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In this episode of Not On Record, criminal defence lawyer Joseph Neuberger and Diana Davison break down a fascinating Ontario appeal decision involving fresh evidence, recantation, no-contact orders, and the limits of the criminal justice system’s truth-seeking function.

The case centers on a convicted man seeking to introduce post-conviction recordings in which the complainant allegedly recants her sexual assault allegations, only to later resile from that recantation when re-interviewed by police. The Ontario Court of Appeal allowed a narrowly tailored cross-examination of the complainant to help determine whether this fresh evidence should be admitted on appeal.

This episode explores the legal and policy tension at the heart of the case: should potentially exculpatory evidence be excluded because it was obtained through conduct that may have breached a court order? The discussion also examines how no-contact orders work in practice, what happens when complainants repeatedly reach out to the accused, and why recantations in domestic violence and sexual assault cases are often treated with caution.

Joseph and Diana also discuss real-world examples where complainants continued contacting accused persons through text messages, WhatsApp, voicemail, family members, and parenting communication platforms such as OurFamilyWizard. They look at how defence counsel should respond, what the Crown may infer from repeated unwanted contact, and how these communications can affect credibility, reliability, reasonable prospect of conviction, and public-interest decision-making.

This is a sharp conversation about sexual assault appeals, false allegations, fresh evidence applications, court order breaches, coercion, credibility assessments, and the uneasy balance between procedural integrity and discovering the truth.

Topics in this episode include:

Ontario Court of Appeal

fresh evidence on appeal

sexual assault conviction appeal

complainant recantation

resiling from a recantation

no-contact order breach

abuse of process

cross-examination on appeal

criminal defence strategy

false allegations

domestic violence recantations

reasonable doubt

credibility and reliability

OurFamilyWizard communications

Crown screening and reasonable prospect of conviction

Subscribe to Not On Record for serious conversations about criminal law, sexual assault law, trial strategy, appeals, disclosure, credibility, due process, and the realities of the Canadian justice system.

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In Episode 207 of Not On Record, criminal defence lawyer Joseph Neuberger and co-host Diana Davison break down a deeply troubling case involving 11th-hour disclosure, selective screenshot evidence, WhatsApp messages, false allegations, and serious concerns about how digital evidence is collected in sexual assault investigations.

This episode examines how late disclosure at trial can radically change the direction of a case, especially when a complainant provides edited or incomplete message threads that appear to support one narrative, only for fuller disclosure to reveal a very different story. The discussion focuses on selective evidence, manipulation of screenshots, missing metadata, authentication problems, privacy issues, obstruction of justice concerns, and the failure of police and Crown to secure complete digital evidence early in an investigation.

The case discussed involved multiple sexual assault allegations, including sexual assault with choking, tied to a workplace affair, employment conflict, termination, and a narrative that the defence says collapsed once fuller WhatsApp records emerged during trial. Joseph argues that current police practices around digital evidence collection are inadequate and calls for policy reform, including seizure and forensic extraction of devices where relevant communications are central to the allegations.

This episode is essential viewing for anyone interested in criminal law, sexual assault trials, false accusations, disclosure obligations, evidentiary fairness, police investigations, Crown disclosure, digital evidence, workplace allegations, and the truth-seeking function of the justice system.

Topics covered include:

11th-hour disclosure

Late disclosure in criminal trials

Sexual assault allegations

False allegations

Selective text messages

WhatsApp evidence

Edited screenshots

Missing metadata

Police investigation failures

Crown disclosure issues

Workplace sexual assault allegations

Obstruction of justice

Public mischief

Directed verdict

Not guilty verdict

Digital evidence authentication

Privacy applications

Criminal defence strategy

Canadian criminal law

Justice system reform

If you follow criminal trials, evidentiary law, due process, disclosure issues, or the growing role of digital communications in sexual assault prosecutions, this episode will give you a disturbing and important case study.

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Short Description

Episode 207 of Not On Record examines a shocking case where late-disclosed WhatsApp messages and edited screenshots helped unravel a sexual assault prosecution. Joseph Neuberger explains why selective digital evidence, missing metadata, and weak investigation practices are putting the justice system at risk.

