WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and
(b) on application made by the victim, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
R. v. Younkman, 2025 ONCJ 669
ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
CHRISTOPHER YOUNKMAN
Before Justice Michael Waby
Reasons for Judgment released on December 16, 2025
A. Merenda............................................................................................................... for the Crown
J. Berkes.................................................................................................................. for the Accused
Waby M.:
OVERVIEW
1Christopher Younkman is charged with a single count of Sexual Assault as against the complainant R.M. The sexual assault is alleged to have happened on 24th September 2020. Prior to this date the parties were unknown to each other. The Accused and complainant connected that same day on the dating app Grindr and then subsequently communicated by text message and then via the messaging App Signal.
2The parties arranged to meet at Mr. Younkman’s apartment and the Accused organised an Uber to collect R.M. who travelled in the Uber and arrived at Mr. Younkman’s apartment as arranged at approximately 1:00 p.m. where R.M. was met outside by him and they then went inside the apartment together.
3It is alleged that over the course of the next 10 hours R.M and Mr. Younkman’s engaged in a combination of consensual and non-consensual sexual activity.
4The Crown proceeded by way of indictment. Mr. Younkman elected trial in the Ontario Court of Justice and pleaded not guilty.
Overview
5The case for the Crown is advanced through solely the testimony of the complainant. Mr. Younkman did not testify in his defence.
6Sections 278 and 276 rulings were previously made in this case by Justice Mainville, prior to her elevation to the Superior Court of Justice. I adopt those rulings and the accompanying reasoning. With the consent of the parties, these proceedings continued before me without the need for a re-arraignment of the Accused.
7Defence counsel brought an application for a stay of proceedings pursuant to s 11(b) of the Charter on December 8, 2025 on the first rescheduled date of trial before me. I dismissed the application and found that there was not a breach of Mr. Younkman’s 11(b) rights. I indicated that I would subsequently provide reasons to the parties for that decision.
8The following are my reasons for dismissing the 11(b) decision as well as my judgement with respect to the trial.
Section 11(b) Charter Application
9The Section 11(b) application in this case represents a request for a stay following a delay of 15 months which is therefore under the presumptively unreasonable delay outlined in R. v. Jordan.
10The surrounding facts may be summarized thus. A 2-day trial was scheduled in this matter for September 15 and 16, 2025. The Accused now resides in the United States and travelled to Toronto, as required, for his trial. On the first scheduled day of trial, the Crown raised the issue with Justice Mainville whether defence counsel would be permitted to cross-examine the complainant with respect to certain text messages he had exchanged with the accused on the day of the alleged incident.
11Submissions were made by counsel before Her Honour as to whether certain texts or messages amounted to records and were subject to the section 278 regime. It quickly became apparent that a clear and unambiguous waiver of the materials had not been obtained by the Crown as it related to the section 278 materials.
12It also became apparent that it was necessary for Her Honour to determine whether any of the messages were subject to the section 276 regime and its requirements.
13In the wake of the sections 278 and 276 issues that had been raised, on the first day of trial, both Crown and defence counsel were responsive and sought to pro-actively manage the emerging situation. Defence counsel made a number of concessions and sought to limit the nature and scope of any potential 276 materials. However, defence counsel reasonably maintained the need to reserve the right to cross-examine the complainant on one particular message, “the Signal message” in the event that the complainant’s viva voce evidence was inconsistent with its contents.
14Crown counsel accepted that they had proceeded on the basis of an implied waiver with respect to materials that were found by Her Honour to be records and which had been provided by the complainant to the police and in turn by the Crown to defence counsel as part of the disclosure process.
15A draft waiver was obtained and steps were taken for the complainant to receive access to the required independent legal advice (ILA). The signed, albeit incomplete, waiver by the complainant was provided to defence counsel and the court on the second scheduled date of trial. In an effort to expedite matters, Crown counsel conceded Stage 1 for the purposes of section 278.93. The matter was then adjourned to appoint counsel for the complainant and to conduct the Stage 2 proceedings. New trial dates were set for December 8 and 9, 2025.
16Subsequently, on October 29, 2025, Justice Mainville rendered a comprehensive 35-page decision on the sections 276 and 278 issues. Her Honour found that the Signal message fell within the ambit of s. 276 and also found it was admissible. Her Honour further determined the admissibility of materials pursuant to the section 278 records regime. I adopt Her Honour’s decision in its entirety.
17The Applicant’s position is that the entire delay in this case following the trial dates scheduled in September 2025 is attributable to the Crown not seeking a sufficiently informed waiver and ILA with respect to the records materials and that the Applicant was entitled to rely on the presumption that disclosure of the materials by the Crown, amounted to a waiver of its use, absent evidence to the contrary.
18Mr. Berkes submits that defence counsel acted expeditiously and that the fact that the Applicant now resides in the United States means that he has also suffered unreasonable prejudice as a result of having to re-attend for the subsequently scheduled trial dates in December 2025.
