In this episode of Not On Record, we dig into a real-world nightmare scenario: a sexual assault conviction based largely on credibility, followed by a late-stage application to reopen the trial because video evidence exists that directly undermines the accepted narrative. We break down how “fresh evidence” works before sentencing, why judges can still have jurisdiction to reopen proceedings, and why **real-time evidence** (video, audio, messages) can outweigh after-the-fact memory claims and assumptions about what someone “would never” do.

We also tackle a developing legal battleground: does a surreptitious recording change the nature of consent (sexual assault by fraud), or is it better addressed through voyeurism and related offences? Along the way, we connect the dots between the screening regime for private records, the Palmer fresh evidence framework, and the Supreme Court’s evolving approach to “conditions” around sexual activity including the ongoing fallout from Kirkpatrick / Hutchinson.

Watch the related Supreme Court hearing (scheduled):Jordan Bilinski v. His Majesty the King (Alberta), SCC file 42030, set for February 9, 2026 at 9:30 a.m. (publication ban noted).

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For more information on criminal law issues go to Neuberger & Partners LLP http://www.nrlawyers.com.

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Two unusually messy files collide in one episode: a chiropractor accused during a routine treatment of an allegation so strange it practically dares common sense to enter the room, and a long-married couple whose financial dispute spirals into criminal charges and a three-day trial. The hosts walk through how these cases actually get resolved in the real world, why credibility isn’t just what’s said but how it’s said, and how the “paper trail” (texts, timing, behaviour, and courtroom discipline) can decide everything. Along the way: Crown pretrials, judicial pretrials, peace bonds, the professional fallout of being charged, and why sometimes the most powerful defence is simply letting the story collapse under its own weight.

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Tonight, the crew breaks down **what sentencing actually is** (and when it happens), and why what looks “lenient” to the public can be the result of a very structured legal framework. They walk through the sentencing process after a **guilty plea vs. after a trial**, explain what it means when the **“facts are read in”** (and why the judge’s “are these facts substantially true?” question can derail a plea), and outline how Crown and defence approach sentencing with **aggravating vs. mitigating factors**, character reference letters, restitution, counselling, and case law. From there, they unpack **s.718 of the Criminal Code**: the purpose of sentencing, the six objectives (denunciation, deterrence, separation, rehabilitation, reparation, and restoration), and the **overriding principle of proportionality,** plus the additional principles like parity, totality, restraint/least restrictive sanctions, and individualized outcomes. The episode closes with a practical look at **ancillary orders** (DNA, weapons prohibitions, no-contact terms, victim fine surcharge) and why sentencing is never a simple “you did this, you get that” formula.

## **Short description**

Why do “lenient” sentences happen? This episode explains the sentencing process, the goals in s.718, proportionality, aggravating/mitigating factors, joint submissions, and the extra orders judges can add.

## **SEO meta description (concise)**

A practical breakdown of Canadian criminal sentencing: guilty plea vs trial, agreed facts, aggravating/mitigating factors, s.718 objectives, proportionality, parity/totality, joint submissions, and ancillary orders like DNA and prohibitions.

## **Hashtags**

#CanadianLaw #CriminalLaw #Sentencing #CriminalCode #LegalPodcast #CourtProcess #Probation #Restitution #DefenceLawyer #CrownAttorney #JusticeSystem #LawAndOrder #TorontoLaw #NotOnRecord

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How should courts treat an accused person’s post-offence behaviour apologies, emotional reactions, “weird” texts, or even what looks like a confession without turning normal human messiness into “consciousness of guilt”? Joseph, Diana, and the crew break down the guardrails around after-the-fact conduct and why context is everything, especially in sexual assault cases. They walk through three fresh decisions: Townsend (2025 BCCA 459) on the danger of leaping to guilt from a volatile reaction (and the appellate correction when alternative explanations weren’t properly weighed), JA (2025 ONSC 4531) on how chaotic teen/young-adult texting can be misread as admissions when there’s no clear denial, and PG (2025 ONSC 7018) the “Godly Conduct Agreement” case where highly religious language that sounds like a confession is ultimately understood as moral guilt and inner turmoil, not proof beyond a reasonable doubt. The through-line: if you don’t rigorously test other plausible explanations, post-offence conduct becomes a shortcut to wrongful inferences.

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In Episode 195, the hosts examine Bill C-16, the federal government’s latest omnibus criminal-law reform, and why it could significantly reshape Canada’s justice system. The discussion focuses on the proposed criminalization of coercive or controlling conduct in intimate relationships, the introduction of the term femicide”into the Criminal Code, and the automatic elevation of certain intimate-partner killings to first-degree murder. The episode also explores changes to criminal harassment, testimonial aids, AI-generated intimate images, sentencing discretion, and delay analysis under Jordan, raising serious concerns about evidentiary standards, constitutional rights, and the risk of abuse in high-conflict cases. Throughout, the hosts argue that while some reforms are well-intentioned, others may undermine due process, complicate trials, and invite years of constitutional litigation.

