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Charge of Sexual Assault withdrawn after successful 276 Application and just before the commencement of trial, Toronto.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had discussions, and the matter was resolved by S.B. signing a common law peace bond the charge of sexual assault was withdrawn.
Charges of Assault x 2 withdrawn prior to setting a date for trial, Newmarket.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.
Client found not guilty of Sexual Assault and Forcible Confinement after four-day trial, Ontario Court of Justice, Brampton. M.M. attended late on a Friday night his cousin’s home. Many of his family members lived there and there was a tenant in the basement who he met when he arrived. She started talking to him and learned a lot about his relationship with the family that owned the home; that they ran their own trucking business, and he was from a nearby town where both M.M. and the tenant was from. They decided to chat and drink some alcoholic drinks. Over two and half hours, they became a bit intoxicated and were playing games on his phone and having fun. Eventually, the two wound up in a bedroom and were play wresting. Eventually they went to her bedroom, and they had sexual intimacy. They fell asleep after and a few hours later, he woke up and they started to talk about him seeing her again that weekend. M.M. told her that he was married. She freaked out and started accusing him of lying to her and taking advantage of her. He apologized and left. A few hours later, she called police, and he was charged with sexual assault. Joseph Neuberger of Neuberger & Partners LLP was retained to defend the sex assault charge. Diana Davison was part of the defence team. At trial, the complainant was cross-examined on the sequence of events. The complaint significantly downplayed any interest in M.M. and even denied that she enjoyed talking to him, despite sitting and talking with him for over two hours. The complainant alleged that H.H. had held her down and forcibly removed her hoodie, top, and other clothing items while he continued to hold her with considerable force pinning her to the bed. After forced sex, he was alleged to have held her tight, keeping control of her cell phone, and only released her when he woke up at 7:30 a.m. Cross-examination focused on the mechanics of the activity including the removal of the clothing, sequence of other events including my client leaving the room to get her medication for a headache, and how she knew the time when they woke up. Cross-examination yielded several material inconsistencies and admissions, including that she knew the time because her cell phone was placed beside her on the bed and when she woke up she looked at her phone to know the time. Thus, there were several admissions that seriously undermined her credibility. Further, Joseph Neuberger cross-examined on the defence narrative including that the complainant was very familiar with a concept in India of rape by deception, and that she felt deceived by M.M. because he said nothing about being married until the morning. The client testified and gave a detailed account of the events of the night including about consent. Joseph Neuberger provided written submissions to the court in addition to oral submissions to ensure that all issues were properly covered. The Court found that there was a credible motive to fabricate, and M.M. was found not guilty of sex assault and forcible confinement.
Charges of Sexual Assault x 2, Forcible Confinement, Assault x 4, Assault Causing Bodily Harm, and Threaten Death, withdrawn after a successful 276/278 Application, prior to the commencement of evidence at trial. C.T. had been common law with the complainant for several years and the two had a child together. Unfortunately, the relationship soured, and a bitter custody battle ensued. The complainant, engaged in some concerned behaviour and eventually CAS intervened and C.T. was granted primary care over their child. The two tried reconciling and therapy. During a week when the complainant stayed with C.T. at his grandmother’s home, the two discussed reconciliation and moving into a home together. However, several arguments erupted and C.T. asked the complainant to leave. The complainant did not leave and started to break items in the home. She called police after C.T. said he would call police. Police arrived and took the complainant to the police station for a video recorded statement. C.T. was charged with multiple domestic abuse allegations including sexual assault. Joseph Neuberger and Diana Davison were retained to defend C.T. Jospeh Neuberger and Diana Davison spent hours gathering messages, video footage and other documents to piece together a historical review of the complainant’s conduct to undermine her credibility, and fortunately, C.T. had video recorded the last 10 minute of the complainant’s activities in the home prior to her calling police. Eventually, Jospeh Neuberger drafted a very detailed 276/278 Application as any records and sexual history evidence must be screened by the Court prior to being capable of admission at trial. The Application Record was drafted with a full outline of the defence including a detailed Affidavit of C.T. A clear motive was disclosed that included family law documents filed by the complainant days after the charges were laid seeking sole custody of their daughter. The Application to admit messages, documents, pictures, video footage and sexual history evidence was vigorously opposed by the Crown and counsel for the complainant. However, the Application was granted with 90% of the material being admitted for cross-examination and testimony at trial. A new Crown was assigned and immediately discussions ensued about reasonable prospect of conviction, including the motive to fabricate. After extensive discussions, C.T. signed a common law peace bond and all charges were withdrawn.