19The Crown submits that the delay in this case emerging since the September trial dates lies squarely at the feet of the defence. Mr. Merenda submits that the sections 278 and 276 issues were canvassed at the Judicial Pre-Trial (“JPT”) in this case and defence counsel had indicated that they would not be live issues for trial. It is the Crown position that on the first scheduled trial date the Crown sought to avoid delay and any mid-trial applications by confirming, prior to arraignment that defence counsel was not seeking to rely on any materials that may attract the necessary scrutiny of the s. 276 regime.
Section 11(b) Analysis
20I do not propose to extensively rehearse the well-established principles articulated in R. v. Jordan and related case law. Counsel provided relevant case law to me and I have reviewed and considered it along with their respective materials. The parties do not dispute the timelines in this case nor that the relevant delay is 15 months at the time of the Application.
21The issue in this case is who bears responsibility for any delay that occurred between the September trials dates and those now scheduled before me and how that delay should be treated by the Court.
22This section 11(b) application is below the presumptively unreasonable 18-month Jordan ceiling and the onus is on the Applicant to demonstrate unreasonable delay. In order to do so, he must establish that he took meaningful steps to demonstrate a sustained effort to expedite proceedings and that the case took markedly longer than it reasonably should have, R. v. Jordan 2016 SCC 23.
23I accept entirely that defence counsel, and Crown counsel acted with as much flexibility and expedition as was possible once the s. 276 and 278 issues reared their heads on the first trial date. All reasonable concessions were made and all necessary steps were then taken to narrow and focus the issues. The simple and unarguable reality, however, is that this valiant rearguard action by both Crown and Defence counsel was entirely avoidable.
24The Crown rightly accepts that they should have taken additional steps beyond those of assuming that an implicit waiver of any s. 278 materials by the complainant was sufficient. While I accept that the Crown canvassed the s. 278 issue briefly at the JPT, the responsibility lies with the Crown to take any corresponding steps required by to ensure unambiguous compliance with respect to the s. 278 records regime and any informed waiver by the complainant.
25It was not unreasonable for defence counsel to conclude that the receipt of these materials in disclosure was accompanied by the necessary waiver for all relevant purposes. No evidence to the contrary appears to have been flagged until the issues reared its head at the September trial date.
26Equally, it is very clear that defence counsel was firmly of the view that, from his perspective, none of the relevant text messages he anticipated relying on would be subject to the s. 276 regime. This led to Defence counsel indicating at the JPT that s. 276 would not be an issue for trial.
27As Justice Mainville’s decision made clear, defence counsel’s confidence was misplaced and there remained relevant material that fell to be considered under the s. 276 regime with all that flows from that. It is not accurate to suggest that the delay from the September trial dates to the current trial dates lie solely at the feet of the Crown.
28The evidential issues that emerged on September 15, 2025 necessitated a substantial ruling from Justice Mainville, much of which centred on her consideration of the s. 276 issue and the related Signal message. Her Honour was able to provide this decision to the parties on October 29, 2025. While defence counsel is not expected to be imbued with the gift of hindsight and is also entitled to be wrong, that decision and its consequences cannot reasonably lie at the feet of the Crown.
29If defence counsel had at least sought a motion for directions, he would have been able to establish well in advance of the scheduled trial dates whether the Court shared his view that the text messages did not engage the s. 276 process. The law and procedures around sexual assaults have become increasingly complex and complicated and counsel have long been urged to exercise caution in their approach to issues relating to these important evidential issues.
30Well-established, statutory frameworks exist for good reason to consider and address these issues and motions for directions are a common phenomenon that are easily set before the court. However, confident a counsel may be on an issue of evidential admissibility and usage, the Court acts as gatekeeper to these issues and does not delegate this function to counsel who are responsible for the consequences of their decisions.
31Despite the various positive steps defence counsel took to expedite this case, this did not include addressing the s. 276 issue with the court. The reasonable and prudent course in this case, with the use of foresight, not hindsight, would have been for Defence counsel to seek judicial guidance on the s. 276 issue given the fact that he knew he intended to rely upon at least one, if not more, of the text messages related to this incident at trial. This would have avoided precisely the issue that arose and the type of mid-trial applications it necessitated and against which counsel have frequently been enjoined.
32Neither Crown nor Defence acted with any bad faith and each sought to salvage the situation that arose to the best of their ability, however, I find that the reality is that both Crown and defence share responsibility for the avoidable delay that occurred. Either the s. 278 or the s. 276 issue would have led to an adjournment of the trial dates. The combination of the two merely compounded the problem. It is also fair to say that the s. 276 issue necessitated more legal analysis and consideration than the waiver of the complainant’s records. Indeed, the importance of the Signal message to defence counsel was such that he sought, unsuccessfully, to have Her Honour revisit her ruling on it with respect to the s. 276 framework and its application.
33In J.F., the Supreme Court highlighted that “because the prospective approach adopted in Jordan allows the parties to know from the outset what time is reasonable for their proceedings, they have a responsibility to take proactive measures to prevent that time from being exceeded. This responsibility lies upon both the Crown and the defence.” This is why courts now routinely schedule section 11(b) hearings ahead of the trial itself: to ensure court time is used efficiently. In this case, I note that this s. 11(b) application was scheduled for the first day of the re-scheduled trial.
