R. v. A.F., 2026 ONCJ 252

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

CITATION: R. v. A.F., 2026 ONCJ 252

DATE: 2026 04 21

COURT FILE No.: Toronto 4810 998 24 48117465

BETWEEN:

HIS MAJESTY THE KING

— AND —

A.F.

Before Justice M. Sean Gaudet

Heard on February 10, 11, 12, 13, March 6 2026

Reasons for Judgment released on April 21 2026

C. Stratos.............................................................................................. counsel for the Crown

M. Stellato................................................................................. counsel for the accused A.F.

Gaudet J.:

1The accused, A.F. is charged with one count of sexual assault in relation to an incident that occurred on an unspecified date in 1996.

2The complainant, R.F., and the accused are husband and wife.

3A.F. and R.F. were married in July 1999 and have been separated since March 2024, which is when R.F. notified the police of the alleged incident sexual assault.

4Despite almost 25 years of marriage, the Crown’s theory was that that the first sexual encounter between A.F. and R.F. was a non-consensual act of sexual aggression where A.F. forced the complainant to have sex with him in the basement of the house in Scarborough they were both living in at the time.

5Counsel for the defendant admits that the accused and the complainant had sexual intercourse. His position was that it was consensual.

The Evidence of the Complainant

6R.F. is the spouse of the accused. She and the accused were married in July 1999, after the birth of their first child in April 1997. They have formed what can be reasonably described as a large family, with 15 living children. One child has passed away.

7In early 1996, A.F. moved to a home in Scarborough at the invitation of the mother of the accused, D.W. D.W. was referred to many witnesses in this trial by her first name, or simply as mother. She was well-known in the community as someone who would take in young people in trouble, and in need of support and a place to stay due to their difficult circumstances.

8At the time she moved in with D.W., the complainant was in Grade 10. She recalled moving in around or just after her 17th birthday some time in January 1996. She said was not allowed to go to school at first but began attending high school in September 1996.

9R.F. knew the accused briefly before moving into the home. The accused was 26 years old at the time, which made him 9 years R.F.’s senior.

10R.F. described their initial relationship as antagonistic. They would argue, and she would get in trouble with his mother for it. Other witnesses called by the defence who had lived in the home, including the accused, either disputed or could not corroborate the antagonistic nature of their early relationship; I.J. and T.L. described their relationship as being friendly, and K.C. and J.G. did not observe any apparent issues between them.

The incident giving rise to the charge

11R.F. testified that the incident occurred soon after she moved in to the home. The sleeping arrangements at the house were that she would sleep in a bedroom in the basement that she shared with D.W. There was another bedroom in the basement that was occupied by a woman named L., and her young daughter.

12The incident occurred at night. R.F. went to use the bathroom in the basement. As she left the bathroom, she heard a noise to her right, she paused and turned off the light. She described the area as being lit either by moonlight or streetlight that was coming in through a window in the basement.

13She was then grabbed by A.F. who dragged her to an open area in the basement, put a hand over her mouth, told her to shush, used his foot to bring her down to the floor, pulled up her nightdress, pulled aside her underwear with his right hand and penetrated her vagina with his penis. She asked him “what are you doing?”. He told her that he had checked with God. The sexual activity lasted about a minute or so. A.F. ejaculated inside the complainant.

14Afterwards A.F. got up and left. No words were exchanged. She said nothing to him after the incident. She was in shock over what had happened. She returned to the bedroom she shared with the accused’s mother, and just lay in bed.

15The next day the accused came to her and told her that God had told him she was supposed to be his wife, that God was not pleased with the life she had led before coming to the home, and that he would make her life better. Their relationship improved after this point, and he stopped arguing with her.

16The accused and the complainant continued to have sexual intercourse on other occasions. It was not suggested that any of these occasions involved non-consensual sexual activity.

17Their first child was born in April 1997, and they were married in July 1999. They had 16 children, including one child who passed away. Their last child was born in June 2017.

18R.F. told no one of this incident until she spoke to the police in March 2024, after the Children’s Aid Society became involved and told her to report the incident to police. She testified that the CAS was contacted by an anonymous caller.

19Due to incidents that occurred prior to her moving in to the accused’s home in early 1996, R.F. had been in communication with a police officer described merely as Officer Dan. He visited the home on a number of occasions. She did not tell him about the incident.

