Constitutional Law

Criminal litigation regularly includes challenges to the constitutionality of state conduct. Eric’s experience leaves him well-position to advance these arguments, and he regularly does so, successfully. However, a mainstay of Eric’s practice includes broader, public-interest litigation, which examines the question of whether the laws governing an individual’s prosecution conform to the values enshrined in the Canadian Charter of Rights and Freedoms.

Eric has regularly and successfully argued for laws to be declared invalid – struck down, and rendered inapplicable to the individual charged – on the basis that they infringe provisions of the Charter. This work is invariably lengthy and complex, and Eric has litigated these issues in both trial and appellate courts. In addition to his work in this area on behalf of his own clients, Eric’s experience with this litigation has driven counsel to retain him in order to advance these arguments.

Eric’s recent work in this area includes, but is not limited to, challenges to: section 36 of the Mutual Legal Assistance in Criminal Matters Act, R.S.C., 1985, c. 30 (4^th Supp.) which provides for the presumptive admissibility of hearsay and expert evidence obtained abroad; several sections of the Criminal Code, R.S.C., 1985, c. C-46, including section 33.1, which constrains the scope of the common-law defence of self-induced intoxication; and, section 16 of the Coroner’s Act, R.S.O. 1990, c. C.37, which provides broad investigative powers to Coroners and police officers who act in furtherance of Coroner investigations.

Appellate Advocacy

A conviction or an acquittal at trial is not always the end of a criminal or regulatory matter. Where the prosecution or defence believes the outcome of a case is unreasonable or impacted by error, that party can appeal to a higher court. The rules and procedure governing appeals are complex. Marshalling effective arguments on appeal requires appellate experience, deep knowledge of the law, as well as skill in written and oral advocacy.

Eric’s appellate work is an important and significant component of his mixed litigation practice. His work extends beyond the criminal sphere and includes regulatory appellate work. Eric’s approach to appellate advocacy begins early, and he encourages counsel who refer him appeals to consult with him during the trial process. This way the client’s defence can benefit from an appellate perspective, and an erroneous conviction can hopefully be avoided.

Where an individual is, unfortunately, found guilty at a trial or a regulatory hearing, Eric’s appellate assistance extends to seeking release pending appeal (bail) as well as staying orders pending appeal, so as to minimize the impact of the result pending appeal. Eric Neubauer has been counsel in appeals before the Superior Court of Justice of Ontario, the Ontario Court of Appeal as well as the Supreme Court of Canada. He has also served in a public-advocacy role as intervening counsel on behalf of numerous organizations, including the Criminal Lawyers’ Association and Canadian Civil Liberties Association.

Regulatory Defence

Regulatory sanctions and professional discipline can have consequences which rival or exceed those in the criminal sphere. Onerous fines, suspensions or limits to one’s practice can have devastating impacts on a business. An individual losing their professional licence will have lasting reputational and financial consequences. Eric has extensive experience defending those charged with regulatory offences or facing professional discipline, including appellate experience. Additionally he is regularly retained to assist other counsel deal with particularly difficult or complex legal questions arising in the Administrative law context.

If retained to assist you with your regulatory or professional disciplinary matter, Eric will bring all of his experience as a trial, appellate and constitutional litigator in order to ensure you receive resolute and effective advocacy – he knows your livelihood depends on it. Where required, he can assemble and manage a team of experts and professionals to ensure a forceful and considered response to the allegations levelled against you, and that no collateral consequences are overlooked.

Pre-Charge Advice

It is an incredibly overwhelming moment when a seasoned and highly trained police officer informs you that you are being investigated in relation to a criminal offence. The next minutes and hours can determine the trajectory of that investigation, and can make the difference between you being thrust into the criminal justice system or being carefully extracted.

Eric Neubauer’s experience as a federal prosecutor and a defence lawyer leave him uniquely positioned to give well-considered and experience-informed guidance to those facing a criminal investigation but not yet charged. Eric is regularly retained to give advice in this capacity, and can assist in quickly laying the foundation to best-ensure a client is released on bail should a decision to charge be made. Having this experience at your side can mean the difference between being charged or not. It can also mean the difference between being promptly released and spending hours and days in pre-trial detention.