34Additionally, court resources must be carefully guarded for the benefit of all participants of the criminal justice system. In the Supreme Court of Canada’s decision of J.J., the Supreme Court directed that, as a general rule, “private record applications should be brought at the pre-trial stage of the proceedings”, 2022 SCC at para. 86
35The Court noted the following relating to the dangers associated to mid-trial applications and the ripple effect it has on participants of the system:
… If mid-trial applications become routine, this would result in frequent adjournments, significant delays, scheduling difficulties – particularly in jury trials – and potential unfairness to the accused. Mid-trial applications could also harm complainants and discourage the reporting and prosecution of sexual offences. Para. 86
36Justice McVey in the Superior Court of Justice decision of R. v. A.G., commented further by noting that mid-trial applications will often, if not always, and as they did here, result in an adjournment and negatively affect the proceedings before the Court as well as the administration of justice more broadly. R. v. A.G., 2025 ONSC 2453 at paras. 8-14, 43.
37Finally, in the decision of R. v. Ranu from the Ontario Court of Appeal, the Court further cautioned against mid-trial applications. Although in reference to a trial judge foreclosing a section 278.1 third-party records application in the middle of cross-examination, the Court provided the following guidance regarding the trial judge’s decision to dismiss a mid-trial application being brought and concluded… “This type of mid-trial application is exactly what the Supreme Court of Canada cautioned against in R. v. J.J.”, 2022 SCC 28, [2022] 2 S.C.R. 3, at para. 86.
38I find that as it relates to the critical s. 276 issue, while this was the only area that defence counsel failed to address in an expeditious fashion, that inevitably had significant and avoidable consequences to the trial dates in September. I appreciate that the Applicant has had to return to Toronto for the December trial dates in this matter and that there is a cost and inconvenience to him for that. It was nevertheless an unavoidable reality given how events unfolded.
39While the Crown bears its share of responsibility with respect to the confusion around the s. 278 waiver, I am unable conclude that the present 15-month timeframe amounts to a delay that is markedly longer than it should reasonably have been in all of the circumstances nor that defence counsel acted with the necessary expedition in these particular circumstances. While not exclusively responsible for the adjournment of the first trial dates that became inevitable, defence counsel’s approach to the s. 276 issue was a significant contributing factor.
40Accordingly, I do not find in this case the Mr. Younkman’s 11(b) Charter rights were violated and his application is dismissed.
Trial Proper
Issues
41The defence position is simply articulated. Mr. Berkes submits that there is a failure by the Crown to prove beyond a reasonable doubt that there was an absence of consent in this case. In the alternative, the Accused challenges the Crown's evidence of mens rea by asserting an honest but mistaken belief in consent.
42At the close of the Crown’s case, defence counsel brought an application for a directed verdict that was unsuccessful for the reasons I provided at the time of that ruling. In short, I was satisfied that the Crown had met the low threshold required in R. v. Shepherd and R. v. Arcuri and related case law.
43Mr. Merenda for the Crown submits that the evidence of R.M. clearly establishes a lack of consent on his part to some of the sexual activity that occurred. In the alternative, the Crown argues that when the court considers the principles and guidance provided in R. v. Akhali, [2025] O.J. No.1254 and related law, there is not a factual basis for the court to conclude Mr. Younkman took the necessary steps to legitimately reach such a belief.
Law and Analysis
Sexual assault
44A conviction for sexual assault requires proof beyond reasonable doubt of two basic elements, that the accused committed the actus reus and that they had the necessary mens rea. The actus reus of assault is unwanted sexual touching. The mens rea is the intention to touch, knowing of, or being reckless of or wilfully blind to, a lack of consent, either by words or actions, from the person being touched.
Actus Reus
45The crime of sexual assault is only indirectly defined in the Criminal Code, R.S.C., 1985, c. C-46. The offence comprises an assault within any one of the definitions in s. 265(1) of the Code, which is committed in circumstances of a sexual nature, such that the sexual integrity of the victim is violated: see R. v. S. (P.L.), 1991 CanLII 103 (SCC), [1991] 1 S.C.R. 909. Section 265 provides that:
- (1) A person commits an assault when
(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;
(b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or
causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or
(c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.
46This section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault.
47The actus reus of sexual assault is established by the proof of three elements: (i) touching, (ii) the sexual nature of the contact, and (iii) the absence of consent. The first two of these elements are objective. It is sufficient for the Crown to prove that the accused's actions were voluntary.
48The sexual nature of the assault is determined objectively; the Crown need not prove that the accused had any mens rea with respect to the sexual nature of his or her behaviour: see R. v. Litchfield, 1993 CanLII 44 (SCC), [1993] 4 S.C.R. 333, and R. v. Chase, 1987 CanLII 23 (SCC), [1987] 2 S.C.R. 293.
Consent
49To be legally effective, consent must be freely given. Therefore, even if a complainant consented, or their conduct raises a reasonable doubt about their non-consent, circumstances may arise which call into question what factors prompted their apparent consent.
