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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.
ONTARIO COURT OF JUSTICE
Kenora
BETWEEN:
HIS MAJESTY THE KING
— AND —
J.F.
Before Justice Evelyn J. Baxter
Heard on December 16, 2025
Reasons for Judgment released on February 27, 2026
Steffany Beaudoin counsel for the crown
Patrick Gutowski counsel for the accused J.F.
1The trial of this matter was heard December 16, 2025, in Kenora. J.F. is accused of sexually assaulting C.S. contrary to s. 271 of the Criminal Code. The crown proceeded by way of indictment, and J.F. elected to have his trial in the Ontario Court of Justice.
2The crown called three witnesses: a nurse from the hospital who conducted the SAEK examination on C.S., a friend of C.S., and C.S. herself. The defence called no evidence.
3Both parties agreed to tender into evidence video recordings from the hallway of C.S.’s apartment building, 4 reports from the Centre of Forensic Sciences and the report from the Lake of the Woods Hospital SAEK.
Summary of the Facts
4On the night of January 21, 2023, C.S. was at her apartment and was invited to drink alcohol with the accused, J.F., whom she had known since childhood. They are related as cousins. C.S. had not had any alcohol before J.F. arrived at her apartment. J.F. arrived just before 1 am with a 60‑ounce bottle of whisky. The two sat in her living room, talked and watched music videos, and drank directly from the bottle. At some point, C.S. invited her good friend, S.S., to join them because they were not making progress on the bottle. S.S. arrived at about 3:25 am, with a 26‑ounce bottle of liquor. All three continued drinking inside C.S. apartment. The living room contained a large sectional couch, and the bedroom was located off the main living area.
5C.S. said the plan was for J.F. to come over, have some drinks, and then send him home.
6The witnesses describe significant alcohol consumption over several hours. C.S. and J.F. were consuming the whisky, while S.S. drank from his own bottle and some of the other bottle. C.S.’s memory of the night was limited; she recalled drinking, watching videos, and letting S.S. into the apartment around 3:25 a.m. She did not recall what occurred later, nor did she recall leaving the apartment or interacting with J.F. and S.S. in the hallway at different times. The hallway CCTV footage was later shown in court and was somewhat surprising to C.S.
7The video evidence depicts C.S. and the two men entering and exiting her apartment at various points. At 4:44 a.m., C.S. appears intoxicated, unsteady on her feet, and holding onto railings and S.S. She appears to be searching S.S. trying to find his bottle of liquor. The bottle is produced, and she is not able to bring it to her lips smoothly to drink from it. He then returns to the apartment with her.
8At 5:06 a.m., the video shows C.S. wearing only a bra and shorts. J.F. is observed reaching toward her breasts and putting his hands into her bra; she crosses her arms in response, and they return inside the apartment. Neither C.S. nor S.S. had memory of these events.
9According to S.S., at some point C.S. went to her bedroom and appears to have fallen asleep. A short time later, she came out partially clothed, yelled at the men believing they had consumed her alcohol, then lay on the floor and fell asleep in the living room. S.S. covered her with a blanket and put out a pillow for her that he got from the bedroom.
10He and J.F. continued to drink before he himself “passed out” on the couch. He had no recollection of leaving the apartment or entering the hallway, but accepted it was possible given his level of intoxication. S.S. said he drank the 26 oz bottle and some of the 60 oz bottle. He woke up later to C.S. screaming, crying, and accusing the men of “raping” her. He said C.S. was on the floor only about a foot away from where he remembered her falling asleep earlier.
11C.S. testified she awoke on the couch with no clothing on and only a towel covering her. Her shorts and underwear were on the floor. She felt sore, particularly in her vaginal area, and became frightened and upset. She pushed S.S. away when he approached her, causing him to hit his head on a table. She questioned J.F. about what had happened; he denied any sexual activity. Staff from the building were asked by C.S. to call police because C.S. could not locate her phone. CCTV shows C.S. and J.F. in the hallway shortly before police and paramedics arrived.
12Police arrive at about 10:20 am. There is a video at about 10:06 am showing C.S. in the hallway, which is about 5 hours after the last video at 5:09 am of C.S. intoxicated with J.F. No one was able to say when C.S. or the others fell asleep, but it appears to be sometime between 5 and 10 am. C.S. said she felt hungover and nauseated when she woke. She also said she had “dry heaves”.
13C.S. was transported to hospital, where a sexual assault examination kit was completed. Swabs were taken from various areas, including the breasts, external genitalia, vaginal and anal regions. Forensic analysis detected semen on the complainant’s underwear and anal area, with J.F. identified as the donor. There was an external genital abrasion measuring approximately 1 mm by 1 mm.
