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client found not guilty of Sexual Assault, Assault Causing Bodily Harm, Assault x 2, and Utter Threats, after a five-day trial in the Ontario Court of Justice, Brampton. A.M. was in a relationship with the complainant for three years. It was not the best relationship as the two often accused each other of infidelity. In December 2018, the complainant had been monitoring A.M.’s Facebook account and caught that he had been with another woman. The two had an argument and the complainant moved out of the home. For several months, the two communicated via email, WhatsApp and met. There continued to be arguments but there was a decision to reconcile until A.M. had accused the complainant of only wanting his money and had asked for her to repay him a significant amount of money. Further, the complainant was angry that A.M. and his cousin were allegedly sharing pictures that she wanted to be kept private (in actuality, there was nothing to this allegation). The complainant went to police in August of 2019. A.M. went to the police and A.M. was charged with the criminal offences. A.M. retained Joseph Neuberger of Neuberger & Partners LLP, Toronto Criminal Lawyers, to defend him on the charges. After Joseph Neuberger obtained all of the disclosure, he had A.M.’s cell phone sent to a tech expert to extract deleted messaging between A.M. and the complainant. Over 1000 messages was extracted including videos, pictures and a host of images post-dating the end of the relationship, and prior to the end of the relationship. A vast amount of the material was highly relevant to refuting the complainant’s narrative and specific facts of each of the charges. The charges ranged in dates covering 2018 up to December 26th, 2018. The complainant had asserted in her statement to police that after she left the home of A.M., she wanted nothing to do with A.M. and never saw him again in person and rarely communicated with him. The vast number of messages, images and videos, undermined her evidence. Joseph Neuberger obtained the meta data to confirm the dates of all messages and images. The defence brough a section 276/278 Application prior to trial to admit “other sexual activity” evidence and messages as relevant evidence to rebut the narrative of the complainant and her characterization of the relationship both before December 26th and after. The Application was successful, and all material was ruled admissible. The matter went to trial and Joseph Neuberger cross-examined the complainant for two and half days prior to asking for an adjournment to then bring a mid-trial application to admit other “other sexual history” evidence and further messages. In cross-examination the complainant, when answering, denied a number of obvious facts that were set out in the messages and asserted that she never attended A.M.’s home after December 26th among other facts that were inaccurate. The mid-trial Application was carefully drafted, argued and succeeded in full. After the ruling on the mid-trial Application, the complainant refused to attend for further cross-examination by Joseph Neuberger, and the Crown conceded a directed verdict of not guilty on all charges of sexual assault and assault.

• This is an important example of why it is vital to a defence of sexual assault that the Applications to admit “other sexual evidence” and documents in the possession of the accused, including messages, be carefully drafted with full details disclosing the relevance and how the evidence will be used. It does not give away the defence, but in fact advances the defence in writing and often assists with undercovering fabricated evidence such as in the case above.