50The absence of consent, however, is subjective and determined by reference to the complainant's subjective internal state of mind towards the touching, at the time it occurred: see R. v. Jensen (1996), 1996 CanLII 1237 (ON CA), 106 C.C.C. (3d) 430 (Ont. C.A.), at pp. 437-38, aff'd 1997 CanLII 368 (SCC), [1997] 1 S.C.R. 304, R. v. Park, 1995 CanLII 104 (SCC), [1995] 2 S.C.R. 836, at p. 850, per L'Heureux-Dubé J., and D. Stuart, Canadian Criminal Law (3rd ed. 1995), at p. 513
51The Code defines a series of conditions under which the law will deem an absence of consent in cases of assault, notwithstanding the complainant's ostensible consent or participation. As enumerated in s. 265(3), these include submission by reason of force, fear, threats, fraud or the exercise of authority, and codify the longstanding common law rule that consent given under fear or duress is ineffective:
52As articulated in R v Ewanchuk… “The words of Fish J.A. in Saint-Laurent v. Hétu, 1993 CanLII 4380 (QC CA), [1994] R.J.Q. 69 (C.A.), at p. 82, aptly describe the concern which the trier of fact must bear in mind when evaluating the actions of a complainant who claims to have been under fear, fraud or duress: “Consent” is stripped of its defining characteristics when it is applied to the submission, non-resistance, non-objection, or even the apparent agreement, of a deceived, unconscious or compelled will.”
53In these instances, the law is interested in a complainant’s reasons for choosing to participate in, or ostensibly consent to, the touching in question. In practice, this translates into an examination of the choice the complainant believed they faced. The courts’ concern is whether they freely made up their mind about the conduct in question.
54As articulated in R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330, “the question is not whether the complainant would have preferred not to engage in the sexual activity, but whether they believed themself to have only two choices: to comply or to be harmed. If a complainant agrees to sexual activity solely because they honestly believe that they will otherwise suffer physical violence, the law deems an absence of consent, and the third component of the actus reus of sexual assault is established. The trier of fact has to find that the complainant did not want to be touched sexually and made their decision to permit or participate in sexual activity as a result of an honestly held fear. The complainant’s fear need not be reasonable, nor must it be communicated to the accused in order for consent to be vitiated. While the plausibility of the alleged fear, and any overt expressions of it, are obviously relevant to assessing the credibility of the complainant's claim that they consented out of fear, the approach is subjective, R. v. Ewanchuk at para. 39.
55In sexual assault cases which centre on differing interpretations of essentially similar events, trial judges should first consider whether the complainant, in their mind, wanted the sexual touching in question to occur. Once the complainant has asserted that they did not consent, the question is then one of credibility.
56In making this assessment, the trier of fact must take into account the totality of the evidence, including any ambiguous or contradictory conduct by the complainant. If the trier of fact is satisfied beyond a reasonable doubt that the complainant did not in fact consent, the actus reus of sexual assault is established and the inquiry must shift to the accused's state of mind.
57If there is reasonable doubt as to consent, or if it is established that the complainant actively participated in the sexual activity, the trier of fact must still consider whether the complainant consented because of fear, fraud or the exercise of authority as enumerated in s. 265(3).
58The complainant’s state of mind in respect of these factors need not be reasonable. If their decision to consent was motivated by any of these factors so as to vitiate her freedom of choice the law deems an absence of consent and the actus reus of sexual assault is again established.
R.M.’s evidence
59In the case before me, the evidence is clear and uncontested that R.M. and Mr. Younkman actively participated in a range of sexual activity together over the course of approximately 10 hours after R.M. arrived at the Accused’s residence. This included sexual touching, mutual masturbation and Mr. Younkman performing oral sex on R.M. and several instances of anal sex.
60Prior to meeting on the date of the alleged incident, the two were strangers and met on-line for the first time that day. During the course of their online exchanges, Mr. Younkman and R.M. exchanged a Signal app text message which was the subject of the s. 276 ruling by Justice Mainville. It was at 9:54 a.m. and the relevant excerpt has Mr. Younkman writing in a series of texts: “I know you’re nervous, but don’t worry. We will go slow and I want you to be comfortable and you can stop at any time. Just come and we’ll have lunch. And if you want to I’ll Uber you home at any time. Oh, btw, I’m still wearing biking clothes. Do you care? Or should I change? R.M. responds, “Put clean clothes on ig ( I guess) ?” to which Mr. Younkman replies “ok, I’m changing now”
61The probative force of prior statements of intention will depend on, among other things, their degree of specificity and their temporal proximity to the alleged assault. As the Court noted in R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, a statement of intention can support an inference that the declarant followed through on the intended course of action only if it is “reasonable on the evidence for the trier of fact to infer that the declarant did so” (para. 169).
62R.M. testified in-chief that approximately 3 hours after this text he was picked up in an Uber at a local park and travelled to meet Mr. Younkman. R.M. described feeling apprehensive and that upon arrival, he was met outside by the Accused. They went in together to the accused’s apartment which R.M. described as being a large, converted warehouse.
63After some preliminary small talk, R.M gave evidence that he told the Accused the sexual acts he did not wish to engage in. He testified that this included no oral or anal sex nor any kissing.