14The SAEK report shows C.S. was registered at the hospital at 11:15 am on January 21, 2023. The nurse made note of bruises on C.S. body – on her arms, knees, calf, and her right lateral neck area and an abrasion on her right lateral thigh. The court heard no evidence as to the cause or timing of the bruises. A blood sample was taken at 13:07, (approximately 7 hours after it was estimated the consumption of alcohol ended) and a note in the report indicates C.S. estimated she consumed 30 oz of alcohol.
15The nurse testified C.S. presented as upset by what happened, and that she was not intoxicated, as the SAEK cannot be performed on an intoxicated person given the obvious consent issues that could present. She also noted C.S. expressed concern about sexually transmitted infections in the circumstances.
16C.S. recalled no sexual activity and stated she would not have consented. S.S. testified he did not witness any sexual contact between C.S. and J.F. and had no memory of events after he fell asleep. C.S. said she was angry, confused and scared when she woke up.
Crown Submissions
17The crown argued that the evidence established both the actus reus and mens rea of sexual assault. It submitted that sexual activity occurred, relying on the forensic findings of semen on the complainant’s underwear and anal area, with the accused identified as the only possible donor. S.S., the only other male present, was excluded by the forensic results. The crown further noted the complainant’s blood‑alcohol level at 13:07 hours (179 mg/100 mL) and advanced an extrapolation—using the statutory formula in s. 320.31(4) of the Criminal Code - to assert that her blood‑alcohol level around 5:00 a.m. would have been approximately 240 mg/100 mL. Although acknowledging the lack of an expert witness, the crown submitted this calculation helps illustrate C.S. level of intoxication.
18The crown maintained that C.S. was severely intoxicated and lacked the capacity to consent. She emphasized video evidence showing C.S. swaying, unable to bring a bottle to her mouth, and visibly unsteady on her feet. The 5:06 a.m. hallway video, showing J.F. reaching for C.S. breasts while she wore only a bra, was characterized as direct evidence of sexual touching without consent. The crown submitted that the complainant’s minimal reaction was consistent with her being highly inebriated and an inability to resist.
19C.S.’s evidence was said to be credible and honest, particularly regarding what she remembered and what she did not. Her lack of memory, combined with waking up naked, sore, and confused, and immediately accusing the men, was advanced as circumstantial evidence supporting the absence of consent. The crown also relied on the accused’s post‑incident conduct—his denial when confronted by the complainant, his attempt to leave before police arrived, and his unwillingness to remain when asked—as inconsistent with consensual sexual activity. The crown submitted that J.F. either knew there was no consent or was wilfully blind to its absence.
Summary of Defence Submissions
20The Defence stressed the crown’s case was entirely circumstantial and argued it failed to establish guilt beyond a reasonable doubt. He challenged the reliability of using blood‑alcohol extrapolation, noting that s. 320.31(4) pertains to impaired driving prosecutions, not sexual assault trials, and emphasized that no expert evidence was called. The Defence urged caution in finding the complainant lacked capacity simply because she consumed significant alcohol or later had memory loss.
21The Defence submitted C.S. had a high alcohol tolerance, regularly consumed large quantities, and was able to understand and communicate effectively with the sexual assault nurse despite a high BAC hours later. He argued that memory loss is not the same as incapacity and that an inability to recall events does not prove an inability to understand them at the time. The Defence further contended that C.S. was shown in the hallway videos interacting, leading J.F. back inside, and participating in back‑and‑forth contact, suggesting possible awareness and engagement rather than incapacitation.
22The Defence emphasized gaps and inconsistencies in the evidence, particularly the unclear timeline and the possibility that all parties were in blackout states. S.S. could not account for his own movements, and neither he nor C.S. remembered key periods. The Defence argued that multiple reasonable inferences were available, including that the complainant may have had capacity and may have engaged in consensual activity that she later could not remember.
23The Defence also submitted the minor external abrasion noted in the SAEK report was a neutral fact, as there was no medical evidence pinpointing its cause or timing, and such an injury could occur in consensual or non‑consensual circumstances, particularly with intoxicated individuals. In his view, the crown’s case required speculation about what occurred during the periods when everyone’s memory was absent. The Defence maintained that convicting on such uncertain evidence would be dangerous and contrary to the requirement of proof beyond a reasonable doubt.
24Counsel referred me to the Supreme Court of Canada decision in R. v. Rioux, 2025 SCC 34 and the cases cited therein. I relied on this decision as it was instructive and provided a clear outline of the required analysis in cases such as this. However, I note the facts in Rioux are quite different from the facts in the present case, and the accused in Rioux testified.