SEO Meta Description

Not On Record Episode 207 examines 11th-hour disclosure, edited WhatsApp messages, false allegations, sexual assault trial evidence, and failures in digital evidence collection in Canadian criminal law.

Timestamped Chapters

00:00 Introduction to 11th-hour disclosure

02:45 Workplace affair, termination, and criminal allegations

04:00 How police collect digital evidence and where it goes wrong

06:20 Edited screenshots, missing dates, and metadata problems

11:17 Trial disclosure bombshell and scrolling WhatsApp video

14:27 Messages that contradicted the complainant’s narrative

24:10 Obstruction of justice, lying under oath, and selective disclosure

36:22 Why police policy on phones and digital evidence must change

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In Not On Record Episode 206, Joseph Neuberger and Diana Davison examine a disturbing case involving a false sexual assault threat against a prosecutor, and what it reveals about the justice system’s uneven treatment of false allegations, public mischief, extortion, credibility, and the real-world damage caused by wrongful accusations.

This episode explores the legal and human consequences of false sexual assault claims, the difference between an acquittal and demonstrable factual innocence, and why so few complainants are ever prosecuted even where there is strong evidence of deceit. The discussion also looks at Crown discretion, victim impact, mental health court, intimidating a justice participant, and whether weak sentences undermine confidence in the administration of justice.

Joseph and Diana also dig into a broader issue at the heart of many criminal defence cases: people do lie, sometimes for pressure, revenge, leverage, panic, or other ulterior motives. Ignoring that reality does not protect justice. It distorts it.

This episode is essential viewing for anyone interested in criminal law in Canada, false accusations, sexual assault allegations, wrongful charges, due process, and the integrity of the courts.

#NotOnRecord #FalseAllegations #CriminalDefence #SexualAssaultLaw #JusticeSystem

Not On Record | EP#205 | Bill C-16 EXPOSED: This New Law Could End Fair Trials

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In Not on Record Episode 205, criminal defence lawyer Joseph Neuberger and co-host Diana Davison take a deep dive into Bill C-16, the Protecting Victims Act, and explain why the proposed changes could have major consequences for Charter rights, sexual assault trials, domestic assault cases, Jordan delay applications, and the broader administration of justice in Canada.

This episode breaks down how Parliament’s proposed amendments could reshape the handling of unreasonable delay, restrict the availability of stays of proceedings, and expand procedural burdens in sexual offence proceedings. The discussion explores the new 60-day notice requirements for section 276 applications, the changing rules around section 278 records, the growing role of complainant participation, and the practical problems these reforms may create for defence counsel, judges, and accused persons alike. Joseph and Diana also examine the proposed lack of parity between the defence and the Crown when introducing sexual history evidence, the implications of the Kinnamore decision, and why the new framework may trigger fresh constitutional litigation in Canadian courts.

If you follow Canadian criminal law, false allegations, sexual assault law, criminal defence, court delay, Jordan applications, rape shield law, therapeutic records, or the erosion of due process in Canada, this episode is essential viewing.

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

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Criminal Defence Lawyers Joseph Neuberger, Michael Bury, and YouTube personality, legal researcher and host of the UnTrue Crime podcast Diana Davison, sit down and discuss the aftermath of their trials and the emerging and alarming changes to our legal system. A behind the scenes inside look into real courtroom drama.

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In Episode 203 of Not on Record, Joseph Neuberger and Michael Bury are joined by Alain Filotto of Alpha Fox Forensics, a former RCMP forensic investigator and court-recognised expert in computer and mobile forensics, for a deep dive into digital evidence, phone extractions, metadata, screenshots, deleted messages, and the growing threat of AI-generated evidence in criminal cases. This episode explores how Cellebrite and other forensic tools are used to extract data from iPhones, Android devices, laptops, and cloud backups, why screenshots and exported chats are often unreliable, how deleted texts and app messages become harder to recover after roughly 30 days, and why chain of custody, verification, and original source data are becoming critical in sexual assault, criminal, and family court cases. The conversation also examines spoofed phone numbers, fake Instagram and text message generators, altered recordings, edited photos, wearable tech data, GPS tracking, and the access to justice problem created when challenging digital evidence requires costly experts and complex motions. If you want a practical discussion about digital forensics, metadata, authentication, AI manipulation, and the future of electronic evidence in Canadian criminal law, this is an essential episode.

