EP#208 | She Recanted, Then Took It Back. Now What?

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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

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