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## Episode Description

In Episode 194 of Not on Record, seasoned Canadian criminal defense lawyers Joseph Neuberger and Michael Lacy dive deep into the realities of jury trials in Canada. Sparked by a recent National Post article exploring the inner workings of juries, they debate whether they'd choose a jury or a judge-alone trial if charged with a serious offense. The discussion covers the impact of the 2019 abolition of peremptory challenges, the challenges of selecting an impartial jury in today's polarized climate, the importance of storytelling and engagement in jury addresses, cultural shifts affecting civic duty and bias, and why many defense lawyers now lean toward bench trials especially in sexual assault cases. With candid insights from decades of trial experience, dog interruptions, and a call to restore peremptory challenges, this episode is a raw look at the strengths, flaws, and uncertainties of Canada's jury system.

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In Episode 193 of Not On Record, the team dives deep into the controversial resurfaced clips of popular Twitch IRL streamer Nina Lin (2–3M followers), where she and another female streamer engage in highly sexualized “pranks” on male colleagues and strangers—including twerking on an unwilling assistant and slapping a man’s buttocks during a massage—sparking accusations of sexual assault. The hosts explore the glaring double standard: why a male streamer doing the exact same thing would be instantly canceled, de-platformed, and possibly charged, while Nina received only short bans and mocked the backlash. A raw, unfiltered conversation about consent, weaponized allegations, male victims, puritanical overreach, and whether “just a prank” content has finally crossed the line in 2025’s hyper-sensitive climate.

Nina Lin videos - https://www.youtube.com/shorts/wyUhfIa-6bE

https://www.reddit.com/r/LivestreamFail/comments/1oisvvw/disguisedtoast_opens_up_about_his_situation_with/

https://arazu.io/t3_1orhucq/?timeframe=all&category=hot

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In Episode 192, we dissect the powerful new Ontario acquittal R v J.A., 2025 ONSC 4531: an 18-year-old boy is accused of assaulting his 17-year-old girlfriend after prom, only for him to discover (by guessing her password) that she was cheating; what follows is an explosive, toxic text-message war with hundreds of messages, repeated “you r*ped me” accusations, vague apologies, and almost no explicit denials; the Crown insisted his silence and equivocal replies amounted to adoptive admissions of guilt, but Justice Bordin delivers a masterclass ruling that explains why rapid-fire teenage texting cannot be read in isolation, why overlapping messages and missing context destroy tone, why Snapchat’s auto-delete feature is a nightmare for justice, how phone calls and in-person talks still matter, and why the entire relationship dynamic (including motive to fabricate) must be considered before treating silence as guilt; this is required reading for anyone facing text-heavy sexual assault charges and a stark reminder that disappearing messages and cherry-picked screenshots can turn innocent people into convicted ones.

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In Episode 191 of Not on Record, criminal lawyers Diana Davison and Daniel Brown dive deep into the controversial new Supreme Court of Canada decision R v Rioux, 2025 SCC 34 – a case that has defence lawyers, accused persons, and the public extremely worried.

The Joseph and Diana dissect the Court’s ruling on sexual-assault complaints involving memory blackouts, alleged (but unproven and uncharged) drugging, and how much weight a complainant’s “feelings,” assumptions, and post-event beliefs should carry when she has little or no memory of the incident itself. They highlight the decision’s many “lemons” – troubling language that appears to downgrade the accused’s ability to give direct evidence of consent, over-emphasizes circumstantial evidence from complainants, and risks lowering the bar for proving incapacity. At the same time, they squeeze out a few drops of “lemonade” – paragraphs that actually reinforce that consent remains subjective, credibility is still key, and every case turns on its own specific facts and live issues.

A must-listen episode for anyone following #MeToo-era sexual assault law in Canada, the limits of circumstantial evidence, and the ongoing battle over fairness for the accused.

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Joseph and Alper dive into one of the most unsettling sexual assault decisions to come out of the Supreme Court of Canada in years: **R. v. Rioux, 2025 SCC 34**, released the very day they hit record. Still hot off the printer, the judgment sends Joseph’s blood pressure through the roof as he and Alper give their **raw, first reaction** to a 5–4 split decision that effectively rewrites how courts treat **consent, capacity, blackouts, and memory loss** in sexual assault trials.

They walk through the core facts, then zero in on the majority’s treatment of **blackout and memory loss as circumstantial evidence of incapacity**, and the idea that a complainant’s *beliefs and assumptions* about how they “would have acted” can stand in for an actual memory of events. Along the way, they unpack the difference between **actus reus and mens rea**, explain why the distinction between **direct and circumstantial evidence** is being stretched to absurdity, and highlight how this reasoning risks turning ordinary adult sexual behaviour especially where alcohol is involved into a legal minefield.

From Vegas blackout marriages to the realities of human behaviour after a few drinks, Joseph and Alper argue this ruling is **“ripe for abuse”** and dangerously divorced from common sense. With plenty of dark humour, legal nuance, and a few F-bombs, they lay the groundwork for a much deeper doctrinal analysis in Part Two of this “Consent Trilogy.” If you care about due process, evidentiary standards, and the future of sexual assault law in Canada, this is a must-listen.

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For more information on criminal law issues go to Neuberger & Partners LLP http://www.nrlawyers.com.

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