Analysis
25At issue in this case is whether the complainant, C.S., was incapacitated by alcohol intoxication such that she was unable to consent to sexual activity with the accused, J.F.
26Sexual assault is defined in s. 265 of the Criminal Code. Further, consent is defined at s. 273.1 of the Criminal Code. To convict an accused of sexual assault, the crown must prove beyond a reasonable doubt the actus reus and the mens rea elements of the offence. Both direct and circumstantial evidence may be relied upon by the crown to discharge its onus.
27The actus reus elements of sexual assault are touching, the sexual nature of the touching, and the absence of consent. In this case the parties agree there was contact, and it was of a sexual nature between C.S. and J.F. The first two components of the actus reus are made out given the content of the SAEK and DNA results that confirm J.F. was the sole donor of the male DNA found in C.S.’s underwear and on her left breast and anal areas (Exhibits 3 and 4 Biology Reports).
28The issue in this case is whether there was consent or the absence thereof. The absence of consent can be shown if the complainant is unconscious or otherwise incapacitated for any other reason. For a person to consent to sexual activity he or she must be able to agree to the activity. The ability to consent or agree to sexual activity is closely tied to capacity, which is to have an operating mind capable of understanding each element of the sexual activity in question at the time of the touching (Rioux at para. 67) and that he or she understands the right to refuse to take part or to choose to participate in the sexual activity.
29Consent is subjective. In other words, the direct evidence of a complainant about whether there was consent or agreement to take part in sexual activity can only come from the complainant. Subjective consent has two components: consent in fact and capacity to consent. If the crown proves beyond a reasonable doubt the capacity to consent was absent, then the third prong of the actus reus of sexual assault is made out. Moreover, consent to sexual activity must be given for each sexual act as it occurs, making consent an ongoing factor, along with ongoing capacity to consent.
30For example, in the cases where a complainant is consuming alcohol during an interaction with an accused, it is reasonable to infer that as time goes on and more alcohol is consumed, the complainant’s capacity to consent to sexual activity may be diminished as the level of intoxication increases.
31When intoxication occurs to the point that capacity to consent is brought into question, it is open to the crown to adduce circumstantial evidence from the complainant and/or other sources if the complainant is unable to recall events because of unconsciousness or black out (amnesia).
32It is a given that a trier of fact must consider all relevant evidence and circumstances in a case to make decisions regarding credibility, reliability and consent in sexual assault cases.
33To prove beyond a reasonable doubt there was no consent to the sexual activity at issue, the crown must prove there was touching, that it was sexual in nature, or the complainant did not consent to the identity of the partner.
34The court must embark on a two-stage analysis of whether the crown has proven a lack of consent. First, a court must determine if the crown has proven beyond a reasonable doubt the complainant did not consent to the sexual activity. If the complainant did not subjectively consent or agree to the contact, the court then must consider whether a factor exists that removes the consent such as incapacity (see s. 265(3) or s. 273.1(2) of the Criminal Code.
35With respect to intoxication, inhibitions can be reduced and can lead to a person making bad choices or decisions, but that is not necessarily incapacitation. Incapacitation requires a person be rendered unable of knowing he or she is engaging in sexual activity or that the activity can be refused. A blackout event alone is not sufficient to prove incapacitation. Expert evidence is not required to prove incapacity. Where circumstantial evidence is the only evidence of incapacitation available, it is open to the court to draw conclusions leading to a reasonable inference of incapacitation.
36In the present case, the complainant could not recall the sexual activity with J.F. The court has no direct subjective evidence from the complainant that she consented or not to the sexual activity with J.F. The court is left with the circumstantial evidence of the complainant, along with the direct and circumstantial evidence of S.S. and the SAEK nurse.
37I will summarize the relevant circumstantial and direct evidence as follows:
The complainant said she would not have had sex with J.F> as she has known him all her life, and he is related to her. She had no intention of doing anything with J.F. apart from drinking with him and sending him home.
When she awoke in the living room, she was naked, covered only with a towel. S.S. was asleep on the couch. I have no evidence of where J.F. was when the complainant woke up other than C.S. saying he was walking around her apartment when she woke up.
C.S. accused both men of sexually assaulting her. She woke up confused and upset.
When S.S. tried to approach C.S. she pushed him away forcefully enough to cause him to fall against a table and cut his head.
C.S. was upset she could not find her cell phone and asked a staff person at the apartments to call police for her.
She tried to force J.F. to wait for police to arrive so he could be questioned.
J.F. denied sexual activity with her and left before police arrived rather than wait for them as he was requested to do.