Short Description

Former RCMP digital forensic expert Alain Filotto joins Not on Record to explain phone extractions, metadata, fake screenshots, deleted messages, and how AI is making digital evidence harder to trust in court.

SEO Meta Description

Former RCMP forensic expert Alain Filotto explains phone extractions, metadata, fake screenshots, deleted messages, and AI-manipulated digital evidence on Not on Record Episode 203.

Timestamped Chapters

00:00 Intro and guest welcome

00:44 Alain Filotto’s RCMP and forensic background

03:58 How phone extractions actually work

08:19 Deleted messages, recovery limits, and the 30-day window

15:27 Metadata, interpretation, and hidden digital context

24:40 Why screenshots are weak evidence

29:59 AI, fake chats, edited recordings, and deepfake risks

45:01 Verification, chain of custody, and access to justice

EP#202 | The 7-Day Rule That Makes No Sense in Real Courtrooms

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A year after the Supreme Court of Canada’s June 13, 2025 decision in **R. v. Kinamore (2025 SCC 19)**, the Not on Record crew checks the scoreboard: did Crown attorneys actually start bringing **voir dire** applications before leading **Crown-led sexual history evidence**, including **sexual inactivity**, **virginity**, and “lack of sexual interest” messaging? The Court said the screening process should *mirror* the **s. 276 Criminal Code** regime the defence is already forced to navigate, aiming for basic **parity** and fair notice so an accused can know the case to meet. In practice, the lawyers describe a system where the defence files applications months in advance, while the Crown often arrives late (or not at all), leaving defence counsel to “pre-bake” the Crown’s Kinamore issues into their own materials just to keep trials from derailing.

They also get into the messy realities this decision was trying to fix: disclosure that contains sexual history references, whether a complainant can “waive” the process (spoiler: the Court says the application still has to happen), how credibility fights get boxed into absurd technicalities (yes, even arguing about “flirting”), and why timeline rules like “seven days” can be fantasy-land in real criminal litigation. **Not legal advice.** This episode is practical commentary on Canadian criminal procedure, evidence, and what Kinamore is changing (and not changing) in courtrooms.

Key case referenced: R. v. Kinamore, 2025 SCC 19 (released June 13, 2025).

EP#201 | CCTV Exposes Sexual Assault Allegation

In Episode 201 of Not On Record, we break down a rare and powerful decision in an Ontario university assault case that resulted in a factually innocent ruling after a judge made explicit credibility findings trial-wide and used the word fabrication in her reasons. This false allegation case Ontario unfolded against the backdrop of a police investigation failure, where officers relied almost entirely on the complainant’s account and failed to secure critical CCTV evidence criminal trial footage that the defence ultimately obtained. We examine how the elimination of the preliminary inquiry eliminated Canada in sexual assault matters affected disclosure, how the pretrial motion sexual history regime required the defence to reveal its strategy in advance, and how that led to findings of tailored testimony sexual assault and collusion witness testimony between the complainant and a key witness. This criminal defence lawyer analysis explores the judge’s strong criticism of investigative shortcomings, the impact of disclosure imbalance, and what this fabrication finding judge means for sexual assault case law Canada. The episode also raises broader concerns about criminal justice fairness Canada, credibility assessments, and the structural pressures within modern sexual assault prosecutions in Ontario.

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In this milestone 200th episode of Not On Record, we dive into a live issue before the Supreme Court of Canada: R v Belinski (SCC 42030) and the ongoing debate over mens rea in sexual assault cases. When the defence of honest but mistaken belief in communicated consent is unavailable, does the Crown still have to prove the accused knew of, was reckless to, or was willfully blind to the absence of consent? The Crown argues that recent jurisprudence, including *Morrison*, has muddied the waters. But is the law actually unclear? We unpack conflicting appellate approaches from Alberta, Ontario, and British Columbia, break down the knowledge element of sexual assault, and examine whether jury instructions are being overcomplicated. At stake is a foundational criminal law principle: the Crown must prove intent beyond a reasonable doubt. Is this confusion real—or manufactured? Episode 200 brings clarity, cake, and lamb shank.

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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