64In examination-in-chief, R.M. described the sexual activity starting by him removing all of his own clothes aside from a long pair of cotton socks, the Accused then pushed on his shoulders, which R.M. took as a cue to kneel down which he did not do. Mr. Younkman immediately ceased pushing his shoulders and then took a belt and tied R.M.s wrists behind his back and placed a blindfold over his eyes and circled around him talking a series of pictures.
65When asked whether he or the Accused had said anything throughout this phase of the encounter, R.M. testified “I can’t remember”. He described feeling nervous and uncertain at this stage. He asked to use the shower and the Accused led him to the shower while R.M. was still blindfolded. R.M. estimated he spent 10-20 minutes showering and testified that he did not leave the bathroom during this time as he was nervous.
66Upon exiting the bathroom R.M. and the Accused discussed a puddle of pre-ejaculate from R.M’s penis that was apparently on the floor and Mr. Younkman touched R.M.s penis and placed his fingers in R.M’s mouth. R.M. could not recall whether what if anything was said while this happened.
67R.M. then again asked to go to the washroom and was taken by the Accused whom R.M. observed remaining in the room. The Accused then left the washroom upon the request of R.M. Upon exiting the washroom, R.M. sat on the sofa with Mr. Younkman who was still fully clothed. Mr. Younkman advised R.M. he had a work meeting to attend on video and would be a few minutes.
68R.M. testified that while this happened he scrolled through Netflix to try and find something to watch on the television. He estimated the meeting lasted 20 minutes after which Mr. Younkman returned to where R.M. was watching television and ran his hands through R.M.’s hair and touched his neck and upper body and then told R.M. he had another remote work meeting to attend.
69R.M. gave evidence that he believes there may have been a total of 3 meetings the Accused participated in while he was there and after second one, the Accused returned, pulled out his own penis and placed R.M.’s hand on it and moved it up and down. The Accused then asked R.M. to wipe the pre-ejaculate from the tip of the Accused’s penis which he did using his socks. R.M. could not recall whether he said anything at this point. The Accused then attended his third remote work meeting.
70When asked by the Crown whether he asked the Accused to stop any of the interaction at this point, R.M. testified that he did not as it was not something he was opposed to doing. It was his evidence that he did not recall saying anything to the Accused but he “knew in his own head he was okay with it.”
71R.M. testified that he lay naked on the couch watching television for the next 15 or so minutes while the Accused attended his third work meeting after which Mr. Younkman returned and tied R.M.’s wrists in front of him with a necktie. R.M. could also not recall whether any words were spoken at this point.
72Subsequent to this, Mr. Younkman licked and fingered R.M.’s anus and performed oral sex on him. This lasted for approximately 5 minutes and R.M. gave evidence he did not recall saying anything and that he believed that this was because he was shocked at what was happening to him but that his focus was mostly on the television.
73R.M. testified the Accused seemed ‘rough’ at this point although did not articulate how this manifested itself. He then gave evidence that the Accused attempted to penetrate him anally but was unsuccessful and then he picked up R.M. in his arms and carried him upstairs to the bedroom where he lay R.M. down on the bed.
74After Mr. Younkman again attempted to anally penetrate him, R.M. gave evidence that he said to the Accused “should we use a condom?” and that he asked the Accused whether he had any sexually transmitted diseases. R.M. testified that Mr. Younkman told him he was on PrEp, (a pre-exposure prophylaxis medication to prevent HIV in HIV negative individuals at high risk) and life was easier if he did not use one a condom.
75R.M. testified that he was not sure whether he could trust the Accused but accepted that he did not express any reservations to Mr. Younkman at all in any way. R.M. estimated this portion of the encounter lasted approximately 20 minutes. Subsequently R.M. gave evidence that the Accused again licked and fingered his anus and then penetrated him anally while his hands were still tied with the tie. At one point, R.M. wriggled a hand free and pushed against accused who stopped. Then described them ‘spooning’.
76At one point, R.M. told the Accused ‘it hurts’ and the Accused said “I’ll take it out slowly” and he then removed his penis. Further anal sex then occurred after which R.M., asked to go to the washroom again and while he was inside the locked washroom, the Accused called out and asked if R.M. was okay to which he replied that he was.
77R.M. gave evidence that while he was in the washroom on this occasion he was stunned and shocked and was wondering whether he had been raped and estimates he stayed in the bathroom for 10-15 minutes before exiting. He then chatted with the Accused at the kitchen counter, had a glass of water and testified that the Accused began to rub some oil over R.M.’s anus to which R.M. said ‘do we have to use that?” to which Mr. Younkman replied, “it will feel good.” He then subsequently penetrated R.M. again at which point it was his evidence he told the Accused it hurt and the Accused stopped.
78The Accused and R.M. then went back upstairs to the bedroom together where the Accused told R.M. he wanted to try a new position and to which R.M. said “I don’t know” and the Accused asked him if he wanted to be “good” at which point R.M. testified Mr. Younkman seated R.M. on his penis after, which they changed positions and R.M. then advised “I need a break” at which point, Mr. Younkman stopped sexual activity and then cuddled with R.M. after saying “should we cuddle”.