20R.F. is now estranged from her children. A.F. has custody of the 4 minor children, and she is seeking joint custody of them through family court proceedings.

The Evidence of the Accused

21A.F. took the stand. He admitted that he and R.F. had sexual intercourse in the basement of the home but says that it was consensual.

22He disagreed that their relationship was initially antagonistic. He simply fell in love with her.

23He described the first time they had sex, which was 5-6 months after R.F. arrived. They had planned it in advance. She would signal him when it was safe to come downstairs by turning on the light and fan to the basement bathroom, which made a loud noise he would hear from upstairs. He would then go downstairs, she would unlock the door, and they would have sex in the open area in the basement. This was the plan and is what happened.

24He was able to describe the nightdress that R.F. was wearing that night.

25He testified that the strain in the marriage began over financial problems. She was responsible for the finances. He discovered that she had a significant amount of credit card debt - $60,000 to $70,000. The children were telling him that there was no money to provide them things they needed. The kids told him that their mother was planning something.

The evidence of J.F.

26J.F. is their second child. His testimony focussed on a conversation he had with his mother over the phone some time in 2024, although he could not remember the exact year or date, where she told him that she had called the CAS, and she asked him to tell the CAS that A.F. was abusing the family. J.F. refused to do this and has had no communication with his mother since.

The evidence of H.D.

27H.D. testified to a discussion she had with R.F. in 2021 or thereabouts. R.F. wanted to know how to sell her mugs because she had a lot of credit card debt, and she was aware that H.D. had had some success selling items on Etsy, Instagram and Facebook. She also asked how she would be able to get Government financial assistance if she decided to leave the accused with the 4 youngest children to help her find a place to live. H.D. told her about a friend who had managed to get moved up the waiting list by claiming that she had been abused by the father of the children. R.F. replied she could not do this because the accused was not abusing her at the time.

Evidence and findings regarding the layout of the house

28The witnesses who were called by the Crown and the defence were in general agreement with respect to the layout of the house. It was a bungalow with 2 floors. There were bedrooms on the main floor and the basement. The men slept upstairs and women downstairs.

29There were doors at the top and bottom of the stairs that had locks, and which were locked from the inside. The reason for this was attributed to the inherent dangerousness of living in Scarborough, although one witness, I.J. explained that locking the inner doors of the house may have also been due to “young people having hormones”.

30There was a side-door entrance to the house that opened on to a landing, and that accessed the stairs leading up and down to the basement. Witnesses testified that the door could be opened from the hallway with a key.

31Multiple witnesses testified that the interior doors could be opened with a key, and that the only person with the key was D.W. The Crown suggested that as one of D.W.’s sons, he would have had access to her set of keys, and pointed to the fact that he had access to the keys to her car, that he would use to drive the complainant and the other girls to school. However, there was no evidence that the key to the interior doors was kept with the car keys.

32The only witness who could not recall the doors to the basement and to the upstairs being locked was the complainant.

33There was no set time when the doors to the upstairs and downstairs areas of the house were locked, no regimented bedtime, nor was one person designated to lock the doors, but I find that this was the general practice.

34I accept the evidence of these witnesses with respect to the doors being locked at night. This was the general instruction, or household rule, and people in the house knew that the men were not to go downstairs and the women were not to go upstairs at night.

Analysis

35The standard is proof beyond a reasonable doubt.

36This case turns on the credibility of witnesses – the complainant and the accused. In cases such as this I must apply the well-known test set out by the Supreme Court of Canada in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742:

a) If I believe the evidence of the accused, I must acquit.

b) If I do not believe the testimony of the accused but you am left in reasonable doubt by it, I must acquit.

c) Even if I am not left in reasonable doubt by the evidence of the accused, I must acquit if I have reasonable doubt based on all of the other evidence I have heard and that I do accept.

37A trial is not a credibility contest between the complainant and the accused. My task is not to choose between the evidence of the Crown or of the defence. I can accept all, some, or none of the complainant’s and accused’s evidence, but ultimately if I am left with reasonable doubt based on the whole of the evidence I must acquit.

The Law regarding sexual assault

38The actus reus of sexual assault comprises three elements: (1) touching; (2) the sexual nature of the contact; and (3) the absence of consent (R. v Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330 at para 25; R. v G.F., 2021 SCC 20, [2021] 1 S.C.R. 801 at para 25).