Complex Motions

The modern legal system is arguably defined by its complexity. What in the past would have been a simple trial involving few witnesses often now requires complicated, written arguments about the admissibility and use of evidence, as well as the procedure by which a trial will unfold. As disclosed in an ever-growing body of jurisprudence, it is no longer enough for lawyers to rely on their wits and experience alone.

Eric Neubauer’s trial, appellate and constitutional litigation practice is, equally, defined by its complexity. Eric’s advocacy style is one which embraces, rather than hides, from complicated areas of law. He has built his practice on this reputation, and it is for this reason that counsel and clients alike ask for Eric’s assistance when these complicated issues arise.

Eric’s complex litigation experience includes, but is not limited to: challenges to the constitutionality of legislation or state action; litigation of issues involving confidential informants or police agents; litigation of search warrants, general warrants and Part VI authorizations (wiretaps); motions to obtain disclosure or third party records; as well as, applications to admit evidence in the context of sexual offences, and more broadly.

Public Inquiries

Public inquiries are government-appointed commissions that look into matters of public policy and public interest. Many inquiries have a fact-finding and recommendation mandate. They are designed to investigate and report upon particular events which have shaken the public’s confidence in public institutions, and to make recommendations to avoid these occurrences moving forward. Notable public inquiries in Canada have included: the Commission of Inquiry into the Investigation of the Bombing of Air India Flight 182 (the Air India Inquiry); the Commissions of Inquiry into the Wrongful Conviction of David Milgaard (the Milgaard Inquiry); the Walkerton Inquiry; and, the Inquiry into Pediatric Forensic Pathology in Ontario (the Goudge Inquiry).

Judges appointed as Commissioners have tremendous investigative powers, and a very broad discretion to craft rules and procedures necessary to carry out their mandate. Their authority extends to the power to subpoena witnesses and hear live testimony in a public forum. Mishandled, a public inquiry can result in an individual or organization facing adverse factual findings with significant reputational or financial consequences. Eric Neubauer’s experience in the public inquiry context leaves him uniquely positioned among criminal legal practitioners. In assisting individuals and organizations involved in a public inquiry, Eric brings his broad and well-honed litigation experience in aid of his clients’ varied and particular interests to ensure they remain protected at every stage of the process.

Intervention Work

A particularly fulfilling component of Eric’s practice is his work as Intervening counsel. Eric’s recent intervention litigation has been on behalf of the Criminal Lawyers’ Association of Ontario as well as the Canadian Civil Liberties Association, and includes the following:

R. v. Sullivan, 2022 SCC 19 

Intervention before the Supreme Court of Canada on behalf of the Canadian Civil Liberties Association in which the Court clarified the effect of a s. 52(1) declaration of invalidity under the Constitution Act.

R. v. Brown, 2022 SCC 18 

Intervention before the Supreme Court of Canada on behalf of the Criminal Lawyers’ Association in which the Court affirmed the holding of the Ontario Court of Appeal that section 33.1 of the Criminal Code was unconstitutional and declared invalid.

R. v. Jeffries, 2021 ONCA 712 

Intervention before the Ontario Court of Appeal on behalf of the Criminal Lawyers’ Association in support of Appellant who was forced to have a virtual trial without his consent, contrary to s. 650 of the Criminal Code. Appeal dismissed as moot as the Appellant was given in-person trial.

Woods (Re), 2021 ONCA 190

Intervention before the Ontario Court of Appeal on behalf of the Criminal Lawyers’ Association in which the Court held that the Ontario Review Board erred in forcing an NCR accused person to proceed with a virtual disposition hearing without her consent.

R. v. R.V., 2021 SCC 10

Intervention before the Supreme Court of Canada on behalf of the Criminal Lawyers’ Association in which the Court refined the law governing how inconsistent jury verdicts are reviewed on appeal.

R. v. Sullivan, 2020 ONCA 333

Intervention before the Ontario Court of Appeal on behalf of the Canadian Civil Liberties Association in which the Court held section 33.1 of the Criminal Code was unconstitutional, and clarifies the effect of a declaration of invalidity made pursuant to section 52(1) of the Constitution Act.

R. v. J.A., 2020 ONCA 660

Intervention before the Ontario Court of Appeal on behalf of the Criminal Lawyers’ Association in which the Court examined how the global pandemic can be considered within the bail analysis, and equally, whether it provides a basis to seek a detention review.