79After cuddling together, R.M. testified he and the Accused had penetrative sex approximately 4-6 further times for brief periods of time before the Accused ejaculated on R.M. and went to the bathroom.
80R.M. testified that he lay there for a few minutes before going to the bathroom where he said he felt shock and pain and was confused and wondered about the next steps to take and that “in my head he felt disgusting.”
81Subsequently R.M. and Mr. Younkman sat and chatted on the sofa with R.M.’s feet on the Accused lap. R.M. asked if the Accused would launder his thigh high socks for him and if he could take another shower. Mr. Younkman agreed to both requests. After this R.M. returned to the sofa and sat with the Accused who lay with his head in R.M.’s lap for about 15 minutes and after returning with R.M.’s freshly laundered socks sat next to him with his head on R.M.’s shoulder for a further 20 minutes.
82After this, R.M. told the Accused he wanted to go home and the Accused ordered him an Uber which he then took back to the park he had originally come from, leaving at about 11:00 p.m.
83When asked by the Crown how he felt about the experience of being with the Accused, R.M. testified that “it was a very bad experience” and he did not feel he could trust him. Four days later, R.M. attended Women’s College Hospital (“WCH”) where a SAEK was carried out. Approximately 3 years later, R.M. reported the sexual assault to police. When asked by the Crown why he reported the incident when he did, R.M testified that it was because he had grown as a person and in confidence and felt it was his duty to come forward in case there were other victims
84When asked how the Accused seemed when R.M. left his apartment, R.M. described Mr. Younkman as seeming neutral or “okay” but R.M. described himself feeling stunned and disgusting. He gave evidence that at no point did he say in words to Mr. Younkman that anal penetration of any kind was okay and nor were there any express enquiries made by Mr. Younkman.
85In cross-examination, R.M. confirmed that he provided various written materials and text messages to the police when he reported the matter to them a little over three years after the alleged incident and that he did so to help them with their investigation but R.M. could not recall when exactly in 2024 he had provided them.
86In cross-examination, R.M. made a number of concessions. He agreed his memory about the incident was better 5 years ago than now and his recall would have been more accurate then than now and that his recall of details from the alleged incident may now be incorrect.
87R.M. agreed that he voluntarily got into the Uber that was ordered for him and voluntarily attended the Accused apartment and entered it with him without further discussion. R.M. also accepted that he and the Accused had discussed the Accused taking intimate pictures of R.M. and of R.M. exploring various sexual fantasises with Mr. Younkman once he arrived.
88When asked whether he consented to the intimate pictures being taken, R.M. replied “that depends on how you define consent”. When pressed, he gave evidence that he believed ‘a verbal affirmation’ was required to amount to consent. Defence counsel put to R.M. that he had consented to the pictures being taken R.M. testified that he had not. When Mr. Berkes repeated his suggestion that R.M. was fine with the intimate pictures being taken at the time, R.M. then agreed that he was. He also confirmed that when he asked the Accused to delete the pictures he had done so without demur in front of R.M. to ensure he could see it had happened and that he did so one by one by scrolling down the screen on his phone as he did so.
89R.M. agreed that he had his phone with him the entire time he was in the apartment and had unrestricted access to it. He also agreed that he had locked the bathroom door each time he entered the bathroom and that had he wished to do so, he had the means to use his phone to call police, friends or family for help. When asked why he testified that he did not feel safe in the apparent absence of any evidence to support that conclusion, R.M. testified that it was because he thought Mr. Younkman had over-reached on the initial boundaries R.M. had set.
90R.M. agreed that Mr. Younkman appeared at various points to be solicitous of R.M., R.M. was sufficiently comfortable that in the 10 hours he spent at the Accused apartment, he spent three separate periods of time reclining naked on the sofa watching Netflix while the Accused participated in 3 separate work meetings which each time was punctuated by intimate contact between him and Mr. Younkman.
91R.M. agreed with defence counsel that when he and the Accused engaged in mutual masturbation there had been no verbal exchange between them and that R.M. was agreeable to this behaviour.
92R.M. also agreed with the defence suggestions that “your personal truth” may differ from what happened during the alleged incident and that with hindsight a person may view an incident differently and change their mind bout what had happened. R.M. also agreed that he was fine with the kissing that had taken place between them, despite testifying earlier that he did not wish to engage in such behaviour.
93R.M. also agreed that in his text exchanges with Mr. Younkman very shortly before their encounter, he was clear that he could tell Mr. Younkman if he wanted to stop any unwanted sexual behaviour and had not done so throughout their encounter. He also agreed that at no point did he say “no” or ask Mr. Younkman to stop any sexual behaviour, including the instances of anal or oral sex. However, he reiterated his position that he had not consented to anal sex or anal touching and testified that in his view, all of his actions were consistent with the Accused knowing R.M. did not wish to engage in anal sex.
94R.M. denied that at one point during anal sex he had asked Mr. Younkman to switch to a more comfortable position and that this would imply he was consenting to the activity. When an excerpt of his police statement was then played to him, R.M. acknowledged that he had in fact told officers “I asked if we could move to a more comfortable spot”. R.M. also agreed that during further anal sex in the bedroom he and Mr. Younkman had discussed the use of a condom although R.M. agreed he had not asked the Accused to use one or expressed any preference and that they had also discussed STDs prior to anal sex continuing.