Charges of Assault, Assault with Choking withdrawn prior to setting trial dates. The client, a condominium security guard, was charged with assaulting and choking a trespasser who had parked illegally in the condominium parking lot. While the trespasser had no right to park there, the police took the position that the security guard used more force than was necessary and charged him accordingly. D.S. retained Michael Bury of Neuberger & Partners LLP, Toronto Criminal Lawyers, to represent him as any finding of guilt could result in the loss of his security guard licence and put his career in serious jeopardy. Michael Bury spent considerable time negotiating with the Crown’s Office to arrive at an outcome which would not put the client’s career at risk. The Crown agreed to withdraw the charges given the client’s situation if he completed some upfront counselling. Arrangements were made for this counselling which the client completed successfully. All the charges were then withdrawn upon the client’s confirmation of counselling and entering into a 12-month peace bond which did not result in any criminal record. As a result, the client was able to continue with his employment and his security guard licence was not impacted in any way.
Charges of Sexual Assault and Assault Withdrawn on Day one of Trial. The client was charged with a serious sexual assault and assault involving a next-door neighbour on two separate occasions. The neighbour reported to the Police that the client had invited her into his apartment, and then, while intoxicated, touched her breasts and bottom inside her clothing on the pretense of searching for drugs she had allegedly stolen from him. The Crown was seeking jail in the event of conviction. B.G. retained Michael Bury of Neuberger & Partners LLP, Toronto Criminal Lawyers, to represent him. After a lengthy investigation into the complainant’s background, it became very clear that she had serious credibility and reliability issue both due to a criminal record involving drugs and impaired driving. Additionally, Michael Bury found out she had new impaired driving charges still before the courts and was a known drug user in the building. Given these serious witness problems, Michael Bury convinced the Crown that its case was extremely weak and the chances of success for the Crown were slim to none. The Crown agreed and withdrew all charges the morning of the trial.
Charges of Uttering Threats to Cause Death, Failure to Comply (x3); Client found Not Guilty following a 4-day trial, Ontario Court of Justice. The client was charged with making death threats against his former wife by allegedly gesturing a throat cutting motion on his neck to her during a child access exchange, as well as breaching his release conditions by communicating with her in this manner. Both he and the wife were going through an acrimonious divorce involving over a dozen false allegations made by the wife against him to improve her position in a child custody battle. A.M. retained Michael Bury of Neuberger & Partners LLP, Toronto Criminal Lawyers, to represent him. Working with the client’s family lawyer, Michael Bury gathered extensive information from the family law proceedings which were used at the criminal trial to undermine the wife’s credibility. The wife was cross-examined at length and ultimately agreed that she had made repeated allegations against the client which had not resulted in any charges. She also admitted that this was a high conflict divorce involving the children and other family members. Ultimately, the trial judge found several problems with her evidence following Michael Bury’s cross-examination and submissions which resulted in the decision to find the client not guilty.
Client found not guilty of sexual assault after four-day trial in the Ontario Court of Justice, Ottawa. This was a retrial. N.P. was originally found guilty of sexual assault and found not guilty of assault at this first trial. A successful appeal overturned the conviction and sent the matter back for a retrial on the sexual assault charge. Joseph Neuberger of Neuberger & Partners LLP was retained to act as counsel on the retrial for N.P. After reviewing the extensive trial transcripts and the statements of the complainant, a 276/278 Application was drafted and filed in relation to messages we sought to cross the complainant on and certain other sexual activity. The Application was successful. Joseph Neuberger also brought an application to exclude bad character evidence that the Crown sought to introduce through the complainant and two disclosure witnesses. The defence motion to exclude the bad character evidence was successful. We sought to limit the admissible evidence to a few days before and after the alleged assault and nothing more as it was in our view irrelevant and highly prejudicial. The alleged sexual assault took place during the early months of N.P. and the complainant’s relationship. However, the relationship continued for a year and half and when the two broke up, the allegation was then made to police. Thus, the allegation was a historical sexual assault. But the reason for the breakup of the relationship and other related potential evidence was fraught with eliciting bad character evidence that was prejudicial. Further, the motive to fabricate was formulated at the time of the alleged sexual assault. Thus, any examination or cross-examination of the months following the alleged sex assault was unnecessary and prejudicial. During the retrial, there was extensive cross-examination focused on the complainant’s reliability and professed trauma induced memory loss. There was a complete lack of memory of the two hours before the alleged sexual assault. The two-hour period was significant to the unfolding of events including other sexual activity that led to N.P. and the complainant moving into the bedroom. The evening was about the couple breaking up and the complainant stated that she would never consent if they were breaking up. However, there was a complete lack of memory of the two hours preceding including their discussions, kissing, hugging and other activities. Further, during the time in the bedroom, the complainant in cross-examination again lacked details to the activities and made concessions about how the two were interacting including having a loving and affirming conversation as well as engaging in passionate kissing and touching, details that she failed to disclose in her statement to police and during her in-chief examination. Cross-examination elicited significant details about their sexual interactions and lack of detail on crucial issues about the mechanics of what the complainant described as a violent rape. The complainant at the end of cross-examination was very unreliable and had significant credibility issues. The accused testified and his evidence in and of itself raised a reasonable doubt. As such, N.P. was found not guilty 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.
