge of sexual assault was withdrawn.
Charges of Assault x 2 withdrawn prior to setting a date for trial, Newmarket. R.B. was at a family dinner. He and his wife had a deteriorating marriage for some time. Once outside of his family’s home, R.B. noticed that one of their young children was wandering in the street. The child was picked up by R.B. and placed in the family car but he and his wife got into an argument. R.B. stopped the complainant from swinging a bag at him and the two struggled. R.B. was very upset and had told the complainant and their marriage was over. He got into the car to drive home with the children and the complainant called 911. She alleged an assault. R.B. was arrested. Joseph Neuberger and Grace Condello of Neuberger & Partners, Toronto Criminal Defence Lawyers, were retained to defend the case. After the statement to police the complainant alleged another assault and R.B. was charged with an assault that was to have occurred two months prior. Both statements of the complainant were obtained, transcribed, and viewed. Witnesses at the house of the first alleged assault were interviewed. Once the second charge was laid, R.B. terminated his wife from their business and commenced a divorce proceeding. The complainant replied and sought sole custody and damages for abuse alleging R.B. has been historically abusive. Joseph Neuberger reviewed all the family court material and provided the documents to the Crown. Joseph Neuberger and Grace Condello created a chart of both of the complainant’s statements. There were major problems with her stories, including the injuries alleged seemed to be self-inflicted and were impossible to have been caused by the described assault, In fact, the assault alleged after the dinner at R.B.’s family home, was being hit with the bag, but it then evolved into slaps yet the pictures the complainant provided to police were not congruent with the described actions. The second charge of assault that pre-dated the incident after the dinner event, was a struggle during which the complainant pushed R.B. and then grabbed at his coat with such force that the sleeve of his coat was torn from the coat. A detailed memo and chart were provided to the Crown along with the family court materials that made spurious allegations. The complainant had been overholding the children and preventing R.B. from any access or parenting time with his children. The complainant had engaged in repeated calls to police to try and get R.B. charged with breaches of his release order. Finally, after extensive discussions, the Crown agreed there was no reasonable prospect of conviction. R.B. signed a common law peace bond and the charges were withdrawn.
Charges of Sexual Assault, Assault and Utter Threats, withdrawn mid-way through the defence 276/278 Application, Toronto. S.L. and had been dating the complainant for about five months, The complainant attended his home to study but the two wound up finding some whisky belonging to S.L.s parents, and they drank the whisky and hung out. At some point, the two play fought and wound up having sexual contact. The complainant left later that day and over the course of the following days, the two spoke and communicated extensively by messaging on various topics. S.L. was rude to the complainant about certain issues they discussed, and he accused the complainant of being selfish and not thinking of others. The complainant then began to accused S.L. of sexually assaulting her by getting her drunk and having threatened her to have sex. The messages clearly established S.L.’s shock and the complainant’s messages increasingly became more aggressive over the ensuing days, with her writing him to confess to his parents what he has done, or she will go to the police and ruin his life. The complainant in fact called police and alleged sexual assault among other charges. Joseph Neuberger was retained to defend S.L. Jospeh Neuberger obtained the disclosure which included certain messages between the parties. S.L. had deleted most of the messages and thus Joseph Neuberger retained a defence expert to perform an extraction on the client’s cell phone to recover all the messages. There were hundreds of messages and when reviewed, the messages demonstrate that S.L. had given his version of the events, and the complainant had agreed that she had consented but that she would not have if she was completely sober. There were numerous other messages that completely undermined the complainant’s statement to police and demonstrated that the complainant was mad at S.L. for his rude comments and not being sensitive to her issues. It was clear the complainant was not being truthful about the alleged sexual assault. Joseph Neuberger and Diana Davison drafted a very detailed 70-page 276/278 Application to have all the messages admissible at trial for cross-examination and to expand on the sexual discussions of the day in question. The Application set out the defence of S.L. and provided a very coherent outline of the events, consent, lack of any serious degree of intoxication, and manipulation on the part of the complainant when in fact she had consented. During the argument of the Application, the Crown concluded that there was no reasonable prospect of conviction and as a result all charges were withdrawn.This is another reminder of the importance of obtaining all the messaging between the complainant and the client. The police do not search the complainant’s phone for the totality of messages but accept whatever the complainant will provide that often will distort what was discussed in the messages and the truth.