39As in many cases of sexual assault, the issue in this case is whether the Crown has proven lack of subjective consent on the part of the complainant. The absence of consent is determined subjectively, by reference to the complainant’s internal state of mind toward the sexual activity at the time it occurred.

40Subjective consent is defined in s. 273.1(1) of the Criminal Code as “the voluntary agreement of the complainant to engage in the sexual activity in question”.

41Whether the complainant subjectively consented in her mind at the relevant time is a question of fact, to be determined based on the evidence, which in this case included the complainant’s state of mind at the time, and evidence of the her conduct after the incident.

42The mens rea of sexual assault comprises two elements: (1) intention to touch; and (2) knowledge of, or wilful blindness or recklessness as to, a lack of consent on the part of the person touched.

43The Crown must prove beyond a reasonable doubt that the accused either knew the complainant was not consenting or was wilfully blind or reckless as to her lack of consent.

44The relevant question for purposes of this defence is this: Did the accused honestly believe that the complainant effectively said ‘yes’ through her words and/or actions?

45The fact that the accused and the complainant began a romantic relationship after this incident that led to their becoming married and raising a large family together is not probative on the question whether the complainant consented to the sexual activity that occurred in 1996. The fact that she did not yell out, or did not tell anyone at the time about the sexual assault is equally non-probative. There is no requirement that a victim offer “some minimal word or gesture of objection” in order to be found not to have consented: see R. v M.L.M, 1994 CanLII 77 (SCC), [1994] 2 SCR 3.

Credibility findings

46In assessing the credibility and reliability of the witnesses, I do not simply choose one conflicting version of events over another. I must apply the W.D. framework, which provides first that if I believe the evidence that is inconsistent with the accused’s guilt, I must acquit him. This is the central question in this case.

47Based upon my evaluation of A.F.’s testimony, I have accepted his evidence over that of R.F. about the events that occurred that night.

48I believe the evidence of A.F. that he and R.F. made a plan, which was for him to come down to the basement for them to have sex together. A.F.’s version of what transpired that night had the greater ring of truth to it. Quite frankly, his evidence makes more sense. It is the most plausible explanation for what happened. His version of events is more plausible than the version by R.F.

49R.F.’s testimony was that she had not planned this encounter with him, that she went to the bathroom and he was laying in wait for her, that he surprised her outside of the bathroom and took her to the open area where he proceeded to sexually assault her.

50Assuming that A.F. had access to the key to the basement door, he would have been taking a significant gamble that he would not be seen in the basement by any of the occupants. He would have to lie in wait for an unknown length of time throughout the night, hoping that R.F. would eventually get up to use the bathroom. He would have no way of knowing that she would do this.

51Given that the interior door leading to the basement was locked from the inside, for R.F.’s version to be true, A.F. would have to have secured the keys (or else hoped that someone had forgotten to lock the door to the basement and that it happened to be open), hidden himself somehow in the basement (when the basement was lit from either the moon or streetlights that night), waited for the moment when R.F. went to use the washroom, been able to observe that it was in fact she, and not his mother, or L., without being seen.

52A.F.’s version of events, where they planned for him to go downstairs, to break the rules that prohibited them from fraternizing at nighttime, with her signalling him using the noise from the fan, and leaving the door unlocked is a much more plausible scenario for what transpired.

53The accused was not a perfect witness. There were occasions in his evidence where he became agitated, argumentative with the Crown during cross-examination. For example, he refused to concede that it was possible that he could have gone down to the basement to wait for the complainant to go to the bathroom, when this was clearly a possibility. However, this did not detract from his evidence on the key aspects of this testimony, and given the emotionally charged circumstances of this case I do not make adverse credibility findings based on his demeanour on the stand.

54I have explained why I find the complainant’s version of events implausible and the accused’s version to be the plausible version of what happened. The Defence presented evidence about the complainant having a motive to lie, that being a financial motive based on her heavy debt load, and her knowledge that she could be given priority for Government assistance if she were the victim of abuse at the hands of her spouse.

55I accept that the defence has established a motive for the complainant to have fabricated allegations of abuse. The existence of this motive is a relevant factor in evaluating the complainant’s credibility. It also explains to some extent why this allegation was made some 28 years after the incident occurred.

56Quite simply I do not believe the complainant’s evidence that she did not consent to the sexual activity that is the subject of the charge.

57Given that I believe the accused, applying the W.D. formula I find him not guilty of the charge.