C.S. went to the hospital and submitted to the SAEK examination.
In the videos of the hallway interactions through the course of the night, it is clear C.S. impaired gross motor skills in the early morning hours of January 21 show she was intoxicated. She is seen swaying on her feet, holding a railing for balance, not being able to smoothly raise a bottle to her mouth, leaning on S.S. and J.F., and staggering.
The videos have no sound. The court has no evidence of what was said by the persons shown in the videos.
The earliest video shows C.S. moving and walking well. A later video shows her in a bra and shorts, which corroborates S.S. saying at one point in the evening C.S. retired to her bedroom only to come out some time later dressed in shorts and bra when she accused the men of drinking her alcohol.
In one video C.S. is seen in the hallway in her bra and shorts with J.F. It is clear from this video J.F. wanted sexual contact with C.S. and went so far as to reach into her bra to make some sexual contact with her. She appears to block the touching by crossing her arms and pushing his hands away to stop the contact before they return to the apartment.
C.S. did not hear or see the sexual activity – possibly meaning the activity was quiet and did not wake him, or that C.S. was unconscious, and J.F. was being quiet so as not to wake anyone as he had sexual contact with C.S.
When S.S. covered up C.S, when she fell asleep on the floor, she was not naked. He did not use a towel to cover her according to his testimony.
The nurse testified C.S. did not display obvious signs of intoxication when she interacted with her later that day, despite her BAC being 179 mg/100 ml (Exhibit 5, Toxicology Report)
C.S. described herself as an “experienced drinker” who often engaged in binge drinking on weekends. She admitted being hungover at the hospital.
38In considering the totality of the evidence here I must also consider the credibility and reliability of the witnesses. I accept the evidence of the nurse as it was not controversial, and the parties agreed the SAEK report could be relied upon.
39S.S. was credible. He was trying his best to recall what occurred that night, but he was also candid he was intoxicated and could not remember everything that happened and did not witness any sexual activity between C.S. and J.F. Further, the videos with S.S. tend to corroborate his testimony about C.S. clothing and behaviour. He noted C.S. was intoxicated and teased her about it when he arrived. He noted she was getting more intoxicated as the night went on, and notes she slurred her words and was unsteady on her feet. His evidence was uncontroverted. I accept his evidence.
40C.S. was a credible witness and was honest about what she could recall and admitted what she could not. She was clearly taken aback when she saw the hallway videos and her interactions with the two men. Her evidence was corroborated by the other witnesses in several respects. I accept her evidence.
41Any inconsistencies between the witnesses’ evidence were minor and did not give me pause given they were related to corollary matters and not material or significant in nature.
42Based on the evidence I accept in the matter, including the circumstantial evidence presented, I find I can reasonably infer C.S. was intoxicated to the level of incapacitation such that she would not have consented to sexual activity with J.F. because:
Her plan that night was to have drinks with him and then send him home.
J.F. instigated the drinking and provided the alcohol.
They have known each other most of their lives and are related.
The video of J.F. reaching into C.S. bra with her pushing his hands away and crossing her arms demonstrate she was not interested in his advances.
The last thing S.S. remembered was C.S. asleep on the floor, and that is where she woke up, according to his evidence.
She awoke naked with no memory of what happened which caused her great distress and upset.
She accused both men of sexually assaulting her.
J.F. denied sexual contact with her and left her apartment before police arrived to question them. The DNA tests prove J.F. had sexual contact with C.S.
When S.S. tried to calm her down, C.S. shoved him away causing him to fall and cut his head, demonstrating how upset and angry she was.
C.S. blood alcohol level on the afternoon of January 21, 2023, was 179 mg/100 ml and her urine level was 307 mg/100ml (Toxicology Report).
She estimated she possibly drank 30 oz of liquor over the course of about 4 hours. (See Exhibit 1 SAEK Report)
She was searching for her cell phone to call police and had to resort to having a staff person at the apartments call police for her.
She submitted to the SAEK and expressed concern over possible STI.
The videos show a marked deterioration in her gross motor skills over the course of the night.
43Therefore, I find J.F. guilty of sexually assaulting C.S. on the night of January 21, 2023. He failed to obtain consent, or he was wilfully blind to C.S. ability to consent. (The mens rea element) To be clear, I find the video at 5:09 am shows a sexual assault, and I find the sexual activity in the living room was not consensual given C.S. was either unconscious and incapable of consenting, or she suffered incapacitation due to intoxication which the crown has proven beyond a reasonable doubt.
44Counsel can canvass dates for setting the sentencing phase of this matter.
Released: February 27, 2026
Signed: Justice E. J. Baxter