Client found not guilty of Sexual Assault and Sexual Exploitation after lengthy trial in the Superior Court, Toronto. This was a very sad case with both the complainant and the client at very low points of their lives. The charges wear laid some years after G.N. and the complainant stopped communicating. The complainant had been seeing a therapist who in reviewing her past conduct and relationships, came to influence the complainant that she was exploited by G.N. and any sexual contact they had was thus coerced and not consensual. G.N. and the complainant had met at a time when they both were addicted to drugs and had developed an unhealthy relationship. The complainant came to believe that G.N. took advantage of her as at the time of the commencement of the relationship she was a drug-addicted 16-year-old girl who was working in the sex trade and living in a youth shelter. The two often got together for simply hang out and use drugs which were often provided by him. The complainant alleged that he used the supply of drugs to induce her to have sexual contact with him. There was an age gap as G.N. was much older than the complainant. The Crown alleged that G.N. sexually assaulted the complainant, even though at the time she consented to sexual contact with him. The Crown’s position at trial was that the complainant’s consent was vitiated within the meaning of s. 273.1(2)(c) of the Criminal Code because G.N. was in a position of power over the complainant which he abused to induce her to engage in sexual activity with him. The Crown further alleged that G.N. sexually exploited the complainant within the meaning of s. 153(1) of the Code because he had sexual contact with her when she was a young person, while he was in a relationship with her that was exploitative of her. G.N. retained Joseph Neuberger and Michael Bury of Neuberger & Partners LLP, Toronto Criminal Lawyers, to represent him. The defence position at trial was that the Crown had not succeeded in proving beyond a reasonable doubt that the complainant did not consent to the sexual activity, that the complainant’s consent was not vitiated because there was a power imbalance between G.N and her, and that G.N. was not in a relationship with the complainant that was exploitative of her. The complainant had used and abused prescription drugs and then became addicted to street drugs while living in the shelter system. She tried powder cocaine first, and then crack. She became an addict, using drugs daily or almost daily, sometimes multiple times a day. She also had an alcohol problem, at times drinking daily. G.N., despite having a medical degree, had not been able to secure residency to complete the requirements of becoming a doctor. He had made several attempts and ultimately became very depressed and similarly turned to drugs to cope with his repeated failures. By the time he and the complainant met, he had no regular income, was living with his parents, and had become addicted to drugs. Following extensive preparations with the entire team at Neuberger & Partners LLP, G.N. testified at trial and it was clear that he had not exploited the complainant in any fashion nor was there any power imbalance. The complainant also testified. Crucially, in cross-examination of the complainant, it was demonstrated that she was not as reliant on the G.N. as the Crown had made her out to be. The complainant was extremely street smart. She had her own source of funds. She controlled communications with G.N. She decided when they would see each other, and she cut him off on several occasions from contact. She in fact believed at the time of their contact, that she was the one manipulating G.N. for him to drive her around Toronto, buy her things including drugs. As demonstrated in a detailed long cross-examination, if anything, she had been exploiting G.N. The age gap was about 16 years and the Crown’s argument was that the combination of age, his education, and his supply of drugs amounted to exploitation. An issue arose as to what level of intent is necessary for exploitation. Did is simply arise from the set of facts or was an intent needed to act upon the factors to “exploit” the other person. Ultimately, the trial judge found that a level of intent was necessary to exploit another person, and in the circumstances of this case, there was insufficient evidence to find beyond a reasonable doubt that G.N. had exploited the complainant. The trial judge noted a number of serious credibility issues with the complainant’s evidence and thus G.N. was found not guilty of Sex Assault and Exploitation.
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.