95During cross-examination, defence counsel suggested to R.M. that based upon their conversations, the reasonable person would conclude that these exchanges were a prelude to consensual sexual activity. After a lengthy pause, R.M. agreed with counsel’s proposition. R.M. also agreed after his police statement was played to him that he told police he “went along with the anal activity that day.” In a subsequent exchange with defence counsel, R.M. testified “I went along with it but I wasn’t okay with it”. When asked by defence counsel if R.M. participated voluntarily, R.M. responded “yes” but added that he felt forced. He then agreed with defence counsel that he went along with everything that happened on the day of his encounter with Mr. Younkman.
96R.M. also agreed with defence counsel that he had previously told the police that the reason he went to WCH for a SAEK 4 days later was because his main concern was whether he may have contracted an STD following unprotected sex with Mr. Younkman. When asked “is the truth today that the reason you went to WCH was because of your concern regarding an STD”. R.M. replied “yes”. R.M. then subsequently denied it was the main reason and denied that he had been persuaded by a nurse to report a sexual assault to the police.
97R.M. agreed that he had also told the police in his statement that he believed he was in denial about a sexual assault having occurred and that he believed the sexual assault was the reason that he was snapping and irritable with his friends and family. When asked by defence counsel whether R.M. thought it was possible there may have been a reason other than a sexual assault for this irritability, R.M. responded “it’s possible”. He also agreed again with defence counsel’s suggestion that he was never forced by Mr. Younkman to do anything, that he had gone along with all of the activity that occurred, knew he could have stopped any of the activity at any point he wished and that Mr. Younkman had complied with any requests made by R.M.
98R.M. also agreed with defence counsel’s suggestion that sometimes people regret their past behaviour but not because a person was forced into doing something but because they subsequently view events differently. Nevertheless, R.M. denied he was now just looking to blame Mr. Younkman because he now regretted what had voluntarily happened between them.
99While the complainant's testimony is the only source of direct evidence as to his state of mind in this case, credibility must still be assessed by the trial judge, in light of all the evidence. It is open to the Accused to claim that the complainant's words and actions, before and during the incident, raise a reasonable doubt against his assertion that he, in his mind, did not want the sexual touching to take place. If, however, the trial judge believes the complainant that he subjectively did not consent, the Crown has discharged its obligation to prove the absence of consent
100Consent is defined by the Criminal Code as the voluntary agreement of the complainant to engage in the sexual activity in question: s. 273.1(1). As Mr. Merenda rightly submitted it is the conscious agreement of the complainant to engage in every sexual act in a particular encounter and must be given freely, must exist at the time of the sexual activity, and can be revoked at any time: R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, at para. 88.
101Given that the first essential element of this offense has been admitted, the second essential element, the absence of the subjective consent of the Complainant, is the remaining actus reus component of the offence, and it must be proven beyond a reasonable doubt. This consent is with reference to the Complainant's internal state of mind. In other words, I must determine whether the Complainant wanted the sexual activity to take place: R. v. Ewanchuck, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330, at para. 26.
102Whether or not the Complainant subjectively consented is a matter of credibility to be weighed in light of all the evidence: Ewanchuck, at paras. 30 - 31; Barton, at para. 89. The Complainant need not express their lack of consent, or their revocation of consent, for the actus reus to be established: R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440, at para. 37.
103I must also be mindful that consent to one act does not amount to consent to another act. Consent must be given for each and every sexual act engaged in. For example, agreement to one form of penetration is not an agreement to any or all forms of penetration: R. v. Hutchinson, 2014 SCC 19, 2014 S.C.C. 19, [2014] 1 S.C.R. 346, at para. 54; R. v. Kirkpatrick, 2022 SCC 33, 2022 S.C.C. 33, [2022] 2 S.C.R. 480, at para. 44.
104Consent cannot be implied because of a pre-existing relationship, like a common law partnership or marriage: J.A., at para. 64. Consent also cannot be implied by the complainant's silence, passivity, or ambiguous conduct: R. v. Kruk, 2024 SCC 7, 2024 S.C.C. 7, 433 C.C.C. (3d) 301, at para. 36.
105In this case, if I accept the Complainant's evidence that he did not consent to the sexual touching in question, beyond a reasonable doubt, then this element of the offence is proven. Only if I find that there was consent, or I have reasonable doubt about the Complainant's consent, do I need to determine if the consent was vitiated in any way: R. v. G.F., 2021 SCC 20, 2021 S.C.C. 20, [2021] 1 S.C.R. 801, at para. 53.
106R.M.’s evidence stood alone in this case. Corroboration is not necessary for proof of a sexual assault, but of course if it existed, it would strengthen the Crown’s case. There are no other witnesses beyond R.M. who testified.
107In assessing a witness’s testimony, I may accept some, all, or none of their evidence and I must consider the credibility and reliability of the account provided. In assessing the credibility and the reliability of the evidence of the witnesses, I have distinguished between credibility and reliability. Credibility relates to a witness’ sincerity, whether he/she is speaking the truth as she believes it to be.
108Reliability relates to the actual accuracy of his/her testimony. In determining this, I must consider his/her ability to accurately observe recall and recount the events in issue. A credible witness may give unreliable evidence. See R. v. Morrissey, 1995 CanLII 3498 (ON CA), [1995] O.J. No. 639 (C.A.) at para 33; R. v. H.C., 2009 ONCA 56, [2009] O.J. No. 214 (C.A.) at para 41. Accordingly, there is a distinction between a finding of credibility and proof beyond a reasonable doubt. See R. v. J.J.R.D., 2006 CanLII 40088 (ON CA), [2006] O.J. No. 4749 (C.A.) at para 47; R. v. J.W., [2014] O.J. No. 1979 (C.A.) at para. 26.
109The credibility and reliability of a witness must be “tested in the light of all the other evidence presented”. R. v. Stewart, 1994 CanLII 7208 (ON CA), [1994] O.J. No. 811 (C.A.) at para. 27.
110The reality is that R.M. presented as an intelligent and articulate witness, albeit one who at times bordered on the very methodical with a number of his answers. There were a number of instances where he paused for significant periods of time before answering key questions in cross-examination and at times, I found R.M. to be evasive in his answers to defence counsel particularly once he had answered a question that he considered may undermine his evidence.
111While R.M.’s was often candid as he was, he often sought to resile from answers or qualify his evidence in a manner inconsistent with much of his earlier evidence. In cross-examination, he made a number of significant admissions that were clearly against his own interests.
112Despite his evidence, it is R.M.’s position that he did not consent to any of the anal sex of touching or oral sex that occurred between him and Mr. Younkman. Mr. Merenda for the Crown submits that the Crown has proven beyond a reasonable doubt through R.M.’s evidence that there was no valid consent on R.M.’s part, nor indeed was there any reasonable basis for Mr. Younkman to conclude an honest or mistaken belief in consent on R.M.’s part.
113Proof beyond a reasonable doubt goes hand-in-hand with the presumption of innocence which is a fundamental principal of our system of justice. The burden of proof in a criminal trial always rests with the Crown. The burden of proof is a heavy one. It is proof beyond a reasonable doubt in relation to each of the offence’s essential elements.
114A reasonable doubt is not an imaginary, far-fetched, or frivolous doubt. It is not a doubt based on sympathy for or prejudice against anyone involved in this trial. It is a doubt based on reason and common sense and is logically derived from the evidence or the absence of evidence. R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320, 118 C.C.C. (3d) 1, at para. 39
115To be clear, it is not sufficient that on the whole of the evidence that I am satisfied that Mr. Younkman is probably guilty. Even if I believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances, a judge must give the benefit of the doubt to the accused and acquit because the Crown has failed to satisfy the court of the guilt of the accused beyond a reasonable doubt.
116The burden never shifts to the accused to establish their own innocence, and the onus always lies with the Crown to prove every essential element (R. v. J.H.S., 2008 SCC 30, [2008] 2 S.C.R. 152, at para. 13).
117On the totality of the evidence before me, I am not satisfied that the Crown has proven beyond a reasonable doubt that R.M. did not consent to all of the sexual activity that occurred between him and Mr. Younkman. I find on R.M.’s own evidence and all the reasonable inferences that I draw from it that there is a marked lack of credibility to this suggestion. There is no reasonable inference from the evidence to conclude that there was a basis for R.M. to have feel unsafe, coerced or any at risk at the hands of Mr. Younkman. Nothing in his behaviour would support this finding.
118Nor do I find, based upon the evidence of R.M. that his words or actions throughout the encounter were consistent with a lack of freely given consent. R.M.’s evidence at trial made a number of significant concessions. I accept that in the face of these concessions R.M. was consistent that he did not consent to certain activity with Mr. Younkman and that his words and actions supported this. Nevertheless, I do not find this to be a credible assertion on his part in light of the evidence before me.
119I accept there may well have been points during which R.M. felt nervous during the lengthy encounter he had arranged with Mr. Younkman and the range of activity in which they engaged. However, on his own evidence, he was at no point coerced or forced shamed or intimidated into any activity. Mr. Younkman respected any requests he made, whether these were expressed verbally or otherwise and the Accused was solicitous of R.M. during their time together. R.M. accepted the reasonable inferences that would be drawn from his actions and at times testified inconsistently, and in important regards, with the information he had provide to the police in his statement to them.
120I accept entirely that there is no such thing as a standard response by the victims of sexual assault and that individuals may legitimately react in a variety of ways. However, on the facts of this case, and taken at its highest, being intermittently nervous, cannot be elevated such that it is conflated with a lack of consent on R.M.’s part. In light of the evidence before me, I do not find the Crown has established beyond a reasonable doubt that R.M. did not consent to the sexual activity as alleged. Further consideration of any possible mistaken belief in consent is therefore redundant.
121Accordingly, I find Mr. Younkman not guilty of sexual assault.
Dated: December 16, 2025. _______________________________
Justice Michael Waby